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 https://www.osha.gov.

May 30, 1991

The Honorable James Exon
United States Senate
Washington, D.C. 20510

Dear Senator Exon:

This is in further response to your letter of April 4, on behalf of your constituent, concerning grain elevator inspection activities in several targeted states, including Nebraska.

Your letter of April 4 requested information on two topics: 1) plans by the Occupational Safety and Health Administration (OSHA) to increase the number of grain elevator inspections in several targeted states, including Nebraska and 2) increased "user fees" being charged by (OSHA).

OSHA's Regional VII, which has enforcement jurisdiction over the states of Nebraska, Iowa, Kansas, and Missouri, has an approved Local Emphasis Program (LEP) for grain handling facilities. The emphasis program is a response to several factors:

1. The protracted litigation which stayed total enforcement of the 29 CFR 1910.272 (Grain Handling) standard has been resolved with the standard now being totally enforceable. Inspections conducted during the enforcement stay were limited to complaints and/or fatalities, which OSHA is required by statute to investigate. Such inspections are limited to the complaint items or the fatality-associated areas.

2. Numerous grain handling facilities in the region, for statistical reasons (such as low lost workday injury rate, or size) are not being scheduled for routine or programmed inspections. Such statistics notwithstanding, grain elevators have a high catastrophic explosion potential and can benefit from safety inspections.

3. Region VII has the highest concentration of grain handling facilities in the Nation.

The State Feed and Grain Dealer's Association as well as the Trade Association have been informed that the LEP inspections are forthcoming. The number and location of facilities to be inspected has been withheld from these groups because of the prohibition against advance notice imposed by the Occupational Safety and Health Act (OSH Act). Associations have been urged to notify their members of the program in order to simulate voluntary compliance.

Your constituent asserts that user fees being implemented to help reduce the Federal deficit. OSHA has never imposed user fees on inspected employers. Upon request, employers who want help in recognizing and correcting safety and health hazards and in improving them can get it from a free consultation service, largely funded by OSHA. Your constituent may be referring to the recent increase in the civil penalties for violations of the OSH Act mandated by the Congress. Section 17 of the OSH Act allows for civil penalties to be assessed when an employer has been found to be in violation of an OSHA standard. The Omnibus Budget Reconciliation Act of 1990 modified this section to increase the maximum penalty which can be imposed.

We have enclosed OSHA pamphlets No. 3103, Grain Handling and No. 3047, Consultation Services for the Employer for your information.

If we can be of further assistance in this matter, please do not hesitate to contact my office.


Gerard F. Scannell
Assistant Secretary