[Federal Register Volume 68, Number 50 (Friday, March 14, 2003)]
[Rules and Regulations]
[Pages 12301-12303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6117]



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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. H-117C]
RIN 1218-AB73


Grain Handling Facilities Standard

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

ACTION: Completion of regulatory review.

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SUMMARY: The Occupational Safety and Health Administration (OSHA), has 
completed a section 610 (``lookback'') review of its Grain Handling 
Facilities Standard, 29 CFR 1910.272, pursuant to section 610 of the 
Regulatory Flexibility Act and section 5 of Executive Order 12866. That 
review, ``Regulatory Review of OSHA's Grain Handling Standard, February 
2003,'' demonstrates that the Standard has reduced injuries 55% and 
deaths 70% from grain explosions and reduced deaths from grain 
suffocations by 44%. On average, the Standard has prevented 9.4 deaths 
per year. The review indicates that the standard does not impose a 
significant economic impact on small businesses and that public 
commenters agree that the standard should remain in effect. Based on 
comments, OSHA will issue several clarifications and will consider 
several possible improvements. Based on this review, OSHA concludes 
that the Grain Handling Facilities Standard should be continued without 
major change.

DATES: Effective March 14, 2003.

FOR FURTHER INFORMATION CONTACT: Joanna Dizikes Friedrich, Directorate 
of Policy Rm. N3641, OSHA, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210, telephone (202) 693-1939. Direct 
technical inquiries about the Grain Handling Standard to: Alcmene 
Haloftis, Directorate of Compliance, Rm. 3603, telephone (202) 693-
1850, or visit the OSHA Homepage at www.OSHA.dol.gov. Direct press 
inquiries to Bonnie Friedman, Director of Information and Consumer 
Affairs, Rm. N-3647, telephone (202) 693-1999.

ADDRESSES: Copies of the entire report may be obtained from the OSHA 
Publication Office, Rm. N-3101, 200 Constitution Avenue, NW., 
Washington, DC 20210, tel., (202) 693-1888, Fax (202) 693-2498. The 
full report, comments, and referenced documents are available for 
review at the OSHA Docket Office, Docket No. H-117C Rm, 2625, 200 
Constitution Avenue, NW., Washington, DC 20210, tel. (202) 693-2119.

SUPPLEMENTARY INFORMATION: The Occupational Safety and Health 
Administration (OSHA) issued its final Grain Handling Facilities 
Standard December 31, 1987, at 52 FR 49592. OSHA published supplemental 
statements of reasons on December 4, 1989, at 54 FR 49971 and on April 
1, 1994, at 54 FR 15339. On March 8, 1996, OSHA amended the Standard to 
clarify requirements for entry into flat storage structures (61 FR 
9577). The standard is codified at 29 CFR 1910.272.
    The Grain Handling Facilities Standard contains requirements for 
the control of grain dust fires and explosions, and certain other 
safety hazards associated with grain handling facilities. It applies in 
addition to all other relevant provisions of part 1910 (or part 1917 at 
marine terminals).
    The Grain Handling Facilities Standard applies to the following 
types of grain handling facilities: grain elevators, feed mills, flour 
mills, rice mills, dust pelletizing plants, dry corn mills, soybean 
flaking operations, and the dry grinding operations of soycake.
    The Grain Handling Facilities Standard contains provisions that 
address several safety hazards. The hazards these provisions address 
include: Fires; explosions; toxic substance and oxygen deficiences from 
entry into bins, silos, or tanks; release of hazardous energy from 
equipment; and engulfment by grain in bins, silos, or tanks.
    This section 610 review for the Grain Handling Facilities Standard 
focused on two endpoints for its risk reduction analyses: (1) Injuries 
and fatalities from grain dust explosions; and (2) suffocations which 
result when a worker is engulfed or crushed by grain. These endpoints 
were selected because accessible data existed for these endpoints. 
Furthermore, a reduction in fatalities from suffocations and reductions 
in both injuries and fatalities from explosions are primary and 
substantial benefits anticipated from the promulgation of the Standard.
    In 1998, the Occupational Safety and Health Administration (OSHA) 
began a review of its Grain Handling Facility Standard, under section 
610 of the Regulatory Flexibility Act (5 U.S.C. 601, 610) and section 5 
of Executive Order (EO) 12866 on Regulatory Planning and Review. OSHA 
has completed this review of the Grain Handling Facilities Standard, 
and it is presented in the document titled ``Regulatory Review of 
OSHA's Grain Handling Facilities Standard, February 2003.'' This 
Federal Register document announces the availability of that review 
document and briefly summarizes it.
    The purpose of a review under section 610 of the Regulatory 
Flexibility Act (RFA);
    (S)hall be to determine whether such rule should be continued 
without change, or should be rescinded, or amended consistent with the 
stated objectives of applicable statutes to minimize any significant 
impact of the rules on a substantial number of small entities.
    The Agency shall consider the following factors:
    (1) The continued need for the rule;
    (2) The nature of complaints or comments received concerning the 
rule from the public;
    (3) The complexity of the rule;
    (4) The extent to which the rule overlaps, duplicates or conflicts 
with other Federal rules, and to the extent feasible, with State and 
local governmental rules; and
    (5) The length of time since the rule has been evaluated or the 
degree to which technology, economic conditions, or other factors have 
changed in the area affected by the rule.
    The review requirements of section 5 of EO 12866 require agencies:
    To reduce the regulatory burden on the American people, their 
families, their communities, their State, local, and tribal governments 
and their industries; to determine whether regulations promulgated by 
the [agency] have become unjustified or unnecessary as a result of 
changed circumstances; to confirm that regulations are both compatible 
with each other and not duplicative or inappropriately burdensome in 
the aggregate; to ensure that all regulations are consistent with the 
President's priorities and the principles set forth in this Executive 
Order, within applicable law; and to otherwise improve the 
effectiveness of existing regulations.
    To carry out these reviews, on June 23, 1998, OSHA asked the public 
for comments on all issued raised by these provisions (63 FR 34139). 
Among other things, OSHA requested comments on: The benefits and 
utility of the rule in its current form; the continued need for the 
rule; the complexity of the rule; and whether, and to what extent, the 
rule overlaps, duplicates, or conflicts with other Federal, State, and 
local government rules. OSHA asked for comments on new developments in 
technology, economic conditions, or other factors affecting the ability 
of covered firms to comply with the Grain Handling Facilities Standard. 
OSHA also requested information on the

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impacts of the Standard on small businesses and on alternatives to the 
rules that would minimize significant impacts on small businesses while 
achieving the objectives of the Occupational Safety and Health Act.
    OSHA accepted written comments from June 23, 1998, through August 
31, 1998. OSHA also conducted two public meetings, on July 28, 1998, in 
Chicago, Illinois and on July 31, 1998, in Washington, DC. Comments 
were received from employers, trade associations, unions, and grain 
workers. OSHA also considered studies and reports on relevant issues. 
All documents, studies, and comments received relevant to the review, 
transcripts of the oral hearings and documents discussed in this report 
are available at the OSHA Docket Office, Docket No. H-117C, Room N-
3625, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210, telephone: (202) 693-2350.
    Conclusions: Based on the comments and testimony of participants in 
this lookback review process and the studies and other evidence 
submitted to the public docket, OSHA concludes, as discussed in depth 
in ``Regulatory Review of OSHA's Grain Handing Facilities Standard, 
February 2003'' that the Agency's Standard should be continued without 
major change. The evidence also demonstrates that the Standard does not 
need to be rescinded or substantially amended to minimize significant 
impacts on a substantial number of small entities.
    OSHA also finds that the Grain Handling Facilities Standard is 
necessary to protect employee health, is compatible with other OSHA 
standards, is not duplicative or in conflict with other Federal, State, 
or local government rules, is not inappropriately burdensome, and is 
consistent with the President's priorities and the principles of EO 
12866. Further, no changes have occurred in technological, economic, or 
other factors that would warrant revision of the Standard at this time. 
The major industry and union groups recommend that the Standard remain 
in effect.
    The major sectors affected by the Grain Handling Facilities 
Standard are grain elevators and grain mills. The Department of 
Agriculture estimated that in 1999 there were approximately 10,000 off-
farm grain elevators with a storage capacity of 8 billion bushels. The 
SBA provided Bureau of Census data which estimated that, in 1996, there 
were approximately 92,000 grain elevator and 68,000 grain mill 
employees in the sectors principally impacted by the Standard. They 
worked in approximately 5200 grain elevator firms and 1500 grain mill 
firms.
    Prior to the issuance at the final Grain Handling Facilities 
Standard, from 1958 to 1987, there were an average of 7.3 deaths and 
29.1 injuries per year related to grain explosions. After the Standard, 
from 1988-1998 there were an average of 2.3 deaths and 13.2 injuries 
per year. This is approximately a 70% reduction in deaths or, on 
average, 5 fatalities per year have been prevented, and there has been 
a 55% reduction in injuries. Deaths from grain explosions began to 
decrease in the five years prior to the issuance of the final Grain 
Handling Facilities Standard, as industry started instituting controls 
in response to the National Academy of Sciences (NAS) recommendations, 
the National Grain and Feed Association (NGFA) guidelines, various 
government recommendations, and the development of OSHA's proposed 
Grain Handling Facilities Standard.
    Deaths from suffocations in grain also declined. In the 1977-1981 
period analyzed for OSHA's Grain Handling Facilities Standard, 
suffocation deaths from grain averaged 10 per year. From 1988-1999 
deaths from suffocation in grain averaged 5.6 per year. As in the case 
of deaths from explosions, the number of deaths from suffocations began 
decreasing in the early to mid-1980's, reflecting, in particular, the 
development of OSHA's proposed Grain Handling Facilities Standard. In 
the years since the promulgation of the Grain Handling Facilities 
Standard, the average number of annual grain suffocations has decreased 
by 44%; an average of 4.4 lives have been saved each year. Therefore, 
the Grain Handling Facilities Standard has substantially contributed to 
preventing an average of 9.4 fatalities per year from grain explosions 
and suffocations.
    It is also clear that the Standard did not have any significant 
negative economic impact on a substantial number of small businesses. 
The large majority of firms effected are small businesses as defined by 
the Small Business Administration (SBA). Small businesses showed 
continued economic strength after OSHA issued the Grain Handling 
Facilities Standard at the end of 1987. Despite some consolidation in 
the industry, the percentage of businesses which are small by SBA 
definition has increased, in some cases substantially. From 1990 to 
1996, the percentage of businesses which are small remained at 99% in 
SIC 5153 (Grain and Field Beans), increased from 91% to 92% in SIC 2041 
(Flour Mill Products); from 81 to 88% in SIC 2044 (Rice milling), and 
there were similar increases in other SICs. This increase in the 
percentage of firms which are small businesses indicate that the 
smaller firms still successfully compete against the larger firms and 
remain economically viable after the issuance of the Grain Handling 
Facilities Standard.
    The data on number of firms by employee size also demonstrates the 
continuous competitiveness of affected small businesses after OSHA 
issued the Grain Handling Facilities Standard. From 1990-1996, in the 
major grain elevator SICs (723, 4221, 5153), the number of firms in the 
1-19 employee category decreased about 14%, remained almost the same in 
the 20-99 employee category, and increased about 12% in the 100-499 
employee category. From 1990-1996, in the major grain mill SICs (2041, 
2044, 2042, 2048, 2079), the number of firms with 1-19 employees 
increased slightly, the number of firms with 20-99 employees increased 
by 14%, and the number with 100-499 employees decreased 15%.
    These data indicate that, broken down by size categories, there 
were small fluctuations, but overall, the number of smaller firms in 
the various employment categories increased as often as they decreased. 
This evidence suggests that smaller firms remained economically 
competitive and viable.
    Further evidence that small businesses remained economically 
competitive after the Grain Handling Facilities Standard was issued is 
indicated by the employment data. Small businesses (1-499 employees) in 
the major grain handling SICs had no reduction in employment from 1990-
1996, employment being approximately 73,000 in both years. In the major 
grain mill SICs, employment in small businesses declined slightly in 
that period from 29,000 to 28,000.
    Thus, data available to OSHA indicate that the small businesses in 
the grain handling industries remained economically competitive after 
OSHA issued the Grain Handling Facilities Standard. The number of small 
business firms and employment in small business firms, generally, did 
not decline, and the percentage of firms that were small businesses 
increased.
    Furthermore, OSHA asked the public for comments in the Federal 
Register document and at the public meetings on the impacts of the 
Standard on small businesses. OSHA received no complaints from small 
businesses on the overall impact of the Standard on small businesses.
    There is a continued need for the Grain Handling Facilities 
Standard. Workers continue to be at risk of death and injury from grain 
explosions, fires,

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engulfments and other hazards. A 1998 explosion which resulted in a 
number of deaths was contributed to by various violations of the 
Standard.
    Many public commenters viewed the Grain Handling Facilities 
Standard as both needed and effective; no commenter indicated that the 
Standard should be rescinded. Both the National Grain and Feed 
Association (NGFA) representing grain elevator and mill owners, and the 
Food and Allied Services Trades Union (FAST), representing workers in 
those facilities, supported the retention of the Standard and cited the 
reduction of deaths and injuries as a reason for its retention.
    There were a few comments recommending minor amendments to the 
Grain Handling Facilities Standard. OSHA responds to those comments in 
chapter V of the Regulatory Review document. In some cases, the 
comments reflect a misunderstanding which the Regulatory Review 
clarifies. In other cases, OSHA believes the existing provision is more 
protective based on the existing evidence. Several minor updates were 
suggested which OSHA believes may make the Standard clearer or simplify 
compliance. OSHA will add to the Standard a cross reference to the 
Marine Terminal Settlement and consider in the Standards Improvement 
Project III whether the Grain Handling Facilities Standard confined 
space provisions should replace generic confined space requirements 
that now apply in certain operations. As part of a project to update 
standards based on National Consensus Standards, OSHA will consider 
whether several fire protection provisions of the Grain Handling 
Facilities Standard need to be updated.

    Signed in Washington, DC this 6th day of March, 2003.
John L. Henshaw,
Assistant Secretary of Labor.
[FR Doc. 03-6117 Filed 3-13-03; 8:45 am]
BILLING CODE 4510-26-P