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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1917 and 1918

[Docket No. S-025A]

RIN 1218-AA56

Longshoring and Marine Terminals; Vertical Tandem Lifts

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
SUMMARY: OSHA is revising the Marine Terminals Standard and related sections of the Longshoring Standard to adopt new requirements related to the practice of lifting two intermodal containers together, one on top of the other, connected by semiautomatic twistlocks (SATLs). This practice is known as a vertical tandem lift (VTL). The final standard adopted today permits VTLs of no more than two empty containers provided certain safeguards are followed.
DATES: This final rule becomes effective on April 9, 2009.
ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), the Agency designates Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety and Health, Office of the Solicitor, Room S-4004, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, to receive petitions for review of the final rule.
FOR FURTHER INFORMATION CONTACT: For technical inquiries, contact Joseph V. Daddura, Director, Office of Maritime, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3621, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-2222. For general information and press inquiries, contact Jennifer Ashley, Director, Office of Communications, OSHA, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-1999. For additional copies of thisFederal Registernotice, contact OSHA, Office of Publications, U.S. Department of Labor, Room N-3101, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-1888. Electronic copies of thisFederal Registernotice, as well as news releases and other relevant documents, are available at OSHA's Web page on the Internet athttp://www.osha.gov.
SUPPLEMENTARY INFORMATION:

This preamble to the final rule for VTLs in the Longshoring and Marine Terminals Standards discusses the events leading to the adoption of the standard, the necessity for the standard, and the rationale behind the specific provisions set forth in the final rule. The preamble also includes the Final Economic and Regulatory Flexibility Analysis, a summary of the paperwork issues under the Paperwork Reduction Act of 1995, and sections on other requirements necessary for an OSHA standard. The discussion follows this outline:

I. Background II. Pertinent Legal Authority III. International Aspects. IV. Significant Risk V. Summary and Explanation of the Final Rule VI. Final Economic Analysis and Regulatory Flexibility Analysis VII. Environmental Impact VIII. Federalism IX. Unfunded Mandates X. Office of Management and Budget Review Under the Paperwork Reduction Act of 1995 XI. State Plan Requirements XII. Effective Date XIII. Authority and Signature I. Background A. Acronyms and Abbreviations

The following acronyms and abbreviations have been used in this document:

1998-Tr.Transcript page number from the public meeting on VTLs in January 1998 ACEPApproved Continuous Examination Program DOLDepartment of Labor Ex.Exhibit FEAFinal Economic Analysis ICHCAInternational Cargo Handling and Coordination Association ILAInternational Longshoremen's Association ILOInternational Labor Organization ISOInternational Organization for Standardization ISO/TC 104ISO Technical Committee Number 104 Freight Containers ILWUInternational Longshore and Warehouse Union NEPANational Environmental Policy Act MACOSHMaritime Advisory Committee for Occupational Safety and Health NIOSHNational Institute for Occupational Safety and Health NISTNational Institute of Standards and Technology NMSANational Maritime Safety Association NPRMNotice of Proposed Rulemaking OMBOffice of Management and Budget OSHAOccupational Safety and Health Administration PCMSCPacific Coast Maritime Safety Code PMAPacific Maritime Association RFARegulatory Flexibility Act SNTRISwedish National Testing and Research Institute Tr.Transcript page number from the public hearing held on July 29 (Tr. 1-page) and July 30 (Tr. 2-page), 2004 SATLSemiautomatic twistlock TEU20-foot equivalent unit UMRAUnfunded Mandates Reform Act of 1995 USMXUnited States Maritime Alliance VTLVertical tandem lift B. Introduction

Since the 1970s, intermodalism (the containerization of cargo) has become the dominant mode of cargo transport in the maritime industry, replacing centuries-old, break-bulk cargo handling. In the marine cargo handling industry, intermodalism typically involves three key components: standardized containers with uniform corner castings; interbox connectors (such as SATLs) to secure the containers (to each other at the four corners, to the deck of the ship, to a railroad car, or to a truck chassis); and a type of crane called a container gantry crane that has specialized features for the rapid loading and unloading of containers. Because intermodalism is highly dependent on standardized containers and connecting gear, several international organizations have developed standards for equipment and practices to facilitate intermodal freight operations. This helps ensure that containers and interbox connectors are sized and operate properly so that containers and connectors from different manufacturers will fit together.

The International Organization for Standardization (ISO) is a worldwide federation of national standards bodies whose mission is to promote the development of international standards to reduce technical barriers to trade. There are several ISO standards addressing the design and operational handling of intermodal containers and interbox connectors. In particular, ISO 3874,Series 1 Freight Containers—Handling and Securing, addresses the size and strength of containers and corner castings, the size and strength of the interbox connectors, and proper lifting techniques. During shipment, containers above deck are secured by interbox connectors to each other and to the deck of the ship. In the conventional loading and unloading process, the container gantry crane lifts one container (either 6.1 or 12.2 meters long) at a time, using the crane's specially developed spreader beam. ISO 3874 also addresses the lifting of two 12.2-meter containers end to end but, until 2003, it had not addressed the practice of VTLs. A VTL is the practice of a container crane lifting two or more intermodal containers, one on top of the other, connected by a particular type ofinterbox connector known as a semi-automatic twistlock or SATL.

The VTL issue has been evolving for many years. The following table shows the progression of events:

1986 Matson Terminals, Inc., requests permission to perform VTLs, and OSHA responds with letter allowing VTLs with two empty containers or with automobiles. 1993 OSHA issues a letter to Sea-Land Service, Inc., allowing VTLs with two empty containers under certain conditions. 1994 OSHA publishes a proposed rule to revise the Marine Terminals and Longshoring Standards. 1997 OSHA publishes the final rule revising the Marine Terminal and Longshoring Standards, reserving the VTL issue for future consideration. OSHA reopens the VTL record and announces a public meeting on the safety, risk, and feasibility issues associated with VTLs. 1998 OSHA holds the public meeting on the safety, risk, and feasibility issues associated with VTLs. 2003 OSHA publishes a proposed rule permitting VTLs of no more than two containers with a maximum load of 20 tons. 2004 OSHA holds a public hearing on the proposed rule on VTLs.

The issue of vertical tandem lifting was first raised to OSHA by Matson Terminals, Inc. In 1986, through a series of meetings and correspondence with OSHA (Exs.1 40-1, 40-2, 40-3, 40-4, 40-5, 40-6, 40-6-1, 40-7), Matson asked to be permitted to lift two containers at a time, connected by SATLs, either empty or with one or both containers containing automobiles. At that time, OSHA regulations did not directly address or prohibit this practice. The container handling regulation formerly in § 1918.85(c) stated, “all hoisting of containers shall be by means which will safely do so without probable damage to the container, and using the lifting fittings provided.”2 In November 1986, OSHA, in a letter to Matson (Ex. 40-8), allowed the company to lift containers, either empty or with one or both containers containing automobiles, in VTLs. The letter to Matson stated:

1Exhibits in Docket 025A on the proposed rule on vertical tandem lifts (68 FR 54298-54318).

2Existing § 1918.85(f) addresses the safe lifting of containers.

The [Compliance Safety and Health Officer] must be mindful of the manufacturer's specifications and endorsements, the Matson engineering technical specifications, the ABS Test Report, as well as, maintained conditions of the corner posts, the twist locks, the cones, the containers and the hoisting and/or lifting devices. [Ex. 40-8]

In 1993, OSHA received a letter from Sea-Land Service, Inc., requesting that OSHA interpret its existing longshoring standards to allow the lifting of two empty 12.2-meter (40-foot) ISO freight containers that were vertically coupled using SATLs (Ex. 1). OSHA's standards had not changed since OSHA's letter to Matson. In its response, OSHA allowed Sea-Land to handle two empty containers vertically connected, if eight requirements were met (Ex. 2, hereinafter called “the Gurnham letter”). The requirements were developed by OSHA's Directorate of Compliance Programs (now called the Directorate of Enforcement), taking into account applicable OSHA standards and related industry practices associated with container cargo handling operations. These eight requirements were: inspecting containers for visible defects; verifying that both containers are empty; assuring that containers are properly marked; assuring that all the SATLs operate (lock-unlock) in the same manner and have positive, verifiable locking systems; assuring that the load does not exceed the capacity of the crane; assuring that the containers are lifted vertically; having available for inspection manufacturers' documents that verify the capacities of the SATLs and corner castings; and directing employees to stay clear of the lifting area.

In 1994, OSHA addressed VTLs briefly in the preamble to the proposed revisions to the Marine Terminals and Longshoring Standards (29 CFR Parts 1917 and 1918, respectively; 59 FR 28594, June 2, 1994), stating: “In those situations where one container is used to lift another container, using twistlocks, then the upper container and twist locks become, in effect, a lifting appliance and must be certified as such” (59 FR 28602, June 2, 1994). OSHA received comments on this issue only from the International Longshore and Warehouse Union (Exs. 4, 5, 6). Although these comments favored the proposed interpretation and requested that the Agency include it as a requirement in the regulatory text, they included no specific information regarding the hazards of VTLs of two containers using SATLs. Sea-Land submitted a detailed six-page comment (Ex. 7) addressing a number of the proposed changes to the Marine Terminals and Longshoring Standards, but did not address VTLs. OSHA received a late, posthearing submission from the International Longshoremen's Association, however, that alerted the Agency to what might be a serious problem with this type of lift, citing several incidents at U.S. ports where failures had occurred (Ex. 8-A). While OSHA did not rely on this letter in issuing the final rule because it was not a timely submission to the record, the letter made OSHA aware of safety concerns that might need to be addressed through supplemental rulemaking. Because of a lack of information on the safety considerations, cost impacts, and productivity effects of VTLs, as well as on the capability of containers and SATLs to withstand such loading, OSHA reserved judgment on the appropriate regulatory approach to this practice, pending further study (62 FR 40142, 40152, July 25, 1997).

Until the publication of the final Longshoring and Marine Terminals Standards in 1997, OSHA viewed the lifting of one container by another container using SATLs as similar to a container spreader picking up a single container using the spreader's twistlocks. Although the terms “semi-automatic twistlocks” and “spreader-bar twistlocks” appear similar, they refer to two very distinct items. SATLs were designed to connect and secure intermodal containers that are stowed on the deck of a vessel. They are generally made of a cast metal with a surface that has not been finely honed. By contrast, a spreader-bar twistlock is an integral part of a gantry crane's container spreader. It has a similar appearance to a SATL, but is made of forged metal with a machined surface. These twistlocks are typically locked and unlocked with hydraulic power and are used as part of the gantry crane to lift and move containers.

In lifting the bottom container in a VTL, the upper container serves the same role as a container spreader on a gantry crane, and the SATLs perform the same function of holding the bottom container, as do the twistlocks on the container spreader bars.

A gantry crane's container spreader bars are considered a “lifting appliance,” according to the International Labor Organization (ILO) Convention 152 Dock Work, portions of which OSHA incorporated or adopted in the Longshoring Standards in 29 CFR Part 1918. The ILO is a specialized, independent agency of the United Nations with a unique tripartite structure of business, labor, and government representatives. Its mandate is to improve working conditions (including safety), create employment, and promote workplace human rights,globally. Under ILO Convention 152, a lifting appliance, including the twistlocks, must be proof-load tested and inspected before initial use and periodically retested and reinspected. However, applying that same requirement to the VTL situation would be much more difficult to accomplish. It would require a specific container (the one being used to lift another container) and four specific SATLs to be tested and inspected as a unit and to remain as a unit for retesting and reinspection. Given the millions of intermodal containers and millions more SATLs used in the maritime cargo handling industry, matching a specific container and four SATLs for VTL use over any length of time is nearly impossible. In view of this impracticality, OSHA sought an interpretation about the matter from the ILO, which is discussed later in this section of the preamble.

On October 9, 1997, OSHA reopened the VTL record with aFederal Registernotice that also announced a public meeting, which was held in Washington, DC, on January 27, 1998 (62 FR 52671). At that public meeting, OSHA heard testimony from 25 witnesses, representing the U.S. Coast Guard, the ISO, national and international maritime safety associations, container and twistlock manufacturers, ship operators, stevedoring companies, and longshore unions (Ex. 22x).

Shortly after the January public meeting, OSHA decided on a multifaceted approach to resolve the questions raised during the public meeting:

a. Contract with the National Institute of Standards and Technology (NIST) to conduct engineering studies about the strength and durability of container corner castings and SATLs;

b. Meet with the International Cargo Handling and Coordination Association3 (ICHCA) about international safety aspects of VTLs;

3ICHCA is an independent, nonpolitical international membership organization established in 1952, whose membership spans some 85 countries and includes corporations, individuals, academic institutions and other organizations involved in, or concerned with, the international transport and cargo handling industry.

c. Meet with the ILO to clarify the ambiguity in existing interpretations of ILO Convention 152;

d. Monitor the ISO deliberations regarding VTLs; and

e. Form a workgroup within the Maritime Advisory Committee for Occupational Safety and Health (MACOSH) to address issues relating to VTLs and report back to MACOSH.

MACOSH was chartered by the Secretary of Labor to advise OSHA on matters relating to occupational safety and health standards in the maritime industries. MACOSH members include representatives of employers, employees, State safety and health agencies, a designee of the Secretary of Health and Human Services, and other groups affected by maritime standards. During a MACOSH meeting held in Hampton, Virginia, on September 22 and 23, 1998, a VTL workgroup was formed consisting of the MACOSH longshore employer and employee representatives, with participation by many other interested stakeholders. Over the next several years, the VTL workgroup discussed VTL issues at informal working group meetings and during MACOSH meetings.

On September 28, 1998, members of MACOSH's VTL workgroup met with ICHCA in Malmö, Sweden, to discuss the VTL issue. This was followed by a meeting with ILO in Geneva, Switzerland. The discussion with the ILO focused on the issue of determining whether the components of a VTL (the upper intermodal container and the SATLs) are either a “lifting appliance” or “loose gear” within the meaning of the relevant international standards. On October 21, 1998, an ILO official indicated to OSHA that the ILO considers SATLs used for lifting to be loose gear, and that it considers the upper container to be merely part of the load, rather than loose gear or a lifting appliance (Exs. 31, 32). The significance of this decision is that as loose gear, under ILO Convention 152, SATLs must be tested and inspected before initial use and reinspected on an annual basis, and the containers have no additional inspection requirements. Lifting appliances, on the other hand, must be retested at least once every 5 years. Retesting of a lifting appliance in a VTL would require that a specific container and four specific SATLs used for VTLs be proof-load tested before initial use and every 5 years thereafter. As mentioned previously, this would be almost impossible to do.

During a MACOSH meeting held at the U.S. Merchant Marine Academy, Kings Point, New York, in July 1999, Dr. H.S. Lew of NIST presented a report on the strength of SATLs, latchlocks (a device similar in usage to a SATL, but of a different design), and container corner castings (Ex. 40-10). Dr. Lew's study indicated that the SATLs he tested were very substantial with load capacities ranging from 562 to 802 kN and that the container corner castings were more likely to deform and fail before the SATLs. However, he expressed reservations about the use of latchlocks as interbox connectors. This particular type of interbox connector has a smaller bearing surface in contact with the corner casting. In Dr. Lew's opinion, this makes it more likely that, if the spring-loaded latch does not extend fully inside the container corner casting, it could slip through the hole in the corner casting when under load, such as when lifting another container. Even when the lock of a latchlock was fully extended, the NIST study determined that its surface area was insufficient to safely perform VTLs. In regard to the strength of SATLs, the conclusions of the NIST study were similar to a Swedish study (Ex. 11-6 H) that was conducted in 1997 by the Swedish National Testing and Research Institute. (For an extended discussion of these studies see the discussion of the issue titled “Strength of the container-connector system” under section O, Summary and Explanation of the Final Rule, later in this preamble.)

On September 8, 2000, the U.S. delegation to ISO Technical Committee Number 104 Freight Containers (ISO/TC 104) held a meeting in Washington, DC, primarily to discuss the U.S. position on VTLs for the ISO biennial meeting to be held in October. After this meeting, OSHA sent a letter to the Chairman of ISO/TC 104 addressing concerns such as safety factors, the use of latchlocks, and the lack of operational procedures (Ex. 40-11).

At their biennial meeting in Cape Town, South Africa, in October 2000, the ISO/TC 104 agreed that SATLs, which previously were only used for securing containers, could be used to lift containers. However, ISO/TC 104 did not address the question of how to use SATLs safely for such lifting, because ISO does not issue standards for operational procedures. In response to safety concerns in this area, ISO/TC 104 passed a resolution requesting that ICHCA, a member of ISO/TC 104, develop operational guidelines for VTLs. ICHCA agreed to work on such guidelines.

In May 2002, ISO formally adopted language allowing SATLs that meet certain conditions to be used for lifting:

The vertical coupling of containers that are not specifically designed as in 6.2.4 [ISO 3874] for lifting purposes, using twistlocks or other loose gear, is acceptable if forces of not greater than 75 kN [Footnote 1]) act vertically through each corner fitting, and the twistlocks or other loose gear used are certified [Footnote 2]) for lifting. The twistlocks or other loose gear shall be periodically examined. [Ex. 40-9]

Footnote 1 stated:

The value of 75 kN prescribes the minimum structural capability of the lock/corner fitting combination. The 75 kN value includes an arbitrary constant wind load of 26 kN (corresponding wind speed of 100 km/h), regardless of the size of the containers. As an example, the balance of the 75 kN value equates to two 1 AAA containers with a combined tare of 22 kN and a maximum payload of 27 kN. A practical upper limit of three vertically-coupled containers is also envisaged.

Footnote 2 stated:

The certification process envisaged is to use a safety factor of at least four based on the ultimate strength of the material.

Essentially, this meant that, based on the strength of the SATLs and the containers, the ISO standard would allow VTLs to consist of up to three containers with a total load weight of 20 tons.

In January 2001, as agreed to at the Cape Town meeting, an ICHCA VTL workgroup met in London to begin drafting operational guidelines for VTLs. The ICHCA workgroup finalized their VTL guidelines (Ex. 41) in September 2002 and received final approval by ICHCA's Board of Directors in January 2003. OSHA gave careful consideration to the ICHCA guidelines in the drafting of the proposed and final standards for VTLs.

II. Pertinent Legal Authority

The purpose of the OSH Act is to “assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources” (29 U.S.C. 651(b)). To achieve this goal, Congress authorized the Secretary of Labor to issue and to enforce occupational safety and health standards. (See 29 U.S.C. 655(a) (authorizing summary adoption of existing consensus and federal standards within two years of the OSH Act's enactment); 655(b) (authorizing promulgation of standards pursuant to notice and comment); and 654(d)(2) (requiring employers to comply with OSHA standards)). A safety or health standard is a standard “which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment or places of employment” (29 U.S.C. 652(8)).

A standard is reasonably necessary or appropriate within the meaning of section 3(8) of the OSH Act if it substantially reduces or eliminates significant risk; is economically feasible; is technologically feasible; is cost effective; is consistent with prior Agency action or is a justified departure; is supported by substantial evidence; and is better able to effectuate the Act's purposes than any national consensus standard it supersedes (29 U.S.C. 652). (See 58 FR 16612, 16616 (3/30/1993)).

A standard is technologically feasible if the protective measures it requires already exist, can be brought into existence with available technology, or can be created with technology that can reasonably be expected to be developed. American Textile Mfrs.Institutev.OSHA (ATMI), 452 U.S. 490, 513 (1981);American Iron and Steel Institutev.OSHA (AISI), 939 F.2d 975, 980 (D.C. Cir 1991).

A standard is economically feasible if industry can absorb or pass on the cost of compliance without threatening its long term profitability or competitive structure. SeeATMI, 452 U.S. at 530 n. 55;AISI, 939 F.2d at 980. A standard is cost effective if the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection.ATMI, 453 U.S. at 514 n. 32;International Union, UAWv.OSHA (“LOTO II”), 37 F.3d 665, 668 (D.C. Cir. 1994).

Section 6(b)(7) of the OSH Act authorizes OSHA to include among a standard's requirements labeling, monitoring, medical testing and other information gathering and transmittal provisions (29 U.S.C. 655(b)(7)).

All safety standards must be highly protective. (See, 58 FR 16614-16615;LOTO II, 37 F.3d at 668.) Finally, whenever practical, standards shall “be expressed in terms of objective criteria and of the performance desired” (29 U.S.C. 655(b)(5)).

III. International Aspects

OSHA has developed this final rule in light of international trade considerations. In the Trade Agreements Act of 1979 (“TAA,” codified at 19 U.S.C. 2501et seq.), the United States implemented the Agreement on Technical Barriers to Trade, negotiated under the General Agreement on Tariffs and Trade. In particular, Congress has indicated that federal agencies may not “engage in any standards-related activity that creates unnecessary barriers of trade” (19 U.S.C. 2532). A standard is “necessary” in this context:

If the demonstrable purpose of the standards-related activity is to achieve a legitimate domestic objective including, but not limited to, the protection of legitimate health or safety, essential security, environmental, or consumer interests and if such activity does not operate to exclude imported products which fully meet the objectives of such activity.

(19 U.S.C. 2531(b).) The TAA also requires federal agencies to take international standards into account in standards-related activities and to base their standards on the international standards, “if appropriate” (19 U.S.C. 2532(2)(A)). However, international standards are not “appropriate” if they do not adequately protect “human health or safety, animal or plant life or health or the environment” (19 U.S.C. 2532(2)(B)).

Mindful of these international aspects, OSHA has sought to formulate a protective but flexible approach to VTLs in the final rule. As discussed in further detail below, OSHA's requirements for VTLs are consistent with the relevant provisions of ILO Convention 152 and with many of the provisions of the ISO standard and ICHCA guidelines.

Several commentators suggested that deviations from the ICHCA guidelines and ISO standards for VTLs would create unnecessary barriers of trade in violation of the above provisions (Exs. 47-5; 54-2). OSHA does not agree. First, these commenters' positions seem to be premised on the assumption that there is an international consensus about whether to perform VTLs and how they are to be performed. OSHA finds that the record does not support that assumption. While two international bodies have addressed VTLs (ICHCA and the ISO), the ILO refused to adopt provisions allowing VTLs in its Code of Practice (Exs. 47-4, 50-7, 64). Further the record suggests that VTLs are not performed at many ports worldwide. Submissions indicate, without contradiction, that VTLs are not performed in Canada, Tokyo, Rotterdam, Antwerp, and Russia (Tr. 2-285, 2-295; Ex. 62). Maersk stated that it performs VTLs in only 8-10 of its 80 ports of call (Tr. 2-127 to 128). ICHCA's guidelines specifically note that national legislation may prohibit or limit VTLs (Exs. 41, 8.1.1.2 8.1.1.5).

Regardless, OSHA does not believe that limiting VTLs to two empty containers creates a “barrier to trade” under the TAA. These requirements are applied to vessels regardless of origin and apply to ships arriving from U.S. ports as well as foreign ports. OSHA's regulation does not discriminate, either on its face or in effect, by country of origin or class of shipper. As indicated in the Final Economic Analysis below, the claim that the final rule “constitutes a barrier of trade seems to be without merit in any economic sense.”

Moreover, even if the regulation did constitute a barrier to trade, it still would not be “unnecessary” in the sense of the TAA. As discussed at length in the Summary and Explanation, OSHA has given extensiveconsideration to the question of the safety of VTLs, and it has determined that the limitations in the final rule are necessary to protect workers from the significant risk of death or injury inherent in the procedure. Thus, in the terms of the TAA, “the demonstrable purpose” of the final rule is “to achieve a legitimate domestic objective including, but not limited to, the protection of legitimate health or safety * * * interests” (see 19 U.S.C. 2531(b)). Therefore, the final rule complies with the TAA.

OSHA has also given consideration to the relevant international standards in the area, as required by the TAA (see 19 U.S.C. 2532(2)). Articles 21 through 27 of ILO Convention 152 contain international standards for vessel cargo handling gear, which are intended to protect dockworkers. The United States is not a signatory to either this convention or its predecessor, ILO Convention 32. However, it has nonetheless conformed to them through regulations promulgated by the U.S. Coast Guard, regarding inspected U.S. flag vessels, and by OSHA, regarding other vessels (62 FR 40152). In particular, in its latest revisions to its Longshoring Standard, OSHA updated its vessel cargo handling gear certification requirements to conform to Convention 152's requirements (62 FR 40151-54; 29 CFR 1918.11).

VTLs were not used at the time that Convention 152 was drafted, (Tr. 1-207), and as noted above, there was substantial uncertainty about how it applied to this procedure at the time OSHA revised its Longshoring Standard in 1997 (see 62 FR 40152-53). This engendered substantial study of VTLs, both by OSHA and the international community, as detailed elsewhere in this preamble. The result of this study is that, although the ILO has since clarified that twistlocks used in VTLs are loose gear under Convention 152, VTLs represent a unique cargo operation. The rules and guidance developed by ICHCA and ISO TC 104 reflect an adaptation of Convention 152's loose gear rules for VTLs, given the particular safety issues they pose, rather than a direct application of its requirements. Thus, for example, where the convention at Article 23 requires that loose gear to be “thoroughly examined and certified” every twelve months, ISO 3874 Amend. 2 requires only that twistlocks used in lifting be “periodically examined” (Ex. 40-9), and ICHCA would allow for a continuous inspection program of such twistlocks (Exs. 41, 8.1.3.3.3 8.1.3.3.4).

The final rule takes the same approach towards the convention in formulating rules for VTLs. In most respects—such as keeping twistlocks in good repair and working order, testing and certification before initial use, marking, and inspection before each use—the final rule's requirements are consistent with the convention's. The only significant departure is in the area of the annual thorough examination required by Article 23. Rather than require an annual thorough examination, OSHA has determined that all the necessary elements of a thorough examination of a twistlock may be performed before each lift (see Summary and Explanation below). It has thus required that these examinations to be performed before each lift and this has rendered an annual thorough examination and certification unnecessary. If anything, OSHA's approach may be more protective than that required by the convention.

Convention 152 itself allows variances if the change in question is not less protective (Art. 2.2; Ex. 41, 5.2.6), and as noted above, several international bodies have made their own departures from the annual thorough examination and certification requirement in this context. ICHCA has noted that under the convention: “It is understood that some countries may impose a higher standard,” (Ex. 41, 5.2.6), and some countries have already done exactly that (62 FR 40154). OSHA believes that the final rule is within the letter and spirit of ILO Convention 152, and it is therefore continuing its practice of maintaining consistency with the convention.

OSHA also considered ISO 3874 and the ICHCA VTL guidelines in the formulation of this final rule. While consistent in some ways with these documents, the final rule differs from them in at least two significant aspects: It allows VTLs only of empty containers, and it allows VTLs of only two containers—three container VTLs are prohibited. Nonetheless, this result is consistent with the TAA. As comprehensively explained in the Summary and Explanation, the record shows that ICHCA and ISO TC 104 used assumptions (e.g., the number of twistlocks engaged in a VTL and the acceleration forces experienced at the beginning of the lift) that did not adequately represent the forces experienced by corner castings and twistlocks in use. OSHA has used more appropriate assumptions in formulating its final rule. Therefore, OSHA has determined that for the purposes of the TAA, ISO 3874 Amend. 2 and the ICHCA guidelines (to the extent they may be considered an “international standard” for purposes of the TAA) are not “appropriate” standards upon which to base this final rule because they do not adequately protect “human health or safety, animal or plant life or health or the environment” (19 U.S.C. 2432(2)(B)).

IV. Significant Risk

An issue in any OSHA rulemaking is significant risk. In its Notice of Proposed Rulemaking (NPRM), the Agency preliminarily concluded that the procedures required in the proposal would substantially reduce the risk to employees of performing VTLs (68 FR 54298, 54302, September 16, 2003). Mr. Ronald Signorino, who testified at the July 29-30, 2004, hearing on the proposed rule on VTLs as a member of a panel representing the United States Maritime Alliance (USMX), remarked that, before OSHA promulgates a standard, it must find that a significant risk is present and can be eliminated or lessened by a change in practice (Ex. 54-2). He argued that the Agency had not made that threshold finding, as follows:

There is no evidence in the record which establishes that VTL[s] are unsafe and that operational limitations over and above those appearing within international standards and guidelines are warranted. [Ex. 54-2]

As Mr. Signorino noted, the Supreme Court has held that before OSHA can promulgate any permanent health or safety standard, it must make a threshold finding that significant risk is present and that such risk can be eliminated or lessened by a change in practices (Industrial Union Dept., AFL-CIOv.American Petroleum Institute, 448 U.S. 607, 641-42 (1980) (plurality opinion)). The Supreme Court ruled that, before OSHA can issue a new standard, the Agency must find that the hazard being regulated poses a significant risk to workers and that a new, more protective, standard is “reasonably necessary and appropriate” to reduce that risk. The requirement to find a significant risk does not mean, however, that OSHA must “wait for deaths to occur before taking any action,”Id. at 655, or “support its findings with anything approaching scientific certainty.”Id. at 656. “[T]he requirement that a ‘significant' risk be identified is not a mathematical straightjacket.”Id. at 655.

The Act allows OSHA considerable latitude to devise means to reduce or eliminate significant workplace hazards. Clearly, OSHA need not make individual quantitative or qualitative risk findings for every regulatory requirement in a standard. Once OSHA has determined that a significant risk ofmaterial impairment of health or well being is present, and will be redressed by a standard, the Agency is free to develop specific requirements that are reasonably related to the Act's and standard's remedial purpose. OSHA standards are often designed to reduce risk through an integrated system of safety practices, engineering controls, employee training, and other ancillary requirements. Courts have upheld individual requirements based on evidence that they increase the standard's effectiveness in reducing the risk posed by significant workplace hazards. SeeForging Indus. Ass'n., 773 F.2d at 1447-1452 (finding ancillary provisions of hearing conservation standard, including requirements for audiometric testing, monitoring, and employer payment for hearing protectors, reasonably related to the standard's purpose of achieving a safe work environment);United Steelworkers, 647 F.2d at 1237-1238 (finding lead standard's medical removal protection provisions reasonable).

While OSHA often uses fatality, injury, and illness reports and statistics to support its findings of significant risk, the finding of significant risk does not strictly require a history of injury. As Mr. Signorino noted, there is no evidence in the record of this rulemaking showing a worker injury due to VTL, despite the thousands of lifts that have occurred in the U.S. since 1986. However, evidence in the record does support a finding of significant risk for unregulated VTL operations. First, and foremost, as described in detail later in this preamble,4 numerous VTL accidents have occurred in which employees were not injured. There is substantial evidence, discussed in more detail later in this preamble, that not all interbox connectors properly engage in VTLs, creating the risk of partial or complete separations. And the record contains evidence of at least nine VTL separations in the United States and Canada over the past 15 years, which are detailed later in this preamble. Any one of these accidents could have resulted in injury to or death of one or more employees. It was simply good fortune that worker injury was avoided. As the Supreme Court noted, OSHA need not “wait for deaths to occur before taking any action,”American Petroleum Institute, 488 U.S. at 655.

4See the discussion of the issue titled “Strength of the container-connector system” under section V, Summary and Explanation of the Final Rule.

Second, the industry has acknowledged that VTLs are riskier than single lifts. As discussed in the background section of the ICHCA guidelines, ISO Technical Committee 104 recognized that there were potential hazards associated with VTL operations, and the committee asked ICHCA to develop a comprehensive document to deal with all aspects of VTL operations (Ex. 41). This acknowledgment was reinforced by the comments of Jimmy Burgin on behalf of the National Maritime Safety Association (NMSA) and the Pacific Maritime Association (PMA), who stated, “As an initial matter the TC [NMSA technical committee] recognized that VTL operations are different, and must be treated differently than, normal single container lifts” (Ex. 50-9). In addition, several individual companies testified that they follow the ICHCA guidelines to help assure the safety of VTL operations (see for example, Tr. 2-103), and some companies supplement the ICHCA guidelines with additional procedures to assure safe VTL handling (see for example, Tr. 2-128).

Third, the handling of individual containers has been determined in previous rulemakings to include risk (62 FR 40142-40144). The lifting of two or more containers cannot be less risky. VTLs introduce additional risk because more equipment can fail (twistlocks, corner castings, the container itself), the loads have a greater sail area that can be affected by wind, the loads have more sway, and VTLs are more difficult to transport on the ground. Also, compared to single lifts, the greater bulk of VTLs obscures more of the crane operator's view and thus potentially increases the likelihood of accidents. Finally, the safe transport of oversize loads and containers is recognized to require special procedures by other transportation interests, such as railroads and highway authorities (see, for example, 43 Texas Administrative Code, Chapter 28, Subchapters A-G).

Fourth, as discussed in detail in the next section of this preamble, OSHA's analysis of the strength of the components involved in VTLs demonstrates that lifting loaded containers in a VTL or lifting more than two containers in a VTL poses a significant risk of failure. It is widely a recognized engineering practice to impose sufficient factors of safety to ensure the safe lifting of cargo. An inadequate safety factor would result in significant risk. Without regulation, the Agency believes that employers would have an economic incentive to lift larger loads in VTLs, either by lifting loaded containers or by lifting more than two vertically coupled containers at the same time, thus reducing the safety factor to unacceptable values and causing a significant risk.

Thus, OSHA finds that VTLs pose a significant risk of injury to workers. The Agency notes that this finding of significant risk is proactive rather than reactive. It anticipates the possibility of injury and death that could result from VTLs conducted without special safety precautions and will regulate those problems before a worker is injured or killed.

OSHA also concludes that the final rule will substantially reduce that risk. Currently, employers are performing VTLs under the Gurnham letter (Ex. 2), which permits VTLs under conditions similar to those contained in the final rule. Several rulemaking participants, including Dennis Brueckner, representing the International Longshore and Warehouse Union (ILWU) Coast Safety Committee, testified that employers were not meeting the conditions set out in that letter when conducting VTLs (Tr. 2-369, 2-386, 2-407—2-408). By promulgating this final rule, the Agency anticipates that the percentage of employers complying with these conditions will increase.

Furthermore, the final rule includes additional provisions ensuring that interbox connectors are sufficiently strong so that they withstand, without failure, the forces that may be imposed during a VTL and provisions ensuring that inspections of interbox connectors, corner castings, and containers are conducted immediately before the lift. By ensuring that this equipment is adequately strong and in good condition immediately before a VTL, the final rule will substantially reduce the probability of failure and resulting accidents and injuries.

V. Summary and Explanation of the Final Rule

This section of the preamble discusses the important elements of the final standard and explains the purpose of the individual requirements. This section also discusses and resolves issues raised during the comment period, significant comments received as part of the rulemaking record, and any substantive changes that were made from the proposed rule. References in parentheses are to exhibits in the rulemaking record (Ex.) or to page numbers in the transcript of the public hearing held on July 29 and 30, 2004 (Tr.) or the Agency's public meeting on VTLs in January 1998 (1998-Tr.).5 Except as noted, OSHA is carrying forward the language from the proposal into the final rule without substantive differences.

5Exhibits 100-X, 101-X, 102-X, and 103-X contain the transcripts for the 2-day hearing.Volume 1 (Tr. 1-page) is the transcript for July 29, 2004, and Volume 2 (Tr. 2-page) is the transcript for July 30, 2004.

A. Strength of the Container-Connector System

OSHA originally proposed (68 FR 54298) to permit VTLs, that is, the lifting of two partially loaded intermodal containers, one on top of the other, connected by semi-automatic twistlocks or other interbox connectors under certain stated conditions. The proposal would have allowed VTLs with a maximum total weight of 20 tons (combined weight of the containers and cargo). The proposal also imposed a safe working load requirement for interbox connectors used in VTLs, based on ICHCA recommendations, of 10,000 kg.

Several rulemaking participants strongly objected to OSHA's proposal to permit VTLs of two partially loaded containers (Exs. 8A, 10-1, 11-1B, 11-1C, 11-1G). These rulemaking participants submitted considerable evidence on the safety of VTLs. In light of these objections and this evidence, OSHA has reconsidered the basis on which the Agency preliminarily concluded that lifting two partially loaded containers in tandem is safe.

After considering all of the evidence in the record, OSHA has concluded that the safety of VTLs can only be ensured under ICHCA's safe working load requirements when a maximum of two empty containers are lifted. Evidence submitted to the record reveals that a sufficient margin of safety does not exist, in all situations, when a combined load of up to 20 tons is hoisted in a VTL. In particular, operational considerations and dynamic forces limit the maximum load that can be safely lifted, as discussed fully later in this section of the preamble.

In a VTL, the uppermost container, its bottom corner castings, the interbox connectors, and the upper corner castings of the next lower container must be capable of supporting whatever loads are imposed by containers below the top one. Similarly, if more than two containers are lifted at a time, the intermediate containers, corner castings, and interbox connectors must be capable of supporting all loads below them. Thus, the strength of the container itself and the interbox connector-corner casting assembly is a key issue in the determination of whether VTLs are safe and, if so, under what conditions.

Drawings of a semi-automatic twistlock and the connection between twistlocks and corner castings are shown in Figure 1 and Figure 2. It should be noted that the load-bearing surface area is limited to the overlap between the flat surface of the cone of the twistlock and the inside surface of the corner casting at the top or bottom of the opening. The load-bearing surface area is shown in Figure 3.

BILLING CODE 4510-26-P ER10DE08.000 BILLING CODE 4510-26-C

An explanation of basic strength of materials theory will clarify the underlying principles on which OSHA is basing its determination in this rulemaking.6 These principles govern how materials react to external forces imposed on them. To simplify the discussion and avoid the need for the conversion of units between systems, the Agency is using the InternationalSystem of Units exclusively in this discussion and in the analysis of the record that follows.

6The explanation of strength of materials theory is consistent with the discussion of this topic in Ex. 65-2. The information in this discussion is widely recognized material science.

Stress is a measure of force per unit area within an object. It is the object's internal distribution of force per unit area that reacts to external applied loads. In the following discussion, stress is measured in newtons per square meter (N/m2).

Strain is an expression of the deformation caused by the action of stress on an object. It is a measure of the change in size or shape of the object. In the following discussion, strain is unitless, though the amount of strain is sometimes given as a percent.

Stress may be applied to a material in a number of ways, including tension, compression, and shear. Compressive stress is stress applied so as to compress the material. Shear stress is stress applied parallel or tangential to the face of the material. Tensile stress, which is the primary concern in this rulemaking, is stress applied to pull a material apart. This is the predominant type of stress that a twistlock experiences during a VTL. The corner casting also experiences compressive and shear stress.

When material is stressed by the application of a tensile force, it will stretch and, when the stress is removed, return to its original size and shape as long as the stress is below the yield strength of the material. When the applied stress exceeds the yield strength of the material, it permanently deforms. When the stress exceeds the ultimate strength of the material, it catastrophically fails, or ruptures. A typical stress-strain curve is depicted in Figure 4.

ER10DE08.001

To limit the forces on a component to a safe level, engineers usually set a maximum stress limit on the material at a value much less than its yield strength. This is done using maximum rated loads and safety factors. A maximum rated load is the highest load permitted to be carried by the component. A safety factor is the ultimate strength7 of a material divided by its maximum rated load. A sufficient safety factor will ensure that forces on the component do not approach its yield strength. The appropriate size of the safety factor to be employed is established by engineering judgment and is typically based on such factors as: The accuracy of load estimates, the consequences of failure, the possible effects of wear, and the cost and technological feasibility of overdesigning the component. For interbox connectors, the cost and technological feasibility of overdesign is not a consideration because, as described in more detail later, the design of at least some SATLs currently on the market have sufficient strength to provide an adequate safety factor (Ex. 40-10). In general, the safety factor is adjusted upwards to account for increasing uncertainty about the loads and forces imposed by real-world conditions.

7As noted earlier, the ultimate strength is the maximum stress a material can withstand before failure, and stress is measured in N/m2. However, when dealing with components, the cross-sectional area is constant, and loads (in N) are usually substituted in the calculation of safety factors.

ISO Technical Committee on Freight Containers, Technical Committee 104, develops international standards for the design and testing of freight containers and for container handling and securing (Ex. 41). Standards under the purview of ISO/TC 104 deal with structural issues that relate to the ability of a freight container to be handled and safely transported (Ex. 41). Table 1 lists the relevant ISO/TC 104 standards that relate to VTLs.

Table 1—ISO Standards Relevant to VTLs ISO standard No. Title ISO 668:1995 Series 1 freight containers—Classification, dimensions and ratings. ISO 1161:1984 (Ex. 11-6B) Series 1 freight containers—Corner fittings—Specification. ISO 1161:1984/Cor. 1:1990 (Ex. 11-6B) Technical corrigendum 1:1990 to ISO 1161:1984. ISO 1496-1:1990 (Ex. 11-6D) Series 1 freight containers—Specifications and testing—Part 1: General cargo containers for general purposes. ISO 1496-1:1990/Amd. 1:1993 Amendment 1:1993 to ISO 1496-1:1990, 1 AAA and 1 BBB containers. ISO 1496-1:1990/Amd. 2:1998 Amendment 2:1998 to ISO 1496-1:1990. ISO 3874:1997 (Ex. 11-6C) Series 1 freight containers—Handling and securing. ISO 3874:1997/Amd. 1:2000 Amendment 1:2000 to ISO 3874:1997, Twistlocks, latchlocks, stacking fittings and lashing rod systems for securing of containers. ISO 3874:1997/Amd. 2:2002 (Ex. 40-9) Amendment 2:2002 to ISO 3874:1997, Vertical tandem lifting. Source:Ex. 41.

ISO 1161 sets detailed specifications for the dimensions, design, and strength of corner castings. The design requirements in this standard call for top corner castings to have design loads for lifting of 150 kN. Bottom corner castings are in most significant respects identical to top corner castings. Therefore, they can be expected to have the same strength.

ISO 1496-1 sets specifications for Series 1 freight containers. The requirements in this standard ensure that such containers are adequately strong for the lifting and in-use conditions they are likely to experience.

ISO 3874 sets requirements for the dimensions and strength of twistlocks. This standard requires twistlocks to have a minimum load-bearing surface of 800 mm2and, for those used for lifting, to be capable of withstanding a tensile force of 178 kN without any permanent deformation. The test used to determine compliance with the tensile strength requirement must be made using two corner castings or equivalent devices.

OSHA had relied on two studies, a Swedish National Testing and Research Institute's (SNTRI) study, “Container Lashing” (Ex. 11-6H), and a NIST study, “Strength Evaluation of Connectors for Intermodal Containers” (Ex. 40-10), to support its proposal. The Swedish study focused primarily on the ability of containers, interbox connectors, and lashing equipment to withstand the forces likely to be imposed while being transported aboard a vessel. However, both studies evaluated the strength of interbox connectors and corner castings.

The NIST study included site visits to port facilities and laboratory tests of interbox connectors. At the time of the NIST study, approximately 12 manufacturers produced most of the interbox connectors used by the shipping industry. NIST contacted U.S. representatives of eight manufacturers, and four provided interbox connectors for testing. For the failure load test of connector shafts loaded in tension, two new interbox connectors were used from each of the four manufacturers, and two used interbox connectors were used from two of the four manufacturers, for a total of 12 interbox connectors.

Test specimens included semi-automatic twistlocks and latchlocks. The engineering study included the testing of twistlocks in tension, twistlock and latchlock assemblies with corner castings in tension and compression, and shafts of twistlocks in tension to obtain the stress-strain relationship. In addition, NIST measured the bearing surface areas of the top and bottom cones of twistlocks and latchlocks on the inner surfaces of the corner castings.

The NIST study revealed that the ultimate tensile loads8 of the twistlock shafts tested ranged from 562 to 802 kN. The SNTRI study reported similar test results in 1997, with ultimate tensile loads ranging from 477 to 797.1 kN.9 Although a limited number of used connectors were tested in the NIST study, the test results indicated that, when their respective shafts were loaded in tension, the used twistlocks withstood a greater test load than the new twistlocks (Ex. 40-10). The study also indicated that the strength of a twistlock-corner casting assembly was lower than that of a twistlock alone. The maximum test loads for twistlock-corner casting assemblies ranged from 408 to 710 kN, or roughly 80 percent, on average, lower than the ultimate strength of the twistlock shaft alone. The report described the reason for this as follows:

8The ultimate tensile strength of a material is the maximum unit stress that a material can withstand when subjected to an applied load in a tension test. Because stress is force (the load) divided by the cross-sectional area, the ultimate tensile stress is proportional to the maximum tensile load applied to a test specimen during the test. This load is known as the ultimate tensile load.

9The Swedish study tested only three semi-automatic twistlocks. Furthermore, the tensile tests were limited to SATLs alone; they were not performed on SATL-corner casting combinations.

[T]he capacity of the assembly is limited by failure of the corner fitting. Failure was brought about by large permanent deformations of the aperture of the corner fitting and/or shearing at the perimeter of the aperture * * * A relatively small bearing area of the cone on the corner fitting caused a concentration of force near the edge of the aperture, and as a result, the edge of the cone sheared through the top plate of the corner fitting.10 [Ex. 40-10]

ISO 3874 requires that the load-bearing area between a twistlock and a corner casting be a minimum of 800 mm2. Because stress increases with decreasing cross-sectional area, the bearing area is critical to the ability of the interbox connector to withstand lifting loads. The NIST study showed that the measured bearing area of latchlocks tested on the corner casting was less than that given in ISO 3874. Furthermore, the report stated that the maximum test load for a latchlock-corner casting assembly was as low as 90 kN when the latch was not fully extended. For these reasons, OSHA has concluded that latchlocks are not suitable connectors for VTLs. The report also noted that three of the six twistlocks also failed to meet the ISO provisions on minimum load-bearing area with the largest acceptable opening on a corner casting (these openings are a maximum of 65.0 mm wide). Because the strength of the twistlock-corner casting assembly depends on this load-bearing area, as described in the NIST report, the final rule requires twistlocks used in VTLs to be certified as having a minimum load-bearing surface area of 800 mm2when connected to a corner casting with an opening of the maximum width permitted by the ISO standard (65.0 mm).

10It should be noted that the twist lock-corner casting combination failing with the smallest tensile load (408 kN) failed when the cop cone pried off the shaft of the twistlock.

A number of rulemaking participants, including the Institute of International Container Lessors, the Carriers Container Council, Inc., and the USMX, argued that VTL operations were safe up to a total load of 20 tons and, in that sense, supported the proposal (Exs. 10-4, 10-5, 10-6, 36, 37, 47-2-1, 50-12, 54-1-1, 54-2, 54-3, 65-3). In support of their position that VTLs are safe, two of these commenters stated that they were unaware of any reported injuries resulting from lifting vertically coupled containers (Exs. 10-5, 10-6). For example, the Carriers Container Council, Inc. (Ex. 10-6), said:

The fact that there has not been one reported injury as a result of this practice is evidence that the precautions being applied by terminals performing these lifts are sufficiently protective.

On the other hand, there have been documented VTL events and accidents in the Port of Charleston, South Carolina, in Honolulu, Hawaii, and in Houston, Texas (Exs. 8-A, 11-1-B, 11-1-H, 11-1-K, 11-1-M, 11-3, 11-3-A, 11-3-B, 43-10, 45-1, 61, 62). The International Longshoreman's Association reported that at the Port of Charleston, two 12.2-meter refrigerated containers became uncoupled while in midair (Exs. 8-A, 11-1-B, 11-1-K, 11-1-M, 11-3-A, 11-3-B, 43-10). The ILA also reported two incidents at this port in which the bottom 12.2-meter container of a three-container VTL released in midair (Exs. 11-1-K, 43-10). The ILWU reported two midair separations of the bottom container of two-container lifts in Honolulu, resulting in the lower container crashing to the dock or the deck of the ship, respectively (Exs. 11-1-B, 11-1-H, 43-10, 62). One of these VTLs comprised loaded containers; the other appears to have been empties (Exs. 11-1-H, 62). The ILWU also provided testimony about an event in Canada in which a two-container VTL carrying loaded twistlock bins separated when all four of the twistlocks connecting them broke (Tr. 2-285—2-286, 2-333—2-335).

APM/Maersk reported a VTL separation occurring in Houston while employees were loading a barge with empty containers, in which two twistlocks broke during a l