OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

September 6, 1983

Mr. Charles H. Pillard
International President
International Brotherhood of
Electrical Workers
1125 Fifteenth Street, N.W.
Washington, D.C. 20005

Dear Mr. Pillard:

Thank you for your letter of August 3, in which you discuss your organization's concern with the coverage provided in the Occupational Safety and Health Administration's (OSHA) rule for marine terminals (29 CFR 1917). I am pleased to respond to your specific questions.

The intent of this Agency in its exclusion of "fully automated" coal handling operations contiguous to electrical power generating stations was to provide coverage for employees who were in fact exposed to the hazards of cargo handling operations and delete applicability to operations that had only one employee sitting in a control booth overlooking the loading or discharging activity. The terms of this exclusion are quite plain and concisely explained in the preamble of the final rule (48 FR 30891).

When employees perform maintenance work at marine terminals on fully automated equipment, the general industry standards (29 CFR 1910) are applicable. If employees are engaged in work other than operating automated systems from a control booth or similar station, and that work is, in fact, comprised of the loading or discharging of a commodity to or from a vessel, the operation could not be deemed to be "fully automated." As such the marine terminals standard (29 CFR Part 1917) would apply. Of course the construction industry standards (29 CFR Part 1926) would apply in some instances of terminal upkeep and repair.

As to when or where the determination is made relative to whether a bulk coal handling facility contiguous to an electrical generating plant is fully automated, we must maintain that that decision will be arrived at by our compliance staff on a case by case basis. That decision will be predicated upon the number of employees conducting the actual movement of cargo. In order to retain its exemption, a "fully automated" facility must have no more than one employee conducting the cargo transfer operation and that employee would ordinarily be stationed in a control booth overlooking the operation.

When a bulk coal handling facility at a marine terminal is not "fully automated" 29 CFR Part 1917 applies to all of the operations until that cargo is either stored or conveyed for immediate consumption. When that cargo is stored or conveyed for immediate consumption 29 CFR Part 1910 becomes applicable. While that cargo is being conveyed to storage 29 CFR Part 1917 continues to apply.

Relative to the "informal discussions" OSHA had taken part in with the Edison Electric Institute, please be aware that the subject discussions took place in the form of one telephone call initiated by E.E.I. The dialogue of that call was purely a question and answer format in that E.E.I was not certain at that point as to OSHA's intention to include or exclude their membership's coal handling facilities that bordered on navigable waters. During that conversation the OSHA representative clarified the intent of the agency and nothing more.

No comments submitted by any party or organization after the formal closing of the rulemaking record were given consideration to the formulation of this standard. Any group or individual had until the date of the formal closing of the record (September 21, 1982) to submit comments. I am very confident that ample time was extended to all concerned interests to express their opinions.

It is important to keep in mind that no worker will go without coverage. At "fully automated" facilities the provisions of OSHA's General Industry Standards (29 CFR 1910) will continue to apply. At those facilities that operate in a more conventional manner the newly issued Marine Terminals rule will apply.

I hope that you find this clarification of OSHA's intent responsive and helpful. If I can be of further assistance, please let me know.


Thorne G. Auchter
Assistant Secretary