
[Federal Register: December 10, 2008 (Volume 73, Number 238)]
[Rules and Regulations]               
[Page 75245-75290]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de08-14]                         


[[Page 75245]]

-----------------------------------------------------------------------

Part III





Department of Labor





-----------------------------------------------------------------------



Occupational Safety and Health Administration



-----------------------------------------------------------------------



29 CFR Parts 1917 and 1918



Longshoring and Marine Terminals; Vertical Tandem Lifts; Final Rule


[[Page 75246]]


-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1917 and 1918

[Docket No. S-025A]
RIN 1218-AA56

 
Longshoring and Marine Terminals; Vertical Tandem Lifts

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: OSHA is revising the Marine Terminals Standard and related 
sections of the Longshoring Standard to adopt new requirements related 
to the practice of lifting two intermodal containers together, one on 
top of the other, connected by semiautomatic twistlocks (SATLs). This 
practice is known as a vertical tandem lift (VTL). The final standard 
adopted today permits VTLs of no more than two empty containers 
provided certain safeguards are followed.

DATES: This final rule becomes effective on April 9, 2009.

ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), the Agency 
designates Joseph M. Woodward, Associate Solicitor of Labor for 
Occupational Safety and Health, Office of the Solicitor, Room S-4004, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210, to receive petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT: For technical inquiries, contact 
Joseph V. Daddura, Director, Office of Maritime, Directorate of 
Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3621, 
200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 
693-2222. For general information and press inquiries, contact Jennifer 
Ashley, Director, Office of Communications, OSHA, U.S. Department of 
Labor, Room N-3647, 200 Constitution Avenue, NW., Washington, DC 20210; 
telephone: (202) 693-1999. For additional copies of 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:

------------------------------------------------------------------------

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

    The issue of vertical tandem lifting was first raised to OSHA by 
Matson Terminals, Inc. In 1986, through a series of meetings and 
correspondence with OSHA (Exs.\1\ 40-1, 40-2, 40-3, 40-4, 40-5, 40-6, 
40-6-1, 40-7), Matson asked to be permitted to lift two containers at a 
time, connected by SATLs, either empty or with one or both containers 
containing automobiles. At that time, OSHA regulations did not directly 
address or prohibit this practice. The container handling regulation 
formerly in 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:
---------------------------------------------------------------------------

    \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. 
---------------------------------------------------------------------------
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;
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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
