[Federal Register Volume 61, Number 47 (Friday, March 8, 1996)]
[Rules and Regulations]
[Pages 9578-9584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5341]




[[Page 9577]]

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Part VI





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Part 1910



Grain Handling Facilities; Final Rule

  Federal Register / Vol. 61, No. 47 / Friday, March 8, 1996 / Rules 
and Regulations   

[[Page 9578]]


DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. H-117-B]


Grain Handling Facilities

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Final rule; technical amendment.

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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