OSHA Instruction CPL 2.66 JUL 15 1985 Office of Construction and Maritime
Compliance Assistance

Subject:  Settlement Agreement Between the National Grain and Feed
Association, Inc., and the Occupational Safety and Health Administration,
U.S. Department of Labor

A.  Purpose.  This instruction provides guidelines for Implementing the
Settlement Agreement between the National Grain and Feed Association, Inc.,
and the Occupational Safety and Health Administration which became effective
on October 31, 1984.

B.  Scope.  This instruction applies OSHA-wide.

C.  Action.  Regional Administrators and Area Directors shall ensure that
objectives and concepts inherent in the Settlement Agreement are effectively
implemented in accordance with the guidelines in F. of this instruction. (See
Appendix A.)

D.  Federal Program Change.  This instruction describes a Federal program
change which affects State Programs. Each Regional Administrator shall:
		1.  Ensure that this change is forwarded promptly to each State
designee.
		2.  Explain the technical content of the change to the State
designee as requested.
		3.  Ensure that, within 30 days after receipt of this instruction,
each State submits:
				a.  A plan change supplement incorporating the provisions of
this instruction (or similar provisions) as part of the State's program;
or
				b.  A proposed timetable for adoption of the change; or
				c.  Reasons why it is not necessary for the State to adopt this
change.
		4.  Ensure that, within 6 months after receipt of this instruction,
the Federal program change (or its equivalent) is implemented and a plan
change supplement is submitted by the State to the Region for review and
processing.
		5.  Review policies, instructions and guidelines issued by the State
to determine that this change has been communicated to State program
personnel.  Routine monitoring activities shall also be used to determine if
this change has been implemented in actual performance.

E.  Background.  The NGFA/OSHA Settlement Agreement is the result of both
parties having executed and filed a stipulation of dismissal of case No. 83
-1935 in the United States Court of Appeals for the District of Columbia
Circuit.  OSHA agreed to a settlement of NGFA's challenge to the marine
terminal standard.  In exchange for NGFA's withdrawal of its challenge, OSHA
agreed to clarify and interpret certain provisions in the standard as set
forth in the Settlement Agreement and distribute these clarifications and
interpretations to all OSHA Regional Offices.

F.  Guidelines.  The interpretations of the marine terminal standards
addressed in the Settlement Agreement, Appendix A, shall be followed when
conducting inspections of marine grain handling facilities.
		1.  Additional enforcement guidelines for Agreement Items 1, 8, and
9 are as follows:
				a.  Agreement Item 1. Provisions Generally Applicable or
Generally Inapplicable (See Appendix A, Attachment A.)  These lists of
applicable and inapplicable standards for marine terminal grain elevators
must be viewed as indicating general applicability based on the operations
present. These lists do not constitute a blanket inclusion or exemption. 
Where operations addressed in specific sections of the standard are present
and where exposure and violation exists, the Area Director will judge the violation
on its merit and cite accordingly.
				b.  Agreement Item 8:  Section 1917.43(c)(3). Compliance
officers shall ascertain whether the replacement parts manufacturer was made
aware of the strength and performance requirements of the original
part.
				c.  Agreement Item 9:  Section 1917.43(d). Reference 29 CFR
1910.399(a)(25) for definitions of Class II locations. Reference 29 CFR
1910.178(b) for designations of powered industrial trucks to be used in
specific locations.
		2.  Any questions concerning the application of the terms of the
Settlement Agreement shall be addressed to the Directorate of Field
Operations, Office of Field Coordination, U.S. Department of Labor - OSHA,
Room N3119, 200 Constitution Avenue, N.W., Washington, D.C. Telephone:  (202)
523-8111 or FTS 523-8111.

Patrick R. Tyson Deputy Assistant Secretary

DISTRIBUTION:  National, Regional and Area Offices All Compliance Officers
State Designees NIOSH Regional Program Directors 7(c)(1) Project Managers

Appendix A

Settlement of National Grain and Feed Association,

Inc. v. OSHA, No. 83-1935 (D.C. Cir.)

WHEREAS:  OSHA and NGFA have discussed settlement of NGFA's challenge to
OSHA's newly issued marine terminal standard. These discussions have
concerned primarily OSHA's intentions concerning the applicability of the
standard's provisions with respect to marine grain handling facilities.

THEREFORE:  OSHA agrees to the following settlement of NGFA's challenge to
the marine terminal standard:  In exchange for NGFA's withdrawal of its
challenge, OSHA will (a) clarify and interpret certain provisions in the
standard as set forth below and (b) expeditiously distribute these
clarifications and interpretations to all OSHA regional offices, in the form
of a standards interpretation issued by the Directorate of Field Operations
and signed by the Assistant Secretary for Occupational Safety and Health. 
The clarifications contained in this settlement will be binding on OSHA
enforcement personnel and cannot be changed unilaterally by OSHA.  This
settlement does not bar any employer from challenging any standard.

1.  Provisions generally applicable or generally inapplicable--As listed in
Attachment A to this Settlement Agreement, OSHA has identified provisions
generally applicable and generally inapplicable at marine terminal grain
elevators.  It Is extremely difficult for the Agency to address with absolute
confidence applicability and non-applicability.  Certain grain facilities may
have operations that present the hazards addressed by standards listed as
inapplicable.  As a consequence, the characterizations in Attachment A must
be viewed in general terms.  Nonetheless, they do represent OSHA's best
analysis of the applicability and non-applicability of the marine terminal
standard to grain handling facilities, based in part upon NGFA's descriptions
and characterizations of their members' structures and activities and in part
on OSHA's judgments derived from the rulemaking record.

2.  Section 1917.17(b)--A sign instructing employees not to pass between
railcars that are within ten feet of each other would fulfill the
requirements of this paragraph.

3.  Sections 1917.17(d)(2) and (e)--Opening a hopper door or discharge gate
would not necessarily constitute being on, in, or under the railcar, and
therefore, would not necessarily be covered by these Paragraphs; the
determination whether an employee is in, on, or under a railcar will depend
on whether movement of the car could injure the employee; and when a railcar
is part of a train of cars, wheels need not be chocked so long as the brake
of the train is set.

4.  Section 1917.17(f)--This paragraph is inapplicable, because grain
handling facilities do not use cars with unsecured and overhanging stakes,
wire strapes, banding, and similar objects.

5.  Section 1917.17(1)-This paragraph applies only to boxcar lifting and
dumping operations, not to hopper-bottom cars. The operator of the lifting
mechanism is the employee who is required to have an unobstructed view of the
dumping operations.

6.  Section 1917.25-The safety standards contained in 29 CFR 1910.272 will
preempt the marine terminal standards that address the same hazards when
1910.272 is finally adopted. Until 1910.272 is finally adopted, pursuant to
OSHA's Field Operations Manual, ch. 4, if compliance with proposed 29 CFR
1910.272 provides protection equal to that of 29 CFR 1917.25, an employer
that complies with the proposal, rather than Section 1917.25, will incur no
more than a de minimis citation.  The areas in which the proposal is not
equally protective are as follows:
		(1)  Section 1917.25 covers additional dangerous environments
not addressed by the proposed 1910.272.
		(2)  Section 1917.25(b) requires that testing must be
appropriate for the hazard and that only designated employees may conduct
such tests. Proposed 1910.272 has no such requirement.
		(3)  Section 1917.25(c) requires employers to make available for
a period of 30 days the results of all tests. Proposed 1910.272 has no such
requirement.
		(4)  Section 1917.25(c) requires that only designated personnel
may apply chemicals. Proposed 1910.272 has no such
requirement.
		(5)  Section 1917.25(e) requires that only designated employees
may enter hazardous atmospheres.  Proposed 1910.272 has no such
requirement.

7.  Section 1917.27(a)(2)--The limitations contained in this paragraph do
not apply to a person operating a conveyor.  This paragraph does not require
an employer to conduct any examination of employees for the health concerns
listed.

8.  Section 1917.43(c) (3)--Employers may rely on replacement parts
manufacturers' specifications regarding strength and performance ratings.

9.  Section 1917.43(d)--An approved industrial truck suitable for a class II
hazard will only be required in a situation in which a class II hazard can be
identified at the time an industrial truck that has not been approved is
being used. The presence of dust at a grain facility does not constitute a
hazardous atmosphere requiring use of an approved industrial truck absent an
explosion hazard.

10.  Section 1917.44--Posting a sign will meet the requirements that an
employer direct drivers to follow posted traffic rules, follow established
routes, and honk the horn when approaching employees.  Regular operating
procedures in grain terminals may satisfy the requirement for establishing
regular traffic routes where operations require trucks to line up in single
file in a line from the entrance to the dumping station; where such a route
is established to designate the route.

11.  Section 1917.44(i)--The twenty-foot requirement only applies between
the truck that is dumping and the next truck in line, and a sign requiring
twenty feet between trucks where employees are working is a sufficient
direction to the drivers.

12.  Section 1917.44(j)--This paragraph may be satisfied by a sign which
requires drivers to set their brakes before leaving their trucks.

13.  Section 191748(a)(1)Only danger zones to which employees have access
need be guarded.  Danger zones are those areas, typically at the head and the
tail of the conveyor and where the power train of the conveyor is located,
where there are nip points in which employees might get stuck or pinched.

14.  Section 1917.48(f)"This paragraph does not require emergency stop
controls continuously along a conveyor.  Stop controls are required only
where employees are exposed to hazards, and where there are no employees
exposed or no hazard present there is no need for an emergency stop control.

15.  Section 1917.48(g)--This paragraph may be satisfied by the posting of a
sign advising employees to keep away from the conveyor because it might start
at any time.

16.  Section 1917.49(a)-The inspections required by this paragraph are not
required where a spout or a chute does not have rigging and is permanently
mounted in an area that does not expose employees to a hazard.

17.  Section 1917.49(b)--This paragraph applies only where an employee is
exposed to a hazard at the receiving end of the grain.

18.  Section 1917.49(d)-This paragraph was intended to protect against a
fall hazard and only applies to elevated hoppers where an employee might
fall.

19.  Section 1917.49(e)--This paragraph is inapplicable during operations in
which grain is directed down a chute, because during such operations,
sideboards are not "necessary for the safety of employees," within the meaning 
of the paragraph.

20.  Section 1917.49(f)--This paragraph's reference to "chutes" does not
include spouts.

21.  Section 1917.49(g)--This paragraph is inapplicable when grain is being
directed down a chute, because grain is a "bulk commodity," within the
meaning of the paragraph.

22.  Section 1917.49(h) and (i)--The safety standards contained in 29 CFR
1910.272 will preempt the marine terminal standards that address the same
hazards when 1910.272 is finally adopted.  Until 1910.272 is finally adopted,
pursuant to OSHA's Field Operations Manual, ch. 4, if compliance with
proposed 29 CFR 1910.272 provides protection equal to that provided by 29 CFR
1917.49(h) and (i), an employer that complies with the proposal, rather than
1917.49(h) and (i), will incur no more than a de minimis citation.  The area
in which the proposal is not equally protective is as follows:  Sections
1917.49(h)(1)d (i) (1) require that persons controlling the flow of cargo
into the bin be notified of the entry of employees into the bin.  Proposed
1910.272 has no such requirement.

23.  Section 1917.118-The specific language of this section exempts
emergency ladders.

24.  Section 1917.123 --When employees pass through an area that is not
illuminated, with no intention to perform any work, flashlights are
sufficient supplemental lighting.

25.  Section 1917.124-This section is inapplicable to grain handling
facilities, because such facilities do not have dockboards (car and bridge
plates) or ramps used as passages between levels and across openings.

26.  Section 1917.153-This section does not apply during the use of portable
spray painting apparatus that may be used in various locations throughout the
terminal.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

Witness my hand and seal this day of October, 1984.

By: Judith N. Macaluso Assistant Counsel for Appellate.' Litigation

NATIONAL GRAIN AND FEED ASSOCIATION

Witness my hand and seal this day of October, 1984.

By: Arent, Fox, Kintner, Plotkin and Kahn Stewart S. Manela Marc Fleischaker

Attachment A

PROVISIONS GENERALLY INAPPLICABLE

AT MARINE TERMINAL GRAIN ELEVATORS

1917.13       Slinging

1917.14       Stacking of Cargo and Pallets

1917.15       Coopering

1917.17       Railroad Facilities (a) (c) (d)(1) (f) (h) (k) 

1917.18       Log Handling

1917.22       Hazardous Cargo

1917.23       Hazardous Atmospheres and Substances

1917.41       House falls

1917.43       Powered Industrial Trucks (g) (h)

1917.44       General Rules Applicable to Vehicles (c) (k) (l) (m)

1917.46       Crane Load and Limit Devices

1917.48       Conveyors (b) (c) (d) (e)

1917.49       Spouts, Chutes, Hoppers, Bins and Associated Equipment (e) (g)

1917.71       Terminals Handling Intermodal Containers or Roll On Roll Off Operations

1917.73       Terminals Handling Menhaden and Similar Species of Fish

1917.114      Cargo Doors

1917.115      Platforms and Skids

1917.124      Passage between levels and across Openings

1917.153      Spray painting

1917.11       Housekeeping

1917.12       Slippery Conditions

1917.16       Line Handling (a) (b)

1917.17       Railroad Facilities (g) (i) (j) (m) (n) (o)

1917.19       Movement of Barges and Railcars

1917.20       Interference with Communications

1917.21       Open Fires

1917.24       Carbon Monoxide

1917.26       First Aid and Lifesaving Facilities

1917.27       Personnel (a)(1) (b)

1917.42       Miscellaneous Auxiliary Gear

1917.43       Powered Industrial Trucks (a) (b) (e) (f)

1917.44       General Rules Applicable to Vehicles (a) (b) (c) (d) (e) (f) (g) (h) (n) (o)

1917.45       Cranes and Derricks

1917.47       Winches

1917.48       Conveyors (h) (i) (j)

1917.49       Spouts, Chutes, Hoppers, Bins, and Associated Equipment (c) (j) (k) (l)

1917.50       Certification of Marine Terminal Material Handling Devices

1917.51       Hand Tools

1917.70       General

1917.72       Grain Elevator Terminals

1917.91       Eye Protection

1917.92       Respiratory Protection

1917.93       Head Protection

1917.94       Foot Protection

1917.95       Other Protective Measures

1917.111      Maintenance and Load Limits

1917.112      Guarding of Edges

1917.113      Clearance Heights

1917.116      Elevators and Escalators

1917.117      Manlifts

1917.119      Portable Ladders

1917.120      Fixed Stairways

1917.121      Spiral Stairways

1917.122      Employee Exits

1917.126      River Banks

1917.127      Sanitation

1917.128      Signs and Marking

1917.151      Machine Guarding

1917.152      Welding, Cutting and Heating

1917.154      Compressed Air

1917.155      Air Receivers

1917.156      Fuel Handling and Storage

1917.157      Battery Charging and Changing

1917.158      Prohibited Operations

1917.17       Railroad Facilities (b) (d)(2) (e) (1)

1917.25       Fumigants, Pesticides, Insecticides and Hazardous Preservatives

1917.27       Personnel (a)(2)

1917.43       Powered Industrial Trucks (c) (d)

1917.44       General Rules Applicable to Vehicles (i) (j)

1917.48       Conveyors (a) (f) (g)

1917.49       Spouts, Chutes, Hoppers, Bins, and Associated Equipment (a) (b) (d) (f) (h) (i)

1917.118      Fixed Ladders

1917.123      Illumination