[Federal Register Volume 73, Number 238 (Wednesday, December 10, 2008)]
[Rules and Regulations]
[Pages 75246-75290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28644]
[[Page 75245]]
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Part III
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Parts 1917 and 1918
Longshoring and Marine Terminals; Vertical Tandem Lifts; Final Rule
Federal Register / Vol. 73, No. 238 / Wednesday, December 10, 2008 /
Rules and Regulations
[[Page 75246]]
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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.
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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 this Federal
Register notice, 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 this Federal
Register notice, as well as news releases and other relevant documents,
are available at OSHA's Web page on the Internet at http://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
ACEP Approved Continuous Examination Program
DOL Department of Labor
Ex. Exhibit
FEA Final Economic Analysis
ICHCA International Cargo Handling and Coordination Association
ILA International Longshoremen's Association
ILO International Labor Organization
ISO International Organization for Standardization
ISO/TC 104 ISO Technical Committee Number 104 Freight Containers
ILWU International Longshore and Warehouse Union
NEPA National Environmental Policy Act
MACOSH Maritime Advisory Committee for Occupational Safety and
Health
NIOSH National Institute for Occupational Safety and Health
NIST National Institute of Standards and Technology
NMSA National Maritime Safety Association
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PCMSC Pacific Coast Maritime Safety Code
PMA Pacific Maritime Association
RFA Regulatory Flexibility Act
SNTRI Swedish 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
SATL Semiautomatic twistlock
TEU 20-foot equivalent unit
UMRA Unfunded Mandates Reform Act of 1995
USMX United States Maritime Alliance
VTL Vertical 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 of
[[Page 75247]]
interbox 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:
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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.
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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 Sec. 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:
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\1\ Exhibits in Docket 025A on the proposed rule on vertical
tandem lifts (68 FR 54298-54318).
\2\ Existing Sec. 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.
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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,
[[Page 75248]]
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 a Federal
Register notice 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
Association \3\ (ICHCA) about international safety aspects of VTLs;
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\3\ ICHCA 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.
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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 Malm[ouml], 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:
[[Page 75249]]
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. Institute v. OSHA
(ATMI), 452 U.S. 490, 513 (1981); American Iron and Steel Institute v.
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. See ATMI, 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, UAW v. 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. 2501 et 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
extensive
[[Page 75250]]
consideration 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-CIO v. 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 of
[[Page 75251]]
material 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. See Forging 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.
---------------------------------------------------------------------------
\4\ See 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\
[[Page 75252]]
Except as noted, OSHA is carrying forward the language from the
proposal into the final rule without substantive differences.
---------------------------------------------------------------------------
\5\ Exhibits 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
[[Page 75253]]
[GRAPHIC] [TIFF OMITTED] TR10DE08.000
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 International
[[Page 75254]]
System of Units exclusively in this discussion and in the analysis of
the record that follows.
---------------------------------------------------------------------------
\6\ The 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/m\2\).
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.
[GRAPHIC] [TIFF OMITTED] TR10DE08.001
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
strength\7\ 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.
---------------------------------------------------------------------------
\7\ As noted earlier, the ultimate strength is the maximum
stress a material can withstand before failure, and stress is
measured in N/m\2\. 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.
[[Page 75255]]
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 Technical corrigendum 1:1990 to ISO
(Ex. 11-6B). 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 Amendment 2:2002 to ISO 3874:1997,
(Ex. 40-9). 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 mm\2\ and, 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 loads \8\ 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:
---------------------------------------------------------------------------
\8\ The 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.
\9\ The 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 mm\2\. 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 mm\2\ when connected to a corner
casting with an opening of the maximum width permitted by the ISO
standard (65.0 mm).
---------------------------------------------------------------------------
\10\ It 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.
---------------------------------------------------------------------------
[[Page 75256]]
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 lift, causing the bottom container to fall
1.2 to 1.5 meters to the dock (Ex. 61).\11\
---------------------------------------------------------------------------
\11\ In addition, as noted in the ANPR, Sea-Land reported two
VTL incidents involving twistlocks that would have been avoided by
following proper practices. In the first, the VTL separated at one
end because the two front twistlocks did not enter the corner
castings of the lower container, and as a result Sea-Land instituted
a prelift procedure (1998-Tr. 206). In the second, 13.7-meter
containers were hoisted in a VTL, against company policy, and the
twistlocks released when the VTL struck the crane's legs (1998-Tr.
206-207).
---------------------------------------------------------------------------
The ILWU further argued:
The ILWU believes that other such accidents have occurred and
that there has been poor reporting of them.
* * * * *
The fact that no one has yet been injured or killed as a result
of these operations is merely extreme good fortune. [Ex. 11-1P]
Mr. Ross Furoyama, testifying on behalf of the ILWU, stated that in
his experience near-misses are not reported (Tr. 2-395). He described
what happened as follows:
[W]hen they are taking [a VTL] up to a ship, there will be
instances where they would lift, the back would alligator, because
the cones did not activate properly, then it will slam back down,
jarring the crane cab operator. This happened numerous times. I
couldn't count how many times it happened during a ten hour
operation. [Tr. 2-396; see also Ex. 11-1-H]
Mr. Furoyama also testified that he observed corners unlock in VTLs
after prelifts as the containers were being lifted (Tr. 2-396). Mr.
Matthew Lepore, an ILA crane operator working for Sea-Land in Port
Elizabeth, NJ, testified about two separate occasions when a twistlock
disengaged as a VTL was traveling from a ship to the dock (Ex. 20). He
also testified that he has observed VTLs separate on one end or be
attached by only one twistlock (1998-Tr. 236-237).
Mr. Tyrone Tahara estimated that there was approximately one
separation for every 40 lifts (Tr. 2-405).
OSHA does not believe that the lack of injuries in VTL operations
to date is an indication that these operations are safe. At least eight
incidents in this country have been reported in the 15 years since the
Agency issued the Gurnham letter to Sea-Land in 1993.\12\ In addition,
VTLs represent a fraction of the total number of container lifts, as
described by the ILWU:
---------------------------------------------------------------------------
\12\ OSHA had issued a similar letter to Matson in 1986.
However, unlike Sea-Land, which reported the three incidents on the
record, Matson apparently did not have a mechanism to report near-
misses associated with VTL operations, and there was evidence in the
record that Matson did experience separations that were not reported
(Tr. 2-410--2-411).
[A]t least 100,000 single picks of containers are made daily in
United States ports. Despite this enormous volume of single
container hoists, dropped containers are an extremely rare event. By
comparison, there have been relatively few tandem picks of
containers during the past five years. According to SeaLand
statements, 150,000 to 200,000 vertical tandem lift hoists have been
made during this period. This is equivalent to one to two days of
standard container single pick operations. Consequently, it is
clearly evident that even with this insignificant number of vertical
tandem hoists that, statistically speaking, there have been an
---------------------------------------------------------------------------
extremely large number of VTL hoist accidents. [Ex. 11-1-B]
The conditions in the Gurnham letter restrict the number of VTLs to
empty containers only. Furthermore, labor agreements in many ports
prohibit VTLs. There was also largely unrebutted testimony that partial
separations occur, with some witnesses claiming that partial
separations are relatively commonplace (Tr. 2-396, 2-405). Although
many of these partial separations occurred during prelifts, the
frequency at which they occur is a strong indication that a significant
portion of VTLs are accomplished with one or more twistlocks disengaged
from their associated corner castings. This experience calls into
question the assumptions (1) that forces imposed by VTLs would be
distributed over four twistlock-corner casting combinations and (2)
that forces would be evenly distributed over these combinations. As
will be seen later, these are key assumptions made in the calculation
of safe working loads conducted by several parties and submitted to the
record.
A number of commenters believed that vertical tandem lifting is an
unsafe practice regardless of the weight of the load (Exs. 8A, 10-1,
11-1B, 11-1C, 11-1G). Their major concern was disengagement or failure
of one or more interbox connectors or corner castings. The position
against VTL operations was taken primarily by union groups, such as the
International Longshoremen's Association (ILA, Exs. 8A) and the
International Longshore Warehouse Union (Ex. 11-1B), as well as other
participants: Germanischer Lloyd, the German shipping industry
classification society (Ex. 11-1C), W. A. Verwoerd, Inspector, Port of
Rotterdam (Ex. 10-1), and former OSHA Regional Administrator James W.
Lake (Ex. 11-1G).
OSHA believes that disengagement or the failure of a twistlock to
engage the corner casting fully is a significant concern. When this
happens, the remaining twistlocks and corner castings must support a
greater portion of the load. As noted earlier, this is a concern in a
significant portion of the lifts, and the final rule must account for
this possibility. For VTLs to be permitted, the final rule must set
requirements that are reasonably necessary and appropriate to prevent
failure of a twistlock or corner casting during these operations. This
can be done by using adequate safety factors and conservative estimates
of the ultimate strength of twistlocks and
[[Page 75257]]
corner castings in developing the final rule.
During the rulemaking, several parties raised issues as to whether
the NIST and Swedish studies properly considered all significant
factors in evaluating the safety of VTLs (Exs. 11-1B, 50-11-2). Robert
N. Anderson, Ph.D., P.E., an expert in forensic materials (the
investigation of materials, products, structures or components that
fail or do not operate or function as intended) and metallurgical
engineering and sciences, testified on behalf of the ILWU (Ex. 50-11-
2). He pointed out underlying problems with the NIST report, as well as
the Swedish National Testing and Research Institute's report. According
to Dr. Anderson, both reports were incomplete because they lacked data
that would assist in determining the dynamic behavior of the interbox
connectors during a VTL. In addressing the NIST report, he stated,
I found in analyzing this report that it does not support using
connectors for intermodal containers and moreover, the data shows
that the connectors they tested were not suitable for the intended
purpose.
* * * * *
In my opinion, the NIST report is incomplete in that it only
looks at static or slow applied loads. In addition there is no
information on the hardness from heat treating of the connectors, or
on their resistance to fatigue loading. However, there is enough
information to determine that the connectors are not suitable for
intended use. [Ex. 50-11-2]
He also faulted the Swedish study, stating:
Apparently the SNTRI used an INSTRON testing machine * * * which
is suitable only for static slow strain rate loading. Therefore, its
shortcomings are comparable to the NIST report, and their work is
not appropriate to determining the dynamic behavior of the interbox
connectors during a VTL. [Ex. 50-11-2]
NIST made no attempt to conduct a statistically rigorous testing
program, but only attempted to assess in broad terms the structural
performance of the connectors and identify their failure mechanism and
the weakest link. It only tested several twistlocks out of the hundreds
of thousands that are in current use, and this is not a statistically
significant sample from which a decision can be reached about the
quality of SATLs in general. Indeed, the NIST report warned that the
results should not be extrapolated to other types of connectors not
included in the study (Ex. 40-10).
Another limitation of the NIST study was that it focused on
investigating interbox connectors and connector-corner casting
assemblies only. No attention was given to the overall structural
integrity of the container. As NIST pointed out, the welded connection
between the corner casting and the corner post may present a weaker
connection than the connector-corner casting assembly (Ex. 40-10).
OSHA has concluded that the testing performed by NIST and the
Swedish National Testing and Research Institute does not, by itself,
demonstrate what are the strengths of twistlocks and corner casting
combinations. As noted earlier in this section of the preamble, the ISO
design requirements tightly control the dimensions and material
strength of corner castings. This is evidenced by the need to ensure
dimensional compatibility so that the containers can be readily stacked
for shipment. If container did not closely follow the ISO standards,
stacking and transporting the containers would be problematic. For this
reason, the NIST testing results are likely representative of existing
and future corner casting designs, and OSHA has concluded that further
regulation of corner castings is unnecessary. However, as NIST noted,
the testing was not of a statistically significant sample of twistlock
designs, as this would require testing multiple samples of as many
twistlock designs as possible. In addition, even if the testing were
representative of all existing twistlock designs, it would not be valid
for designs that may be produced in the future. The ISO standards do
not control the dimensions of the cones on twistlocks nearly as tightly
as they do the corner castings. Therefore, the Agency must look to
product standards to determine what strength requirements apply to this
equipment.
As noted by Michael Bohlman, Director of Marine Services for Sea-
Land Service, who authored a number of papers on freight containers and
related technology, the ISO standards require corner castings to safely
handle a tensile force of 150 kN over a minimum load-carrying area of
800 mm\2\ of the interior horizontal face surrounding the aperture (Ex.
50-10-2). According to his prepared testimony, the ISO standards limit
the loading on twistlocks and corner castings used in VTL operations to
75 kN (Ex. 50-10-2). In addition, as noted earlier, ISO 3874 requires
twistlocks used for lifting to be capable of withstanding a tensile
force of 178 kN without permanent deformation. Mr. Bohlman stated that
this results in a structural safety factor of five based on the
ultimate tensile strength of the components.
However, this safety factor is apparently based on the results of
the tests performed by NIST and the Swedish National Testing and
Research Institute, not on design requirements in the ISO standards
themselves (Tr. 1-41--1-42).\13\ Using a safety factor of five, the
ultimate strength of components with a 150-kN safe working load should
be 750 kN. As noted earlier, the NIST study found that the ultimate
strength of the twistlock-corner casting assemblies they tested was as
low as 408 kN. Based on this value, which may not be representative of
the weakest combination twistlock-corner casting assembly, the maximum
safe working load for a safety factor of five would be 80 kN.
Twistlock-corner casting assemblies that were not tested, and those
produced in the future might be even weaker.
---------------------------------------------------------------------------
\13\ There is a provision for a safety factor of five in section
5.1.6 of ICHCA's ``Vertical Tandem Lifting of Freight Containers,''
but this is a guideline, not an international standard.
---------------------------------------------------------------------------
In addition, as noted earlier, NIST found that some twistlocks had
insufficient bearing areas when connected to corner castings with the
largest acceptable openings based on tolerances given in ISO 1161 (Ex.
40-10). Furthermore, the twistlock-corner casting combination failing
with the smallest tensile load (408 kN) failed when the top cone pried
off the shaft of the twistlock (Ex. 40-10). Because the corner casting
dimensions and strength are tightly controlled by the ISO standards,
the ultimate strength of the twistlock-corner casting assembly is
dependent on the bearing surface area of the twistlock and the ability
of the twistlock to withstand tensile forces when loaded on this
bearing surface.
For these reasons, OSHA does not believe that the ISO standards
adequately regulate the ultimate strength of semi-automatic twistlocks
when used in combination with a corner casting. Therefore, as explained
more fully later in this section of the preamble, the Agency has
decided to impose a requirement for all twistlocks used in VTLs to have
a minimum load-bearing area of 800 mm\2\ and a safe working load of
10,000 kg with a safety factor of five \14\ when tested as an assembly
with standard corner castings with openings that are 65.0 mm wide. OSHA
believes that imposing these requirements will ensure that all
components used in VTLs will be strong enough to perform such lifts
without failure provided the other conditions imposed by the final rule
are met. This requirement will also provide assurance that the
calculations are based on valid
[[Page 75258]]
assumptions about the strength of interbox connections.
---------------------------------------------------------------------------
\14\ The minimum ultimate strength of a corner casting meeting
this requirement is 490 kN (10,000 kg * 5.0 * 0.00980665 kN/kg).
---------------------------------------------------------------------------
OSHA has also determined that a safety factor of five will be
sufficient to protect employees from the hazards of component failure
and that this safety factor is reasonable and consistent with good
engineering practice. ISO Technical Committee 104, which has
jurisdiction over ISO standards related to containers, used a safety
factor of five in its calculations for developing standards on VTLs
(Ex. 50-10-2). A report by ICHCA International Limited, entitled
``Vertical Tandem Lifting of Freight Containers,'' claimed a safety
factor of five in their calculations and specifically imposed a safe
working load for lifting on twistlocks used for VTLs of 10,000 kg ``on
the basis of a safety factor of not less than 5'' (Ex. 41). Michael
Bohlman stated that a safety factor of four or five is commonly used in
setting standards for cargo handling and securing (Ex. 50-10-2, see
also Ex. 41).\15\ The Agency has thus concluded that a safety factor of
five is reasonably necessary and appropriate.
---------------------------------------------------------------------------
\15\ Mr. Bohlman also stated that the safety factor is the ratio
between the ultimate strength and the safe working load. However, as
noted earlier, ISO standards do not specify the ultimate strength of
twistlocks or corner castings. The safety factor in those standards
is based on the anecdotal testing performed by NIST and the Swedish
National Testing and Research Institute.
---------------------------------------------------------------------------
Testifying on behalf of the USMX, Mr. Michael Arrow, P.E., an
expert in the area of container engineering and manufacturing
specifications and international standards, testified on the strength
of containers and twistlocks. He said:
On the issue of strength of containers and lift locks, as OSHA
acknowledges, the NIST study notes that corner castings may fail
before semi-automatic twist-locks fail.
Contrary to the opinion of another commentator, this does not
mean that the corner fitting is weak or dangerous, or likely to fail
when VTL operation is conducted according to OSHA and ICHCA
requirements.
The NIST study tested corner fittings, twistlocks, and
combinations of these to destruction in order to determine the load
that would cause ultimate failure.
The NIST study concluded that this tensile failure load of the
combined corner fitting and twistlock assembly was not less than 408
[kN], or 91,800 pounds, and ranged as high as 710 [kN], or 159,000
pounds.
However, both ISO and ICHCA allow a maximum tensile load of only
75 [kN], or 16,875 pounds, meaning that even the weakest assembly
tested has a safety factor of more than five.
Such a safety factor is sufficient with tests to a safe working
load that exceeds ISO and ICHCA requirements. It should also not be
forgotten that the NIST tested assemblies consist of a twist-lock
and a corner fitting.
This means that both components exceed the safe, conservative
safe working load. That the corner fitting ultimately may fail
before the twist-lock does is technically irrelevant. [Tr. 1-41--1-
42]
Michael Bohlman maintained that the ISO-required tests were more
than adequate to ensure that intermodal containers are capable of
safely performing tandem lifting. In his prepared testimony for OSHA's
public meeting in 1998, Mr. Bohlman presented his views on ISO test
methods as follows:
ISO 1496 establishes a series of tests to determine the adequacy
of a container to perform its fundamental cargo carrying function
within the multimodal operating environment. The tests were devised
by ISO TC 104 specifically to test and verify the adequacy of the
container to survive in the real world. They are static tests
developed with appropriate factors of safety considered to reflect
the dynamic loads containers are subject to during transportation
and cargo operations. These static tests provide a margin of safety
for dynamic, full load operating conditions. Dynamic testing was
specifically avoided because it is much more dangerous, less
reproducible and more expensive [than] static testing without any
demonstrable benefit. [Ex. 18]
In his prepared testimony for OSHA's public hearing in 2004, Mr.
Bohlman stated that the ISO Technical Committee 104 concluded that
partially loaded containers could be safely handled in a VTL, and the
forces to which the containers would be subjected would be within their
design strength (Ex. 50-10-2). According to Mr. Bohlman, the
committee's conclusion was based on the structural testing of corner
castings and twistlocks conducted by NIST and the Swedish National
Testing and Research Institute, as well as the committee's own
deliberations and calculations. In his prepared testimony, he stated:
ISO/TC 104 concluded that the existing design and testing
requirements contained in the TC 104 family of standards cover VTL
operations. We determined that containers, their fittings and the
twistlocks specified in the ISO standards have sufficient structural
strength to allow VTL operations to be safely carried out within the
limits specified in the [relevant ISO] standards. [Ex. 50-10-2]
OSHA has concluded that ISO TC 104 provided for a safety factor of
five \16\ based, in part, on (1) the ultimate strength of twistlock-
corner casting connections being adequately represented by the NIST and
Swedish testing and (2) all four twistlock-corner casting connections
being fully engaged during VTLs. As explained earlier in this section
of the preamble, OSHA has concluded that the NIST and Swedish studies
do not, by themselves, demonstrate the ultimate strengths of
twistlocks. Because TC 104 relied on the results of these two studies
to set safety factors, the Agency further concludes that the analysis
performed by TC 104 in setting VTL standards is flawed. In addition,
the committee did not account for disengaged connections in their
analysis. The Agency believes that it is essential for employee safety
to ensure that VTLs are safe even when up to two twistlock-corner
casting connections are disengaged. As described earlier, the record
shows that it is not uncommon for employees to encounter two disengaged
twistlocks during VTL operations. When the twistlocks at two adjacent
corners are disengaged, the containers will partially separate and
provide evidence during the prelift that the twistlocks are not fully
engaged. However, twistlocks at opposite corners may give little
indication that they are disengaged during the prelift. In fact,
Michael Bohlman, testifying on behalf of USMX, stated that an employee
would have to be looking closely to be able to tell that twistlocks on
opposite corners were disengaged (Tr. 1-177). Based on evidence from
employee representatives (Exs. 43-10, 50-7; Tr. 1-345), OSHA does not
believe that employees during the loading or unloading of a container
vessel are likely to examine the connections that closely. Thus, OSHA
has concluded that VTLs must have a safety factor of five when only two
twistlocks, at opposite corners, are engaged.\17\
---------------------------------------------------------------------------
\16\ Amendment 2, ``Vertical Tandem Lifting'' (July 1, 2002) to
ISO 3874, Series I Freight Containers--Handling and Securing, added
a new section 6.2.5, and two footnotes to that section (Ex. 40-9).
The new section requires twistlocks used in VTLs to be ``certified
for lifting.'' One of the footnotes reads: ``The certification
process envisaged is to use a safety factor of at least four based
on the ultimate strength of the material.'' However, ISO TC 104 used
a safety factor of five in the ICHCA guidelines (Ex. 41) in sections
5.1.6 and 8.1.3.1.2. The ICHCA guidelines were published in 2003,
after Amendment 2 to ISO 3874. In fact, the guidelines call for
twistlocks manufactured after December 31, 2002, and used in VTLs to
be certified as having a safe working load of 10,000 kg with a
safety factor of not less than five. Thus, OSHA has concluded that
ISO TC 104 provided for a safety factor of five.
\17\ Mr. Bohlman also testified that VTLs could be performed
safely when only two twistlocks were fully engaged (Tr. 1-99--1-
100). However, in such cases, the safety factor would be reduced by
a factor of two. With a safety factor of five with four fully
engaged twistlocks, the safety factor is reduced to 2.5 when only
two twistlocks are fully engaged, which OSHA believes is
unacceptable.
---------------------------------------------------------------------------
The ILWU (Ex. 11-1B) raised a number of objections regarding the
safety of vertical tandem lifting. Their objections, at least in part,
were based on the underlying premise that SATLs were designed to
connect and secure
[[Page 75259]]
intermodal containers that are stowed on the deck of a vessel, and were
---------------------------------------------------------------------------
not intended to be used to lift multiple containers. The ILWU stated:
Clearly, twistlocks (SATL's) are not designed to lift
containers. As their name indicates, twistlocks are designed and
manufactured as locking or securing devices. It is instructive to
compare SATL's which are manufactured as securing devices with the
twistlocks found on container hoisting beams. Container beam
twistlocks are designed to hoist containers. They are machined from
a block of high grade steel. They are tested and certified and
subject to periodic inspection and recertification. They are
designed to turn a full 90 degrees into the locked position; this
ensures a maximum bearing surface for hoisting.
In comparison, SATL's designed as securing devices are
predominantly manufactured from cast parts, using metal considerably
inferior to that utilized in container beam twistlocks. Also, SATL's
do not turn 90 degrees into a full locking position. Almost all
SATL's have a considerably smaller bearing surface than that of
twistlocks on container beams. This is because SATL's were not
designed to act as lifting devices. [Ex. 11-1B, emphasis included in
original document]
The ILWU also argued that the age and abuse SATLs receive could
contribute to failure over time (Ex. 11-1B). They believe that more
failures are likely in the future.
Mr. Ronald Signorino, president of The Blueoceana Company, Inc.,
and representing the USMX at OSHA's public hearing in 2004, stated that
much of the gear manufactured years ago was vastly inferior to that
which is the norm in today's marine cargo handling and marine
transportation world (Ex. 50-10-1). He stated that the quality of steel
used currently in manufacturing gear is far superior in today's
products.
Mr. Arrow countered ILWU's assertion that semi-automatic twistlocks
were not originally designed for lifting of containers in the VTL
operating mode (Ex. 50-10-3-1). Mr. Arrow, representing the USMX,
pointed to the NIST study as proof that such twistlocks are more than
capable of handling VTL lifting stresses. He also disputed ILWU's
assertions regarding safe working strengths of connectors relative to
their history and age. He claimed that the NIST study selected both
well used and new test specimens and that the results of their testing
revealed that some used specimens were stronger than the new specimens.
Dr. Anderson testified that the likely reason for the increased
strength of the well used twistlocks was that they had been work
hardened, giving them extra tensile strength but also making them more
brittle (Tr. 2-255--2-256). However, as noted in a posthearing
submission (Ex. 65-2), the plastic deformation that occurs when a
material is loaded beyond its yield point does not result in an
increase in ultimate strength. In his posthearing submission, Dr.
Anderson replied that the evidence he examined did not address the
cause of the higher maximum test load for used connectors found in the
NIST report (Ex. 68-1). He concluded:
Since no other metallurgical testing was performed by NIST or
LPI on used connectors and no further data is available, the logical
conclusion is that the connectors have strain hardened by
plastically deforming. This would produce an increase in yield
strength, a reduced toughness and increased sensitivity to stress
corrosion cracking. More importantly, it indicates that the used
connectors were over stressed and plastically deformed during their
use. [Ex. 68-1]
During use, twistlocks are subjected to varying dynamic and static
forces. Their use to keep containers from displacement while at sea
imposes compression and shear forces (Tr. 1-45--1-46). Their abuse at
ports during container stacking and unstacking, with containers
slamming against them and with their being dropped to the deck and to
ground (Tr. 2-396--2-397, 2-404), could strain harden, or cold work,
the twistlocks and increase the yield strength, if not the ultimate
strength, of the twistlocks. Dr. Anderson's point that cold working the
twistlocks also makes them more brittle, and thus more subject to
cracking, was uncontroverted. At a minimum, this evidence points to a
need for an examination of each interbox connector before use in a VTL
to ensure that there is no obvious evidence of cracking.
There is insufficient evidence in the record to determine why the
used twistlocks had higher ultimate strengths than new ones. It could
be that newer designs have less strength, or it may simply be an
indication of the range of strengths of these devices. The fact that
used twistlocks had higher ultimate strengths has no effect on OSHA's
determinations in this rulemaking. As explained previously in this
section of the preamble, the Agency has concluded that it cannot rely
solely on the NIST and Swedish tests to determine the ultimate strength
of twistlocks. In any event, it is the minimum ultimate tensile
strength of twistlock-corner casting connections that must be used to
calculate the maximum safe working load. This ensures that the minimum
acceptable safety factor is met for the weakest available combination.
The standard's requirement that twistlocks used in VTLs have a minimum
safe working load of 10,000 kg with a safety factor of five when
connected to corner castings with openings that are 65.0 mm wide will
ensure that the interbox connections can safely support VTLs under the
worst reasonably anticipated conditions.
The ILWU was also concerned about the strength of welds in corner
castings and posts, frequently finding them loose, damaged, or
improperly connected.
Union mechanics regularly discover improper attachment of lower
corner castings to corner posts and faulty repair work. Frequently,
lower corner castings are discovered to have been ``tack welded''
back into place or welds are found to have no penetration. Often
there is a lack of fusion of ferrous metals even when welding has
been done. It is not unusual for ILWU mechanics to have to remove a
container's cargo and the container floor to properly repair bottom
corner castings. [Ex. 11-1B]
Mr. Arrow replied that ISO/TC 104 and ICHCA developed standards,
testing procedures, and guidelines for vertical tandem lifting that
takes these factors into account (Ex. 50-10-3-1).
OSHA agrees, in part, with Mr. Arrow. The Agency believes that the
ISO standards provide adequate assurance that the ultimate strengths of
the welded connection of the corner casting to the container and the
container corner posts are sufficient for VTLs. After all, the strength
of these components must be adequate to ensure that lifts of single
containers, which when loaded can weigh substantially more than the
total weight of all the containers in a VTL,\18\ can be performed
safely. Inadequately strong welds or corner posts would lead to
container failures during single-container lifts, and evidence in the
record shows that problem welds are detected in visual inspections and
corrected (Tr. 1-44--1-45). The forces on these components in a VTL
meeting the requirements imposed by the final rule will generally be no
higher than the forces imposed when a single, fully loaded container is
lifted. In fact, a bad weld would pose a greater hazard for a fully
loaded container lifted alone because the forces on the weld would be
higher during such a lift than during a VTL. Thus, OSHA believes that
the condition of welds merits no greater consideration for VTLs than
for lifts of single containers loaded to their maximum weights. The
final rule addresses the adequacy of welds by requiring visual
inspection of the container immediately before a VTL is conducted and
[[Page 75260]]
prohibiting VTLs when welds are found to be defective.
---------------------------------------------------------------------------
\18\ Loaded containers with a maximum gross mass of more than
30,000 kg are not uncommon.
---------------------------------------------------------------------------
In his notice of intention to appear at the 2004 public hearing,
Dr. Anderson further criticized the failure to consider dynamic forces.
He stated that he had reviewed prepared testimony and the reports that
were submitted to OSHA on vertical tandem lifting (Ex. 50-8). He
claimed that a number of presenters, safety panels, groups and
associations that had calculated the effect of wind speed on a multiple
container lift made errors in their calculations by considering all
forces to be constant. He stated that no consideration was given to
gusts of wind or wind shear, and consequently ``the dynamic situation
is ignored and the static situation is put forward as the only issue.''
He requested that OSHA do further testing and that strain gage data
from the connectors and corner castings should be collected during
actual vertical tandem lifting to determine the actual load dynamics
experienced by the connectors. Dr. Anderson suggested that NIST be
asked to repeat their tests or to show the full results from their
tests of used connectors. In addition, he felt that NIST should
determine the damage tolerance of the connectors in normal use, the
fatigue behavior of the connectors, and the susceptibility of the
connectors to stress corrosion cracking.
Mr. Bohlman stated that the ISO Technical Committee considered the
maximum wind loading that could be imparted to an interlocked VTL unit
of containers by a 100-km/h wind, the tare weight of the coupled empty
containers, and the weight that could result from the cargo within the
containers (Ex. 50-10-2). He argued that a structural safety factor of
five was used in the calculations carried out by ISO. In addition, he
stated that the technical committee used a constant wind load
equivalent to an additional 28.9 kN load inside the coupled containers
in the calculations to account for wind loading. Mr. Bohlman stated
that, based on these considerations, the ISO concluded that a gross
weight of up to 219 kN could be safely handled as a VTL.
USMX and the Pacific Maritime Association engaged Lucius Pitkin,
Inc., Consulting Engineers to perform strain gage tests on VTL
components in simulated terminal conditions (Ex. 65-1). In its report,
the consulting firm, which specializes in engineering analysis and
failure investigation, responded to questions raised at the hearing
concerning the adequacy of reliance on the NIST and Swedish reports.
Lucius Pitkin's report presented the results of a series of strain gage
and accelerometer tests of twistlocks and container corner castings
performed during vertical tandem lifting and horizontal movement out
over the water (Ex. 65-3). Carol Lambos, the attorney representing
USMX, submitted the report in December 2004 during the posthearing
comment period. It addressed some of the questions raised by Dr.
Anderson at the hearing as follows:
The results of the strain gage tests during two and three 40
foot cargo container lifts carried out by LPI on November 1, 2004 at
the APM Terminals Port Newark, NJ facility indicate that the strain
rates that occur during VTL lifting are intermediate loading rates.
Also, all of the maximum strains measured during the container lifts
indicate that the stresses in the twist locks and corner castings
are significantly less than the yield stress, Sy, that would be
expected for the materials used in the twist locks and corner
castings. [Ex. 65-3]
As noted by Michael Arrow, static testing is commonly used in the
testing, design, and standardization of containers, and dynamic forces
are accounted for using adequate safety factors (Tr. 1-55--1-56).\19\
The Agency generally agrees with Mr. Arrow and believes that most
dynamic forces can be accounted for by selecting an appropriate safety
factor, by limiting the maximum load imposed on interbox connections
during a VTL, and by limiting the wind speed during which VTLs are
permitted. However, OSHA has concluded that dynamic forces should also
be considered in the calculation of forces imposed during VTLs.
Consequently, in determining the maximum safe working load for a VTL,
the Agency has accounted for dynamic forces in two ways. First, OSHA
has considered the lack of complete information on the dynamic forces
imposed during VTLs in determining what an adequate safety factor is.
Second, in calculating the maximum forces that the final rule allows to
be imposed, OSHA has included forces imposed by accelerating the load
during a lift and by the wind. In any event, the Agency does not
believe that testing interbox connections to determine their strength
under dynamic conditions, as suggested by Dr. Anderson, is necessary.
Like the NIST and Swedish tests, dynamic tests would also be limited to
existing twistlock designs and would likely be conducted on a small
sample of existing designs to limit the cost of testing. Therefore, in
using this two-fold method of accounting for dynamic forces, the Agency
has adequately considered dynamic loads in setting the final rule and
has concluded that further dynamic testing is unnecessary.
---------------------------------------------------------------------------
\19\ Mr. Arrow called this ``static equivalency,'' in which
higher loads are assumed than are actually expected to take place
under static conditions. Thus, the higher forces caused by dynamic
factors are accounted for by considering higher static loads.
---------------------------------------------------------------------------
Determination of maximum safe loads. Guidance for calculating
forces on twistlocks and corner castings in VTLs is presented in
``Vertical Tandem Lifting of Freight Containers,'' a paper authored by
ICHCA International (Ex. 41). Appendix 4 of that document is a
technical and engineering analysis of VTL operations. This analysis
considered: lifting up to three containers vertically; the effect of
wind speeds up to 100 km/h; and the forces involved in lifting
containers of different sizes. The analysis assumed that all four
twistlock-corner casting connections were fully engaged, assumed that a
safe working load of 75 kN provided a safety factor of five based on
the NIST and Swedish testing, and determined the safety of the lift
based on the forces at the top corner castings of the top container in
the lift.
OSHA will follow the ICHCA methodology in calculating forces
imposed on interbox connections during VTLs, except that the Agency is
substituting more restrictive assumptions about the capabilities of
these connections. As discussed earlier in this section of the
preamble, OSHA has determined that it is necessary to include the
following conditions in the calculation of a safe working load for
VTLs:
(1) The ultimate strength of the twistlock-corner casting
connection is 490 kN (10,000 kg safe working load with a safety factor
of five) as required by the final rule (the ICHCA analysis assumed that
the ultimate strength was at least 375 kN);
(2) The safety factor is five as explained earlier in this section
of the preamble (the ICHCA analysis also assumed a safety factor of
five);
(3) The calculations must account for the dynamic loads imposed by
lifting the load and the wind (the ICHCA analysis only calculated loads
imposed by the wind); and
(4) Two twistlock-corner casting connections on opposite corners of
vertically coupled containers are carrying the entire load (the ICHCA
analysis spread forces across four fully engaged interbox connectors).
In addition, the Agency has concluded that the only connections to
which this analysis should apply are connections involving SATLs. In
other words, OSHA has only calculated the loads on fully engaged SATLs.
As noted by the ILWU, the connection of the spreader bar to the top of
the container
[[Page 75261]]
is made through high quality, fully rated equipment specifically
designed to lift containers and generally subject to the gear
certification requirements of 29 CFR Part 1919 (Ex. 11-1B). The
spreader bar to top container attachment must be capable of supporting
its rated load in any single container lift. Loads imposed by VTLs on
the top container's corner castings, the twistlocks on the spreader
bar, and the spreader bar itself are no greater than the loads imposed
in lifting a single container loaded to its maximum gross weight.
Consequently, OSHA is not placing any additional limits on the
spreader-bar-top-container connection beyond those imposed in lifting a
single container. In other words, the total weight of the VTL lift must
still be within the maximum load rating of the crane and spreader bar.
It could be argued that some factors that OSHA included in its
strength analysis (that is, assuming that only two interbox connectors
are fully engaged, that a force of acceleration equal to 2.0 g is
applied (which is explained fully later in this section of the
preamble), and that a maximum wind force of 100 km/h is imposed) should
be accounted for by the safety factor rather than applying the safety
factor after considering those factors. OSHA believes that its analysis
is the correct one. The 2.0-g force due to acceleration will be present
in every lift. The Agency believes that it is essential that the
interbox connector-to-corner casting assembly be capable of
withstanding this force within its rating (that is, before the safety
factor is applied). Similarly, the effect of unengaged interbox
connectors, which happens on a regular basis, must be accounted for in
the rating of the system. If the analysis ignored those two factors,
there would be little difference between the ultimate strength of the
system and the expected load under very typical conditions. The
remaining factor, the wind, could have been adjusted downward to match
the maximum wind speed permitted under the standard. However, ICHCA
used a 100-km/h wind speed in their calculations, and the difference in
force between that imposed by the 55-km/h maximum wind speed allowed by
the standard and the 100-km/h speed used in the analysis is relatively
small. OSHA's conclusions on whether to require containers lifted in
VTLs to be empty would be the same with either wind speed.
Under OSHA's analysis, the safety factor accounts for other
unplanned, but not unexpected additional forces, such as those that
could be caused by contact with obstructions during movement of the VTL
(see 1998-Tr. 206--207). For example, if the VTL contacted an
obstruction during descent and then slipped off that obstruction, there
would be an additional force caused by the deceleration of the
containers as the slack in the load line was taken up. The safety
factor also helps counteract failures in work practices necessary to
comply with the final rule. For example, a defective interbox connector
might be missed during inspection, or employees might have failed to
determine that a loaded container was not empty. Thus, the Agency has
determined that its analysis takes a reasonable, and not overly
conservative, approach to calculating forces during a VTL.
In addition, OSHA's analysis looks only at the connection between
the top and bottom containers. This approach is less conservative than
the approach taken in the ICHCA analysis, which examined forces at the
connection between the top container and the spreader bar. OSHA's
analysis considers only the forces in play where there is a concern
about the adequacy of the devices used to support the load (that is,
the interbox connectors and corner castings). ICHCA's analysis examines
the strength of devices that might sustain even greater forces during
single-container lifts.
For these reasons, the Agency believes that its approach is
reasonable and not overly conservative.
To perform the calculations used in the analysis, OSHA must first
determine the magnitude of forces due to acceleration from lifting the
load and due to the wind. Lucius Pitkin measured the acceleration that
occurs during a VTL and included the results in its report (Ex. 65-3).
The findings show that the maximum acceleration resulting in tensile
forces in the twistlocks is approximately 2.0 g.\20\ The force imposed
by this acceleration is given by the following formula:
---------------------------------------------------------------------------
\20\ g represents the constant acceleration of gravity, or 9.8
meters per second squared.
---------------------------------------------------------------------------
F = m x a
Where:
F = force,
m = mass of the load, and
a = acceleration.
This force is in addition to the weight of the load.
The forces imposed by the wind can be calculated using the American
Bureau of Shipping formula, as was done in the ICHCA paper (Ex. 41):
FW = 0.6203 x CH x CL
Where:
FW = force caused by the wind (in kN)
CH = container height
CL = container length.
This formula assumes a wind speed of 100 km/h, which is higher than
the 56 km/h permitted by the final rule. (The maximum permitted wind
speed is discussed later in this section of the preamble.) The ICHCA
paper performed its calculations with a wind speed of 100 km/h, which
OSHA has determined is appropriate. This accounts for unanticipated
wind gusts substantially above the maximum permitted wind speed.
Paragraph (g)(3) of Sec. 1917.45 requires rail-mounted bridge and
portal cranes located outside of an enclosed structure to be fitted
with an operable wind-indicating device. OSHA believes that employers
will generally rely on these devices or on weather reports to determine
wind speed. Because their settings are based on manufacturers'
recommendations, the warning devices may be set higher than the maximum
wind speed allowed for VTL operations. In addition, weather reports may
not always include maximum wind gusts. Consequently, OSHA believes that
VTLs may experience higher actual wind speeds under real-world
conditions than permitted by the rule. Furthermore, calculating forces
based on a higher wind speed than permitted by the final rule will help
account for any dynamic forces imposed by the wind that are in addition
to the calculated static force.
The force from the wind on the containers being lifted is assumed
to be perpendicular to the length of the containers. This results in
the maximum force. This horizontal force must then be converted to the
vertical tensile force on the interbox connection using moment
arms.\21\
---------------------------------------------------------------------------
\21\ A moment arm, which is also known as a lever arm, is the
perpendicular distance from the center of rotational motion to the
line of application of force.
---------------------------------------------------------------------------
OSHA is performing the calculations assuming a 12.2-meter, high-
cube container equivalent to case I in the ICHCA paper (Ex. 41).\22\
This case represents the worst general scenario for lifting more than
one container at a time. Each of these containers is 12.2 meters long,
2.44 meters wide, and 2.90 meters high.
---------------------------------------------------------------------------
\22\ Container sizes are typically characterized, in part, by
their length in English units. Standard container lengths are 6.1
and 12.2 meters, and the containers are known as 20-foot and 40-foot
containers, respectively.
---------------------------------------------------------------------------
The ICHCA paper calculated the worst-case wind force with all four
connections intact. However, as noted previously, OSHA is assuming that
only two connections diagonally opposite each other are intact. Thus,
OSHA's calculations must double the force on each connection (as
calculated in the paper) because there is only one
[[Page 75262]]
connection on the windward side. In addition, OSHA is only concerned
with the contribution of the wind on the connection between the topmost
container and the next container down. This is equivalent to the force
imposed by the top container in a two-container-high VTL. The ICHCA
paper calculated the force on each of the top two windward connections
as 6.5 kN. Consequently, under OSHA's assumptions, the force on the
single windward connection between the top container and the bottom
container is 2 x 6.5, or 13.0 kN.
The force of the wind on the connections must be added to the
weight supported by each connection. The maximum tare weight (the empty
weight) of a container is 4.5 metric tons, which results in a force of
22 kN in each connection. However, as noted earlier, this weight is
accelerated during a VTL, with a maximum of 2.0 g of acceleration. The
force from this acceleration must be added to the force due to the wind
and the force due to the weight of the container to determine the
baseline force on each of the two intact connections between the top
container and the bottom. Thus, the total maximum force imposed by an
empty bottom container on each interbox connection is 13.0 + 22 + (2 x
22), or 79 kN. Applying a safety factor of five to this figure yields
395 kN.
Thus, the interbox connections must have an ultimate strength of at
least 395 kN to account for an adequate safety factor for the heaviest
empty container. This leads OSHA to the following conclusions:
First, the Agency must ensure that interbox connections have an
ultimate strength at least equal to this value. Therefore, OSHA has
concluded that the proposed requirement for a minimum safe working load
of 10,000 kg with a safety factor of five (490 kN) is reasonably
necessary and appropriate.
Second, as discussed in more detail later in this section of the
preamble, the Agency has decided to limit VTLs to empty containers
only. Although lifting VTLs with a maximum load that imposes a tensile
force of 98 kN (equivalent to the 10,000-kg safe working load) on
interbox connections of the required ultimate strength would yield a
safety factor of at least five, OSHA has concluded that, without
separately weighing the containers, there is no ready and reliable way
to determine the weight of the bottom container and its load during VTL
operations. In addition, OSHA believes that the difference between the
79-kN force arising from the tare weight of the container and 98 kN is
too small to permit even the lightest loaded containers to be lifted.
With the heaviest containers, the maximum load that could be safely
lifted in a VTL is only 12.7 kN, or a little more than 1295 kg (1.25
tons).\23\ Although it might be possible to select lighter containers
with full loads that provide a sufficient margin of safety, there are
other reasons why the final rule does not permit lifting loaded
containers in a VTL, as described in more detail later in this section
of the preamble.
---------------------------------------------------------------------------
\23\ This is calculated as follows: (98-79) * 2/3) = 12.7 kN.
The total additional force would be triple the force from gravity
alone because of the force from accelerating the load. Consequently,
the allowable additional force would be one third of the extra force
due to weight alone. In addition, the additional force would be
spread over two interbox connectors, so the total additional force
would be double that for a single interbox connector.
---------------------------------------------------------------------------
Conclusion. OSHA had proposed to allow VTLs of two containers with
a maximum load of 20 tons using twistlocks with a safe working load of
10,000 kg. The proposal was based primarily on data provided by NIST
that twistlocks and corner castings were sufficiently strong to lift
containers connected vertically in tandem safely. Based on evidence
submitted during the rulemaking, OSHA has concluded that:
(1) The NIST study does not adequately represent the strength of
all current twistlocks or of twistlocks designed in the future;
(2) It is not uncommon for one or more interbox connectors to be
disengaged during VTL operations; and
(3) Existing analyses performed by the ISO technical committee and
ICHCA do not fully consider loads imposed by acceleration or the
consequences of the previous two factors.
OSHA has performed its own rigorous engineering analysis based on
evidence in the record, as described previously, and has concluded that
VTLs are safe provided that the interbox connectors have a minimum
load-bearing surface area of 800 mm \2\ and a minimum safe working load
of 10,000 kg with a safety factor of five and provided that the
containers are empty.
1. Two-container or Three-container VTLs
OSHA proposed to allow VTLs of no more than two ISO series 1
containers, with a total weight (containers plus cargo) of up to 20
tons. However, ISO standards and ICHCA guidelines on VTLs would allow
up to three containers with the same total weight. In its proposal,
OSHA requested comments on whether three-container VTLs of up to 20
tons could be handled as safely as two-container VTLs with the same
weight limitation.
Several rulemaking participants recommended that three-container
VTLs be permitted by the final rule (Exs. 43-7, 47-1, 47-2-1, 47-5, 54-
2; Tr. 1-49, 1-76, 1-109). Several pointed to international standards
and the ICHCA guidelines as evidence of the safety of three-container
VTLs (Exs. 47-1, 47-2, 47-2-1, 50-10-1). Others pointed to
international experience with three- and even four-container VTLs (Exs.
47-1, 47-5, 50-10-1, 50-10-2, 54-20). For example, in his prepared
testimony for the 2004 public hearing, Mr. Ronald Signorino,
representing USMX, stated:
OSHA has proposed a regulation that limits a VTL unit to two
container tiers. The agency has attempted to [buttress] such a
limitation by stating that practical VTL experience in the United
States is confined to the two container tiers. This simply does not
address the issue that operationally three container tiers are
handled in VTL configurations efficiently and safely elsewhere in
the world. [Ex. 50-10-1]
Other arguments for allowing three-container VTLs concerned the
strength and durability of containers, corner castings, and interbox
connectors (Exs. 43-7, 47-5, 50-12). These comments have been addressed
earlier in this section of the preamble. OSHA's conclusions on the
issue of whether to permit three-container VTLs are based, in part, on
an analysis of the strength of containers, corner castings, and
interbox connectors. It is clear from this analysis that the corner
casting-interbox connector assembly does not have sufficient strength
to perform three-container VTLs safely. The analysis shows that the
maximum force on either of the two corner casting-interbox connector
assemblies is 98 kN. A two-container VTL imposes a force of 79 kN on
each assembly. The addition of a third container would roughly double
this amount to 158 kN, far exceeding the 98-kN limit to achieve a
safety factor of five.
However, OSHA has not decided to limit VTLs to two containers
simply based on insufficient strength. The Agency has weighed the
evidence in the record and has concluded that, even if the system were
strong enough to perform three-container VTLs safely, other factors
make three-container VTLs too hazardous.
According to some witnesses at the 2004 pubic hearing, as VTLs
increase in size and weight, there is greater potential for helicopter
effects during crane operations. This effect can cause the containers
to spin out of control because of wind lift or uneven loading or both
(Tr. 1-119, 2-350--2-351). The witnesses explained that, as loads get
larger, they become more difficult for
[[Page 75263]]
the crane operator to control when moving or landing the load. For
example, under questioning from an OSHA representative, Mr. Michael
Bohlman explained why ICHCA limited VTLs to three containers at a time
as follows:
MR. MADDUX: Yes. What I'm hearing is, when you went from three
to four containers, that you had more sway.
MR. BOHLMAN: Well, you have a less compact, harder unit to
control because it's bigger.
* * * * *
MR. MADDUX: As the bulk gets bigger, it gets more difficult to
control, more difficult to land.
MR. BOHLMAN: * * * It's just [the] size, the effect of external
forces, the pendulum effect that gets greater as the size gets
bigger. [Tr. 1-119]
Mr. Jerry Ylonen, testifying on behalf of the ILWU, stated that he
had experienced the helicopter effect firsthand and noted that it
introduces such hazards as swinging the load into an adjacent bay or
into a truck waiting for a load being lowered, endangering employees
working in the bay or the truck driver sitting in his or her cab (Tr.
2-350--2-351).
OSHA has concluded that the risk of employees being seriously
injured by these hazards is significant. Mr. Ylonen testified to the
presence of these hazards in single container lifts and argued that
two- and three-container VTLs would be catastrophic (Tr. 2-351). With a
wind speed of 100 km/h, the wind force on two containers connected
vertically would be a maximum of 43.9 kN. On three containers connected
vertically, it would be a maximum of 65.8 kN. The sideways force on a
three-container VTL would thus be 50 percent greater than the sideways
force on a two-container lift. Based on the testimony of Mr. Ylonen and
the substantial side forces on the containers during VTLs, OSHA
believes that three-container VTLs would not provide a sufficient
margin of safety from the helicopter effects of the wind.
In addition, transporting stacked containers around terminals
presents tipover hazards about which several hearing participants
expressed concern (Tr. 2-227, 2-283, 2-424). There is evidence in the
record that tipover accidents have occurred in the past (Tr. 2-295, 2-
358--2-359). Three-container VTLs would likely entail transporting
containers stacked three high during VTL makeup. Because containers
stacked three high would have a higher center of gravity, transporting
them would pose a greater tipover hazard than transporting single
containers or even containers stacked two high. Thus, OSHA is also
concerned that permitting three-container VTLs would lead to an
increase in the number of tipover accidents.
For these reasons, OSHA has concluded that the risk of serious
injury to employees during three-container VTLs is too high, and the
final rule does not permit such lifts.
Mr. Michael Bohlman, representing USMX, was concerned that the
proposal did not specifically address tiers of containers in a VTL (Ex.
50-10-2; Tr. 1-75). Instead, he noted, the proposal limited VTLs to two
containers. Mr. Bohlman testified on this point as follows:
One of the concerns that I have, reading the OSHA proposed rule,
is that OSHA does not talk about tiers, but talks about numbers of
containers. Regardless of whether it's two or three containers that
they decide is the right number, if they don't talk about tiers of
containers, there's going to be confusion as to what's actually
meant.
When we start looking at unique spreader configurations that are
in existence and are being safely used such as a twin-lift spreader
that would allow, in a two-container configuration, a four-container
VTL lift, or in a three-container, three-tier configuration, a six-
container lift.
So I think it's very important that, when we do have the final
rules, that they talk about tiers of containers being lifted and not
number of containers. [Tr. 1-75]
OSHA's analysis of the safety of VTLs is based on the capability of
two single containers connecting vertically to maintain a safety factor
of five during lifting. As long as the tiers are lifted so that each
set of two vertically connected containers is not connected to the
other containers, then each vertically connected pair will be
considered as separate VTLs for the purpose of the final rule.
Therefore, tiers connected in such a manner are permitted by the final
rule.
However, if the containers in a tiered VTL are connected
horizontally, then some of the assumptions made in OSHA's strength
analysis would be invalid. For example, if the bottom tier of two two-
container VTLs is connected horizontally, then it would be possible for
fewer than two interbox connectors to be fully engaged for each VTL.
The connection of the bottom tier of containers could mask, during the
prelift, the possibility that only a single interbox connector is fully
engaged for one of the sets of vertically coupled containers. This
would overload the single interbox connector-corner casting assembly
for that portion of the VTL. Consequently, OSHA would consider
containers coupled horizontally as counting toward the maximum of two
containers permitted in a VTL by final Sec. 1917.71(i)(2). Therefore,
tiers with horizontally coupled containers would be prohibited by the
final rule.
2. Empty or Partially Loaded Containers
A related issue is whether the standard should set a limit on the
gross weight of containers and their loads lifted in a VTL or require
that only empty containers be lifted. The proposed standard, which was
based on ISO standards and the ICHCA guidelines, would have limited
VTLs to a combined weight for load and containers of 20 tons.\24\ Some
rulemaking participants argued that, if VTLs were to be permitted, then
the final rule should require containers to be empty (Exs. 43-5, 44-1,
54-30-2). Other rulemaking participants supported OSHA's proposed 20-
ton limit (Exs. 10-4, 10-5, 10-6, 36, 37, 47-2-1, 50-12, 54-1-1, 54-2,
54-3, 65-3). No one urged the Agency to adopt a substantially higher
weight limit.
---------------------------------------------------------------------------
\24\ The ICHCA guidelines and ISO standards set a limit of
20,000 kg (22 tons, or 20 metric tons), slightly more than OSHA's
proposed 20-ton limit.
---------------------------------------------------------------------------
The ILWU and the ILA argued that lifting loaded containers in a VTL
was unsafe (Exs. 43-5, 54-1, 54-30-2). The ILWU stated that
inaccuracies in the paperwork describing the weights of loaded
containers could lead to overloaded VTLs exceeding the crane's
capabilities (Ex. 43-5). The ILA argued that it is likely that loaded
containers will have errors in weighing and that overweight lifts would
be attempted if loaded containers were permitted to be lifted in a VTL
(Ex. 54-1).
As noted previously, 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 (Exs. 10-4, 10-5, 10-6, 36, 37, 47-
2-1, 50-12, 54-1-1, 54-2, 54-3, 65-3). They reasoned that the lack of
accidents (Exs. 10-5, 10-6) and the strength of containers, corner
castings, and interbox connectors (Exs. 47-2-1, 50-10-2) demonstrate
the safety of allowing lightly loaded containers to be lifted in VTLs.
As discussed previously, OSHA has concluded that the lack of
injuries in VTL operations does not prove their safety and that the
existence of a substantial number of incidents indicates the need to
regulate VTLs to ensure that they are performed safely. Furthermore,
existing experience in the U.S. is based on compliance with the Gurnham
letter, which requires containers to be empty. In addition, OSHA's
analysis of the strength of
[[Page 75264]]
containers, corner castings, and interbox containers shows that these
devices are not capable of performing VTLs weighing 20 tons with a
safety factor of five when only two interbox connectors are fully
engaged. In fact, the analysis demonstrates that, with the heaviest
containers, only an additional 1295 kg is available as load to ensure a
safety factor of five.
OSHA also agrees with the ILWU and the ILA that errors in
determining the weights of loaded containers could lead to overweight
VTLs. Limiting VTLs to empty containers also protects against shifting
or uneven loads, which could overload one of the corner casting-
interbox connector assemblies.\25\ Furthermore, permitting VTLs
involving only empty containers helps ensure compliance, as it will be
relatively easy to ascertain that a container is empty by visual
observation. On the other hand, the weight of each loaded container
would have to be individually measured to ensure the safety of a VTL of
loaded containers.\26\ For these reasons, the Agency has decided to
limit VTLs to empty containers only.
---------------------------------------------------------------------------
\25\ OSHA's analysis assumes a uniform weight distribution. If
the weight of the container and its contents are not uniform, more
of the force could be concentrated on one of the two corner casting-
interbox connector assemblies, perhaps overloading it.
\26\ Since OSHA's strength analysis is based on the capability
of the corner casting-to-interbox connector-to-corner casting
assembly between the containers, the weight of the bottom container
determines whether the VTL is safe to lift. By this analysis, the
bottom container would be limited to a maximum of 98 kN, and the
employer would have to measure the weight of the bottom container by
itself to ensure that the VTL was safe to lift.
---------------------------------------------------------------------------
B. Training
With respect to VTL operations, OSHA did not include specific
training requirements in the proposed rule. However, existing Marine
Terminals and Longshoring standards address crane operator training in
Sec. Sec. 1917.27(a)(1) and 1918.98(a)(1), respectively. Those
standards require that only an employee determined by the employer to
be competent by reason of training or experience, and who understands
the signs, notices, and operating instructions and is familiar with the
signal code in use, may operate or give signals to the operator of any
hoisting apparatus.
As noted earlier in this section of the preamble, the International
Safety Panel of ICHCA has established comprehensive guidelines that
could potentially serve as a foundation for domestic and international
VTL operations (Ex. 41). The guidelines stipulate that ``all persons
connected with VTL operations, including planning, examining,
inspecting, stacking, transporting, hoisting, landing, securing and
dividing containers handled in VTL units, should be appropriately
trained.'' They require that ``the extent and content of such training
should be guided by the physical characteristics of the terminal and
the containers to be handled, the container movement flow, the
equipment to be used for lifting and transporting the containers and
the experience of the personnel involved.'' Many rulemaking
participants supported the ICHCA guidelines and recommended that OSHA's
standard be consistent with them (Exs. 43-6, 43-7, 50-10-2, 50-10-3;
Tr. 1-239).
In the notice of proposed rulemaking, OSHA solicited comments on
training--taking into consideration international standards and current
domestic practices--that may be necessary for safe and efficient VTL
operations. Rulemaking participants largely supported mandatory
training for selected trades or positions affected by VTL operations
(Exs. 43-7, 43-10, 44-1, 54-16). In fact, most rulemaking participants
addressing the training issue reflected the need to train all persons
involved in VTL operations (Exs. 43-10, 44-1, 54-16).
``The ILA deems it essential for its members and others in ILA
ports to be trained in the techniques, risks and safety measures
involved in VTL lifts and in assembling/disassembling VTL-connected
containers,'' Herzl S. Eisenstadt stated (Ex. 44-1). ``This must
include simulated training in handling emergencies caused by near-
misses, sudden disengagements, etc., which are not identical for those
occurring while handling single-lift containers,'' he elaborated.
Christine S. Hwang, appearing on behalf of the ILWU, agreed with
the majority view that specialized training needs to be conducted for
all job classifications, urging that ``specialized training on VTL
operations be mandatory for all port workers in all classifications,
including the casual labor pool'' (Ex. 43-10). Ms. Hwang went on to say
that ``port-wide training should be required irrespective of whether a
terminal employer in any given port chooses to perform VTLs in light of
the fact that workers may travel to ports where they are required to
perform VTL container operations.''
Taking into consideration these comments from rulemaking
participants, OSHA agrees with the mainstream recommendation that some
VTL-specific training is not only appropriate--but indeed necessary--
for operation and employee safety in all U.S. marine terminals where
VTLs are performed. However, the Agency believes that the depth of this
training should be determined by employers based on individualized
terminal criteria, rather than on a defined directive that inhibits
customization. Therefore, OSHA has included a performance-based
requirement for the employer to provide training for each employee
involved in VTL operations. This provision requires the training to be
commensurate with the employee's duties.
Beyond the consensus on widespread training, rulemaking
participants voiced their opinion on further training specifics, such
as to whom VTL operation training should apply and how extensive that
training should be. Broad areas of discussion included training for
preparation and performance, inspection and container integrity, ground
movement, and work zone safety. The following sections summarize
comments relevant to those topics.
1. Preparation and Performance
One example of possible procedural differences in performing VTLs
is the operation of cranes to hoist the stacked and connected
containers. Historically, VTLs have been performed by crane operators
without off-site training specific to VTLs. Some rulemaking
participants expressed the view that crane operator training is
considered a crucial component to safe VTLs (Ex. 43-10).
Commenting on behalf of the ILWU, Hwang concurred as follows,
``Supplementary training (other than on the job) on special VTL
handling should also be mandatory for crane operators.'' If a rule is
adopted, ``ILWU strongly urges that various terminals' plans be
standardized * * * and that crane operators be provided with additional
training on how to read them,'' she continued (Ex. 43-10).
Mr. Joseph Curto, representing Maher Terminals, stated that VTL
handling is one component of Maher Terminals' general training program
(Tr. 2-117). Ron Hewitt of APM Terminals testified that his company
also provided training in VTL procedures (Ex. 61; Tr. 2-208--2-210). He
also recommended terminal-specific indoctrination (Tr. 2-208--2-209).
The ILA considered training in VTL procedures to be essential, as
follows:
In this regard, the ILA deems it essential for its members and
others in ILA ports to be trained in the techniques, risks and
safety measures involved in VTL lifts and in assembling/
disassembling VTL-connected containers. This must include simulated
[[Page 75265]]
training in handling emergencies caused by near-misses, sudden
disengagements, etc., which are not identical for those occurring
while handling single-lift containers. [Ex. 44-1]
2. Inspection and Container Integrity
Another aspect rulemaking participants considered was the
twistlocks themselves (Exs. 43-7, 54-30-2). The condition and proper
operation of interbox connectors are more important for safe VTL
operations than for connecting containers for transport aboard ship.
For example, APM Terminals' training program covers the examination
of interbox connectors (Ex. 61; Tr. 2-153--2-154).
Though not thoroughly supportive of a specific OSHA requirement for
training every worker involved in VTLs, Mr. Ronald Signorino, president
of The Blueoceana Company, Inc., stated that training specific to
interbox connectors would be advisable (Ex. 43-7). Mr. Signorino
advised that mandatory training for personnel carrying out inspection-
program-related functions was vital especially since he supported a
continuous inspection program rather than an annual one. ``In that
manner, all such liftlocks would be subject to more than just an annual
examination and an occasional perfunctory perusal,'' he stated.
Mr. Le Monnier of ILWU Canada also provided testimony about the
scope of inspections he thought OSHA should require, stating: ``A true
inspection would require the dismantling of the SATL in order to view
the internal components. Then, the SATL would need to be properly
reassembled. Both the inspection and reassembly would require training
procedures'' (Ex. 54-30-2).
The ILWU emphasized the point that adequate inspection of
containers would also require training (Ex. 43-10-3). ``Only the
obvious wrecks are likely to be identified by the average longshore
worker, whose business it is to move the container, not subject it to
rigorous inspection. Adequate inspection requires training, technology
and ample time to accomplish such an inspection,'' the ILWU
representative explained.
3. Ground Movement
The ICHCA guidelines (Ex. 41) specifically address concern for
training of drivers of vehicles used to transport VTL units. The
language dictates that:
training of drivers of vehicles etc. used to transport VTL units
should be based on the organization's safe operating procedures.
These should place particular emphasis on the speeds at which the
vehicles enter turns, in order to avoid overturns and other
accidents. Assessing the effect of wind speed on equipment stability
and imposing a maximum wind speed above which the movement of VTL
units will not take place. This speed should not be more than 15 m/s
(55 kph, 34 mph or 30 knots). [Ex. 41]
The guidelines take a direct approach by stating in paragraph 7.6,
``all persons expected to be involved in VTL operations should be
suitably trained.''
4. Safe Work Zone
Again, the ILWU was among the strongest supporters of widespread
training to ensure a safe work zone for those directly and indirectly
involved in VTLs (Ex. 43-10). Specifically, Ms. Hwang suggested that
training topics should include, but not be limited to, ``safe handling
of VTLs, emergency handling, cone and SATL inspection and maintenance,
operation of all vehicles used to transport VTLs and particular
concerns unique to transporting VTLs, methods of verifying weights of
containers and reading vessel stowage plans.''
As stated earlier, most rulemaking participants addressing the
training issue were firmly supportive of a practice that requires
workers performing or supporting the performance of VTL operations to
receive training applicable to their assigned duty. The opponents of
the VTL process suggested a wide, scattergun-type of training
requirement, presumably meant to train every worker (in any marine
terminal or longshore work category) regarding VTL aspects. (See Ex.
54-2.) OSHA considers such an approach to be ineffective and
inefficient.
While an industry or port-wide approach to VTL training may be an
option, it would be overly burdensome as an OSHA requirement. In its
VTL Guidelines, the ICHCA Safety Panel formulated a training matrix
that could serve to fill the gap between training for essential
personnel and more widespread informational practices. In fact, Mr.
Signorino, testifying on behalf of USMX, recommended that OSHA use the
matrix (found in exhibit 41, Appendix 5) as a practical and useful
guide (Exhibit 54-2).
OSHA is adopting a performance-based requirement for VTL training
but has decided not to specify the exact scope, scale, and details of
that training. OSHA will allow employers to determine how to best
satisfy these requirements for safe VTL operations in their specific
workplaces. The Agency strongly recommends, however, that employers
examine the ICHCA recommendations (found on the aforementioned matrix;
Ex. 41) as a foundation for training parameters. Based on criteria
unique to each terminal and employee, employers should supplement the
ICHCA guidelines as necessary to protect employees. Employers are
cautioned to consider the need for specific training in the areas
discussed above, as OSHA will judge compliance based on employee
knowledge and skill at performing the job safely.
C. Crane Type
Within OSHA's final rule on VTL practices in Longshoring and Marine
Terminals, the type of crane that can be used to perform VTLs is
addressed in Sec. 1917.71(i)(4). The Agency's final rule requires VTLs
to be performed by shore-based container gantry cranes or other types
of cranes that have similar characteristics as described in more detail
in this section of the preamble.
In the proposed rule, the Agency limited the practice of VTLs in
the Marine Terminals Standard \27\ exclusively to container gantry
cranes based on three premises:
---------------------------------------------------------------------------
\27\ OSHA did not propose a corresponding requirement for the
Longshoring Standard.
---------------------------------------------------------------------------
1. The container gantry crane is the only type of crane
specifically designed to handle intermodal containers;
2. The container gantry crane is the only crane that has the
precision control needed for such lifts;
3. The container gantry crane is the only crane capable of handling
the greater load volume and wind sail potentials.
(68 FR 54303)
However, because many rulemaking participants (Exs. 43-1, 43-11,
47-5, 50-10-1, 54-4, 54-5, 54-14) voiced significant opposition to a
requirement specifying the type of crane that may perform VTLs, OSHA
has amended the language in the final rule to permit other types of
cranes meeting the aforementioned mandatory criteria. The final rule
takes into consideration comments, testimony, and evidence submitted by
the participants, including Liebherr-Werk Nenzing Crane Company, which
offered evidence about the cranes the company manufactures that have
the capability to handle VTLs (Ex. 54-15; Tr. 1-314).
The most extensive comments came from Mr. Ronald Signorino,
testifying for USMX (Ex. 50-10-1), who disagreed with the Agency's
position, reasoning that ``[its] sense is that OSHA has imposed a
totally unnecessary restriction in that the proposed rule would limit
VTL operations to those in which a container gantry cranes is
[[Page 75266]]
present, [when] other lifting appliances may, in fact, provide the same
attributes that, in their sum, lend themselves to a safe VTL
operation.'' Mr. Signorino testified at length about other types of
cranes that had the necessary capability for VTLs and submitted
documentation to the record showing the capabilities and certifications
of these cranes (Exs. 54-4, 54-14; Tr. 1-280--290). The following
discussion summarizes Mr. Signorino's further comments, as well as
those from other rulemaking participants, and explains the Agency's
final determination on the issue.
1. Design
In the rulemaking process, crane manufacturers, terminal operators,
shipping concerns, and other companies maintained that the container
gantry crane was not the only crane that was specifically designed to
handle intermodal freight containers or that had the necessary
precision for VTLs (Exs. 43-1, 43-11, 50-10-1, 54-14, 54-5). USMX (Ex.
47-5) argued that ``there are other types of cranes * * * that perform
in a manner similar to shoreside container gantry cranes and provide
equivalent handling stability and safety.'' The association explained
that ``other types of marine cargo handling equipment, such as reach
stackers and straddle carriers, can [also] be utilized to conduct
VTLs.''
These participants argued that cranes of different designs were
capable of performing VTLs. Commenting on behalf of Tropical Shipping
and Birdsall, Inc., Mr. Signorino (Ex. 54-14) used the Gottwald HMK 260
E as an example, stating, ``lateral stability is accomplished through
the means of solid state electronic drives and an operator controlled,
precision rotator ring.'' Mr. Signorino also cited the Manitowoc 4100 W
(Series 2), stating ``[With this crane], such lateral stability is
accomplished through a system of automatic lanyards that are attached
to outriggers on either side of the box spreader. * * * In this system,
undesired lateral movement is automatically compensated for in a unique
take-up system of lanyards, which ensures lateral stability throughout
the entire range of motion from ship to shore and vice-versa.''
Representing USMX, Mr. Signorino (Ex. 50-10-1) further stated
Some, such as rubber tired gantry cranes, straddle carriers, and
certain other high capacity industrial trucks, can in fact perform
all hoist and (when applicable) gantry and trolley functions in an
extremely stable vertical and horizontal plane. Others, such as
purpose-designed container handling harbor cranes, are fitted with
highly precise mechanical and hydraulic stabilizing equipment, which
ensures the lateral and rotational stability so necessary to safely
conduct VTL operations
* * * * *
I know the agency did not intend to be that restrictive, and I
believe that language can be crafted to accommodate all container
handling devices that can safely qualify for use in VTL operations.
The goal, here, is to be cautious and deliberate not only in terms
of safe working load design capacities, but also in lateral and
rotational stability abilities, as well. [Ex. 50-10-1]
2. Control
Also important is the degree of precision with which a crane may be
controlled. Mr. Signorino explained that:
precision control of any crane engaged in the handling of
intermodal containers is a very relative matter. * * * [S]ome cranes
offer a more precise means and a more precise sense to operators.
The better, more experienced operators tend to make more effective
use of such attributes. * * * [T]he load is moved (whether in a
hoist or lowering exercise) in a relatively straight, level plane.
[Ex. 54-14, emphasis included in original document.]
He also elaborated on how the Gottwald's ``[j]oystick controls permit
the operator to correct any unwanted lateral movement by a simple,
incremental activation of the rotator.'' Mr. Signorino noted that
container gantry cranes have sufficient precision to perform VTLs:
``[they] can offer that control, in part, by moving the load on a set,
level track (or trolley).''
3. Capability
Finally, commenters discussed the overall capability of different
cranes. Mr. Signorino (Ex. 50-10-1) advised: ``The real concern that
OSHA should rightly consider is not a limitation in terms of actual
lifting appliances, but rather, how to ensure the stability of the load
(mass) notwithstanding the lifting appliance being used. * * * [T]he
remaining concerns all center upon lateral and rotational stability of
the mass.'' Mr. Signorino continued to explain that even though
container gantry cranes have a proven track record, there are other
cranes with the capability to safely perform VTLs. ``Container gantry
cranes achieve * * * stability (when operated correctly) by their
design characteristics, i.e., gantry, trolley, hoist functions, each
moving in a relatively straight plane.''
4. Other Concerns
There were no specific comments from rulemaking participants
calling for the exclusive use of shore-based container gantry cranes.
In the same vein, there was no opposition to the container gantry crane
being the preferred delivery method for VTLs. Rulemaking participants
objected to the exclusivity and limitation to shore-based gantry cranes
in the proposed rule on the grounds that it would hinder efficient
operations (Exs. 43-1, 43-11, 47-5, 50-10-1, 54-4, 54-5, 54-14).
Beyond this general consensus on the proposed rule, there was some
concern on other aspects of crane operation including aging
infrastructure and load stability. As offered by Virginia International
Terminals, Inc., represented by Anthony Simkus, Assistant Director of
Engineering and Maintenance, and Charles Thompson, Safety Officer (Ex.
54-16), ``by factoring in age and condition, most older cranes probably
could not stop an overload when the brake is applied at other than near
zero speed. This may even be true of newer cranes whose brake designs
have not been dynamically tested at the factory under rated
conditions.''
Though in the context of testimony in overall opposition to the
proposed rule on a variety of points, the USMX (Ex. 47-5) similarly
agreed with infrastructure considerations, stating, ``VTL regulations
must be written to accommodate future enhancements in current equipment
as well as new equipment designs and technology.''
OSHA agrees with USMX's position that there are other types of
cranes that perform in a manner similar to shoreside container gantry
cranes and provide adequate handling stability and safety. The Agency
has concluded that the criteria noted in Mr. Signorino's comments
accurately describe the characteristics of cranes that can safely
handle containers in VTL operations. Therefore, the language in the
final rule will broaden the parameters contained in the proposed rule,
stipulating the preference for shore-based container cranes, but
allowing other types of cranes that (1) are verified to be designed to
handle intermodal containers, (2) have the precision control needed for
VTLs, and (3) are capable of handling the greater load volume and wind
sail potentials associated with VTLs.\28\ While this language allows
for more discretion by employers, the Agency will judge compliance on
the design, capability, and precision parameters, and it expects
employers to evaluate cranes performing VTLs using these same criteria.
---------------------------------------------------------------------------
\28\ As noted later in this section of the preamble, ship's
cranes, because they are not shore-based, must meet the alternative
criteria listed in final Sec. 1917.71(i)(4).
---------------------------------------------------------------------------
[[Page 75267]]
D. Platform Containers
Proposed paragraph Sec. 1917.71(f)(3)(iv) addressed platform
containers, or ``flat racks,'' stating:
No platform container with its end frames erect may be lifted as
part of a VTL unit. Empty platform containers with their end frames
folded may be lifted in a VTL unit in accordance with the applicable
regulations of this part. If the interbox connectors are an integral
part of the platform container and are designed to lift other empty
platform containers, they may be interlocked and lifted in
accordance with the manufacturer's recommendations.
Platform containers are open on the wider sides and top, but have
panels on the narrow sides, or ends. The end panels are either fixed in
an upright position or folded flat with the floor of the container,
depending on the design of the flat rack. The proposal would not have
permitted flat racks to be used in VTLs if the end panels were in the
upright position. The lack of sides and top lessen the strength and
stability of the container, making it a possible safety hazard to lift
them in tandem. However, if empty platform containers had the ends
folded down and built-in connectors that were designed for the purpose
of simultaneously lifting multiple units, the proposal would have
permitted the flat racks to be handled in accordance with
manufacturers' recommendations. Also in the proposed rule, two flat
rack containers with the ends folded down could be handled as a VTL if
they were connected by interbox connectors that were not built-in.
In a letter dated October 31, 2003, the ILWU contacted OSHA with
flat rack concerns. Larry Hansen, ILWU Local 19 Union (Ex. 48), wrote
to the Seattle OSHA field office:
We have a problem in Seattle of lifting empty flat rack
containers bundled four or five at a time for both inbound and
outbound loads. In some cases, the hoisting fits within the Gurnham
letter where twist locks are being used to fasten one container to
another. In other cases, the containers are fastened by internal
mechanisms securing one container to another, which is outside the
Gurnham provisions.
In dealing with the Gurnham provisions, the employers are not
inspecting the containers for visible defects prior to hoisting,
ensuring that damaged containers will not be hoisted in tandem as
stated in Item 1 of his letter. Nor are we receiving documents from
the manufacturer which verifies the capacities of the twist locks
and corner castings, as stated in Item 7.
The Agency responded (Ex. 48-1) with the following comments:
Although the Gurnham letter does not specifically mention VTL
lifts of [flat rack] containers, OSHA concluded that the provisions
listed in the letter also apply to VTL lifts of two empty [flat
rack] containers with their end frames folded and connected by semi-
automatic twist locks.
Though the Agency received few comments on this issue during the
rulemaking process, the ILWU was present to voice some further concerns
regarding the lifting of flat racks vertically in tandem (Ex 43-10).
Overall, the ILWU opposed the lifting of multiply stacked platform
containers with end panels in the upright position; but the ILWU also
strongly opposed the complete discretion afforded to users and
manufacturers of platform containers with end panels folded down. The
ILWU argued: ``There is no record or analysis regarding new or already
existing connectors' strength, durability and/or capacity or of the
corner castings of [flat racks].'' The union suggested that ``[t]he
hoisting of multiply-stacked [flat racks] be prohibited in light of the
absence of evidence demonstrating that this type of lift can be
performed safely.'' The ILWU also argued that flat rack VTLs ``pose
even greater problems [than container VTLs] due to the inferior quality
of the corner castings.'' An ILWU representative (Ex. 43-10) explained
that ``corner castings on [flat racks] are made from thinner metal and
have larger openings through which SATLs and interbox connectors are
even more likely to fall through, irrespective of whether they are
adequately locked.'' The representative went on to say that flat racks
``endure even greater damage through wear and tear due to the fact that
they are used to carry bulk cargo, which is often made of steel and
hard materials.''
During the rulemaking period, the ILWU went on to cite numerous
incidents when flat racks have proved hazardous (Ex. 43-10; Tr. 2-369-
2-370, 2-419-2-420). According to the ILWU (Ex. 43-10), ``on November
14, 1997 in Tacoma, Washington, four stacks of [flat racks] were
[bundled] together and connected by the cones that are built into the
[flat racks] and by Evergreen SATLs. The [flat racks] were also banded
together. When the bundle of [flat racks] was hoisted, the bands broke,
the cones failed and the bottom [flat racks] fell approximately sixty
to seventy feet.'' Mr. Ross Furoyama, an ILWU representative (Tr. 2-
419-2-420), pointed out that among the unspecified number of incidents
he had witnessed involving flat racks failing, there was one when the
bands around three stacked flat racks secured with 2-inch bands and
specialized nonstandard twist locks still broke. Following this
incident, the company instituted a ``prechecking'' policy. Employees
were then required to prelift the stacked flat rack bundles before
hoisting them, to make sure they were properly connected. After
implementing the precheck procedure, the bands continued to break, so
the company started using chains to secure the bundles. Mr. Furoyama
remained dubious about the safety of the procedure.
Other rulemaking participants supported allowing platform
containers to be lifted in VTLs (Exs. 10-2, 52-3; Tr. 1-57). Mr.
Michael Arrow of USMX supported lifting flat racks in VTLs, stressing
that ``ISO Standard 1496.5, Section 7.3, clearly indicates that [flat
racks] not only may be lifted in a stacked pile, but are specifically
designed and tested to be able to do so'' (Tr. 1-57).
Another proponent of flat racks, Domino Flatracks, attempted to
support its views with data on existing platform containers (Ex. 52-3).
Domino Flatracks stated that ``there are 80,000 Domino [flat racks] in
service and several thousand platforms using these twist locks, some of
which have been in service for more than 24 years.'' Domino's
representative went on to say that ``the assembly successfully held the
design loads of both 15 and 30 tons and is thus concluded to satisfy
the customer requirements.'' Nevertheless, the company was also quick
to point out that assembly failure did occur at 38 tons (Ex. 52-3). As
noted earlier in this section of the preamble, the Agency has concluded
that a safety factor of five is reasonably necessary to ensure the
safety of VTLs, and OSHA considers the margin of safety noted in the
Domino Flatrack comments to be insufficient.
After carefully considering all the materials in the record on flat
racks, OSHA has determined that flat rack corner castings and
connectors are inferior to corner castings on standard containers and
interbox connectors required for use in VTLs in the final rule. The
Agency has therefore concluded that flat racks should not be considered
appropriate elements of safe VTLs in marine terminals. The anecdotal
evidence of flat rack VTL failures indicates that lifting bundles of
flat racks connected solely by interbox connectors is unsafe. The
comments of Domino Flatracks, a platform container manufacturer,
suggests a simple explanation of why these failures have occurred:
these devices simply do not offer a sufficient factor of safety to
ensure a safe VTL. Further, the evidence that the corner castings and
interbox connectors do not match the
[[Page 75268]]
standardized types used in ISO Series 1 containers indicates that OSHA
strength analysis is not applicable to flat rack VTLs. Consequently, in
the final rule, the Agency is banning the practice of lifting flat
racks connected by built-in connectors or by separate interbox
connectors. Employers may still lift multiple flat racks in bundles by
following Sec. Sec. 1917.13 and 1918.81 for unitized loads.
E. Coordinated Transportation
The safe transport of vertically connected containers in marine
terminals was largely addressed in the proposed rule in paragraphs
Sec. 1917.71(i) and Sec. 1917.71(j). These paragraphs address the
communication, equipment, and operational parameters required for safe
transportation practices during VTLs.
OSHA believes that these two provisions, as they were introduced in
the proposed rule, could substantially reduce the risk of injuries
related to VTLs, and therefore has carried them forward into the final
rule largely unchanged as Sec. 1917.71(j)(1) and (j)(2). The
requirements expressly stipulate:
1. Equipment used to transport vertically connected containers must
be either specifically designed for this application or evaluated by a
qualified engineer and determined to be capable of operating safely in
this mode of operation.
2. The employer must develop, implement and maintain a written plan
for transporting vertically connected containers in a terminal. The
written plan must establish safe operational parameters, such as
optimal operating and turning speeds; as well as address any other
conditions in the terminal that could affect the safety of the movement
of vertically coupled containers.
A safe, organized transport plan also involves communication and
coordination among all affected employees. To coordinate transportation
efforts in Marine Terminals, proposed paragraph Sec. 1917.71(b)(9)
would have required that a copy of the vessel cargo stowage plan be
given to the crane operator and that the vessel cargo stowage plan be
used to identify the location and characteristics (that is, weight and
content) of any containers being used in a VTL.
As explained in detail later in this section of the preamble, the
Agency has decided that existing requirements in Sec. 1917.71(b)(1)
and (b)(2)(ii), which mandate that the gross weight of containers be
marked or a stowage plan be available, are not sufficient for safe VTL
operations; therefore, the final rule does not carry forward proposed
paragraph (b)(9). As the final rule only permits VTLs with empty
containers--and requires employers to verify that each container in a
VTL is empty before it is lifted--OSHA has concluded that requiring the
stowage plan to be provided to the crane operator and for the plan to
be used to identify containers lifted in VTLs is redundant, and
therefore unnecessary.
The following is a summary of the rulemaking comments that prompted
OSHA to arrive at the final rule's provisions related to transport
safety.
1. Equipment
Paragraph (i) of proposed Sec. 1917.71 would have prohibited the
movement of VTLs on flatbed trucks, chassis, bomb carts, or similar
types of equipment, unless the equipment was specifically designed to
handle VTLs or evaluated by a qualified person (defined in proposed
Sec. 1917.71(i) as ``one with a recognized degree or professional
certificate and extensive knowledge and experience in the
transportation of vertically connected containers; also one who is
capable of design, analysis, evaluation and specifications in that
subject'') and determined to be safe in this mode of operation.
This section of the proposed rule met with support, as there was
general apprehension among rulemaking participants (Tr. 2-27) about
moving tandem stacked containers around the terminal using unmodified
chassis and bomb carts, due to a greater chance of vehicle tipover
because of a higher center of gravity. Transporting two containers on
such equipment can raise the center of gravity higher than the
equipment was designed for, increasing the possibility of the vehicle
tipping over (Ex. 41).
Rulemaking participants discussed a study that was conducted at the
request of the ICHCA VTL workgroup, Vertical Tandem Lifting of Freight
Containers, which evaluated the safe turning radius and speed at which
VTLs may be moved in a terminal (Ex. 41). The study provided chassis
stability calculations for determining the speed at which a fifth wheel
and chassis carrying vertically coupled containers would tip over while
making a turn.
Alternative examples, offered by Mr. Ronald Signorino of the
Blueoceana Company, Inc. (Tr. 1-160), could also reduce the risk of
vehicle tipovers to a safe level. Mr. Signorino stated that straddle-
carriers, top-loaders, MAFIs, low-beds, and bomb carts are used to move
containers around the terminal; but that personnel typically move
vertically connected containers only a very short distance away from
the crane and break them down using terminal industrial trucks.
Rulemaking participants also offered comments that were not
specific to vehicles, rather more supportive of other equipment
requirements as part of an overall safety program. ``[W]e have
experienced tipover in Hawaii,'' said ILWU member Mr. Ross Furoyama
(Tr. 1-211). ``[W]e did transport tandems on chassis and we did flip
over.'' Though Mr. Furoyama did not offer a specific solution (except
to ban VTLs altogether), some rulemaking participants argued that
speedometers on transport equipment could further prevent tipovers and
other accidents. For example, Daniel Miranda of the ILWU (2-339)
testified that safety essentials, like speedometers, should be in place
when transporting containers around the terminal because of the
potential for accidents. ``Currently on the west coast, our employers
have refused to provide [utility tractors], hustlers, with
speedometers, a device that is so basic in controlling speeds within
the terminals for the movement and transport of these VTLs,'' he
explained (Tr. 2-339). ``Without this basic device and other necessary
controls, the safe movement of VTLs within a main terminal is not
possible. * * * Those controls must be mandated first before we even
take it off the ship, on or off,'' he continued.
The lack of speedometers was important, Mr. Miranda (Tr. 2-358)
testified, because accidents that have occurred could be attributed to
excessive speed. These incidents prompted Mr. Miranda to stress that a
transport plan should be developed because of the speeds in the yard
(Tr. 2-358).
The Agency has concluded that it is not necessary to require
speedometers in the final rule. Though OSHA agrees that speedometers
can be useful for equipment operators, it does not consider them the
only precautionary measure to be taken during ground transportation.
For instance, as Mr. Signorino pointed out, vertically connected
containers are typically moved very short distances away, and there are
other vehicles--vehicles that may not be equipped with speedometers--
capable of performing the transport (Tr. 1-174). In terminals such as
those Mr. Signorino referred to, speed would not be a prime safety
factor to prevent potential accidents. The Agency considers speed to be
of lesser consequence if transporting the vertically coupled containers
does not require turns or involve uneven ground surfaces. However, as
noted later in this section of the preamble, OSHA does not
[[Page 75269]]
believe it to be appropriate to impose speed limits in an employer's
transportation plan for vehicles that do not have speedometers. For
these vehicles, the transport plan must include other measures to
ensure the safe movement of vertically coupled containers.
2. Operational Parameters--Transport Plan
Operations before, during, and after VTLs all create an environment
with potential for injury. Proposed paragraph (j) of Sec. 1917.71
would have required that a written transport plan be developed and
implemented to include safe operating speeds, safe turning speeds, and
any conditions unique to the terminal that have the potential to affect
VTL-related operations. In the notice of proposed rulemaking, OSHA
asked for comment on what information should be in the terminal VTL
handling plan and which safe practices would be necessary to ensure
safe transport of stacked containers via ground transport.
Rulemaking participants supported the proposed requirement and gave
reasons to develop a written plan for transporting containers around
the terminal. Herzl Eisenstadt of the ILA (Ex. 47-3) described his
concern saying: ``It is quite possible that even the ground-handling
aspects have been susceptible to danger-laden incidents in preparing
for and transporting VTL-lifted containers. In any and all events, the
terminal plan must provide for carefully laid-out coordination of
ground and lift operations that emphasize safety first for all terminal
personnel in the vicinity of VTL operations.'' (Emphasis included in
original.)
The support for a written transport plan notwithstanding,
participants did ask OSHA to remain cognizant of the unique
characteristics within each terminal as it moves forward with the VTL
standard. Mr. Michael Bohlman of Horizon Lines (Tr. 1-196-1-197)
testified that though turning radius, weight distribution, and speed
studies have been conducted, each terminal needs to be looked at within
its individual context before any safety requirements are set for that
terminal. James M. McDonald, Vice President for Accident Prevention of
the Pacific Maritime Association and Secretary to the Board of the
Directors of the National Maritime Safety Association, subscribed to
the same logic and called for rational and nonrestrictive regulations
that will safely cover transport of VTLs in general. Mr. McDonald
believed that ``[t]he rules as written now basically outline that
[employers] have to provide for safe movement of the containers on the
terminal'' and that everybody needs to have a plan with respect to
VTLs, so that everybody will know their roles and be trained for their
roles, and VTLs can be done with the utmost safety (Tr. 2-159).
As stated earlier in this section, OSHA has decided not to change
the provisions proposed in paragraphs (i) and (j) substantively in the
final rule; however, the Agency reminds employers that they must
consider all aspects of transporting vertically coupled containers that
affect safety, including the relevant factors discussed in this
rulemaking.
For instance, the ILWU and some other rulemaking participants (Exs.
43-10, 44-1, 47-3) recommended that the Agency supplement its proposed
rule with some of those rules implemented by Section 8.1.12 of ICHCA's
Vertical Tandem Lifting of Freight Containers and Section 16 of the
Pacific Coast Maritime Safety Code (PCMSC). These documents contain
mandates for transporting vertically coupled containers, such as
requiring workers to wear protective gear (high visibility vests) and
prohibiting truck drivers from cutting across designated driving lanes.
The ILWU argued that ``movement of VTLs throughout the terminal will be
equally, if not more precarious than [VTL hoisting],'' and urged OSHA
to consider supplementing the proposed rule to require additional terms
(Ex. 43-10).
The union maintained that standardized transport plans for all
ports were preferable, but it also recommended a minimum of the
following provisions: regulated safe surface road conditions;
additional safety manning for VTLs throughout the terminal; posted
speed limits and stop signs for VTLs; speedometers, wind alarms and
LIDs for every vehicle used for moving VTLs; and additional and
designated special safety lanes for vehicles transporting VTLs (Ex. 43-
10).
Though OSHA feels these suggestions could assist employers in
establishing individualized transport procedures that would enhance
port safety with specialized considerations, the Agency has decided not
to adopt the ICHCA or FCMSC provisions. OSHA considers the provisions
to be inappropriate for some workplaces and thus to be too restrictive.
The final rule, instead, requires employers to tailor their transport
plans based on performance and conditions specific to their workplaces.
For example, if transporting vehicles are equipped with speedometers,
speed limits could be set. On the other hand, if speedometers are not
present, employers must take other measures to ensure stability--such
as prohibiting turns or otherwise ensuring that tipovers are not
possible. Similarly, if roadway conditions present uneven areas or
large potholes, the employer must set slower speeds than would
otherwise be possible on uniformly level surfaces.
3. Operational Plan--Communication and Coordination
As stated earlier in this section of the preamble, proposed Sec.
1917.71(b)(9) would also have required additional safe operational
parameters involving communication and coordination within the terminal
and among terminal employees. This provision was taken directly from
section 8.1.1.1 of the ICHCA guidelines.
The ILA, ILWU, Virginia International Terminals, NMSA, PMA, and the
ICHCA guidelines stated that the potential hazards of VTL operations
require close cooperation between all parties involved in the
operations, including terminal operators, shipping companies, workers'
representatives, and competent authorities, to ensure the development
of safe procedures for the operations (Exs. 41, 43-10, 44-1; Tr. 2-24,
2-116--2-117). They also stated that such cooperation is necessary not
only within container terminals but also between ships and their
originating and destination terminals.
OSHA agrees with these commenters and has concluded that safe
transport operations require communication and coordination among
transport teams, crane operators, and other key terminal staff. If the
lines of communication are not open to all involved parties, safe VTL
operations can be jeopardized. The testimony and public comment the
Agency received during the rulemaking process revealed that
communication during VTL operations is very important. So important, in
fact, that some participants felt the lack of communication could
possibly be the ``weak link in the chain'' regarding the success of
safely conducting VTLs (Tr. 2-61).
Many rulemaking participants provided ideas as to how to
communicate to everyone that VTLs are going to be done on a particular
day. Communication within the terminal about VTLs before they are
conducted has aided some companies in ensuring a smooth series of VTLs.
One such situation is at APM Terminals. Ron Hewett, APM's Director of
Safety and Training, shared how this preparation has benefited them. He
explained:
[[Page 75270]]
A pre-shift conference with APM Terminal supervisors and
International Longshoreman's Association members provides an
overview of VTL operations. This provides an opportunity for all
personnel to fully understand the planned operation. communications,
personnel involved, equipment to be used, procedures, and basic
safety concerns are discussed. [Ex. 50-13]
Mr. Thompson, representing Virginia International Terminals,
pointed out that ``the people factor is a concern,'' particularly if a
terminal does not do a lot of VTLs (Tr. 2-61). ``If we consistently
handle one container at a time, we have a safety margin. Those
terminals [that] handle two and three consistently all the time are
used to it, and have the precautions in place,'' Mr. Thompson said.
``Terminals of our size, and I believe there are some others on the
east coast, but I can't speak for them, see it as a possible
intermittent, and that intermittent action is probably going to be a
source of miscommunications, injuries, and accidents'' (Tr. 2-20).
Examples of different procedures offered by participants to ensure
adequate communication during VTL operations included:
``The vessel superintendent is the one that calls out
standby for the vertical tandem lifts'' (Tr. 2-217).
``Prior to commencement of work on each hatch, trained
crane operators are given direction on which containers and bays will
be handled in [VTL] fashion'' (Ex. 50-13).
``[M]ostly in vertical tandem lifts, the crane operator
knows that they cannot just go down and lower it full speed, and that
is just the basic part. They count on the signalman, who coordinates
this to give them the proper signals to prevent this from happening''
(Tr. 2-123--2-124).
``[B]efore the crane operator lifts, whether it is a semi-
automatic, or a fully automatic, there is a process, something has to
be done. Semi-automatic has to be unlocked, and fully automated,
somebody is working on the deck to maybe do some latching rods, or some
other cargo securing. Somebody will signal to him that it is okay now
to start taking containers off'' (Tr. 2-192).
PCMSC, 2002. Rule 1613--``Top/Side Handlers and Reach
Stackers working together against that vessel shall also be assigned a
separate radio channel from those assigned to the working cranes'' (Ex.
43-10-11).
``Foremen and supervisors coordinate with lashers and
ground-men the identification and placement of Allset C5AM-DF Liftlocks
in corner castings. This process ensures that all locks operate in the
same manner and are placed correctly in corner castings'' (Ex. 50-13).
As mentioned earlier in this section, communication can present a
weak link in an overall safe and coordinated VTL transport plan. OSHA
agrees that the commenters' suggestions listed above can be useful
tools for employers to use in developing their own tailored transport
plans.
4. Operational Parameters--VTL Picking (Organization)
Preplanned and organized picking of VTLs minimizes much guesswork
for workers in the terminal and on ship. In the proposed rule, OSHA
aimed to minimize injuries by requiring, through the written plan,
prearranged movement of VTLs.
The recommendations in PCMSC-2002 demonstrate that preparation at
the terminal before a VTL and planning the movement of VTLs can
significantly enhance safety (Ex. 43-10-11). ``Prior to commencement of
work on each hatch, trained crane operators are given direction on
which containers and bays will be handled in [VTL] fashion,'' said Mr.
Ron Hewett (Ex. 50-13), providing an example of this type of
preparation.
From OSHA's point of view, many of those involved with VTLs have
used an organized approach to loading or unloading VTLs. This allows
all employees to be on the same page and any safety precautions that
need to take place are communicated to all working in the area. ``[Y]ou
have a pretty good idea when you get the [stowage] plan from the port
of departure and you know how the ship is configured, then you can plan
the number of vertical tandem lifts you do when it hits the United
States,'' said Maersk Captain Bill Williams (Tr. 2-127). Ron Hewett,
representing APM Terminals, noted that ``the actual sequence and the
team coordination will vary from gang to gang and terminal to terminal,
but it is available to the crane operator'' (Tr. 2-216).
Planning ahead for VTLs aids in efficiency as well. As Captain
Williams described, ``I think that * * * every terminal is unique in
the way they operate and perform, and the way they're configured, and
the ships that come in.'' Captain Williams explained that ``[t]he same
ship may be different the next time it comes into the port, just based
on the economic conditions.'' Captain Williams advised that advance
notice is best, saying ``So there is really no hard and fast rule,
except you have a pretty good idea when you get the plan from the port
of departure and you know how the ship is configured, then you can plan
the number of vertical tandem lifts you do when it hits the United
States'' (Tr. 2-127--2-128).
Some participants felt that terminal uniqueness complicates a
mandatory plan for the transportation of vertically coupled containers
(Tr. 1-196--1-197, 2-158). The National Maritime Association's Mr.
McDonald explained that ``each individual terminal operator working
with their company policies and their terminals, which are all unique,
have to build their VTL plans within the guidelines that OSHA will come
out with'' (Tr. 2-158).
While OSHA agrees that each terminal's unique characteristics
contribute to the complexity of developing plans, the Agency still
feels a sound transport plan with all of the three discussed
components--coordination and communication among all affected
employees, appropriate equipment, and proper operational parameters--
will help ensure the safety of terminal employees. Additionally, such a
cohesive plan will ultimately enhance productivity. Therefore, OSHA has
carried the proposed requirement for a transport plan forward into the
final rule. Employers are advised to take all conditions unique to
their terminals into consideration, while adhering to the requirements
of final Sec. 1917.71(j)(2).
F. Safe Work Zones
OSHA noted in its preamble to the proposal that employees working
around VTLs are exposed to the risk of falling containers should the
VTL fail (68 FR 54302). The current Marine Terminal and Longshoring
standards recognize hazards inherent in working under suspended
containers in existing Sec. Sec. 1917.71(d)(2) and 1918.85(e), which
prohibit employees from working beneath a suspended container. Evidence
in the rulemaking record addressed the risks faced by employees working
near VTL operations (Exs. 4, 10-5, 19, 43-5, 43-10-3; Tr. 1-319, 1-
337--1-338, 1-374, 2-227--2-229, 2-359--2-361, 2-386).
Taking into consideration all participant comments, the Agency has
decided to include language regarding safe work zones and landing and
tipover footprints in its final rule. The final rule supplements the
existing requirements that prohibit employees from standing under an
elevated load by requiring, in Sec. 1917.71(k)(1), employers to create
a ``stand-clear zone'' from vertically connected containers in motion.
OSHA is not requiring a designated place in each terminal where all
employees are required to stand or a designated area where employees
are prohibited while the connected containers are being
[[Page 75271]]
handled by a crane or ground handling equipment. The final rule thus
allows employers flexibility in determining how best to comply with the
safe work zone requirement during VTL operations in their workplaces.
During the rulemaking process, OSHA requested that participants
relate information about incidents involving vertically coupled
containers that had fallen. Rulemaking participants, such as ILWU
member Mike Freese, testified about current practices that put
employees at risk. Mr. Freese described one incident where two
containers were being lifted in an area that was supposed to be
cleared, but he said ``I clearly saw people standing around the bomb
carts. I saw another bomb cart pull up while people were standing there
in the area'' (Tr. 2-386).
In addition to comments on the primary concern of employee
fatalities and injuries, the Agency heard testimony on near misses; as
well as many suggestions on how to combat specific contributing risks
during the movement of vertically connected containers, such as
tipovers, helicoptering, and disengagement or failure of the interbox
connectors to engage. These risks point to the need to address the
safety of employees working near VTL operations to protect these
employees in the event of failure or overturn of vertically connected
containers. The following is a summary of comments and testimony from
rulemaking participants that support the Agency's decision to include
the safe work zone parameters in the final rule:
1. Tipovers
Whenever containers are stacked, there is increased potential for
tipovers--both of the containers themselves and the crane performing
the lift (for more information on cranes, see the discussion of the
issue entitled ``Crane type,'' earlier in this section of the
preamble). Though the containers are required to be empty, there is
still the risk that the containers themselves could be top-heavy (for
example, if the tare weight of the top container is greater than that
of the bottom), increasing the risk of tipover incidents. Ron Hewett of
APM Terminals summed up the issue in a single succinct sentence: ``The
shadow cast by a vertical tandem lift tipover would be greater than a
single container tipover'' (Tr. 2-228).
2. Disengagements
As noted previously in this section of the preamble, there was
sufficient testimony to indicate that the failure of interbox
connectors to engage--which could cause the containers to separate and
drop--was of paramount concern. Several union members testified to
situations where this had occurred and industry representatives
acknowledged that such incidents had occurred, though they had not
resulted in injury (Exs. 11-1B, 11-1P; Tr. 1-104, 1-106). Some
participants, such as Mr. Matthew Lepore of the ILA, expressed concern
for those in the vicinity of a VTL when the interbox connectors fail.
He stated that: ``When you get to the dock, you're talking about
separation or you're talking about moving this double, or triple * * *
[Y]ou're going to have more people who have nothing to do with it, but
are working in the area'' (Tr. 1-344). He further explained:
You have superintendents, you have checkers, you have [employees
designated to other areas, who have wandered over or are passing
through], you have tractor drivers, [and] you have the person that's
going to separate it if you're not going to use the crane. All of
these [people] come into play. [Tr. 1-344--1-345]
Mr. Ross Furoyama, ILWU, talked about the additional danger to
workers within a certain distance of VTLs. He stated that as VTLs are
being brought from one place to another, there is a certain radius to
the swing of the unit as it moves through the air and ``if there's any
kind of separation, those [employees] are in a danger zone'' (Tr. 1-
311).
Mr. Jerry Ylonen, also with the ILWU, added the perspective of a
crane operator. ``I have to drive from that crane, underneath five
other cranes working in a safe way, and then exit the forward end of
the ship, come back, and then go into the yard,'' he said. ``So that
footprint is what really we need to look at, you should consider,
because that is where the most danger is to people'' (Tr. 2-361). Mr.
Lepore supported Mr. Ylonen's concern about cranes, but offered a
solution that has worked at Maersk Sea-Land:
Our dock is a lot safer place now than it was [before the Maersk
takeover of Sea-Land].
The reason is this: When you have vertical tandem lifts,
especially in a company like ours where we get 14 to 17 ships a
week, and at the time we were getting in the area of 12 to 15 with
Sea-Land, you had more than one gang on a ship.
So if the center gang is doing mostly discharge, * * * you're
going over people's heads, even if they're in another gang. If * * *
the double-pick breaks loose, it's going to swing over in the area
that's away from underneath the legs of the crane.
All of the operation was performed underneath the legs of the
crane when Sea-Land did it that way. We never did anything away from
it, other than when we loaded. [Tr. 1-319--1-320]
The solution presented by Mr. Lepore, performing ground operations
under the crane legs, not only improves safety of the VTL, but ensures
that the operation satisfies the requirement in existing Sec.
1917.71(d)(2), which requires employees to stay clear of the area
beneath suspended containers.
3. Vicinity
Most rulemaking participants agreed that the employees most at risk
during VTL operations are those in the immediate vicinity of the
movement of vertically connected containers. Sea-Land representative
Phillip Murray stated that although some parties ``have suggested the
establishment of a 100[-foot] stand clear zone for multipick
operations[,] these parties provide no basis for this assertion.'' He
felt that existing stand clear zones have been adequate (Ex. 19).
In a broader discussion, some participants testified that they just
do not allow anyone under a container during a VTL (Tr. 2-62), or they
do not consider the containers to be at a point of rest until they are
separated (Tr. 2-39). However, most participants suggested rough
estimates of a safety zone if a container became accidentally
separated. ILWU member Jerry Ylonen described the steps taken at his
terminal saying, ``what happens now, I would say everybody gets at
least 15 feet away, stands back out of the way 15 to 20 feet [for a
single container]'' (Tr. 2-359--2-360). Brian McWilliams, President of
the ILWU, submitted an excerpt from Rule 1513 of the Pacific Coast
Marine Safety Code to the record, which reads:
Employees shall not walk or work in the aisle adjacent to a
container bay being loaded or discharged, except when the uppermost
tier is being worked. Employees lashing or unlashing when the
uppermost tier is being worked shall maintain a minimum athwartship
distance of five (5) container widths or half the width of the tier,
whichever is greater, offshore of the container being handled by the
crane. [Ex. 4]
Other policies suggested or implemented included ``stand clear'' areas
(Ex 10-5, Ex 43-5), a minimum 30.5-meter (100-foot) stand clear zone
(Ex 43-10-3, p. 13), having employees stand in front or in back of the
cranes (Tr. 2-227), clearing a section of deck or the dock (Tr. 2-388,
2-415), safety bulletins (Tr. 2-228--2-229), and employees standing in
front of the bomb cart or chassis and in back of the plane (Tr. 2-115).
An idea offered by both Robert Anderson, Ph.D., P.E., on behalf of
ILWU, and Ron Hewett of APM
[[Page 75272]]
Terminals, was to use a worst-case analysis (Ex 54-30-1; Tr. 2-228).
They suggested that the largest area potentially affected by a tipover
or release of twistlocks be examined first, and then work to keep
employees away from that area. However, Mr. Hewett did say that he
believed it would be wise if OSHA explored setting standards for the
location of people on the ground during VTLs (Tr. 2-229).
In regard to establishing safe work zones, there was some specific
disagreement about how to treat truck drivers. Rulemaking participants
disagreed about whether the risk to truck drivers is inside or outside
of the cab. Mr. Freese argued that his drivers are going to walk away
to a spot they feel safe (Tr. 2-381). Anthony Simkus, Virginia
International Terminals, agreed, saying that a truck driver would be in
trouble if there was a separation and containers fell onto a chassis.
(Tr. 2-64) Yet, Bill Williams, Maersk, argued that the practice of bomb
cart drivers staying in the cab during VTL loading is absolutely safe
and safer than being outside of the cab (Tr. 2-174).
4. Conclusion
Taking into consideration the record as a whole, the Agency has
decided to regulate safe work zones and footprints in its final rule,
believing that ultimately safe work zones will protect employees from
being injured if a VTL does fail or vertically connected containers tip
over. The final rule supplements the existing prohibitions against
employees working under an elevated container, with a requirement for
employers to create a safe work zone that will protect employees in
case a container drops or overturns. The transport plan must include
the safe work zone and procedures to ensure that employees are clear of
this zone when vertically connected containers are in motion. OSHA
believes that this provision is important to protect the safety of
employees working near VTLs.
Viewpoints varied as to optimum dimensions of a safe work zone, the
majority of rulemaking participants addressing this issue did agree
that the employees most at risk during VTL operations are those in the
immediate vicinity of the vertically connected containers. Most of
these participants provided rough estimates of a safe work zone if a
container became separated. For instance, according to Jerry Ylonen,
the ILWU recommends that employees stand at least 4.6 to 6.1 meters (15
to 20 feet) from a single container, a distance that equals at least
twice the height of a container. Brian McWilliams of the ILWU
reiterated the PCMSC rules that recommend a five-container width or
half the width of the tier--whichever is greater--as an acceptable safe
work zone.
Vertically connected containers being transported over the ground
present a tipover hazard (Tr. 2-228). VTLs being moved by crane present
a disengagement hazard (Exs. 11-1B, 11-1P; Tr. 1-104, 1-106). A safe
work zone must protect employees against both of those hazards. In a
tipover, the vertically coupled containers would fall over, landing a
distance from the bottom corner of at least the height of the VTL.
Additionally, the momentum of the falling containers would carry them
some distance beyond that. In a worst-case disengagement, the bottom
container would pivot about one end before falling to the ground.\29\
If the falling container tipped over lengthwise on landing, it would
strike the ground a distance equal to the length of the container from
the area immediately below the VTL.
---------------------------------------------------------------------------
\29\ Because the final rule requires both containers in a VTL to
be empty, the combined weight of the two containers will be well
within the rating of the crane and disengagement of the top
container from the spreader bar is extremely unlikely--certainly
less likely than in a lift of a single container loaded to its
maximum weight. As noted earlier, this can be 30 metric tons or
more.
---------------------------------------------------------------------------
OSHA has decided not to set minimum dimensions of the safe work
zone because conditions vary from terminal to terminal. Vertically
connected containers being transported by ground transport equipment
pose an overturn hazard. The distance the containers will fall in a
tipover will depend, upon other things, on turn radius and vehicle
speed. VTLs moved by a container gantry crane will have little
rotational momentum, and this will affect where the containers land if
the containers become uncoupled.
Although OSHA will allow employers to use discretion in setting
safe work zones, employers will need to consider where containers will
land in the event of tipover or VTL failure and set the zones
accordingly. Furthermore, even though the standard does not require a
designated place for employee to stand in each terminal, employers will
have to ensure that employees know where a safe retreat is available
before the crane or other equipment moves vertically connected
containers.
G. Reporting of VTL Accidents
In its proposal, OSHA requested information on whether the final
rule should include a requirement for reporting VTL accidents and near
misses. Such a requirement would have provided the Agency with
additional information on which to base any future rulemaking on VTL
operations.
The ILWU and the ILA recommended that the final rule include a
provision requiring the reporting of accidents and near misses (Exs.
43-10, 44-1). The ILWU stated:
The ILWU strongly urges OSHA to include regulations establishing
a reporting mechanism for all VTL accidents, near-misses and any
incident related to VTLs, including defects in the components
comprising the VTL, e.g., the interbox connector and/or container(s)
(``VTL accidents and incidents'') in the event OSHA's final rule-
making sanctions VTLs. * * * Because this practice has gone on for
so long virtually unregulated and unmonitored, whereby maritime
industry employers have been allowed to circumvent even the minimal
and inadequate requirements set out in the Gurnham Letter, the
agency should establish a VTL-monitoring division to allow workers
as well as employers to supply information with respect to any and
all VTL accidents and incidents causing and/or potentially
threatening harm to marine terminal and longshore workers. [Ex. 43-
10]
The ILWU further stated that these reports should be submitted to
Federal and State authorities, including the U.S. Coast Guard, and to
employee representatives (Ex. 43-10). They further recommended that VTL
operations cease until the accident or incident was investigated.
The ILA also urged OSHA to require all VTL-related incidents to be
reported to the Agency on an as-occurring basis, but no less than
quarterly (Ex. 44-1). They argued that an incident is no less an
indication of an underlying problem than an accident involving
reportable injuries. The ILA additionally urged the Agency to defer the
final VTL standard until it implemented an effective VTL incident
reporting system and collected additional data to determine the safety
of VTLs compared to lifts of single containers.
In a joint comment, USMX, NMSA, and PMA opposed a requirement for
accident and incident reporting (Ex. 47-5), stating:
There is no need for a special reporting mechanism for VTL
accidents and near misses. With regard to near misses, how would
these instances be defined? We had considerable difficulty with the
term ``near miss'' after the promulgation of the final rules on
Powered Industrial Truck Operator Training. Instituting such a
procedure without any evidence that VTLs pose an enhanced risk to
workers over single lifts, is inappropriate and in excess of the
agency's authority. [Ex. 47-5]
However, under questioning at the public hearing several industry
representatives acknowledged that
[[Page 75273]]
companies have internal reporting mechanisms for accidents and near
misses (Tr. 1-192, 1-229, 2-224).
OSHA does not agree with these commenters that a reporting
requirement would be in excess of the Agency's authority. The
Occupational Safety and Health Act of 1970 (OSH Act) explicitly gives
the Agency authority to promulgate regulations that require reports
``[f]or developing information regarding the causes and prevention of
occupational accidents and illnesses'' (29 U.S.C. 657(c)(1)). Requiring
employers to report accidents and near misses would certainly fall
within this authority.
While OSHA agrees with the ILWU and the ILA that fatality, injury,
and accident reporting is useful, the Agency has decided not to include
a reporting requirement in its final VTL standard. The comments by the
ILWU and ILA appear to support reporting mechanisms for three purposes.
First, longshore workers should be able to report safety problems to
OSHA. Second, reports of VTL incidents could be used to schedule OSHA
inspections to determine the cause of the incident, identify any
corrective measures that would have prevented the incident, and issue
citations for infractions of OSHA standards. Third, VTL incident
reports could be compiled and analyzed to look for accident trends and
causes. This information could then be used to determine the need for
additional requirements in the OSHA standards.
The Agency has determined that mandatory VTL reports are not needed
to make sure that longshore workers are able to report safety problems
to OSHA, to schedule OSHA inspections, or to produce statistical
information. The OSH Act explicitly gives employees the right to report
unsafe conditions and request a workplace inspection (29 U.S.C.
657(f)(1)). OSHA's regulations and policies allow employees to contact
the Agency regarding unsafe working conditions and ask for a worksite
inspection (see, for example, 29 CFR 1903.11). A large proportion of
OSHA's annual inspections are conducted as a result of such employee
complaints.
OSHA already has regulations at 29 CFR Part 1904 requiring
employers to report any work-related fatality and any work-related
accident resulting in the hospitalization of three or more employees.
OSHA also responds to employee complaints, media reports of unsafe
working conditions, and referrals from other parties who inform the
Agency of safety and health problems. These regulations and policies
are expected to give the Agency ample opportunity to investigate any
serious VTL incidents that may occur without the need for additional
reporting or other paperwork burdens.
OSHA does not agree with the ILA that it should delay the
rulemaking until the Agency implements an incident-reporting system,
collects data (presumably for several years), and produces reports on
that information. OSHA has been monitoring marine terminals for VTL
incidents for more than 20 years. Given the small number of incidents
that have occurred during that time, this type of data collection is
not likely to produce enough data to be worthwhile. In addition, a
reporting system that would truly compare single-container lifts and
VTLs would require the reporting of all single-lift and VTL incidents,
and how many of each lifts is performed--a more burdensome requirement
than simply requiring the reporting of VTL incidents. Finally,
requiring a reporting system before adopting a VTL standard would
result in unreasonable delay of the final standard. Unnecessarily
delaying the safety provisions of this final rule could result in
preventable longshore accidents, injuries, and fatalities.
H. Summary and Explanation of Regulatory Text
OSHA is issuing new provisions in the Longshoring and Marine
Terminals Standards (29 CFR Parts 1918 and 1917) to regulate the use of
VTLs. These new provisions are based on objective research, industry
experience with VTLs, ISO standards, the ICHCA VTL guidelines, and the
rulemaking record on VTLs contained in Docket S-025a. The provisions
provide safe work procedures (engineering, work-practice, and
administrative controls) for lifting two empty containers connected by
interbox connectors. Testing has demonstrated that the interbox
connectors required by the new provisions are substantially strong
enough to lift two empty containers with a safety factor of at least
five.
The new requirements for VTLs are contained in the Marine Terminals
Standard (29 CFR 1917). The Longshoring Standard (29 CFR 1918)
incorporates those requirements by reference. OSHA is requiring that
VTLs only be performed by a shore-based container gantry crane or
another type of crane that has the precision control necessary to
restrain unintended rotation about any axis, that is capable of
handling the load volume and wind sail potential of VTLs, and that is
specifically designed to handle containers. In accordance with 29 CFR
1917.1(a), which states that cargo handling done by a shore-based crane
is covered by Part 1917, the requirements that address the makeup of a
VTL, such as the number of containers, are in Part 1917. Requirements
that address the certification and testing of interbox connectors are
in both Parts 1917 and 1918. Interbox connectors are vessel's gear,
that is, gear owned and maintained by the vessel, and they would be
addressed in Part 1918. However, interbox connectors can also be used
in the marine terminal to assemble VTLs before they are loaded on the
vessel; therefore, the same certification and testing requirements for
interbox connectors that are contained in Part 1918 are also contained
in Part 1917. The VTL requirements for Part 1917 are discussed first.
1. Definitions
OSHA had proposed to add definitions of the terms ``liftlocks'' and
``vertical tandem lift'' to Sec. 1917.2 in the Marine Terminals
standard and to Sec. 1918.2 in the Longshoring standard. The final
rule uses the term ``interbox connector,'' a term used in the proposed
definition of ``liftlock,'' in place of the word ``liftlock.''
Consequently, the Agency is not including the proposed definition of
``liftlock'' in the final rule.
The final rule incorporates the definition of ``vertical tandem
lift'' into the scope of the VTL provisions. Therefore, a definition of
that term is unnecessary, and the final rule does not include the
proposed definition of that term either.
2. Incorporation by Reference
OSHA had proposed to incorporate by reference into the Marine
Terminal and Longshoring standards ISO Standard 3874, Amendment 2,
Vertical tandem lifting (2002). This ISO standard limits forces during
VTLs to 75 kN and requires the load-bearing surface area of interbox
connectors used in VTL operations to be a minimum of 800 mm\2\ (Ex. 40-
9). The Agency has incorporated the necessary strength requirements
into the text of the final rule. In addition, the final rule limits
VTLs to two empty containers, making a weight limitation unnecessary.
Thus, OSHA has not included the proposed incorporation by reference of
the ISO standard in the final standard.
In addition, in Sec. 1917.71(f)(3)(i), OSHA proposed to require
containers lifted in VTLs to be ISO series 1 containers. The final rule
does not contain an explicit requirement that VTLs be conducted only
with ISO series 1 containers. OSHA believes that, with the
standardization of intermodal containers, the only practical way to
lift containers in a VTL is with standard
[[Page 75274]]
containers having top and bottom corner castings that interconnect with
standardized interbox connectors. The final rule does contain
requirements for the certification of these connectors. The Agency
believes that it would be impractical, if not completely unworkable to
use anything other than a standard ISO series 1 containers in a VTL
operation. For example, the operation would encounter problems with the
interbox connectors engaging in nonstandardized corner castings. In
addition, the final rule explicitly prohibits lifting platform
containers in VTLs. The Agency would consider the lifting of vertically
coupled other types of non-ISO series 1 containers as being outside the
scope of the final rule and subject to the general duty clause of the
OSH Act.
3. Load Indicating Devices
OSHA had proposed, in the Marine Terminal standard, to require
container gantry cranes used in VTL operations to have load indicating
devices. The load indicting device was intended to ensure that the
weight of a VTL did not exceed 20 tons as required by the proposal. As
explained earlier in this section of the preamble, the Agency has
decided to permit VTLs of empty containers only. The existing Marine
Terminal standard requires the employer to know whether a container is
empty or loaded before it is hoisted (29 CFR 1917.71(b)(1) and
(b)(2)(ii)). In addition, as explained later in this section of the
preamble, the final rule requires employers to verify that each
container in a VTL is empty before it is lifted. OSHA has concluded
that these provisions will ensure that only empty containers will be
lifted in VTLs, making a requirement for load indicating devices
unnecessary. Therefore, the final rule does not carry forward this
proposed requirement.
4. Stowage Plan
OSHA proposed a requirement in the Marine Terminals Standard that a
copy of the vessel cargo stowage plan be given to the crane operator
and that the vessel cargo stowage plan be used to identify the location
and characteristics of any VTLs to be lifted (proposed Sec.
1917.71(b)(9)). This provision was intended to supplement existing
Sec. 1917.71(b)(1) and (b)(2)(ii), which require the gross weight of
containers to be marked or a stowage plan to be available.
The final rule permits only empty containers to be lifted in a VTL.
In addition, as explained later in this section of the preamble, the
final rule requires employers to verify that each container in a VTL is
empty before it is lifted. OSHA has concluded that these provisions
will ensure that only empty containers will be lifted in VTLs, making
requirements for the stowage plan to be provided to the crane operator
and for the plan to be used to identify containers lifted in VTLs
unnecessary. Therefore, the final rule does not include these proposed
requirements.
5. VTLs
New paragraph (i) of Sec. 1917.71 in the final rule adds
requirements for VTL operations to the Marine Terminals Standard. These
new requirements apply to operations involving the lifting of two or
more intermodal containers by the top container, or VTLs.
Final Sec. 1917.71(i)(1) requires each employee involved in VTL
operations to be trained and competent in the safety-related work
practices, safety procedures, and other requirements in this section
that pertain to their respective job assignments. The rationale behind
this requirement is explained earlier in this section of the preamble
under the issue entitled ``Training.'' This provision in the final rule
ensures that employees who are involved in VTL operations have the
training needed to perform their tasks safely (safety-related work
practices), perform their VTL-associated tasks so as to comply with the
standard (safety procedures), and competently perform the inspections
and determinations required by the final rule.
OSHA proposed to permit a maximum of two containers to be lifted in
a VTL (proposed Sec. 1917.71(f)(3)(i)). As explained earlier in this
section of the preamble, the Agency has determined that a maximum of
two containers may be safely lifted in a VTL. Therefore, OSHA has
included this requirement in the final rule as Sec. 1910.71(i)(2).
OSHA proposed to permit a maximum of 20 tons to be lifted in a VTL
(proposed Sec. 1917.71(f)(3)(i)). As explained earlier in this section
of the preamble, the Agency has concluded that only empty containers
may be lifted in VTLs. This will ensure that the capabilities of the
corner castings and interbox connectors attaching the two containers
are not exceeded.
In addition, the Agency believes that it is essential to ensure
that containers lifted in a VTL are empty. The existing Marine
Terminals standard requires that the employer know whether a container
is empty or loaded before it is hoisted (Sec. 1917.71(b)(1) and
(b)(2)(ii)). For containers being discharged from a vessel, most
employers and employees rely on the vessel cargo stowage plan, also
called a stow plan, that shows: The location of each container on the
vessel, the container's unique identification number, the weight of the
container, and other information, such as if the container contains
hazardous material. For containers being loaded onto the vessel, the
same information is contained on a stowage plan that shows where the
containers are to be placed on the vessel. This method of determining
the weight of a container is adequate for handling containers
individually. This is because if the stowage plan understates the
weight of the container, the hoisting of a fully loaded container will
not overload the crane. However, it is not adequate for handling a VTL,
because if the weights of multiple containers are understated, the
hoisting of those containers in a VTL could overload the interbox
connectors and corner castings joining the containers.
Evidence in the record indicates that containers that were supposed
to be empty were, in fact, loaded. For example, at the 1998 meeting on
VTLs, a crane operator testified:
I know I've picked up containers they told me were empty and I
say it's a load. And they say, no, it's an empty. I tell them,
listen, this is a load. And they don't know it until they get it
down. [1998-Tr. 252].
Another participant at the public meeting observed:
What concerns Peck and Hale as an American based company that
supplies equipment to ships worldwide is that of safety. OSHA can
approve empty lifting but no one can guarantee that these containers
are empty. Containers are shifted in ports. Containers are mismarked
and not accurate[ly] weighed. [1998-Tr. 161]
This evidence was not disputed in the rulemaking record on the
proposal. In fact, at the public hearing on the proposal, Mr. Tyrone
Tahara testified that some containers in VTLs that were supposed to be
with empty containers seemed to have load in them (Tr. 2-421).
Therefore, the Agency has concluded that it is essential for the
employer to ensure that containers are empty before they are lifted in
a VTL, as required by final Sec. 1917.71(i)(3). Although the rule does
not prescribe a particular method for ensuring that a container is
empty, OSHA intends that employers make a positive determination, such
as through direct observation of the content of the container or by
weighing it to make sure that its weight matches the tare weight marked
on the container. For example, an employer could use a container
crane's load-indicating device \30\ to
[[Page 75275]]
measure the weight of the container individually as the containers are
positioned in a VTL or during the prelift. Although the stowage plan
can be used to help locate potentially empty containers, employers may
not rely solely on that plan in complying with new Sec. 1917.71(i)(3).
---------------------------------------------------------------------------
\30\ It should be noted that only load-indicating devices
meeting Sec. 1917.46(a)(1)(i)(A) are acceptable. The alternative
devices permitted by Sec. 1917.46(a)(1)(i)(B) and (a)(1)(i)(C) do
not provide a direct indication of the weight of the load. Thus,
employers cannot rely on these alternative devices to ensure that
each container lifted in a VTL is empty.
---------------------------------------------------------------------------
Paragraph (i)(4) of Sec. 1917.71 in the final rule addresses the
type of crane that can be used to perform VTLs. The final rule requires
VTLs to be performed only by shore-based container gantry cranes and
other types of cranes that (1) have the precision control necessary to
restrain unintended rotation of the containers about any axis, (2) are
capable of handling the load volume and wind sail potential of VTLs,
and (3) are specifically designed to handle containers. The rationale
for this requirement is addressed previously in this section of the
preamble under the issue entitled, ``Crane Type.''
Paragraph (i)(5) of Sec. 1917.71 in the final rule requires that
the crane operator conduct a prelift before hoisting a VTL. A prelift
is a pause in the VTL as the initial strain is taken and the lifting
frame wires are tensioned. This physically tests the interbox
connectors to ensure that they are engaged. This is consistent with the
practice used by Sea-Land, as previously described. Testifying on
behalf of Sea-Land at the 1998 public meeting, Mr. Philip Murray stated
that prelifts are a necessary safety precaution for VTLs, arguing that
they helped detect interbox connectors that were not fully engaged
(1998-Tr. 202). At the public hearing, Michael Bohlman also recommended
that prelifts be conducted (Tr. 1-209). In addition, the ICHCA
guidelines, in section 8.2.2.1.7, require prelifts.
The ILWU argued that prelifts did not necessarily ensure the safety
of a VTL (Exs. 43-10, 47-4, 50-7), reasoning as follows:
Contrary to OSHA's belief, requiring a crane operator to conduct
a pre-lift before hoisting a VTL * * * will not necessarily ensure
that the interbox connectors are properly engaged. The proposed rule
does not specify how long the lift should take place. Nor does it
establish that the locks and/or the containers' bottom corner
castings can withstand the duration of the lift, even if the
connectors are initially engaged. As explained above, severely
stressed and/or internally cracked SATLs and cones and corner
castings are not always viewable upon cursory inspection. In
addition, a pre-lift does not ensure that the VTLs can withstand the
sudden un-weighting effect that occurs when a crane's trolley goes
over a rail splice or cracks in the rail. Moreover, if a VTL is at
or near its 20-ton maximum weight limit, when the trolley hits a
rail splice, the weight of the containers increases significantly on
the rapid and jerking descent immediately following the splice. [Ex.
43-10]
Although OSHA agrees that prelifts cannot, by themselves, ensure
the safety of VTLs, the Agency has concluded that VTLs can indeed be
performed safely under certain circumstances and that prelifts are an
essential component of ensuring employee safety. Prelifts will expose
conditions involving two disengaged interbox connectors on one side.
Limiting VTLs to empty containers ensures that the lift will be safe
even if only two interbox connectors are fully engaged on opposite
sides (that is, along the diagonal), a condition that the prelift may
not detect. Inspecting interbox connectors and corner castings
immediately before the lift ensures that the connectors are in proper
working order, thus, making partial engagement less likely. Therefore,
by requiring prelifts along with other necessary precautions, OSHA
believes that the rule will adequately protect employees.
Proposed Sec. 1917.71(f)(3)(iii) would have prohibited VTLs of
containers with hazardous cargo, liquid or solid bulk cargoes, or
flexible tanks that were full or partially full. The final rule
requires containers lifted in VTLs to be empty. Thus, this proposed
requirement is unnecessary.
Paragraph (i)(6) of Sec. 1917.71 in the final rule prohibits VTLs
of any containers that are in the hold of a vessel. Containers are
stacked in the hold in cell guides (steel beams constructed to secure
stacks of containers). There is not enough clearance for the handle of
an SATL to fit between the interbox connector and the cell guide--the
handles would break off in the cell guide as containers were lowered
into the guide. In such cases, it would be impossible to inspect the
interbox connectors immediately before the lift or to determine the
condition of the containers. No substantial objections were received to
this requirement, which was proposed as Sec. 1917.71(f)(3)(v).
Paragraph (i)(7) of Sec. 1917.71 of the final rule prohibits the
handling of VTLs when the wind speed exceeds 55 km/h or the crane
manufacturer's recommendations, whichever is lower. This limits both
the loads imposed on the interbox connector-to-corner casting
connection and the ability of the crane operator to safely handle a VTL
and keep it under control. This provision is similar to proposed Sec.
1917.71(f)(3)(vi), which would have set a maximum wind speed of 55 km/h
without regard to the crane manufacturer's recommendation.
Several rulemaking participants were concerned that the proposed
maximum wind speed for VTL operations was too high (Exs. 43-4, 43-10,
44-1, 47-3, 51-4, 54-28). Noting the role that wind conditions play in
VTLs, the ILA argued that the proposed 55-km/h limit was excessive (Ex.
44-1). Stating that common sense demands a lower maximum wind speed for
VTLs than for single lifts, the ILWU urged OSHA to conduct studies to
establish a safe wind speed (Ex. 43-10). Some rulemaking participants
maintained that factors such as the VTL configuration, weight,
forecasts, and equipment should be considered in setting a maximum wind
speed (Exs. 43-5, 44-1, 51-4, 54-28). For example, David Reda, an ILWU
member, stated:
Performing [VTLs] at a maximum weight of 20 tons and/or empties.
You have twice the surface area which when wind speed is added can
push the tandem load in an uncontrollable twisting manner. This is
hard on the crane and the wire can be dislodged from the hoisting
pulleys. [Ex. 43-5]
Michael Bohlman countered that the proposed 55-km/h limit was too
low for two-tier VTLs (Ex. 50-10-2):
Under both the OSHA proposed rule and the Safety Panel's
guidelines, VTL operations should cease if the wind speed exceeds 34
mph. The Safety Panel's recommendation however, was based on a
three-tiered VTL configuration. Two tier VTL units can be operated
safely in much higher winds, winds that are 25 to 40% higher than
those established for safe 3-tier operation. [Ex. 50-10-2]
He urged OSHA to permit higher wind speeds if the final rule
prohibited three-tier VTLs. Other rulemaking participants generally
supported the proposed 55-km/h wind speed limit (Exs. 50-10-3-1, 50-
12). Their support was based on the ICHCA guidelines.
OSHA recognizes that the ICHCA guidelines (Ex. 41) limit the
maximum wind speed to 55 km/h based on loading considerations involved
in a three-tier VTL. However, as noted previously, other factors
besides maximum safe load come into play in the determination of a
maximum safe wind speed. For example, a higher wind speed can cause the
load to rotate more (Tr. 2-296-297). Michael Arrow stated that a
maximum wind speed of 55 km/h is based both on engineering analysis and
practical experience (Ex. 50-10-3-1). In addition, the Agency has used
48 to 64 km/h as a guideline for when to consider wind speeds as being
hazardous for work that may involve material handling or
[[Page 75276]]
working at heights. (See, for example, 55 FR 13360, 13379 (April 10,
1990), the Walking and Working Surfaces proposed rule, and 59 FR 4320,
4373 (January 31, 1994), the Electric Power Generation, Transmission,
and Distribution final rule.) Therefore, OSHA has concluded that the
55-km/h limit on wind speed for VTL operations is reasonably necessary
and appropriate.
Some commenters raised concerns about wind velocity warning systems
and manufacturers' recommendations regarding maximum wind speed (Exs.
43-10, 44-1, 47-4, 57). The ILA claimed that wind detectors have been
problematic, but offered no evidence to support their assertion (Ex.
44-1). The ILWU noted that the proposed rule provided no guidance on
warning systems and recommended that the final rule require them (Exs.
43-10, 47-4). They were also concerned that manufacturers'
recommendations would override the standard's maximum wind speed as
follows:
The proposed rule provides no guidance on wind warning devices--
apparatuses which sound an alarm to workers when the maximum wind
velocity has been reached during container operations. The current
practice for single-hoist (standard) container operations is to set
each crane's wind warning according to the manufacturer's
recommendation. The ILWU strongly urges that should OSHA establish a
standard for maximum wind speed for VTL operations, this standard
should be required for all VTLs operations irrespective of the crane
manufacturers' recommendation. [Ex. 47-4]
Existing Sec. 1917.45(g)(3) requires cranes located outdoors to
have wind-indicating devices to provide warnings when the wind velocity
approaches the crane manufacturer's recommended maximum. The Virginia
International Terminals crane operations manual states that the warning
system installed on their cranes provides a warning at 55 km/h and that
crane operations begin shutting down at that speed (Ex. 57). It is
possible that some crane manufacturers set lower maximum wind
velocities than those for the Virginia International Terminal cranes.
Because of this, the final rule, in Sec. 1917.71(i)(7) requires the
maximum wind speed for VTL operations to be the lesser of (1) 55 km/h
or (2) the crane manufacturer's recommendations. This will ensure that
cranes are operated within their safe operating conditions and will
limit wind velocities to a recognized safe level for VTL operations.
The language in the final rule also clarifies that the absolute maximum
wind speed for VTL operations is 55 km/h even if the crane manufacturer
sets a higher maximum recommended wind speed.
Paragraph (i)(8) of Sec. 1917.71 in the final rule sets
requirements for interbox connectors used in VTL operations. Paragraph
(i)(8)(i) requires interbox connectors to lock automatically and unlock
manually. This provision specifically prohibits the use of manual
twistlocks and latchlocks. This provision has been taken from the
definition of ``liftlock'' in the proposal and from proposed Sec.
1917.71(m).
Manual twistlocks, which have largely been replaced by SATLs due to
OSHA's container top safety regulations and increased productivity (see
discussions in the Longshoring and Marine Terminals Final Rule, 62 FR
40174), do not have a positive locking mechanism. By contrast, SATLs
have a locking device that uses spring tension to prevent it from
unlocking. Manual locks could unlock through normal container handling,
making them unsuitable for lifting. The limits and weaknesses of
latchlocks for VTLs were more fully discussed earlier in this section
of the preamble. The ILA supported the proposal's prohibition against
the use of manual twistlocks (Exs. 44-1, 55-1). The ICHCA guidelines,
in section 8.1.1.11, also prohibit manual twistlocks from being used in
VTL operations (Ex. 41).
Paragraph (i)(8)(ii) of Sec. 1917.71 in the final rule requires
interbox connectors used in VTL operations to indicate whether they are
locked or unlocked. Paragraph (i)(8)(iii) of Sec. 1917.71 in the final
rule requires all interbox connectors in a VTL to lock and unlock in
the same manner. Some SATLs lock and unlock in a horizontal direction,
others in a vertical direction. What is important and required is that
all the twistlocks in a VTL work in the same manner to allow employees
involved in VTLs to determine readily whether or not the locks are
locked or unlocked before a lift is performed. For an observer to
determine whether the interbox connectors are locked or unlocked, they
must have a telltale, which is typically a solid metal lever or a
flexible wire, possibly painted to enhance visibility. This allows
employees working with VTLs to see whether an interbox connector is
locked or unlocked.
These two paragraphs in the final rule are based on proposed Sec.
1917.41(l)(1)(vii). This provision in the proposal also required all
interbox connectors on a vessel to operate in the same direction and
required the telltale on twistlocks to be visible from deck level. OSHA
has not included these requirements in the final rule. As explained
earlier in this section of the preamble, OSHA has decided to require a
visual inspection of each interbox connector and corner casting
involved in a VTL immediately before the lift. In addition, in Sec.
1917.71(i)(5), the final rule requires a prelift. The inspection and
the prelift will help ensure that interbox connectors will be properly
engaged. The inspections will normally be conducted close to the
containers being lifted, so there is no need for employees to be able
to determine if the twistlocks are engaged when the containers are
stacked on a vessel. Thus, the requirements for the telltale to be
visible from deck level and for all twistlocks on a vessel to operate
the same way are unnecessary.
Paragraph (i)(8)(iv) of final Sec. 1917.71 requires interbox
connectors used in VTLs to be certificated as loose gear under Sec.
1917.50. The marine terminal standards, in Sec. 1917.50, require
certain equipment to be certificated by a competent authority.
Currently, loose gear (which under the final rule would include
interbox connectors used in VTLs) in the U.S. is certificated by OSHA-
accredited agencies under 29 CFR part 1919, Gear Certification. Foreign
flag vessels carry certificates issued by the recognized body
appropriate for that country. Often the recognized body issuing
certifications is a classification society such as the American Bureau
of Shipping, Lloyds Register, or Bureau Veritas.
OSHA and the U.S. Coast Guard are the competent authorities for
certifications in the United States. Other countries would have their
own competent authority that would have jurisdiction over VTL
operations in that country. Certification of interbox connectors used
in VTLs, which is verified by certificates issued by agencies
authorized by a competent authority, is the primary way an employer
will determine that SATLs on a vessel or ashore can be used for
lifting. These certificates are found in the vessel's cargo gear
register.
Some rulemaking participants supported the proposed requirements
for certificating interbox connectors used in VTLs (Exs. 43-10, 44-1,
47-3). For example, the ILWU argued that major shipping companies do
not operate entirely with their own equipment and that there are random
combinations of containers and connectors (Ex. 43-10). They urged OSHA
to require certification of containers as well as interbox connectors.
Some comments opposed the proposed requirement for SATLs used in
VTLs to be certificated (Ex. 47-5). For example, USMX stated:
[[Page 75277]]
The regulation the agency proposes requires certain markings on
SATLs and certain testing protocols that have absolutely nothing to
do with the strength or quality of the SATL. It is undisputed (and
substantiated by the NIST Report) that every single SATL in use
today was fabricated to conform to international standards that
would permit complete confidence in conducting VTL configurations as
outlined by ISO 3874. Thus * * * it should be clear that the
regulations concerning the certification of SATLs as liftlocks are
not necessary and present a significant impediment to the
utilization of VTLs. [Ex. 47-5]
As explained in detail earlier in this section of the preamble,
OSHA has concluded that the NIST tests are not representative of all
SATLs currently in use. In addition, contrary to USMX's position, the
NIST testing indicates that some SATLs do not meet ISO requirements on
load-bearing area (Ex. 40-10). In addition, the ICHCA guidelines, in
sections 8.1.3.1.2 and 8.1.3.2.1, require twistlocks used in VTL
operations to be certificated (Ex. 41). Consequently, OSHA has
concluded that certification is necessary to ensure that interbox
connector-corner casting assemblies used in VTLs have adequate strength
to ensure the safety of the lift. This conclusion is also consistent
with the Agency's position that interbox connectors used in VTLs are
loose gear and must therefore meet the current marine terminal
standards requirements on loose gear, which requires certification
under Sec. 1917.50(c)(6).
On the other hand, OSHA has concluded that containers are not loose
gear and thus do not need to be certificated. Containers are widely
lifted in single units without being certificated. The ISO standards
for containers and corner castings ensure that they are capable of
safely supporting at least two empty vertically coupled containers. In
addition, the prelift inspection required by Sec. 1917.71(i)(9)(iii)
will help ensure that the container is in good condition and that
neither the container nor the corner casting will fail during the lift.
Paragraphs (i)(8)(iv)(A) and (i)(8)(iv)(B) of Sec. 1917.71 in the
final rule require interbox connectors used in VTLs to be certified as
having a minimum load-bearing surface area of 800 mm \2\ and as having
a safe working load of 98 kN (10,000 kg) with a safety factor of five
when the load is applied by means of two corner castings with openings
that are 65.0 mm wide or equivalent devices. As explained in detail
earlier in this section of the preamble, these requirements will ensure
that interbox connectors are strong enough to withstand the loads
imposed by VTL operations.
Paragraph (i)(8)(v) of Sec. 1917.71 requires each interbox
connector used in a VTL to have a certificate that is available for
inspection and that attests that the connector meets the required
strength criteria listed in paragraph (i)(8)(iv).
The ICHCA guidelines, in sections 8.1.3.1.2 and 8.1.3.2.1, require
twistlocks used in VTL operations to be certificated with a safe
working load of at least 10,000 kg on the basis of a safety factor of
at least five (Ex. 41). ISO 3874 requires interbox connectors used in
VTL operations to have a minimum load-bearing surface area of 800 mm2.
Paragraph (i)(8)(vi) of Sec. 1917.71 requires that each interbox
connector used in a VTL to be clearly and durably marked with its safe
working load for lifting, together with a number or mark that
identifies it and connects it with its test certificate.
This paragraph was taken from proposed Sec. 1917.71(l)(1)(vi). The
marking requirement was opposed by the International Chamber of
Shipping, which argued that such marking presented an insurmountable
challenge considering the vast numbers of SATLs in use (Ex. 47-1).
The ICHCA guidelines has required the same markings as the final
rule since January 1, 2003 (Ex. 41). Thus, a substantial number of
existing SATLs intended for use in VTLs already have these markings in
place. In addition, employers, employees, and OSHA would have no way of
distinguishing between complying SATLs and those that are not
certificated without such markings. (The need for certification was
discussed previously in this section of the preamble.) Thus, OSHA has
carried the proposed requirement into the final rule without
substantial revision.
Paragraphs (l)(1)(iii) and (l)(1)(iv) of proposed Sec. 1917.71
addressed inspection of interbox connectors used in VTLs. Paragraph (k)
of proposed Sec. 1917.71 would have required damaged or defective
connectors to be removed from service and prohibited their use for
lifting. This paragraph would also have required a means of keeping
damaged or defective interbox connectors separate from operating
interbox connectors. These provisions in the proposed rule were
intended to weed out damaged and defective interbox connectors in a
systematic way.
The proposed rule would have required a thorough inspection by a
competent person at least once every 12 months. This proposed provision
garnered significant attention by rulemaking participants. Some
commenters objected to the proposed requirement for annual thorough
examination by a competent person (Exs. 43-7, 47-1, 47-5, 50-10-2, 50-
10-3, 50-12, 54-3). They recommended that OSHA allow adherence to an
approved continuous examination program (ACEP), as outlined in the
ICHCA guidelines, in lieu of annual inspections. Michael Bohlman
described ACEP as follows: ``Examinations under an [ACEP] are required
to be carried out in connection with major repair, refurbishment, or
on-hire/off-hire interchange at intervals of not more than 30 months''
(Ex. 50-10-2).
Section 8.1.3.3 of the ICHCA guidelines (Ex. 41) addresses the
maintenance and examination of interbox connectors used in VTLs.
Section 8.1.3.3.3 requires each such interbox connector to be inspected
by a competent person at least once every 12 months, in language
mirroring the first sentence of proposed Sec. 1917.71(l)(1)(iii).
However, the ICHCA guidelines also specifically recognize ACEPs in
section 8.1.3.3.4 as one way of meeting the requirement for annual
inspection.
Michael Arrow, representing USMX, argued that these programs make
marking interbox connectors with the inspection date unnecessary (Ex.
50-10-3). Some of the commenters supporting ACEPs maintained that such
programs ensured that interbox connectors were examined more frequently
that once a year (Exs. 43-7, 54-3). Michael Bohlman, speaking on behalf
of USMX, stated that ACEPs encourage a continuous heightened level of
scrutiny (Ex. 50-10-2). However, responding to questions at the public
hearing, Mr. Bohlman admitted that this type of program does not ensure
the inspection of all interbox connectors:
We do about 10 percent a * * * voyage. There's probably
statistics that someone could dig out of a book someplace that tells
you over the course of a year you'll guarantee you're going to get
95 percent of the locks and over two years, 99.9 percent. [1998 Tr.
211-212]
Other rulemaking participants recommended that the standard not
permit continuous examination programs (Exs. 43-10, 43-10-3, 43-10-7,
50-7, 54-30-2, 62, 64). Christine Hwang, commenting for the ILWU,
argued that under an ACEP interbox connectors would be inspected less
frequently than once per year (Ex. 43-10). Others argued that there was
no adequate way of tracing inspections performed on individual
connectors (Exs. 43-10-3, 64). For example, Douglas Getchell, speaking
on behalf of the ILWU, stated:
[[Page 75278]]
Given the fact that twistlocks have no individual identification
numbers and also that batch numbers (which would be of limited
usefulness) soon become unreadable due to wear and tear, it would be
interesting to discover exactly how Sea-Land is able to know that
they have inspected 99.9% of their twistlocks. [Ex. 43-10-3]
The ILWU also maintained that ACEP is not appropriate for
containers (where it has been used for many years) and would be even
more problematic for interbox connectors used in VTLs (Ex. 64). They
further argued that the ICHCA guidelines are problematic because they
rely on the acceptance of inspection procedures performed by entities
outside OSHA's jurisdiction (Ex. 54-30-2).
OSHA has concluded that an ACEP does not ensure that interbox
connectors will be inspected more often than once every 12 months. In
fact, based on Michael Bohlman's testimony, it is clear that Sea-Land's
ACEP would capture only 95 percent of these devices in a 12-month
period (1998-Tr. 211-212). In addition, Mr. Bohlman's testimony
indicates that, in an ACEP, longshore workers would be the ones who do
the inspections as the interbox connectors are being used, and that
such inspections would not involve disassembly (Tr. 1-174--1-175). As
explained later in this section of the preamble, the final rule
requires inspections of the sort described by Mr. Bohlman immediately
before each VTL. Therefore, the final rule does not recognize ACEPs as
a means of compliance with the final rule's inspection requirements.
Several labor representatives stated that the proposed annual
inspection is insufficient to ensure that interbox connectors are not
damaged or defective during use in VTLs (Exs. 43-10, 44-1, 43-10-6, 51-
4). For example, Herzl Eisenstadt, representing the ILA, stated:
The relative risk of VTL lifts of more than two containers must
be correlated with the quality and dependability of the lift-locks
(``shoes'') that are to be used in such moves. OSHA is abundantly
aware that twistlocks * * * are connecting, rather than lifting,
devices. The pressures and forces upon lift-locks are no different
from those on [SATLs] during cross-ocean voyages. They can and do
create damages and weaknesses that are parlayed during subsequent
trips. The sooner that they are caught, the less likely that they
will set the stage for a serious accident. It is therefore all the
more imperative that properly noted and coded lift-locks be
inspected more often than annually and that the periods for their
inspection and, if need be, servicing, be readily ascertainable from
markings on the body of the device. [Ex. 44-1]
Some commenters recommended that OSHA require inspection of these
devices immediately before use in a VTL (Exs. 43-10, 50-7, 64).
Christine Hwang, representing the ILWU, also recommended that interbox
connectors be cleaned, as follows:
If OSHA ultimately permits SATLs or cones to be used for
purposes of hoisting containers, these locks should not only be
examined visually... but also tested for their structural integrity
and proper functioning prior to and after each and every use. In
addition to a pre-shift inspection of connectors and their
corresponding manufacturers' certification, the locks should be
thoroughly cleaned after each and every discharge. [Ex. 43-10]
Interbox connectors and containers are subject to considerable
forces and abuse during shipping and handling (Exs. 43-8, 43-10-3, 50-
7). According to industry expert Michael Arrow, a voyage across the sea
exposes connectors and containers to greater forces than during VTLs
(Tr. 1-45, 1-150--1-151). In addition, SATLs and corner castings are
exposed to sea water, dirt, grime, snow, ice, and debris, which can
interfere with the operation of the interbox connectors and can prevent
them from fully engaging with corner castings (Exs. 43-10, 43-10-6, 47-
6, 54-28). The interbox connectors are frequently dropped (Ex. 50-7),
and containers land hard onto container truck chassis (Tr. 2-122--123).
Although Mr. Arrow insisted that SATLs have proven to be resistant to
dropping and shocks (Ex. 54-1), OSHA has concluded that the abuse and
severe stresses these devices get during shipping and handling could
damage them. OSHA has calculated the forces involved in lifting two
empty containers to be near the safe working load for interbox
connectors and corner castings. If the forces at sea are greater as the
industry witnesses claim, then it is quite likely that these devices
are commonly overloaded during transport. In addition, evidence that
interbox connectors and corner castings are subject to debris and other
contamination was uncontroverted. Thus, OSHA has determined that
interbox connectors and containers, including, in particular, their
corner castings, must be inspected immediately before being used in a
VTL.\31\ Accordingly, the final rule, in Sec. 1917.71(i)(9), requires
such an inspection. The requirement to inspect each interbox connector
to determine that it is fully functional will uncover any dirt or
debris that may hinder operation and eliminates the need for an
explicit requirement to clean these devices.
---------------------------------------------------------------------------
\31\ As noted in section VI, ``Final Economic Analysis and
Regulatory Flexibility Analysis,'' later in this preamble, OSHA
realizes that requiring an inspection immediately before the VTL may
make ship-to-shore VTLs impractical.
---------------------------------------------------------------------------
For the purpose of paragraph (i)(9), ``immediately before use in
the VTL'' means that the devices are inspected before the VTL takes
place but after any event that could reasonably be suspected of
damaging them. This means that the corner castings and interbox
connectors could be inspected before the VTL is assembled, and the VTL
stored in the terminal until it is ready to be loaded onto the ship.
However, if an event occurs that could have damaged a corner casting or
interbox connector (for example, a hustler colliding with an assembled
VTL), the affected corner castings and interbox connectors would need
to be reinspected. Additionally, the interbox connectors and corner
castings in vertically coupled containers that have been shipped
overseas would need to be inspected after shipment before the
containers could be used in a VTL.
The proposal did not address inspection of containers or corner
castings. Two rulemaking participants argued that the existing ACEPs
for containers worked to ensure the quality of containers (Exs. 50-10-
3, 50-12). For example, Michael Arrow, representing USMX, stated that
``the goal of [ACEPs] is quality assurance of components on a sound
basis'' (Ex. 50-10-3). He noted that the ``ACEP option has been in
place over twenty years with safety combined with widespread acceptance
in the maritime industry'' (Ex. 50-10-3).
Other rulemaking participants disagreed that ACEPs were adequate
and recommended that the final rule address the inspection of
containers and corner castings (Exs. 43-10, 43-10-2, 43-10-7, 44-1, 47-
4, 50-7, 54-30-2, 62). For example, Christine Hwang, representing the
ILWU, was concerned about the lack of inspection or testing
requirements for containers, stating:
The testing and certification gap is not only devoid of common
sense, but also completely ignores the operational realities of
container operations on the waterfront. The bottoms of containers
and comer castings, which are critical to VTLs, are the most
vulnerable to structural damage and weakening due to extremely rough
handling and environmental conditions. [Ex. 43-10]
There was testimony that, due to the way that container inspections
were performed under at least one ACEP, it was not possible to view the
bottom castings completely (Tr. 2-389--2-390). Several commenters noted
that, although the Coast Guard spot checks containers for safety, these
inspections cannot ensure the integrity of every container used in VTLs
(Exs. 43-10-2,
[[Page 75279]]
47-4). Other rulemaking participants argued that ACEPs are not adequate
to ensure the safety of containers and corner castings (Exs. 43-10, 43-
10-7, 62). For example, Christine Hwang, representing the ILWU, noted
that, under the ACEP, containers are only inspected 5 years after their
manufacture and every 30 months after that (Ex. 43-10).
There is evidence in the rulemaking record that containers and
their corner castings may be damaged during use or clogged with debris
(Exs. 43-10, 43-10-4, 43-10-6, 54-28). For example, the ILWU submitted
photographs of damaged containers (Ex. 43-10-4). These containers would
be unsuitable for use in VTLs. Other commenters noted that debris, ice,
and snow could prevent interbox connectors from fully deploying,
resulting in a load-bearing surface area that was too small and
therefore potentially unsafe (Exs. 43-10, 43-10-6, 54-28). OSHA shares
the concerns of these rulemaking participants that containers and
corner castings could be used in VTLs when they are either damaged or
when the corner castings do not provide a suitable load-bearing surface
area. On the basis of the evidence that containers and corner castings
with such defects are currently in use, the Agency has concluded that
existing ACEPs are insufficient to ensure that containers and corner
castings are in a condition making them suitable for VTLs. Thus, in the
final rule, OSHA is requiring that containers and corner castings be
included in the mandatory prelift inspection.
Some rulemaking participants argued that the standard should
require a detailed inspection, including disassembly of each interbox
connector (Exs. 50-7, 54-30-2, 64). For example, Albert Le Monnier,
commenting on behalf of the ILWU, stated that ``[a] true inspection
would require the dismantling of the SATL in order to view the internal
components'' (Ex. 50-7). Without this inspection, he maintained that
the most critical part of the interbox connector, the stem, which is
covered by a housing, would be left unexamined. He also stated that the
examination should include ultrasonic or radiographic testing as
described in the ILO Code of Practice on Security, Health and Safety in
Ports (Ex. 54-30-2).
On the other hand, Michael Bohlman, representing USMX, testified
that a detailed inspection involving disassembly of the interbox
connector is unnecessary, stating:
The typical lock breakage, which does happen, is the result not
of a tension load, but of a torsional load on the lock.
For example, two containers are pried apart. When that happens,
when you start to get torsion, the bending in the shaft, the lock
will bind up. So typically, if you've got a lock that's partially
deformed, that will bind up and you won't be able to use it well
before you're going to hit a failure point in a subsequent lift
operation. Cracking, per se, in the shaft between the housing is not
an issue. [Tr. 1-175]
Mr. Bohlman also rebutted the need for routine ultrasonic or
radiographic testing by noting that the ILO Code of Practice on
Security, Health and Safety in Ports demands such testing only ``where
appropriate'' (Ex. 54-3). He noted that the components that typically
fail are the spring and handle mechanisms.
OSHA has concluded that, while a detailed inspection of interbox
connectors before use in a VTL is necessary, disassembly and testing of
these devices is unnecessary, as well as impractical. As Mr. Bohlman
noted, the components that fail can typically be inspected readily
without the need to disassemble an interbox connector or subject it to
laboratory testing. In addition, disassembly of the connector
introduces the possibility of improper reassembly, which could create
hazards. The Agency does not believe that the risk of introducing these
hazards is justified by the risk of cracking in areas not visible
without disassembly. Thus, the final rule requires the inspection to
ensure that interbox connectors are free from obvious structural
defects. The inspection must include a check of the physical operation
of each interbox connector to determine that the lock is fully
functional with adequate spring tension on each head and a check for
excessive corrosion and deterioration. These checks will ensure that
each interbox connector is safe for use in a VTL.
Some commenters urged OSHA to require interbox connectors to be
marked with the date of the last inspection or the period for which it
was valid (Exs. 44-1, 51-4).
The Agency has concluded that requiring the inspection to be
performed immediately before the VTL eliminates the need to mark
inspection periods or dates on interbox containers or containers. The
employees performing the operation will either see the inspection take
place or will be able to ask those responsible whether it has been
performed.
The ILWU also touched on the need to train employees performing
inspections (Exs. 43-10, 43-10-3, 50-7, 64). Douglas Getchell, speaking
on behalf of the IWLU, stated that ``[o]nly the obvious wrecks are
likely to be identified by the average longshore worker'' (Ex. 43-10-
3).
OSHA agrees that only employees trained in inspecting containers,
corner castings, and interbox connectors would be able to detect
anything other than the most obvious defects. The standard's
requirement for thorough examinations of these VTL components demands
that employees performing inspections be capable of detecting defects
or weaknesses and be able to assess their importance in relation to the
safety of VTL operations. Thus, the final rule requires this in Sec.
1917.71(i)(9)(i).
Paragraphs (i)(9)(ii) and (i)(9)(iii)of Sec. 1917.71 in the final
rule sets the parameters that visual inspections must meet. Inspections
must include:
1. A visual examination of each container, interbox connector, and
corner casting to be engaged with the interbox connector for obvious
structural defects. Obvious structural defects, such as those shown in
the photographs submitted by the ILWU (Ex. 43-10-4), would clearly
threaten the safety of a VTL.
2. A check of the physical operation of each interbox connector to
determine that the lock is fully functional with adequate spring
tension on each head. Michael Bohlman stressed that this was one of the
key items an inspection should address (Tr. 1-113). If the interbox
connector is not functioning properly or if the spring tension is
inadequate, the lock may not fully engage, lowering the safe working
load of the corner casting-interbox connector assembly as noted
previously in this section of the preamble.
3. A check for excessive corrosion and deterioration. Excessive
corrosion and deterioration can weaken containers, corner castings, and
interbox connectors (Ex. 41; Tr. 2-254).
4. A visual examination of each corner casting to ensure that the
opening to which an interbox connector will be connected has not been
enlarged and that welds are in good condition. Defective welds can
weaken containers (Tr. 1-45, 1-266), and enlarged openings can lead to
load-bearing surface areas that are too small.
Paragraph (i)(9)(iv) of Sec. 1917.71 in the final rule requires
the employer to establish a system to remove damaged and defective
interbox connectors from service. Paragraph (i)(9)(v) of Sec. 1917.71
in the final rule requires defective and damaged interbox connectors to
be removed from service and not used for VTLs until repaired. These
provisions were taken from the last sentence of proposed Sec.
1917.71(l)(1)(iii), which
[[Page 75280]]
would have required defective interbox connectors to be removed from
service. No comments were received on this provision in the proposal.
However, rulemaking participants discussed several ways of separating
damaged and defective twistlocks from good ones, including disposing of
bad ones (Tr. 2-363) or placing them in a separate bin (Tr. 1-156, 2-
125, 2-144). However, there was also evidence that longshore workers
place bad interbox connectors in bins reserved for good ones,
particularly if there was nowhere to place the defective ones (Tr. 2-
167, 2-287, 2-422). Thus, the Agency has concluded that employees need
a system in place that will enable them to separate damaged and
defective interbox connectors from good ones. Paragraph (i)(9)(iv) of
Sec. 1917.71 in the final rule adopts a requirement for employers to
establish such a system.
Paragraph (i)(9)(vi) of Sec. 1917.71 in the final rule prohibits
lifting containers with a damaged or defective corner casting in a VTL.
The proposal had no counterpart to this requirement. OSHA has included
it in the final rule as a necessary complement to the final rule's
requirement to inspect containers and corner castings. Without such a
requirement, the inspection of containers and corner castings would not
be effective in preventing the lifting of unsafe containers. It should
be noted that existing Sec. 1917.71(g)(2) requires any intermodal
container found to be unsafe to be identified as such, promptly removed
from service, and repaired before being returned to service.
As noted earlier, platform containers are those that are open on
the sides and top, but have panels on both ends. These end panels are
either fixed or can be folded flat with the floor of the container. The
final rule, in Sec. 1917.71(i)(10), prohibits lifting platform
containers as part of a VTL. The rationale behind this provision is
explained earlier in this section of the preamble under the issue
entitled ``Platform containers.''
6. Transporting Vertically Coupled Containers
Paragraph (j)(j) of Sec. 1917.71 in the final rule addresses
transporting vertically coupled containers. Moving two containers on
marine terminal equipment, such as flatbed trucks and bomb carts, can
raise the center of gravity higher than the equipment was designed for,
increasing the possibility of overturning. To help prevent this,
paragraph (j)(1) requires equipment used to transport vertically
connected containers to be specifically designed to handle the
connected containers safely or evaluated by a qualified engineer and
determined to be capable of operating safely in this mode of operation.
Proposed Sec. 1917.71(i) defined a qualified person as ``one with
a recognized degree or professional certificate and extensive knowledge
and experience in the transportation of vertically connected containers
who is capable of design, analysis, evaluation and specifications in
that subject.'' OSHA has not included this provision in the final rule.
The intent of the proposed provision was to require a qualified
engineer (that is, one with a degree or license in a field of
engineering related to the safe design of mechanical equipment, such as
mechanical engineering) to perform the evaluation of equipment used to
transport vertically coupled containers if the equipment being used to
transport the vertically connected containers was not specifically
designed for this purpose. The final rule contains an equivalent
requirement in the text of Sec. 1917.71(j)(1).
Safe transport of vertically connected containers and safe
operating speeds are part of the transport plan required in final Sec.
1917.71(j)(2). This paragraph requires that a written transport plan be
developed and implemented to facilitate the safe movement of vertically
connected containers in a marine terminal. The plan must include safe
operating speeds, safe turning speeds, and any conditions unique to the
terminal that could affect the safety of the VTL operations. As noted
earlier in this section of the preamble, employers may use the method
in the ICHCA guidelines to calculate safe operating speeds for
transporting vertically connected containers at a terminal. This
paragraph and the rationale behind it are further explained earlier in
this section of the preamble under the issue entitled ``Coordinated
transportation.''
Paragraph (k) of Sec. 1917.71 in the final rule addresses safe
work zones. This provision requires employees to be clear of the safe
work zone when vertically connected containers are being transported to
protect the employees in case the containers fall or overturn or a VTL
fails during a lift. This safe work zone is not required when
vertically connected containers are not in motion. (However, it should
be noted that existing Sec. Sec. 1917.71(d)(2) and 1918.85(e) prohibit
employees from working beneath suspended containers.) Paragraph (k) of
Sec. 1917.71 in the final rule requires the employer to establish a
zone that is sufficient to protect employees in the event that a
container drops or overturns. The standard also requires the transport
plan to specify the safe work zone and procedures to ensure that
employees are not in this zone when vertically connected containers are
in motion. This paragraph and the rationale behind it are further
explained earlier in this section of the preamble under the issue
entitled ``Safe work zones.''
7. Longshoring
OSHA had proposed separate requirements for VTLs under the
longshoring standards in part 1918 (64 FR 54298, 54317). The proposed
requirements for part 1918 dealt only with interbox connectors used in
VTLs. The proposal for part 1918 did not repeat the other VTL
requirements proposed in part 1917 (marine terminals), such as limiting
VTLs to two containers connected vertically and imposing a load limit
of 20 tons. The marine terminal provisions, however, would have
supplemented the interbox connector requirements in the longshoring
portion of the proposal.
In the final rule, the Agency has in part 1918 simply incorporated
by reference the final VTL requirements from the marine terminal
standards in part 1917. This will clarify that VTL operations must
comply with the same set of requirements regardless of whether part
1917 or part 1918 applies.
It should be noted that VTL operations must be performed using
cranes meeting final Sec. 1917.71(i)(4). As noted earlier, this
provision requires cranes other than shore-based container gantry
cranes to:
(1) Have the precision control necessary to restrain unintended
rotation of the containers about any axis;
(2) Be capable of handling the load volume and wind sail potential
of VTLs; and
(3) Be specifically designed to handle containers.
A ship's crane may be used for VTL operations only if it meets
these criteria.
VI. Final Economic Analysis and Regulatory Flexibility Analysis
The Occupational Safety and Health Act of 1970 requires OSHA to
demonstrate the technological and economic feasibility of its
occupational safety standards. Executive Order (E.O.) 12866 and the
Regulatory Flexibility Act (RFA) require Federal agencies to analyze
the costs, benefits, and other consequences and impacts, including
small business impacts, of their regulatory actions. Consistent with
these requirements, OSHA has prepared this Final Economic Analysis
(FEA) to accompany this final standard. The final standard on vertical
tandem lifts
[[Page 75281]]
establishes safe limits and work practices for employees while
transporting two empty intermodal containers connected at their corners
with interbox connectors. The final standard applies to the transport
of VTLs between ship and shore, as well as VTL-related operations
within marine terminals.
The Agency has determined that this is neither an economically
significant action under E.O. 12866 or a major rule under the RFA. As
required by the RFA, the Agency has assessed the potential impacts of
the final standard on small entities. This rule is not a significant
Federal intergovernmental mandate, and the Agency has no obligations to
conduct analyses of this rule under the Unfunded Mandates Reform Act of
1995.
This analysis will present the profile of affected industries, a
summary of economic benefits and costs, and the Agency's feasibility
determinations. The analysis will then address several related economic
issues that were brought up during rulemaking: the productivity
advantage of VTLs of three tiers of containers; occupational safety
standards as a barrier to trade; and the impact of the final standard
on port competitiveness, congestion, and ``productivity necessities.''
The Agency received virtually no comment in the record on its
preliminary economic analysis. There was considerable comment on
productivity effects made possible by VTLs, however.
A. Industrial Profile
Table 2 identifies the affected industries and describes some of
the characteristics of employers potentially affected by the final VTL
standard.
Table 2--Industrial Profile
----------------------------------------------------------------------------------------------------------------
NAICS 483113
NAICS 488310 port NAICS 483111 deep coastal & Great Total all
& harbor sea freight Lakes freight affected sectors
operations transportation transportation
----------------------------------------------------------------------------------------------------------------
All Establishments.................. 212 507 301 1,020
Employees (ee's).................... 6,037 15,663 8,393 30,093
Revenues............................ $643,203,331 $15,455,878,053 $4,270,754,490 $20,369,835,874
Profits (7% of revenues)............ $45,024,233 $1,081,911,464 $298,952,814 $1,425,888,511
Establishments with fewer than 20 179 379 223 781
ee's...............................
Employees........................... 850 2,152 223 3.225
Revenues/estab...................... $571,677 $3,802,768 $3,023,502
Profits/Establishment............... $40,017 $266,194 $211,645
Establishments w/100 to 499 5 36 15 56
Employees..........................
Employees........................... 1,052 6,575 3,293 10,920
Revenues/estab...................... $77,808,832 $155,591,006 $39,740,515 .................
Profits/establishment............... $5,446,618 $10,891,370 $2,781,836 .................
Establishments more than 500 ee's... 3 5 2 10
Employees........................... 3,231 3,388 1,400 8,019
Revenues/estab...................... $33,305,333 $301,600,000 $357,800,000 .................
Profits/establishment............... $2,331,373 $21,112,000 $25,046,000 .................
----------------------------------------------------------------------------------------------------------------
Source: Office of Regulatory Analysis.
Profit rates taken from Robert Morris Associates, 1998-1999 (RMA, 1998).
Employees, establishments, and revenues taken from Dunn & Bradstreet, 2002.
B. Potential Cost Savings (Benefits) of the Standard
In the preamble to the proposed standard, the Agency presented a
model of VTL operations that described the productivity and cost
savings of VTLs of two empty containers (68 FR 54308-11). The Agency
identified several sources of cost saving, all of which resulted from
loading and unloading two empty containers in less time using VTLs. The
sources of cost savings included less longshoring employee time, less
crane rental time, less dock rental time, and less total time for the
ship to be idle in port. (Higher efficiencies also affect terminal and
port capacity, an issue that is discussed below, but not one that
directly bears on the standard's impact on employers.) The model
estimated the time saved--about 4 hours--in loading or unloading one-
third of 1,000 above-deck containers on a 3,000-container vessel. [The
average container ship capacity was about 3,200 20-foot containers in
2004, increasing from about 2,800 in 2001 (U.S. Maritime
Administration, ``Containership Market Indicators,'' 2005).] In the
Agency's model, moving empty containers singly resulted in 30
containers moved per hour; moving 2 containers in a VTL moved 45 per
hour; and moving 3 containers in a VTL resulted in an estimated 55
moved per hour. In OSHA's model, overall cost savings from transporting
VTLs between a typical ship and shore were $3,245-plus almost 4 hours
saved in idle vessel time and port rental charges. The Agency is not
presenting the full model again here because it was illustrative of a
positive productivity effect.
In the Preliminary Economic Analysis, employers with stevedore
operations were estimated to have annualized compliance costs of $4,000
(68 FR 54313) to perform VTLs in compliance with the proposal. The
Agency received no comment on this figure and concludes that it is a
reasonable estimate of the annual costs. The expected cost savings of
using VTLs on a single vessel are then nearly equal to employers'
estimated annual compliance costs of performing VTLs.
To estimate overall cost savings from performing VTLs (benefits due
to the final standard), the Agency would need both an estimate of the
cost savings per ship and the number of ships that will be loaded via
VTLs. The Agency's model and testimony in the record on the
productivity gain of VTLs (discussed below) provide an estimate of the
cost saving per ship. But the Agency cannot predict well how many ships
will have empty containers loaded as VTLs. For example, most of the
containers loaded onto ships at West Coast ports today are empties, but
no VTLs are currently performed there, even though permitted by a
letter of interpretation from the Agency. In addition, changing trade
flows between the U.S. and other countries continually alter the
relative number of empty containers loaded on and off ships. If trade
were perfectly
[[Page 75282]]
evenly balanced between the U.S. and its trading partners, by port,
there would be little transport of empty containers. In contrast, a few
years ago as much as two-thirds of all outbound containers from West
Coast ports were empties; whereas today the fraction has fallen to one-
half (see for example, http://www.portoflosangeles.org/maritime/stats.org). If promulgation of the final standard results in an
increase in VTLs, these benefits could properly be attributed to the
final standard. The Agency can say with some certainty that it expects
cost savings of VTLs to exceed employer costs, but cannot present an
exact estimate of how the affected industries will respond to the final
standard, which only permits and does not require VTLs of empty
containers.
Many commenters to the record reported that there is increased
productivity (time saved) from moving containers via VTLs (for example,
Exs. 47-5, 50-9-1, 54-3, 54-14, 1998-Tr. 125, 139, 179, 209; Tr. 2-77,
2-99). Most commenters did not provide a quantitative measure of the
economic savings from VTLs.
James MacDonald of Maher Terminals said that on a weekly basis when
lifting 2,200 containers as VTLs, or 10 percent of all lifts, ``overall
productivity will increase by more than 1.0 container lifts per hour
[and] a single container per hour increase in productivity can improve
a vessel's dispatch time by 3 or 4 hours'' (Ex. 50-9-1). In oral
testimony Joseph Curto, representing the National Maritime Safety
Association, said:
Let's say the crane is doing 25 lifts an hour as normal service,
and in a VTL, you are doing 20 lifts per hour, because it is a
little slower. So you had a reduction in the number of crane cycles,
maybe by 20 percent, but you are now lifting containers at a rate of
40 an hour, versus 25 an hour, which is an increase of 40 percent.
[Tr. 2-178]
Bill Williams, also representing NMSA, said:
[I]t is generally agreed that there is about an eight percent
improvement [overall] in productivity by doing vertical tandem lifts
* * * the ports that do VTLs on the East Coast generally have moves
per hours of 40-plus per terminal, per crane. This is compared to 30
moves an hour on the West Coast where they're not done. That's a
significant difference in productivity. [Tr. 2-177]
These estimates are broadly consistent with the estimates of OSHA's
model for productivity improvements associated with the use of VTLs.
OSHA estimated about a 4-hour improvement in ships' dispatch times. Mr.
MacDonald of Maher Terminals estimated 3 to 4 hours. Mr. Williams of
Maersk noted an improvement in the number of containers transported
from 30 each hour with single-box lifts to 40 per hour via VTLs. OSHA's
model estimated an improvement in rate from 30 to 45 per hour.
Several commenters asserted that VTLs have not been performed
following all the safety steps outlined in the ``Gurnham letter'' (Exs.
10-9, 43-10). One commenter also noted that it is not feasible or
possible to follow all of the steps (Ex. 43-10-3). Two commenters, for
example, concluded that if all the required safety steps were followed
there would be no increase in productivity (Exs. 10-9, 50-7).
In comments to the rulemaking record, many employers and experts
reported that VTLs are currently being performed and have been for many
years (for example, Exs. 47-5, 50-9-1, 50-13, 54-3, 54-14; 1998-Tr.
209). The Agency believes that this is clear evidence that, overall,
VTL operations result in cost-saving to stevedores and shippers, or in
regulatory terms, that the economic benefits exceed compliance costs,
resulting in a net benefit. Ultimately, this cost saving will lower the
costs of transport, and therefore presumably prices to consumers. The
cost savings directly reduce shippers' costs. There are other likely
economic effects. When capital (ships, ports, and terminal facilities
as well as cranes) is used more intensively or productively, economic
theory predicts that this will result in a larger return to capital.
Likewise, when labor productivity increases, as it does here, wages are
also predicted to increase in standard economic models of competition.
The Agency has not estimated or quantified any change in transportation
costs, consumer prices, wages, or return on capital.
In summary, both OSHA's model and industry experience show that the
standard has the potential to save shippers' costs by reducing the time
necessary for transporting empty containers. Further, in situations
when VTLs are not advantageous, the employer need not use them and will
not incur any of the associated costs of the standard.
The Agency can estimate the range of potential benefits of
employing VTLs. Currently, as described below, the Agency believes that
on the East and Gulf Coasts about 165,000 VTLs are performed annually.
Based on the Agency's model, this would generate about $3.2 million in
cost saving [(165,000 VTLs/166.5 VTLs per ship) x $3,245 cost saving
per ship). This estimate does not include savings in crane rental time,
dock rental fees, port charges, idle ship time, or other sources. It is
based on one-third of 1,000 above-deck containers being moved as VTLs.
It is worth noting that if all above-deck containers are empty, and
moved as VTLs, the estimated cost saving per ship is nearly $10,000, or
about three times more than estimated by OSHA's model.
As a measure of the potential impact of the final standard, if West
Coast ports began moving empty containers as VTLs there could be
substantial benefit. The busiest West Coast ports (Los Angeles/Long
Beach, San Francisco, Seattle, and Tacoma) have about 6,500 container
vessel calls each year (U.S. Maritime Administration, ``Vessel Calls at
U.S. Ports, Snapshot, 2006''). In addition, these West Coast ports
import over 10 million loaded 20-foot equivalent units (TEUs) from
Asian destinations while exporting about 4 million (U.S. Maritime
Administration, ``Container Ship Market Indicators, August, 2005'').
Over one-half of containers are now transported by ``Post-Panamax''
container ships, which have capacities over 4,000 TEUs. Where in 2001
there were 331 such vessels representing about 30 percent of total
world containership capacity, by 2007 Post-Panamax-size ships
constitute over one-half of world containership capacity
(``Containership Market Indicators,'' U.S. Maritime Administration).
Clearly, there are both the means to carry large numbers of empty
containers on deck from West Coast ports as well as large numbers to
carry. If only about one-half of current exported empty containers are
carried above deck, the potential savings are about $30 million
annually (3 million empty containers multiplied by about $10 saved per
container). Again, these cost savings do not include savings from other
sources (idle ship time, port charges, crane rental time, etc.).
C. Potential Costs of the Standard in the Form of Increased Safety Risk
OSHA has determined that, with full compliance under the final
rule, no future injuries or fatalities are expected to occur while
performing VTLs, and thus has not included such costs in this analysis.
As explained elsewhere in this preamble, the final rule is more
protective than current practice under the Gurnham and Matson letters,
and OSHA believes that by promulgating a VTL regulation, employers will
comply with OSHA's more protective and safer VTL requirements. Also the
record shows that employers have engaged in a substantial number of
VTLs under the Gurnham and Matson letters, and only a few reported
incidents--and no deaths or injuries resulting from them. As explained
elsewhere in this preamble,
[[Page 75283]]
OSHA believes these incidents are evidence of the risks of unregulated
VTLs, and support, along with other evidence in the record, the final
rule. OSHA believes that these incidents would have been avoided, or at
least presented little threat to workers, had the practices required by
the final rule been followed.
Several commenters said that VTLs are unsafe, arguing that the
number of VTLs attempted is small relative to the number of containers
lifted singly each year--and therefore constitute too small a sample to
evaluate the relative safety, or risk, of VTLs. For example, one
commenter said that ``the amount of vertical tandem lifts made thus far
is statistically insignificant'' (Ex. 43-20-3). Tests of statistical
significance are based on sample size and require a hypothesis
(parameter value) to be tested as well as statistical assumptions about
distributions to be a meaningful statement; thus the Agency cannot
evaluate this claim of (a lack of) significance. Several commenters
also compared the number of VTLs performed to the total number of
containers transported each year (currently about 25 million TEUs),
suggesting that the number of containers transported as VTLs is too
small to judge the relative safety--or risk--of VTLs.
The number of VTLs performed since 1986 is substantial in absolute
terms. Several commenters reported on the number of VTLs performed by
their companies:
APM Terminals (Exs. 30-13-1, 50-13). In 2003, more than
60,000 VTLs. Since 1998, more than 380,000 VTLs.
Maher Terminal, Port of New York (Ex. 50-9-1). In 2003,
performing 250 VTLs per week, or about 12,500 per year, soon to
increase to 1,100 per week.
Michael Bohlman (Horizon Lines including former Sea-Land,
Ex. 54-3). ``[W]e have the operational experience of lifting hundreds
of thousands of vertically coupled containers.'' Sea-Land reported
performing over 250,000 VTLs in OSHA's one-day public hearing (1998-Tr.
179) and about 50,000 VTLs per year (Ex. 11-7C).
Richard Buonocore, Matson (1998-Tr. 169). In 1998 Matson
reported performing 47,000 VTLs since 1986 between Oakland and
Honolulu, although this practice apparently ended some years ago.
Tropical Shipping and Birdsall (Ex. 54-14). More than
20,000 VTLs within the past four years (up to 2004), or about 5,000
VTLs per year.
Based on this information, the Agency estimates that these
companies are performing about 165,000 VTLs annually. Other commenters
reported that they are performing VTLs, but did not provide any data on
the number performed. VTLs are currently performed in the U.S. only at
ports on the East and Gulf Coasts (Tr. 2-232). Table 3 presents data
about container traffic in East and Gulf Coast ports in TEUs for 2006,
including exports, imports, and net exports. Large discrepancies in net
exports, whether positive (exports greater than imports) or negative,
indicate possible flows of empty containers in the opposite direction.
For example, Maher Terminals (Tr. 2-81, 2-97, 2-103) reported large
numbers of VTLs, and comment in the record indicated that these VTLs
largely consisted of loading empty containers onto ships, as the number
of loaded, imported containers is much greater than that of loaded
containers for export in the ports of New York/New Jersey (Table 3).
However, net exports from Gulf and southern East Coast ports are often
positive, suggesting that these ports have significant numbers of empty
containers returning on inbound ships. Even when a port has a
significant difference between the number of loaded containers inbound
and outbound, there are usually empty containers being returned in the
unexpected direction. For example, in 2004 the Port of Seattle exported
over 800,000 TEUs and imported about 500,000 (Port of Seattle, Internal
Statistics). The port reported loading 250,000 empty containers
outbound, as one would expect, but still had almost 60,000 empty TEUs
arrive for unloading as well.
The Agency concludes that, although some employers performing VTLs
presented specific estimates for their companies in the rulemaking, it
is likely that there are other stevedores moving empty containers as
VTLs in the same ports. The Agency concludes that a reasonable estimate
of the number of VTLs performed since Matson began the practice in 1986
and since the Agency's ``Gurnham letter'' in 1993 is approximately one
million VTLs. To put this in TEU units, a VTL of two 20-foot-long
containers has two TEUs and a VTL of two 40-foot containers has four
TEUs. Based on a simple assumption that about one-half of VTLs are done
in each size category, the Agency estimates that the average VTL is
moving three TEUs. The Agency therefore estimates that, using the
metric of TEUs, VTLs have moved about 3 million TEUs. The historical
total of VTLs (since 1986) is thus about 12 percent of the current
annual transport of intermodal containers (about 25 million TEUs in
2005), and the Agency concludes that this is a sufficient sample with
which to evaluate the safety, or risk, of VTLs.
A review of fatality-catastrophe data in OSHA's IMIS database
reveals that at least 25 fatalities have occurred in the marine cargo
handling industries while moving single (loaded as well as empty)
containers via cranes since 1996. In these data, there are also 15
formal reports of injuries during these operations. In most cases,
longshoremen are knocked off of heights by containers or spreader
beams, crushed by containers in the holds of ships, or crushed by a
container lowered onto the dock or ship. In addition, longshoremen have
been killed even when single, empty containers have dropped from a
gantry crane's spreader beams (59 FR 28596). In an extensive benefits
analysis for the Agency's comprehensive overhaul of its longshoring and
marine terminals standard in 1997, the Agency estimated that there were
about 18 fatalities occurring annually in the industry (62 FR 40190).
Most of these resulted from ``traffic'' accidents within terminals,
falls from containers, and accidents involving container equipment
within the terminal. In terms of the relative risk within the industry,
VTLs appear to be a safer operation than other longshoring activities.
Similarly, compared to risks of transporting single containers, whether
containers are loaded or unloaded, the number of VTLs is sufficient to
conclude that it is a relatively safe procedure. The Agency therefore
has determined that there is sufficient evidence (number of VTLs) to
conclude that (full compliance with) the final standard permitting VTLs
will not result in any additional expected fatalities.
Commenters also said that the ``small'' sample reported of VTLs was
further flawed:
In addition, maritime industry employers never fully complied
with the minimal requirements set forth in the Gurnham Letter. Non-
observance was due, in part, to the fact that compliance with all
eight requirements was not even feasible. * * * Thus, it is clear
that even under the wide latitude granted to employers by the
Gurnham Letter, employers have been requiring workers to perform
inherently unsafe VTL operations outside OSHA's restrictions with
impunity * * * As such the ``industry experience'' upon which OSHA
heavily relies is wholly flawed and cannot serve as a legitimate
basis to support the proposed rule. [Ex. 43-10] * * *
Presumably ignoring OSHA-required safety precautions would have
resulted in VTLs of greater risk. However, since few accidents have
been reported and there have been no employee injuries, drawing
conclusions of safe outcomes
[[Page 75284]]
from a riskier than expected sample only argues more strongly in favor
of the safety of VTLs under the final standard.
Some commenters said that VTLs are performed widely around the
world (Exs. 100-X, 101-X, 102-X, 103-X). However, when commenters were
asked to identify specific countries and ports only a few were named
(Italy, Spain, Singapore and ports in the Far East, Tr. 1-159). There
were comments and testimony in the record that VTLs are not performed
in Singapore, Rotterdam (Netherlands), Belgium, Russia, Canada, and
Japan (Ex. 62, Tr. 2-285, 2-295).
The Agency concludes that given the number of VTLs performed with
no resultant injuries, the additional protections provided by the final
rule, and increased compliance following its promulgation, the Agency
can reasonably conclude that operations under the final standard (that
is, in full compliance) can be expected to avoid injury to longshore
workers.
Table 3--U.S. Waterborne Container Traffic by U.S. Custom Ports
[East Coast and Gulf Ports (TEU's)]
------------------------------------------------------------------------
2006 2006 Exports less
U.S. Custom Ports exports imports imports
------------------------------------------------------------------------
New York, NY................. 1,049,918 2,578,829 (1,528,911)
Savannah, GA................. 718,647 862,278 (143,631)
Charleston, SC............... 618.095 875,190 (257,096)
Houston, TX.................. 613,999 654,165 (40,166)
Norfolk, VA.................. 579,728 830,005 (250,277)
Port Everglades, FL.......... 338,603 295,627 42,976
Miami, FL.................... 315,594 427,761 (112,167)
Baltimore, MD................ 150,244 253,088 (102,844)
West Palm Beach, FL.......... 115,959 33,223 82,737
Jacksonville, FL............. 103,906 47,922 55,984
New Orleans, LA.............. 102,094 68,104 33,990
Gulfport, MS................. 64,392 97,213 (32,821)
Boston, MA................... 60,228 78,877 (18,649)
San Juan, PR................. 55,726 151,788 (96,062)
Wilmington, NC............... 47,666 79,212 (31,546)
Chester, PA.................. 45,641 50,727 (5,087)
Wilmington, DE............... 43,862 126,168 (82,306)
Newport News, VA............. 30,431 43,127 (12,696)
Anchorage, AK................ 28,231 120 28,110
Freeport, TX................. 27,982 26,662 1,320
Philadelphia, PA............. 27,811 152,331 (124,521)
Honolulu, HI................. 26,876 24,367 2,508
Panama City, FL.............. 22,272 21,885 387
Mobile, AL................... 19,177 24,541 (5,364)
Richmong-Petersburg, VA...... 17,766 20,523 (2,757)
Mayaguez, PR................. 11,797 14,863 (3,066)
Fernandina Beach, FL......... 11,137 7,480 3,657
Camden, NJ................... 9,097 971 8,126
Tampa, FL.................... 5,347 10,592 (5,245)
Fort Pierce, FL.............. 2,194 1,423 771
Galveston, TX................ 1,726 6,335 (4,608)
Kodiak, AK................... 1,014 4,684 (3,671)
------------------------------------------------------------------------
Source: Dept. of Transportation, Maritime Administration, ``U.S.
Waterborne foreign Container Trade by U.S. Custom Ports, 1997-2006.''
at http://www.marad.dog.gov/MARAD_statistics.
D. Other Costs of the Final Standard
In its proposed standard the Agency had required a visual
inspection of interbox connectors before each use (Sec.
1917.71(f)(3)(l)(iv)). In the final standard, the inspection
immediately before each use must include a check of each connector's
``physical operation to determine that the lock is fully functional
with adequate spring tension on each head,'' as well as other checks
for corrosion and structural defects. Such inspections cannot be
performed while the interbox connectors are attached to the containers.
Thus, an individual inspection of the operation of interbox connectors
before each use in a VTL is likely to make the discharge of VTLs from
the decks of ships impractical, the Agency concludes. Each empty (top)
container potentially used in a VTL would have to be raised and its
four connectors removed for inspection. The connectors would have to be
re-inserted in the bottom corners and the container raised by the crane
and vertically coupled to another empty container to make up the VTL.
This activity would have to be carried out by longshoremen working
either on the deck of the ship, on a ship's hatch cover, or up on the
stacks of empty containers. Working at heights puts longshoremen at
increased risk of falls, and, in any event, this inspection would add
so much time to the transport of empty containers as to likely save
little time, or even be slower, than lifting single containers, the
Agency concludes, thereby eliminating any potential productivity
benefit.
Thus, employers who currently discharge empty containers from ship
to shore may suffer a productivity loss under the final standard. Such
affected employers would be found on the East Coast and Gulf Coast, as
VTLs are not performed on the West Coast. Several commenters to the
record noted that they are performing VTLs as discharges from ships
(Exs. 50-13, 50-13-1, 54-14, 58; Tr. 1-291--1-307, 2-106).
Table 3 presents information about exports and imports of
containers from these ports (East and Gulf Coasts). Ports that have
substantial numbers of net container exports--more than 10,000 per
year, the Agency estimates--would likely have sufficient ships
returning
[[Page 75285]]
with enough empty containers that are now unloaded as VTLs. The right-
most column in Table 3 identifies ports with such numbers of positive
net exports. For example, Port Everglades, Florida, exports about
43,000 more TEUs than it unloads as imports, and so long as most
containers return via the same shipping route, the Agency believes
stevedores would likely unload some of these as VTLs. (However, as
explained above, even ports with large net imports also import some
empty containers.)
As can be seen in Table 3, there are a total of about 215,000 more
exported, loaded TEUs from Gulf and East Coast ports than are imported,
and thus could be currently unloaded from container ships as VTLs. Some
of the companies that reported specific numbers of VTLs, noted above in
this final economic analysis, currently operate from southern ports
with more than 10,000 TEUs of annual net exports (such as Birdsall,
Horizon, APM). Not all returning empty containers will be transported
as VTLs. If there are relatively few empty containers on a smaller
vessel, it is unlikely that normal discharge operations of single,
empty containers would change to a different mode of operations in the
terminal. Also, empty containers stored below decks cannot be
transported as VTLs because they are not coupled together with interbox
connectors. Based on an assumption that one-third of the current
returning empties may be moved as VTLs, the Agency estimates that about
70,000 per year are moved as VTLs from ship to shore. The Agency
estimates that the productivity loss of moving these containers as
single lifts to be about $700,000 annually. (In its estimate of the
productivity benefit of moving VTLs above, the Agency estimated that
moving 333 empty containers as VTLs would result in a saving of $3,245,
or about $10 saving per container.)
This dollar total represents additional stevedoring costs that the
Agency believes must be charged to shipping lines, or absorbed by
carriers if they unload their own ships, and eventually to consumers.
The Agency does not expect the additional costs of only being able to
lift empty containers one at a time off of ships' decks will
significantly impact any stevedore's revenues or profits. Since
unloading empty containers as VTLs cannot be performed at other U.S.
ports or by other stevedores, the Agency does not believe the
competitive structure or balance of stevedore employers will be
affected.
E. Technological and Economic Feasibility
The final standard sets many conditions that must be met for VTLs
to be performed safely, including requirements for: employee training,
limits on wind speeds, type of crane, interbox connectors' strength and
locking mechanisms, inspections of connectors and container corner
castings, and a plan for handling VTLs on shore. Because all of these
conditions can be met by stevedores, and in fact most are being met
where VTLs are currently being performed, the Agency has determined
that the final standard is technologically feasible. Similarly, the
Agency's estimates of compliance costs and benefits show that there is
a net economic benefit to VTLs, which is confirmed by the current
(voluntary) VTL activity in several ports. As Ralph Cox of Massport put
it: ``The practice must be cost effective as it has been utilized since
1993'' (Ex. 10-9, emphasis in original). Because there are positive net
benefits to VTLs, the Agency therefore concludes that the final
standard as it applies to VTLs of two empty containers is economically
feasible. However, even if costs exceeded benefits, the practice would
not be economically infeasible since the standard only permits but does
not require VTLs.
The final standard does not impose any net compliance costs on any
small employer. The Agency certifies that the final standard does not
substantially impact a significant number of small entities.
F. An Alternative to the Final Standard: VTLs of Three Tiers of
Containers
Since the Agency first considered a standard for VTLs, immediately
after the comprehensive marine terminal and longshoring standards were
promulgated in 1997, one aspect of the VTL issue has changed. In 1997
and 1998 the primary focus of VTLs was lifting two empty or partially
loaded containers (see for example, comments from the National Maritime
Safety Association Ex.10-8). In a one-day public hearing on the issue
of VTLs on January 17, 1998, the subject of lifting more than two
containers in a VTL did not arise (1998-Tr.). However, based on the
comments received during the rulemaking from shippers and stevedores,
they believe that restricting VTLs to only two containers limits the
economic advantages of VTLs (Ex. 47-5; Tr. 1-102, 1-104).
Many stevedores and shippers reported in the record that VTLs of
three containers are being performed (Tr. 2-98, 2-103). However, there
was considerable comment in the record that West Coast ports are not
performing any VTLs, of even two empty containers (Tr. 2-232). Michael
Bohlman reported that his company had performed many thousands of VTLs:
``Double, triple, and even quadruple couplings have been made'' (Ex.
54-3). However, VTLs of more than two containers have apparently only
been performed abroad. Mr. Bohlman says later that ``the only
sanctioned VTL operations in this country are limited to two tiers so
there is no recent history of performing VTLs with three tiers in the
U.S.'' Comments of the International Longshore and Warehouse Union
suggested that there is anecdotal information that three- and four-
container lifts have been performed at some U.S. ports (Ex. 43-10).
Greater productivity gains are claimed for VTLs of three containers
compared to those of two containers. In operations abroad, Mr. Bohlman
commented that ``time and motion studies convinced us that a 3-tier VTL
unit is actually more efficient unit to handle that a 4-tier VTL * * *.
We do not wish to lose the efficiency of a 3-tier VTL unit'' (Ex. 54-
3). And later he added ``We considered the operational efficiencies of
the four-tier unit versus the three-tier or two-tier unit * * * and
from an operational perspective, three made sense and four really
didn't'' (Tr. 1-118, 1-119). Another commenter noted that it was
actually faster to lift four empty stacked containers in two lifts of
two containers each rather than a single life of four containers (Ex.
54-3). A number of commenters said that VTLs of three and four tiers
are performed abroad and also said that handling three containers in a
VTL is apparently the optimum (Tr. 1-109, 1-118, 1-119). ISO also
recognized that there is ``a practical upper limit of three vertically-
coupled containers'' (ISO 3874 section 6.2.5).
As discussed earlier in this preamble, the Agency has concluded
based on the ultimate strength of interbox connectors and a safety
factor of five, that VTLs of only two empty containers is a safe
operation, but one of three or more empty containers is not [based on
interbox connectors with a safe working load of 10,000 kg--Sec.
1917.71(i)(7)(v)]. To the extent that VTLs of three containers are
presently being performed domestically, the restriction to two empty
containers would impact productivity. The Agency believes that the
information in the record indicates that there are today few if any
VTLs at U.S. ports of more than two tiers of containers. The Agency
concludes that there is no significant loss in productivity (which
would be
[[Page 75286]]
essentially a cost of the final standard) from current practices to
limiting VTLs to two containers.
Nevertheless, limiting VTLs to two containers might prevent taking
advantage of potential productivity gains not now enjoyed. The
potential future loss in productivity is measured by the difference in
productivity gains from two-container VTLs and three-container VTLs.
There was little information in the rulemaking record quantifying the
productivity gain of VTLs with two containers, and none at all of
three-container VTLs. OSHA's model in the PEA describes a reduction in
time per box moved of 33 percent when two containers are lifted in a
VTL compared to single lifts. For three-container lifts, the model
predicts an additional 18 percent reduction in time per box relative to
two-container VTLs (68 FR 54311, Table 4b--Productivity Gains). These
percentages are only for moving empty, above-deck containers and are
not overall increases in the time saved in ship loading and unloading.
(OSHA's model in the PEA however predicts further efficiency gains, or
savings in time, with four- and five-container VTLs. As noted earlier,
four-container VTLs were said by commenters to be slower than lifting
via two two-container VTLs; so OSHA's model is inaccurate for VTLs of
more than three containers.) The Agency believes based both upon its
model and the testimony in the record that there is substantial cost
savings with two-container VTLs and additional but less time saved per
container with three-container VTLs.
The actual amount of time saved by three-container VTLs depends on
many factors. For example, stevedores could potentially need different
equipment for making up or breaking down three-container VTLs. Three-
container VTLs would be more susceptible to being limited by wind
speeds. The time saved is also a function of the ship's stowage plan.
For example, if loading or unloading a ship with four-high stacks of
empty containers on deck, there is little advantage to three-container
VTLs over two-container lifts since two lifts are required in either
case. If containers were stacked five high, there would be two lifts if
three-container VTLs were allowed, but three lifts if only two-
container VTLs were permitted.
Without information about either the actual average efficiency gain
of three-container VTLs or the number that might be performed, the
Agency cannot quantify this potential productivity gain. But the
productivity gain is surely less, as a percentage, than that of two-
container VTLs relative to single container lifts. Nor has the Agency
calculated the expected number of injuries and deaths that might occur
while making three-container lifts. But the Agency has made a
determination that there is a significant risk that accidents and
injury will occur with three-container lifts since such lifts would
exceed the safe working load of (existing) interbox connector-corner
casting assemblies. The Agency's evaluation of even riskier four-
container lifts and industry's report that these are not practical are
consistent in concluding that this is an undesirable procedure.
G. A Barrier to Trade
Several commenters said that OSHA's failure to permit more than
two-container VTLs constitutes a barrier to trade--because this will
limit productivity gains in handling intermodal containers (for
example, Ex. 47-5). In general, a non-tariff barrier to trade is a rule
that favors domestic over foreign production, particularly one applied
selectively so that the rule imposes costs on foreign companies but not
domestic producers. Rules that are actually necessary to achieve cost-
effective safety or health measures are not generally considered
barriers to trade--though it is widely recognized that safety or health
rules that are cost ineffective but favor domestic producers may be
barriers to trade.
The Agency believes the following facts are pertinent to claims
that an occupational safety standard for VTLs is a barrier to trade:
The United States is both the world's largest importer of
goods as well as the largest exporter of manufactures.
The final standard's safety measures apply to both foreign
imports and U.S. exports without discrimination.
The final standard also applies to containers that are
shipped between domestic U.S. ports, including Hawaii and Puerto Rico.
The limit on the number of containers in a VTL is not an
artificial one designed to favor some shipper over others with no
effect on safety--which would be characteristic of a barrier--but based
on statutory criteria in the OSH Act.
The ICHCA guidelines, which shippers, ports, and cargo
handlers have urged OSHA to adopt, includes the following--ICHCA
Guidelines 8.1.1.3: ``VTL operations should only be carried out if the
domestic legislation of the country in which they are to be carried out
permits such operations under appropriate conditions.''
OSHA currently permits VTLs of two containers, but the
cargo transportation industry does not perform two-container VTLs on
the West Coast ports.
The claim that a safety standard for longshore employees, limiting
VTLs to two containers, constitutes a barrier to trade seems to be
without merit in any economic sense. Related issues about compatibility
with international treaties have been discussed earlier in this
preamble.
H. Congestion, Competitiveness, and Productivity Necessity
Several commenters raised issues about the final standard's effect
on the competitiveness of ports and cargo-handling industries and the
impact of productivity on the affected industries. For example, NMSA
stated that: ``The utilization of VTLs is an absolute necessity if U.S.
ports are going to remain competitive given projections for domestic
cargo growth'' (Ex. 50-9-1).
When a ship's containers can be loaded and unloaded faster, it
benefits the vessel owner/shipper engaged in cargo transport. It
reduces the time the vessel, and crew, remain idle in port.
Potentially, it also reduces the cost--ultimately born by the shipper--
in dock rental, crane rental, and amount of time the longshoremen need
to move the containers. The stevedore and longshore workers may or may
not benefit economically from a more efficient arrangement. When the
volume of container traffic becomes so large that ships must sit idle
at anchor, and may therefore be forced to go to less optimal ports,
then ports, marine terminals, and stevedores may lose business. This is
the situation at peak periods of cargo traffic at U.S. ports today, and
explains why carriers, ports, marine terminals, and stevedores all seek
greater capacity at ports. Capacity is the rate at which containers can
be moved back and forth between vessel and land destinations; that is,
through the marine terminal. Carriers are always interested in faster
loading and unloading; ports and the cargo handling industry join in
the pursuit of this goal as congestion (or ships' waiting time) grows.
One commenter recounted how congestion, caused by a shortage of labor
at a California port, had resulted in ships being diverted to a Mexican
port for unloading (Tr. 2-76).
Congestion results when port capacity and the distribution network
are overwhelmed by the number of containers to be transported. The
congestion results from the extraordinary growth of international trade
and concomitant number of containers to be transported. Commenters
described a number of
[[Page 75287]]
infrastructure causes for congestion, including limitations of bridges
and roads, environmental issues, dock space and crane availability, and
labor shortages (Tr. 1-73, 1-75, 1-76, 1-140, 1-141). The container-
moving industries have considerably increased capacity in the past
decade, but have not yet caught up with the growth of trade--or its
expected continued growth.
The ability of VTLs to speed the transport of containers between
ship and shore provides one source of productivity to increase
capacity. However, any increase in the rate of moving containers
between ship and shore would have to be matched by the ability of other
modes of transport in and out of the terminal. If the limiting factor
is truck or rail transport, then increasing the speed of unloading
vessels would still have benefits, but would not relieve congestion:
It has been announced in many shipping journals that the
increased volume in container traffic is exceeding the capacity of
the rail and road infrastructures around the world. Vertical Tandem
Lifts will not alleviate that problem. * * * VTLs may be
economically beneficial to the shipping lines, but are no real gain
for the terminals, railroads or trucking industry, or more
importantly, the customer. [Ex. 50-7]
The ``competitiveness'' issue raised by commenters is really one of
capacity, the Agency believes. Commenters did not suggest that other
ports or marine terminals could provide services at lower prices
because they would be able to employ larger units of VTLs. Rather the
concern seems to be losing business simply because U.S. ports cannot
accommodate the volume of container traffic (Tr. 2-75--2-80).
Commenters did not provide any evidence to support a claim that they
are at an economic disadvantage. The only realistic alternatives to
moving sea-going commerce through American ports are Canadian or
Mexican ports. Canadian ports do not perform VTLs on either coast (Tr.
2 295), and they therefore cannot offer any cost or time saving
relative to U.S. ports. Transporting containers via Mexican ports adds
greater distances for containers to reach U.S. destinations and an
additional border to cross. There was no evidence in the record that
transporting containers through Mexican ports lowers the cost of
transport, that the diversion of ships there was due to the use of VTL
operations in Mexico, or that VTLs are performed in Mexico.
Since marine terminals and the cargo-handling industry at West
Coast ports do not perform two-container VTLs, as they presently are
permitted to do by OSHA policy, the Agency is unsure what the industry
means when it says that VTLs are a ``productivity necessity'' while
still arguing that the Agency should permit larger VTLs of three
containers in its final standard (Ex. 47-5). The Agency can well see
that the cargo-handling industries must continue to find ways to
increase capacity or more cargo will be diverted to other ports, and
that VTLs can provide a part of that productivity improvement. But in
response to the assertion that OSHA cannot impede a productivity
necessity (Ex. 50-9-1)--the Agency can through the OSH Act constrain
efficiencies and productive actions by employers if necessary to avoid
a significant risk of injury and death to employees.
VII. Environmental Impact
Finding of No Significant Impact. OSHA has reviewed the final rule
according to the requirements of the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321 et seq.), the regulations of the Council
on Environmental Quality (40 CFR parts 1500 through 1517), and the
Department of Labor's (DOL) NEPA Procedures (29 CFR part 11). Based on
this review, the Assistant Secretary for OSHA finds that the rule will
have no significant environmental impact.
The revisions and additions to 29 CFR Parts 1917 and 1918 focus on
the reduction of employee death and injury. OSHA will achieve this
reduction through the updating of its standards for longshoring and
marine terminal operations to provide safe work practices for employers
who choose to perform VTLs. The new language of these rules does not
affect air, water, or soil quality, plant or animal life, the use of
land, or other aspects of the environment. Therefore, the new rules are
categorized as ``excluded actions'' according to Sec. 11.10(a)(1) of
the DOL NEPA regulations.
VIII. Federalism
OSHA has reviewed this final rule in accordance with the Executive
Order on Federalism (Executive Order 13132, 64 FR 43255, August 10,
1999), which requires that federal agencies, to the extent possible,
refrain from limiting State policy options, consult with States prior
to taking any actions that would restrict State policy options, and
take such actions only when there is clear constitutional authority and
the presence of a problem of national scope. Executive Order 13132
provides for preemption of State law only if there is a clear
congressional intent for the Agency to do so. Any such preemption is to
be limited to the extent possible.
Section 18 of the OSH Act (29 U.S.C. 651 et seq.) expresses
Congress' intent to preempt State laws where OSHA has promulgated
occupational safety and health standards. Under the OSH Act, a State
can avoid preemption on issues covered by federal standards only if it
submits, and obtains federal approval of, a plan for the development of
such standards and their enforcement (State plan State) (29 U.S.C.
667). Occupational safety and health standards developed by such State
plan States must, among other things, be at least as effective in
providing safe and healthful employment and places of employment as the
Federal standards. Subject to these requirements, State plan States are
free to develop and enforce under State law their own requirements for
safety and health standards.
This final rule complies with Executive Order 13132. As Congress
has expressed a clear intent for OSHA standards to preempt State job
safety and health rules in areas addressed by OSHA standards in States
without OSHA-approved State plans, this rule limits State policy
options in the same manner as all OSHA standards. In States with OSHA-
approved State plans, this action does not significantly limit State
policy options.
IX. Unfunded Mandates
This final rule has been reviewed in accordance with the Unfunded
Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) and
Executive Order 12875. As discussed in the Final Economic and
Regulatory Flexibility Analysis, OSHA estimates that compliance with
the rule will require expenditures of less than $100 million per year
by affected employers. Therefore, this rule is not a significant
regulatory action within the meaning of Section 202 of UMRA (Pub. L.
104-4, 2 U.S.C. 1532). OSHA standards do not apply to State and local
governments except in States that have voluntarily elected to adopt an
OSHA State plan. Consequently, the rule does not meet the definition of
a ``Federal intergovernmental mandate'' (Section 421(5) of UMRA) (2
U.S.C. 658).
X. Office of Management and Budget Review Under the Paperwork Reduction
Act of 1995
The final rule on VTLs contains a collection of information
(paperwork) requirement that is subject to review by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act of 1995
(PRA-95), 44 U.S.C. 3501 et seq., and OMB's regulations at 5 CFR part
1320. PRA-95 defines ``collection
[[Page 75288]]
of information'' as ``the obtaining, causing to be obtained,
soliciting, or requiring the disclosure to third parties or the public
of facts or opinions by or for an agency regardless of form or format *
* * '' (44 U.S.C. 3502(3)(A)). The collection of information
requirements contained in the proposed VTLs was submitted to OMB on
September 12, 2003.
The Department submitted an Information Collection Request (ICR) to
OMB for its request of a new information collection. OMB approved the
ICR on November 24, 2008, under OMB Control Number 1218-0260, which
will expire on November 30, 2011.
The Department notes that a Federal agency cannot conduct or
sponsor a collection of information unless it is approved by OMB under
the PRA, and displays a currently valid OMB control number, and the
public is not required to respond to a collection of information unless
it displays a currently valid OMB control number. Also, notwithstanding
any other provision of law, no person shall be subject to penalty for
failing to comply with a collection of information if the collection of
information does not display a currently valid OMB control number.
In the NPRM OSHA proposed that employers rely on the vessel's cargo
stowage plan for the location and characteristics (weight and content)
of the VTL units being handled and to provide a copy of the plan to the
crane operator. Based on the rulemaking record, OSHA has concluded that
this requirement is unnecessary (see the discussion of the proposed
stowage plan requirement in section V.H. 4., Stowage plan, earlier in
this preamble).
The final VTL Standard contains one collection of information
requirement. Paragraph (j)(2) of Sec. 1917.71 requires the employer to
develop, implement, and maintain a written plan for transporting
vertically connected containers in the terminal. The transport plan
helps ensure the safety of terminal employees and enhances
productivity. Paragraph (k)(2) of Sec. 1917.71 requires that the
written transport plan include the safe work zone and procedures to
ensure that employees are not in the zone when a VTL is in motion. The
Agency did receive public comments favoring the written plan. A full
discussion of the written plan may be found in section V.E.,
Coordinated transportation, earlier in this preamble.
The final ICR estimates that 20 establishments will take 4 hours to
develop the written plan totaling 80 hours. The burden hour cost to
establishments for developing the written plan is $4,951. There are no
capital costs for this collection of information requirement.
XI. State Plan Requirements
This Federal Register document issues final rules addressing the
handling of VTLs in marine cargo handling regulated in 29 CFR Parts
1917 and 1918. The 26 States or U.S. Territories with their own OSHA
approved occupational safety and health plans must develop comparable
standards applicable to both the private and public (State and local
government employees) sectors within 6 months of the publication date
of a final Federal rule or show OSHA why there is no need for action,
for example, because an existing State standard covering this area is
already ``at least as effective as'' the new Federal standard. Three
States and territories cover only the public sector (Connecticut, New
York, and New Jersey).
Currently four States (California, Minnesota, Vermont, and
Washington) with their own State plans cover private sector onshore
maritime activities. Federal OSHA enforces maritime standards offshore
in all States and provides onshore coverage of maritime activities in
Federal OSHA States and in the following State Plan States: Alaska,
Arizona, Connecticut (plan covers only State and local government
employees), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Jersey (plan covers only State and local
government employees), New Mexico, New York (plan covers only State and
local government employees), North Carolina, Oregon, Puerto Rico, South
Carolina, Tennessee, Utah, Virginia, Virgin Islands, Washington, and
Wyoming. Until such time as a State standard is promulgated, Federal
OSHA will provide interim enforcement assistance, as appropriate, in
those States.
XII. Effective Date
The final rule becomes effective on April 9, 2009. This gives
employers 120 days to establish procedures required by the standard and
to train employees in those procedures.
A single rulemaking participant addressed the effective date of the
final rule. Mr. Michael Bohlman, representing USMX, urged the Agency to
provide a transition period ``so that existing, safe VTL operations can
be made to conform to the numerous, small but new requirements that may
remain in the final rule'' (Ex. 50-10-2). However, he did not estimate
how long a transition period would be necessary.
The final rule requires only incremental changes from existing VTL
procedures as outlined in the Gurnham letter (Ex. 2). In comparison to
the restrictions imposed by the Gurnham letter, the final rule includes
additional provisions limiting the type of crane that may be used in
VTLs, requiring a prelift, prohibiting handling containers below deck
as a VTL, limiting VTL operations in windy conditions, and prohibiting
VTLs of platform containers. The final rule also contains new
requirements for employee training and the safe ground transport of
vertically coupled containers that were not addressed by the letter of
interpretation. Lastly, the final rule contains specifications on the
strength of interbox connectors used in VTLs.
The differences in procedures required by the final rule compared
to the Gurnham letter are relatively minor, and employers already
performing VTLs should be capable of implementing the revised
procedures reasonably quickly. Thus, these differences are not a
significant consideration in establishing an effective date for the
final rule.
The interbox connector specifications match those imposed by the
ICHCA guidelines (Ex. 41), which have been in effect since 2003. The
ICHCA guidelines include certification and marking provisions
equivalent to those in the final rule. Based on comments supporting the
adoption of practices consistent with the ICHCA guidelines, OSHA
believes that employers are already using interbox connectors meeting
these requirements in existing VTL operations. Thus, the final rule's
requirements relating to the strength of interbox connectors are not a
significant consideration in establishing an effective date for the
final rule. Thus, OSHA believes that 120 days after the publication of
the final rule should be sufficient time for employers to institute the
procedural requirements of the standard and has set the effective date
of those requirements in the standard accordingly.
However, employers may need substantial time to implement the
training requirements contained in the final rule. This training will
take some additional time beyond that needed to implement revised VTL
procedures. There is evidence in the record that employers who are
performing VTLs are already training employees in their current
procedures (Exs. 50-13, 58, 61; Tr. 1-216--1-217). Thus, employers
would only need to provide training in any revisions to their VTL
procedures that are required by the final rule. Although employers who
are not already performing VTLs would need to
[[Page 75289]]
provide more extensive training, these employers would only need to
complete the training before commencing VTL operations rather than by
the effective date of the final rule.
OSHA believes that 120 days after the publication of the final rule
should be sufficient time for employers to institute the training
requirements of the standard and has set the effective date of the
training provision accordingly.
XIII. Authority and Signature
This document was prepared under the direction of Thomas M.
Stohler, Acting Assistant Secretary of Labor for Occupational Safety
and Health, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210. It is issued pursuant to sections 4, 6, and 8 of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657), section 41 of the Longshore and Harbor Workers' Compensation Act
(33 U.S.C. 941), Secretary of Labor's Order 5-2007 (72 FR 31160), and
29 CFR 1911.
Signed at Washington, DC, this 25th day of November 2008.
Thomas M. Stohler,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
List of Subjects
29 CFR Part 1917
Freight, Longshore and harbor workers, Occupational safety and
health, Reporting and recordkeeping requirements.
29 CFR Part 1918
Freight, Longshore and harbor workers, Occupational safety and
health, Reporting and recordkeeping requirements, Vessels.
0
Accordingly, OSHA amends 29 CFR parts 1917 and 1918 as follows:
PART 1917--MARINE TERMINALS
0
1. The authority citation for Part 1917 is revised to read as follows:
Authority: Section 41, Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 941); secs. 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 6-96 (62 FR 111), 5-2002 (67 FR 65008),
or 5-2007 (72 FR 31160), as applicable; and 29 CFR 1911.
Section 1917.28, also issued under 5 U.S.C. 553.
Section 1917.29, also issued under Sec. 29, Hazardous Materials
Transportation Uniform Safety Act of 1990 (49 U.S.C. 1801-1819 and 5
U.S.C. 553).
0
2. Section 1917.71 is amended by adding new paragraphs (i), (j), and
(k) to read as follows:
Sec. 1917.71 Terminals handling intermodal containers or roll-on
roll-off operations.
* * * * *
(i) Vertical tandem lifts. The following requirements apply to
operations involving the lifting of two or more intermodal containers
by the top container (vertical tandem lifts or VTLs).
(1) Each employee involved in VTL operations shall be trained and
competent in the safety-related work practices, safety procedures, and
other requirements in this section that pertain to their respective job
assignments.
(2) No more than two intermodal containers may be lifted in a VTL.
(3) Before the lift begins, the employer shall ensure that the two
containers lifted as part of a VTL are empty.
Note to paragraph (i)(3): The lift begins immediately following
the end of the prelift required by paragraph (i)(5) of this section.
Thus, the weight may be determined during the prelift using a load
indicating device meeting Sec. 1917.46(a)(1)(i)(A) on the crane
being used to lift the VTL.
(4) The lift shall be performed using either a shore-based
container gantry crane or another type of crane that:
(i) Has the precision control necessary to restrain unintended
rotation of the containers about any axis,
(ii) Is capable of handling the load volume and wind sail potential
of VTLs, and
(iii) Is specifically designed to handle containers.
(5) The employer shall ensure that the crane operator pauses the
lift when the vertically coupled containers have just been lifted above
the supporting surface to assure that each interbox connector is
properly engaged.
(6) Containers below deck may not be handled as a VTL.
(7) VTL operations may not be conducted when the wind speed exceeds
the lesser of:
(i) 55 km/h (34 mph or 30 knots) or
(ii) The crane manufacturer's recommendation for maximum wind
speed.
(8) The employer shall ensure that each interbox connector used in
a VTL operation:
(i) Automatically locks into corner castings on containers but only
unlocks manually (manual twistlocks or latchlocks are not permitted);
(ii) Is designed to indicate whether it is locked or unlocked when
fitted into a corner casting;
(iii) Locks and releases in an identical direction and manner as
all other interbox connectors in the VTL;
(iv) Has been tested and certificated by a competent authority
authorized under Sec. 1918.11 of this chapter (for interbox connectors
that are part of a vessel's gear) or Sec. 1917.50 (for other interbox
connectors):
(A) As having a load-bearing surface area of 800 mm\2\ when
connected to a corner casting with an opening that is 65.0 mm wide; and
(B) As having a safe working load of 98 kN (10,000 kg) with a
safety factor of five when the load is applied by means of two corner
castings with openings that are 65.0 mm wide or equivalent devices;
(v) Has a certificate that is available for inspection and that
attests that the interbox connector meets the strength criteria given
in paragraph (i)(8)(iv) of this section; and
(vi) Is clearly and durably marked with its safe working load for
lifting and an identifying number or mark that will enable it to be
associated with its test certificate.
(9) The employer shall ensure that each container and interbox
connector used in a VTL and each corner casting to which a connector
will be coupled is inspected immediately before use in the VTL.
(i) Each employee performing the inspection shall be capable of
detecting defects or weaknesses and be able to assess their importance
in relation to the safety of VTL operations.
(ii) The inspection of each interbox connector shall include: a
visual examination for obvious structural defects, such as cracks; a
check of its physical operation to determine that the lock is fully
functional with adequate spring tension on each head; and a check for
excessive corrosion and deterioration.
(iii) The inspection of each container and each of its corner
castings shall include: a visual examination for obvious structural
defects, such as cracks; a check for excessive corrosion and
deterioration; and a visual examination to ensure that the opening to
which an interbox connector will be connected has not been enlarged,
that the welds are in good condition, and that it is free from ice, mud
or other debris.
(iv) The employer shall establish a system to ensure that each
defective or damaged interbox connector is removed from service.
(v) An interbox connector that has been found to be defective or
damaged shall be removed from service and may not be used in VTL
operations until repaired.
(vi) A container with a corner casting that exhibits any of the
problems listed in paragraph (i)(9)(iii) of this section may not be
lifted in a VTL.
[[Page 75290]]
(10) No platform container may be lifted as part of a VTL unit.
(j) Transporting vertically coupled containers. (1) Equipment other
than cranes used to transport vertically connected containers shall be
either specifically designed for this application or evaluated by a
qualified engineer and determined to be capable of operating safely in
this mode of operation.
(2) The employer shall develop, implement, and maintain a written
plan for transporting vertically connected containers. The written plan
shall establish procedures to ensure safe operating and turning speeds
and shall address all conditions in the terminal that could affect the
safety of VTL-related operations, including communication and
coordination among all employees involved in these operations.
(k) Safe work zone. The employer shall establish a safe work zone
within which employees may not be present when vertically connected
containers are in motion.
(1) The safe work zone shall be sufficient to protect employees in
the event that a container drops or overturns.
(2) The written transport plan required by paragraph (j)(2) of this
section shall include the safe work zone and procedures to ensure that
employees are not in this zone when a VTL is in motion.
PART 1918--SAFETY AND HEALTH REGULATIONS FOR LONGSHORING
0
3. The authority citation for Part 1918 is revised to read as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970, 29 U.S.C. 653, 655, 657; Sec. 41, Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. 941; Secretary of
Labor's Order No. 6-96 (62 FR 111), 5-2002 (67 FR 65008) , or 5-2007
(72 FR 31160), as applicable; and 29 CFR 1911.
Section 1918.90 also issued under 5 U.S.C. 553.
Section 1918.100 also issued under Sec. 29, Hazardous Materials
Transportation Uniform Safety Act of 1990 (49 U.S.C. 1801-1819 and 5
U.S.C. 553).
0
4. Section 1918.85 is amended by adding new paragraph (m) to read as
follows:
Sec. 1918.85 Containerized cargo operations.
* * * * *
(m) Vertical tandem lifts. Operations involving the lifting of two
or more intermodal containers by the top container shall be performed
following Sec. 1917.71(i) and (k)(1) of this chapter.
[FR Doc. E8-28644 Filed 12-9-08; 8:45 am]
BILLING CODE 4510-26-P