Grain Handling Facilities

SUMMARY: OSHA is amending its grain handling standard to clarify

requirements intended to provide protection for employees who enter

flat storage structures. This technical amendment assures that

protection against engulfment, mechanical, and other hazards is

provided without regard to the point at which the employee enters the

storage structure. It also adds a definition of ``flat storage

structure'' to clarify OSHA's original intent as to the scope of the

entry provisions of the standard.

DATES: This final rule will become effective April 8, 1996.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), for receipt of

petitions for review of the standard, the Agency designates the

Associate Solicitor for Occupational Safety and Health, Office of the

Solicitor, U.S. Department of Labor, Room S-4004, 200 Constitution

Avenue NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: Anne C. Cyr, Office of Information and

Consumer Affairs, Occupational Safety and Health Administration, U.S.

Department of Labor, Room N-3647, 200 Constitution Avenue NW.,

Washington, DC 20210. Telephone (202)-219-8148. For electronic copies

of documents, contact the Labor News Bulletin Board ((202)-219-4784),

or OSHA's WebPage on the Internet at http://www.osha.gov/ . For news

releases, fact sheets, and other short documents, contact OSHA FAX at

(900)-555-3400 at $1.50 per minute.

SUPPLEMENTARY INFORMATION: On October 19, 1995 (60 FR 54047), OSHA

published a proposed technical amendment to its standard for grain

handling facilities. This proposed amendment was designed to clarify

the Agency's original intention with regard to protecting employees who

enter grain storage structures from engulfment and other hazards within

those structures. In particular, the proposal focused on entries into

``flat storage'' structures. The proposed amendment added a definition

of ``flat storage facility'' and set forth requirements to be followed

to protect an employee who enters such a facility.

The proposal provided for a 30-day comment period, extending

through November 20, 1995. Sixteen written comments were submitted by

interested parties, and no hearing requests were received by OSHA. The

Agency has reviewed all materials in the docket in developing this

final rule.

The preamble to the proposed amendment discussed at length the

hazards being addressed by, and the rationale for, the proposal. The

comments generally supported the need to provide protection for

employees exposed to engulfment, mechanical, and other hazards in grain

storage structures, as expressed in the preamble. Most of the comments

also supported the need to clarify the existing rule with regard to its

coverage of entries into flat storage structures. Commenters taking

issue with specific aspects of the proposal focused primarily on five

areas: (1) the proposed definition of ``flat storage facility''; (2)

the proposed requirement to deenergize equipment located within the

storage structure; (3) the proposed lifeline requirements for employees

exposed to engulfment hazards; (4) the proposed coverage of entries

into areas of flat storage structures that do not pose engulfment or

other hazards; and (5) the technical feasibility and economic impact of

the proposal. The following discussion addresses these and other

issues.

``Flat storage facility.'' The proposed rule attempted to define

``flat storage facility'' in a way that would describe what is unique

about this type of grain storage and what differentiates it from other

structures such as bins and silos. By contrast, the existing rule

considered only the height-to-width ratio of a structure when

determining whether to classify it as flat storage. The proposed

definition read as follows: `` `Flat storage facility' means a building

or structure that is used to store grain and that has large doorways at

ground level through which motorized vehicles are driven in order to

move grain.'' In discussing the proposed definition, OSHA emphasized

that the factors determining whether the flat storage provisions of the

rule should apply to a structure are the nature of the structure and

the kinds of hazards potentially encountered by the entering employee,

and not just the mathematical relationship of the structure's

dimensions.

The commenters strongly supported OSHA's decision to define the

term ``flat storage facility'' in the final rule. However, the comments

also suggested a variety of changes in the proposed definition. For

example, the National Grain and Feed Association (NGFA) and the Grain

Elevator and Processing Society (GEAPS) [Exs. 4-2, 4-12] contended that

the proposed definition was not flexible enough to encompass many of

the configurations that are considered by the industry to be ``flat

storage.'' They were particularly concerned that OSHA's classification

of flat storage structures as ``warehouse-type storage structures''

would not encompass many types of structures used for flat storage. In

addition, commenters [Ex. 4-2, 4-9] noted that the use of the term

``flat storage facility'' could be misinterpreted to apply to an entire

plant rather than to the storage space, and they recommended that the

defined term be revised to ``flat storage.''

The National Oilseed Processors Association (NOPA) [Ex. 4-10] noted

that some grain-moving machines, such as power scoops, are not

``motorized vehicles'' that are ``driven'' through the ground level

doors, and that the definition of flat storage structure needs to be

revised to recognize the use of this equipment.

OSHA has determined that several of the changes recommended by

commenters will make the definition clearer and more precise, and has

incorporated these changes into the final rule. First, the term ``flat

storage facility'' is being changed to ``flat storage structure,'' to

emphasize that the flat storage exception applies to the storage

structure and not to the entire facility. Second, the definition notes

that flat storage structures must have an unrestricted ground level

opening for entry, and not just ``large doorways,'' and that the

structure must be of a type that will not empty completely by gravity.

The latter element clearly distinguishes flat storage from silos, bins,

and tanks, which do rely on gravity for emptying. Finally, the

definition recognizes that grain is often reclaimed through the ground

level openings using means other than motorized vehicles.

``Unrestricted'' in the context of ground level entry means that

employees can enter by stepping, walking, or driving through these

openings. This clarification was suggested by NGFA [Ex. 4-12].

As discussed below, entries into flat storage structures will be

covered by paragraph (h) only if there are no toxicity, flammability,

oxygen-deficiency, or other atmospheric hazards in those structures. In

addition, the final rule makes clear that paragraph (h) will only cover

entries that are made through unrestricted ground level openings.

Entries made at or above the level of the grain and above ground

[[Page 9579]]

level will be covered by the general provisions for entry into grain

storage structures found in paragraph (g).

Entry into grain storage structures (paragraph (g)). Paragraph (g)

of the grain handling standard covers entries into grain storage

structures. OSHA proposed to add a new paragraph (h) to the rule to

cover entries into flat storage facilities which contained no

atmospheric hazards, and to except such entries from the general

provisions of paragraph (g). This approach received widespread support

among the commenters, who agreed with OSHA's intention to clarify the

exception and limit its scope.

OSHA is promulgating the exception to paragraph (g) as proposed,

with one significant addition. The proposed exception did not

explicitly indicate that it would apply only to flat storage entries

made at ground level. This was OSHA's original intent: the proposed

definition of flat storage facility clearly stated that large, ground

level doorways were an essential element of such a facility. Several

commenters [Exs. 4-2, 4-9, 4-12, 4-13, 4-14] recommended that the

exception be clarified to specify that it applies only to entries made

through unrestricted ground level openings. OSHA agrees that this is a

necessary precondition for an entry to be covered by paragraph (h) and

to be excepted from coverage by paragraph (g), and has amended the

exception accordingly. It is clear that an unrestricted ground level

opening can protect an entrant under paragraph (h) only if the entry is

made through that opening.

Deenergization of equipment (paragraphs (g)(1)(ii) and (h)(2)).

Proposed paragraphs (g)(1)(ii) and (h)(2) would have required

deenergization of energized equipment in a grain storage facility if it

``could'' present a danger to employees. There was widespread agreement

in the record as to the need to deenergize equipment which endangers

employees. However, the use of the phrase ``which could endanger'' was

strongly opposed by most commenters, who felt that it would require

deenergization in situations where other protective measures, such as

machine guarding, would be effective in protecting employees. [cf. Exs.

4-2, 4-5, 4-10, 4-13, 4-15]. It was noted that this was particularly

likely to occur in large flat storage structures, where motorized

vehicles and other mobile equipment that are moving grain within the

structure are not endangering employees. OSHA agrees that adding the

word ``could'' is not necessary to provide the desired degree of

protection, and has not included it in the final rule.

A new paragraph (g)(1)(iv) is being added to prohibit explicitly

the practice of ``walking down grain.'' This and other similar

practices require an employee to walk on the surface of the stored

grain to get the grain to flow out of the structure. ``Walking down

grain'' is an extremely dangerous practice because the employee is on

the surface of the grain with the specific intention of making the

grain flow away from him or her. This exposes the employee to an ever-

increasing risk of engulfment as the surface layer of grain is eroded

from underneath. It was this practice that led to the death of a 19-

year-old employee in a corn storage structure on October 22, 1993.

(This incident is discussed in detail in the preamble to the proposal,

60 FR at 54058, column 1.)

NGFA [Ex. 4-2] stated: `` `Walking down grain' or similar practices

where employees walk on grain to get grain to flow out of a grain

storage structure or where employees are on moving grain (and thus

exposed to an engulfment or a mechanical hazard) are not permitted.''

OSHA agrees with this comment, and is incorporating it into the text of

new paragraph (g)(1)(iv). (As discussed below, language prohibiting

``walking down grain'' and related practices is also being added to the

flat storage structure provisions, as new paragraph (h)(2)(ii).)

In paragraph (g)(2), OSHA proposed to require that whenever an

employee enters a grain storage structure from a level at or above the

level of the stored grain, or whenever an employee walks or stands on

or in stored grain which could cause engulfment, the employer must

equip the employee with a body harness with lifeline or a boatswain's

chair. The lifeline, in turn, would have to be capable of preventing

the employee from sinking further than waist-deep in the grain. This

proposed provision (together with a similar provision in proposed

paragraph (h)(1)), received considerable attention from the public

during the comment period.

The public comments strongly favored a requirement to provide

protection to employees exposed to engulfment hazards. However, several

commenters [cf. Ex. 4-2, 4-10, 4-13] raised specific concerns about the

proposed provision, including the following: (1) In some situations,

lifelines could actually expose the employee to a greater hazard, and

lifelines should not therefore be required in those situations; (2)

lifelines are not necessary if the engulfment hazard either does not

exist or can be controlled; (3) entry onto surfaces which are

relatively free of grain, such as floors, platforms or catwalks, can be

performed safely without lifelines; (4) the configuration of many flat

storage structures does not allow tying off and rigging of lifelines to

assure that the employee does not sink more than waist-deep in grain;

(5) the proposed lifeline provisions were more extensive than those in

the original standard, and their cost impact and feasibility had not

been fully evaluated by OSHA.

The issues relating to lifelines or boatswain's chairs need to be

addressed separately for bins, silos and tanks (paragraph (g)(2)) on

the one hand, and for flat storage structures (paragraph (h)) on the

other. In the context of bins, silos, and tanks, the requirement to

provide a harness/lifeline or boatswain's chair for entry is not new to

this proposal. Indeed, paragraph (g)(2) of OSHA's current standard

reads as follows:

When entering bins, silos, or tanks from the top, employees

shall wear a body harness with lifeline, or use a boatswain's chair

that meets the requirements of subpart D of this part.

It must be emphasized that this general entry requirement

encompasses entry hazards that go well beyond those of engulfment in

grain. In other words, employers whose employees enter bins, silos, or

tanks from above the grain must consider many factors, such as whether

there is an asphyxiation hazard, or whether there are hazardous

atmospheric contaminants in the structure. In such cases, whether the

entering employee is lowered directly onto stored grain is only one

element to consider in providing protection for that employee. Further,

in issuing the proposal, OSHA clearly indicated that the rulemaking was

limited to the changes being proposed, which specifically address

engulfment hazards and flat storage structures. Thus this technical

amendment will not affect the extent to which harnesses and lifelines

or boatswain's chairs are already required by the standard.

The only substantive changes proposed to paragraph (g)(2) were as

follows: first, instead of referring to entry ``from the top,'' the

proposal clarified that the provision refers to entry ``from a level at

or above the level of the stored grain;'' second, the proposal made

clear that the lifeline or boatswain's chair requirement was to apply

``whenever an employee walks or stands on or in stored grain of a depth

which poses an engulfment hazard;'' and third, the proposal added the

requirement that the lifeline must prevent the employee from sinking

further than waist-deep in the grain.

[[Page 9580]]

Several comments contended that there were feasibility problems

with the proposed requirement that lifelines must prevent the employee

from sinking more than waist-deep in the grain. For example, NGFA [Ex.

4-2] stated:

To comply with the requirement that the lifeline and harness

prevent the employee from sinking no more than waist deep in grain,

most grain storage structures and flat storage will need significant

alterations, including new equipment and designs, not envisioned in

the original RIA. For example, compliance with the proposed standard

could require the installation of a winch system, costing between

$3,000 to $4,000, in each grain storage structure, where the line

can remain approximately vertical. Additionally, an engineering

study would be needed to determine what alterations are required to

enable the winch system to comply with the proposed standard and

provide sufficient structural support for a winch system . . . To

our knowledge, no viable system currently exists on the market today

that would achieve the requirements in the proposed standard for

flat storage and, frankly, we do not believe such a system could be

installed at a reasonable cost. Lastly, the RIA did not address the

impact of proposed paragraphs (g)(2) and (h)(1) to require lifelines

and harnesses, regardless of risk.

With regard to employees who enter grain storage structures other

than flat storage, and who are on, in, or under accumulations of grain

which could engulf them, it is clear to OSHA that these employees need

to be protected from engulfment. Paragraph (g)(2) of the final

standard, like the proposal, provides for this protection through the

use of a lifeline that will prevent the employee from sinking further

than waist-deep in the grain. However, the final rule also recognizes

that there are some situations in which this sort of restraint system

may either be infeasible or create a greater hazard. For example, if a

bin has many obstructions above the level of the grain, it may not be

possible for the employer to rig a lifeline properly without having it

become caught on the obstructions. Therefore, paragraph (g)(2) of the

final rule also provides an exception for the employer who can

demonstrate infeasibility or greater hazard, by allowing that employer

to employ an alternative means of protection that will prevent the

employee from being engulfed in the grain. This could be done by

clearing a space on the floor of the tank where an employee could stand

and work without being exposed to either an engulfment hazard or a

mechanical hazard. OSHA emphasizes that, even in situations where the

employer can show that lifelines meeting the standard are not feasible

or will create a greater hazard, the employer continues to have the

responsibility to protect the employee from engulfment.

As was noted in the NGFA [Ex. 4-2] and American Feed Industry

Association [Ex. 4-9] comments, an employee who enters a grain storage

structure under paragraph (g) may not be exposed continuously to

engulfment hazards. For example, when the employee is on a flat floor

of a structure, sweeping or otherwise manually moving residual grain

towards an auger, there is no accumulation of grain beneath the

employee that could cause engulfment. Under these circumstances, it is

permissible for the employee to remove the lifeline during this

operation. In situations where the employer can demonstrate that there

is no exposure to engulfment, the standard does not require the use of

a lifeline for protection against that hazard. OSHA is adding a note to

paragraph (g)(2) to clarify the standard in that regard.

The proposed requirement for lifelines also caused concern in the

context of proposed paragraph (h)(2), which addresses entries into flat

storage structures. As discussed above, some commenters contended that,

because of the size and configuration of flat storage structures,

lifelines which would meet the requirements of the proposal (i.e.,

prevent the employee from sinking deeper than waist-deep into the

grain) would pose feasibility problems. In addition, several commenters

noted that an employee entering a flat storage structure at ground

level is exposed to engulfment hazards only if there is operational

drawoff equipment beneath the grain which could cause the grain beneath

the employee to flow. However, in these cases, an alternative to

lifelines is available: if the stored grain is blocked and will not

flow, the employer can simply lock out the equipment in order to

prevent engulfment from occurring.

Several commenters suggested areas and types of work in flat

storage structures that did not present the hazards addressed by

proposed paragraph (h). They contended that lifelines were not needed

in these situations. For example, Layne and Myers Grain Co. [Ex. 4-3]

noted: ``Grain may be piled against the bin wall 15 feet deep or more

and a worker may never walk on anything more than two inches of grain

while sweeping.'' NGFA [Ex. 4-2], Grain and Feed Association of

Illinois [Ex. 4-15], and The Andersons [Ex. 4-13] agreed that the

following three circumstances did not present engulfment hazards:

1. When the employee is on a flat floor area, such that the

employee is not exposed to flowing grain hazards, or when the employee

is operating mechanical equipment in a safe location;

2. When the employee is inside mobile equipment being used to

reclaim grain; and

3. When the employee is on a catwalk or platform above the grain

surface.

NGFA [Ex. 4-2] added a fourth situation:

When entering on top of sound grain surfaces for inventory

purposes or to apply fumigants [(]using appropriate respiratory

protection), or to determine grain conditions or quality provided

all reclaim systems are properly locked out, preventing the grain

from being subject to movement.

AFIA [Ex. 4-9] suggested that when an employee has shoveled and

cleared a place on the concrete floor of a flat storage structure,

there is no longer a danger of the employee being drawn into the

equipment or engulfed by grain. ``When the employee is able to clear an

area and stand on the floor adjacent to the equipment opening, or must

operate power shovels, bin sweeps or front-end loaders, a danger of

being drawn into operating equipment may not exist.''

OSHA agrees that when the employee is not exposed to the hazards

being addressed by this standard, the lifeline and deenergization

requirements of this standard should not apply. To the extent that the

above situations do not present engulfment, mechanical, or other

hazards addressed by the standard, the standard does not require the

employer to provide protection against those hazards. However, OSHA

chooses not to provide a blanket exclusion from coverage for any

specific work operation. Because of the wide range of work operations,

conditions, and locations within a grain storage structure, OSHA

believes it is more appropriate to address the presence of hazards,

rather than to focus on specific jobs or activities. The Agency

anticipates that where operations such as those noted in the comments

do not expose employees to hazards, the employer will be able to

demonstrate that those hazards are not present.

OSHA agrees with NGFA and others that many entries into flat

storage structures do not present engulfment or mechanical hazards. The

technical amendment does not require lifelines for ground level flat

storage entries if employees are not exposed to these hazards.

Similarly, where an employee in a flat storage structure is standing or

walking on the grain under circumstances which cannot cause engulfment,

the standard does not require the employee to wear a lifeline. A note

is being added to paragraph (h) to clarify that where the employer can

[[Page 9581]]

demonstrate that the employee is standing on a surface which does not

present an engulfment hazard, the standard does not require a lifeline

or other protection against such hazard.

The employer can establish that no engulfment hazard exists for a

wide variety of entry conditions. For example, an employee who is

standing on the floor of the structure, or on a platform or catwalk,

will not be exposed to engulfment if that employee is sufficiently far

away from areas where grain is being drawn from storage. In brief, if

the employer can demonstrate that the employee in the flat storage

structure is not exposed to grain which is subject to flow,

avalanching, collapsing, or sliding, and that the employee is also not

exposed to hazards from equipment used to draw off or reclaim grain,

the standard does not require a lifeline, nor does it require the

equipment to be deenergized.

OSHA acknowledges that, in some cases, it may not be technically

feasible to provide lifelines for employees who enter flat storage

structures. The Agency also agrees with commenters that even where

feasible, lifelines may not be necessary to protect entrants from

engulfment hazards. Where engulfment hazards relate to the practice of

``walking down grain'' to make it flow more readily to the drawoff

equipment, the standard is explicit: it prohibits that practice.

However, in other circumstances where employees are on the grain in

flat storage structures, OSHA has determined that paragraph (h)(2) of

the final standard should be more flexible than the corresponding

paragraph of the proposal. This is because entries at ground level of

flat storage structures do not present the same potential for

engulfment hazards as do entries made from at or above the level of the

grain. As noted by several commenters, many activities inside flat

storage structures do not expose employees to engulfment. Clearly, if

an employee is not walking on the grain at all, but is walking on a

floor, catwalk or platform, that employee is not exposed to engulfment.

Similarly, if the grain cannot flow, avalanche, collapse or slide, and

all reclaim and other equipment which could disturb the grain is

properly locked out, an employee standing on the grain is unlikely to

be exposed to an engulfment hazard. For these reasons, the final

standard does not require the general use of lifelines for ground level

entries. Instead, the standard requires only that the employer provide

protection against engulfment hazards where such hazards exist, without

specifying a particular method of providing this protection. OSHA

believes that for ground level entries into flat storage structures,

the most serious engulfment hazards are addressed by two other

provisions of the final rule: the prohibition on ``walking down grain''

and the requirement to deactivate equipment, including grain transport

machinery, which could endanger employees.

As discussed earlier, OSHA has determined that ``walking the

grain'' and similar practices used to move grain to the drawoff point

are inherently unsafe, regardless of the size, configuration, or type

of grain storage structure. Accordingly, new paragraph (h)(2)(ii) is

being added to prohibit these practices in flat storage structures,

just as new paragraph (g)(2)(iv) is being added to prohibit them for

other types of grain storage structures.

Training. OSHA did not propose any changes in the training

requirements of the grain handling standard. Paragraph (e) of

Sec. 1910.272 requires employers to provide training in both general

safety precautions and specific procedures applicable to the employee's

work. Training in bin entry procedures is specifically required under

paragraph (e)(2).

Two commenters suggested that additional training be spelled out in

the standard. NGFA [Ex. 4-2] recommended that employees who enter grain

storage structures and flat storage structures be trained to recognize

and avoid potential engulfment or equipment hazards. This

recommendation was supported by The Andersons [Ex. 4-13].

The training provisions of paragraph (e) of the grain handling

standard currently require employees to be trained in the specific

procedures and safety practices applicable to their job tasks. In

addition, paragraph (e)(2) specifically addresses the hazards of bin

entry. These provisions already require training in the hazards being

addressed in this notice. However, OSHA agrees that, in light of the

attention being given to these hazards of entry into grain storage

structures, it is appropriate to reemphasize that the standard requires

the employer to train employees in ways of protecting themselves

against these entry hazards. The Agency is, therefore, adding a note to

the training provisions to provide additional emphasis in this area.

Other Issues

Paragraph (h) provides separate coverage for entries into flat

storage structures only if there are no atmospheric hazards. AFIA [Ex.

4-9] recommended that the scope of paragraph (h) be revised to apply to

flat storage facilities ``in which there is no reason to believe that

atmospheric hazards exist, such as toxicity, flammability, or oxygen-

deficiency.'' The intent of this suggested change was to enable the

employer to determine the absence of atmospheric hazards in flat

storage structures based on knowledge and experience, without the need

to perform monitoring in all cases. OSHA recognizes that monitoring may

not be necessary to determine that atmospheric hazards are not present

in flat storage structures. However, the Agency believes that the

provision as proposed provides employers with the flexibility needed.

Unlike the requirements of paragraph (g), which address atmospheric

monitoring directly, the criteria for coverage under paragraph (h) are

silent on the subject of atmospheric monitoring. The employer may use

knowledge and experience to make a determination that no atmospheric

hazards are present if reaching such a conclusion is reasonable under

the circumstances.

Some comments contended that OSHA's use of the word ``grain''

throughout the proposed technical amendment was too narrow, because the

standard covers a wide range of grain and grain products. NOPA [Ex. 4-

10] noted that flat storage structures can contain soybean meal and

hulls, for example, in addition to grain. Ensign Safety and Health

Advisory [Ex. 4-11] requested that the scope of the standard be

clarified as to its coverage of raw and processed agricultural

products.

In response, OSHA notes that Sec. 1910.272 covers a wide range of

grain handling and processing facilities, as noted in paragraph (b) of

the standard. These facilities include those that handle and store both

raw and processed grain and grain products, such as feed, flour, and

soycake. The addition of paragraph (h) to cover flat storage structures

is intended to cover the same range of products as are already covered

by paragraph (b) of the existing rule. OSHA is clarifying this

coverage, in paragraphs (g) and (h) to indicate that the word ``grain''

in these paragraphs refers to both raw and processed grain and grain

products that fall within the scope of paragraph (b).

In proposing to add a new paragraph (h) to Sec. 1910.272, OSHA also

proposed to redesignate paragraphs (h) through (p) as paragraphs (i)

through (q), respectively. In doing so, however, OSHA did not make a

corresponding change in paragraph (b), which indicates which paragraphs

of Sec. 1910.272 cover what types of grain handling facilities. The

final rule makes the necessary change, indicating that paragraphs (a)

through (n) (formerly (a)

[[Page 9582]]

through (m)) cover all grain facilities, while paragraphs (o) through

(q) (formerly paragraphs (n) through (p)) apply only to grain

elevators. In addition, conforming changes are being made throughout

Sec. 1910.272 to assure that internal references within the standard

are consistent with the new paragraph letters.

The American Society of Safety Engineers (ASSE) [Ex. 4-8] suggested

that OSHA use the ANSI national consensus standard for confined spaces,

ANSI Z-117.1-1995, as a resource in completing the grain handling

standard. OSHA agrees with ASSE that the ANSI Z-117.1 standard is a

valuable source document which is appropriate for the Agency to

consider in developing confined space standards. In the context of this

limited rulemaking, OSHA has reviewed the ANSI standard and has

determined that the Agency's technical amendment is consistent with the

consensus standard's requirements. Whereas the ANSI standard is

directed at confined spaces in general, this notice is not directed

primarily at confined space entries. Rather, the new requirements in

paragraph (h) apply only to ground-level entries into flat storage

structures that present no atmospheric hazards. OSHA believes that the

final rule provides appropriate protection for these entries.

Summary of Economic Analysis and Regulatory Flexibility Analysis

The Economic Analysis OSHA has prepared to accompany the final

technical amendment being issued today to the Agency's Grain Handling

standard (29 CFR 1910.272) presents revised cost estimates for the

regulatory provisions addressed in the amendment. Only the costs

associated specifically with the provisions being clarified by the

amendment are described here; all other costs and analytical results

projected by the Regulatory Impact Analysis (RIA) [Ex. 223] originally

prepared in 1987 to support the final Grain Handling standard remain

unchanged. OSHA has determined that the regulatory actions being taken

in this amendment do not constitute a ``significant regulatory action''

for the purposes of Executive Order (EO) 12866. That is, this technical

amendment does not impose costs on the regulated community that

approach the $100 million threshold specified by the EO, because the

changes made in this amendment merely clarify the Agency's original

intent when issuing the final rule in 1987. At that time, OSHA assumed

that the flat storage exception contained in the final rule was clear

and would not expose employees working in such structures to engulfment

hazards. However, several tragedies involving employees working in

these grain handling structures have shown that the flat storage

exception in the 1987 rule was in need of clarification. The amendment

being published today makes these needed changes.

As described elsewhere, these clarifications include: (1)

clarifying in paragraphs (g) and (h) the employer's obligation to

protect employees against grain engulfment hazards regardless of the

dimensions of the structure or point of entry; (2) stating that means

of protection must prevent the employee from sinking further than waist

deep in grain, as explained in paragraphs (g)(2) and (h)(1); (3) in

paragraph (g)(1)(iv), prohibiting ``walking the grain'' for the purpose

of breaking up bridging conditions; and (4) in paragraph (e)(3),

requiring that training must include a section dealing with engulfment

and mechanical hazards.

These clarifications are expected to have substantial benefits for

employers and employees. For example, the Agency estimated in the 1987

RIA [Ex. 223] that the final standard would prevent 80% of all grain

handling engulfments. Based on more recent Agency data from its

Integrated Management Information System (IMIS) database, however, OSHA

now believes that as many as 2 to 4 engulfment fatalities annually will

be prevented by the clarifications contained in this technical

amendment. Based on the same data, the Agency believes that a similar

number of equipment-related accidents (e.g., traumatic injuries caused

by mechanical devices, such as augers) will also be prevented by the

changes being made today.

In the 1987 RIA, the Agency estimated that there were 14,000 grain

elevators with 118,011 full-time and seasonal employees, and 9,922

grain mills with 129,068 full-time and part-time employees [Ex. 223,

Tables II-1, II-3]. OSHA believes that these numbers continue to

represent the industry today. As noted in the 1987 RIA, although all

grain facilities have upright structures, only a portion have flat

storage structures [Exs. 10, 193]. Flat storage structures are

typically add-ons, constructed quickly to handle excess grain.

This final technical amendment incorporates language into paragraph

(g)(2) of the standard that requires employers to ensure that employees

do not sink further than waist deep when walking or standing on or in

grain; employees are required to use a lifeline to provide this

protection when exposed to a grain engulfment hazard. This language,

which has been taken from the Agency's current Grain Handling

Facilities compliance directive, is intended to ensure that employers

have a clear understanding of their obligations to protect employees

from engulfment. The importance of this provision is underscored by

OSHA's review of the Agency's Integrated Management Information System

(IMIS) abstracts on fatal workplace injuries, which identified at least

one fatality that occurred because the employee, although secured by a

lifeline, was engulfed by the grain because the line had too much slack

in it. In this amendment, the Agency is clarifying that merely

requiring an employee to wear a lifeline is not sufficient; in order to

meet the intent of the standard, the lifeline must be used in a way

that prevents the hazard in question.

In comments on the proposed technical amendment, the NFGA [Ex. 4-2]

stated that new paragraph (g)(2) would impose additional costs on the

regulated community. In the view of NGFA, paragraph (g)(2) would

require employers to install a winch system in all grain handling

structures. OSHA believes, however, that many grain handling structures

already have such systems, because winches and lifelines are commonly

used safety devices that have been required by paragraph (g)(4) of the

existing rule since 1988, the year that the Grain Handling Facilities

standard became effective. Paragraph (g)(4) requires that employers

provide rescue equipment that is specifically suited for the structure

being entered. Mechanical assistance, such as that provided by a winch-

and-lifeline system, appears to be the simplest and most common means

of facilitating rescue and maintaining safe entry.

In the earlier rulemaking, industry representatives clearly

recognized that paragraph (g)(4) would require employers to provide

mechanical means to achieve compliance. For example, the American Feed

Manufacturers Association reported at that time that many facilities

already had such systems in place [Ex. 193]. OSHA recognizes that some

grain handling facilities did not have such systems in 1987. However,

OSHA believes that many of these facilities will have installed such

systems in the interval since publication of the standard, although the

Agency does not have a precise count of the number of systems in place

today. Nevertheless, to be conservative, OSHA has evaluated the costs

that some employers might incur to come into compliance with this

technical amendment.

[[Page 9583]]

First, if an establishment believes that the purchase of a winch-

and-lifeline system poses too great an economic burden, the final

technical amendment allows employers to prohibit those work practices

that would allow an employee to sink more than waist deep in grain.

Such prohibitions are common in the industry. For example, the NFGA

[Ex. 4-2] states that its work practice recommendations for this

industry would accomplish this safety goal. For this reason, the Agency

specifically is incorporating NFGA's suggestion [Ex. 4-2, p. 3] to ban

the practice of ``walking the grain'' (i.e., attempting to stamp down a

bridging condition) in the standard (paragraph (g)(1)(iv)). Because

this and other practices prevent engulfment, they accomplish the same

protective purpose as a winch-and-lifeline system (i.e., they keep an

employee's lungs from being compressed by the weight of the grain).

Thus, the provisions of this technical amendment can be complied with

merely by the adoption of work practices that prohibit employees from

walking on grain in situations of potential engulfment.

Alternatively, employers can choose to use a winch-and-lifeline

system to protect their employees from engulfment and mechanical

hazards. To assess the extent of the costs that such systems might

impose on employers in this industry, OSHA turned to an industry study

that was conducted in connection with the 1987 rulemaking. This study,

known as the Stivers study [Ex. 193], assumed that one winch system per

establishment would suffice in most structures, and that this single

system could be moved from bin to bin as needed. In some cases, the

Stivers report assumed that two systems would be required at a given

mill. At the time, the cost of such a system was assumed to be $1400

[Ex. 193, pp. 3-16-17, 6-4]. To evaluate the costs employers might

incur in the worst case as a result of the technical amendment being

published today, OSHA obtained up-to-date cost estimates of

approximately $3000 for these systems [Lab Safety Supply, 1996, pp.

234-236].

Although OSHA does not believe that many employers will in fact be

required by this technical amendment to purchase winch-and-lifeline

systems, the Agency nevertheless performed an economic analysis of

potential worst-case impacts, i.e., analyzed the impacts that would

occur if each facility in this industry was required by the amendment

to purchase such a system. Capital costs, such as those incurred to

purchase a rescue system of this type, are typically annualized over

the life of the equipment. If OSHA conservatively assumes that the life

of such equipment is 10 years, \1\ every affected employer would be

expected to incur an annualized cost of $427 per facility. According to

the economic data reported in the original Regulatory Impact Analysis

[Ex. 223], the annual profits for grain cooperatives in the early 1980s

averaged $223,608 each, on average sales of $12.6 million per

cooperative [Ex. 223, p. VII-5]. Annual costs of $427 amount to less

than 1/100th of a percent of annual per-facility sales, and therefore

would have only a negligible impact on prices. Even if employers were

not able to pass any part of these costs through to their customers, a

highly unlikely scenario, these costs would amount to approximately 2/

10th of one percent of the total profits of a given facility. Grain

mills reported average shipments of more than $36 million per

establishment [Ex. 223, pp. II-4, VII-23], so impacts for these

facilities would be even smaller.

\1\ At a 7 percent discount rate, as indicated in the Office of

Management and Budget's Economic Analysis of Federal Regulations

Under Executive Order 12866.

---------------------------------------------------------------------------

Finally, a recent study that reviewed the methodology and findings

of the original grain handling standard's economic analysis reported

that all of the costs imposed by the standard, taken in their entirety,

had in fact had no discernible economic impact on the grain handling

industry [OTA 1995, p. 60]. For these reasons, the Agency finds that

this amendment does not pose issues of economic feasibility for

employers in the affected industry, and further has determined that

this action will not have a significant impact even on the smallest

grain handling facilities.

At the NFGA's suggestion [Ex. 4-2], the Agency is incorporating

language in the training section of the amendment to ensure that

employers dedicate some of their training to the prevention of

engulfment situations. The Agency does not believe that the addition of

this topic to the training curriculum will require additional training

time or impose additional costs because OSHA believes that the final

standard published in 1987 already requires such training. In this

case, particularly after its review of IMIS fatality abstracts

discussed above, OSHA agrees with the NFGA [Ex. 4-2] that emphasizing

the importance of such training will help to avoid engulfment accidents

in grain handling facilities in the future.

This final rule involves no recordkeeping or reporting requirements

under the Paperwork Reduction Act of 1995. It has no impacts on

Federalism beyond those evaluated at the time of the final rule in

1987.

Lists of Subject in 29 CFR Part 1910

Grain handling, Grain elevators, Occupational safety and health,

Protective equipment, Safety.

State Plan States

The 25 States and Territories with their own OSHA-approved

occupational safety and health plans must revise their existing

standard within six months of the publication date of the final

standard or show OSHA why there is no need for action, e.g. because an

existing State standard covering this area is already ``at least as

effective'' as the revised Federal standard. These States are: Alaska,

Arizona, California, Connecticut (State and local government employees

only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota,

Nevada, New Mexico, New York (State and local government employees

only), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee,

Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming.

Authority

This document was prepared under the direction of Joseph A. Dear,

Assistant Secretary of Labor for Occupational Safety and Health, U.S.

Department of Labor, 200 Constitution Avenue, N.W., Washington, DC

20210.

Accordingly, pursuant to sections 4, 6, and 8 of the Occupational

Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of

Labor's Order No. 1-90 (55 FR 9033), and 29 CFR Part 1911, 29 CFR part

1910 is hereby amended as set forth below.

Signed at Washington, D.C., this 1st day of March, 1996.

Joseph A. Dear,

Assistant Secretary of Labor.

29 CFR part 1910 is amended as follows:

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

1. The Authority Citation for subpart R of 29 CFR part 1910

continues to read as follows:

Authority: Secs. 4, 6, 8, Occupational Safety and Health Act of

1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 12-71

(36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR

9033), as applicable.

Sections 1910.261, 1910.262, 1910.265, 1910.266, 1910.267,

1910.268, 1910.269, 1910.272, 1910.274, and

[[Page 9584]]

1910.275 also issued under 29 CFR part 1911.

2. In paragraph (b)(1) of Sec. 1910.272, ``(m)'' is revised to read

``(n).''

3. In paragraph (b)(2) of Sec. 1910.272, ``(n), (o), and (p)'' is

revised to read ``(o), (p), and (q).''

4. The paragraph numbers of the Definitions in paragraph (c) of

Sec. 1910.272 are removed.

5. A new definition of ``Flat storage structure'' is inserted in

paragraph (c) of Sec. 1910.272, between the definitions of ``Choked

leg'' and ``Fugitive grain dust,'' to read as follows:

Sec. 1910.272 Grain handling facilities.

* * * * *

(c) Definitions.

* * * * *

Flat storage structure means a grain storage building or structure

that will not empty completely by gravity, has an unrestricted ground

level opening for entry, and must be entered to reclaim the residual

grain using powered equipment or manual means.

* * * * *

6. A note is added to paragraph (e)(2) of Sec. 1910.272, to read as

follows:

Sec. 1910.272 Grain handling facilities.

* * * * *

(e) Training.

* * * * *

(2) * * *

Note to paragraph (e)(2): Training for an employee who enters

grain storage structures includes training about engulfment and

mechanical hazards and how to avoid them.

7. Paragraphs (h) through (p) of Sec. 1910.272 are redesignated as

new paragraphs (i) through (q), respectively.

8. In new paragraph (m)(3) of Sec. 1910.272, the phrase ``this

paragraph (l)'' is revised to read ``this paragraph (m),'' and the

phrase ``specified in paragraph (l)(1)(i)'' is revised to read

``specified in paragraph (m)(1)(i).''

9. In new paragraph (q)(7) of Sec. 1910.272, the phrase

``Paragraphs (p)(5) and (p)(6) of this section'' is revised to read

``Paragraphs (q)(5) and (q)(6) of this section.''

10. In new paragraph (q)(8) introductory text of Sec. 1910.272, the

phrase ``Paragraphs (p)(4), (p)(5), and (p)(6) of this section'' is

revised to read ``Paragraphs (q)(4), (q)(5), and (q)(6) of this

section.''

11. In the Information collection requirements parenthetical at the

end of new paragraph (q) of Sec. 1910.272, the phrase ``in paragraphs

(d) and (i)'' is revised to read ``in paragraphs (d) and (j).''

12. In Appendix A to Sec. 1910.272:

a. In the second paragraph of the section entitled ``8. Filter

Collectors,'' the phrase ``paragraph (k)(1) of the standard'' is

revised to read ``paragraph (l)(1) of the standard.''

b. In the last paragraph of the section entitled ``8. Filter

Collectors,'' the phrase ``paragraph (k) of the standard'' is revised

to read ``paragraph (l) of the standard.''

13. The introductory language in paragraph (g), and the text of

paragraphs (g)(1)(ii) and (g)(2) of Sec. 1910.272, are revised, and new

paragraphs (g)(1)(iv) and (h) are added, to read as follows:

Sec. 1910.272 Grain handling facilities.

* * * * *

(g) Entry into grain storage structures. This paragraph applies to

employee entry into bins, silos , tanks, and other grain storage

structures. Exception: Entry through unrestricted ground level openings

into flat storage structures in which there are no toxicity,

flammability, oxygen-deficiency, or other atmospheric hazards is

covered by paragraph (h) of this section. For the purposes of this

paragraph (g), the term ``grain'' includes raw and processed grain and

grain products in facilities within the scope of paragraph (b)(1) of

this section.

(1) * * *

(ii) All mechanical, electrical, hydraulic, and pneumatic equipment

which presents a danger to employees inside grain storage structures

shall be deenergized and shall be disconnected, locked-out and tagged,

blocked-off, or otherwise prevented from operating by other equally

effective means or methods.

(iv) ``Walking down grain'' and similar practices where an employee

walks on grain to make it flow within or out from a grain storage

structure, or where an employee is on moving grain, are prohibited.

* * * * *

(2) Whenever an employee enters a grain storage structure from a

level at or above the level of the stored grain or grain products, or

whenever an employee walks or stands on or in stored grain of a depth

which poses an engulfment hazard, the employer shall equip the employee

with a body harness with lifeline, or a boatswain's chair that meets

the requirements of subpart D of this part. The lifeline shall be so

positioned, and of sufficient length, to prevent the employee from

sinking further than waist-deep in the grain. Exception: Where the

employer can demonstrate that the protection required by this paragraph

is not feasible or creates a greater hazard, the employer shall provide

an alternative means of protection which is demonstrated to prevent the

employee from sinking further than waist-deep in the grain.

Note to paragraph (g)(2): When the employee is standing or

walking on a surface which the employer demonstrates is free from

engulfment hazards, the lifeline or alternative means may be

disconnected or removed.

* * * * *

(h) Entry into flat storage structures. For the purposes of this

paragraph (h), the term ``grain'' means raw and processed grain and

grain products in facilities within the scope of paragraph (b)(1) of

this section.

(1) Each employee who walks or stands on or in stored grain, where

the depth of the grain poses an engulfment hazard, shall be equipped

with a lifeline or alternative means which the employer demonstrates

will prevent the employee from sinking further than waist-deep into the

grain.

Note to paragraph (h)(1): When the employee is standing or

walking on a surface which the employer demonstrates is free from

engulfment hazards, the lifeline or alternative means may be

disconnected or removed.

(2) (i) Whenever an employee walks or stands on or in stored grain

or grain products of a depth which poses an engulfment hazard, all

equipment which presents a danger to that employee (such as an auger or

other grain transport equipment) shall be deenergized, and shall be

disconnected, locked-out and tagged, blocked-off, or otherwise

prevented from operating by other equally effective means or methods.

(ii) ``Walking down grain'' and similar practices where an employee

walks on grain to make it flow within or out from a grain storage

structure, or where an employee is on moving grain, are prohibited.

(3) No employee shall be permitted to be either underneath a

bridging condition, or in any other location where an accumulation of

grain on the sides or elsewhere could fall and engulf that employee.

[FR Doc. 96-5341 Filed 3-7-96; 8:45 am]

BILLING CODE 4510-26-P