Directives - Table of Contents Directives - (Archived) Table of Contents
• Record Type: Instruction
• Directive Number: CPL 02-00-066
• Old Directive Number: CPL 2.66
• Title: Settlement Agreement Between the National Grain and Feed Association, Inc., and the Occupational Safety and Health Administration, U.S. Department of Labor
• Information Date: 07/15/1985
• Status: Archived

Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

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

Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.


Directives - Table of Contents Directives - (Archived) Table of Contents