Longshoring and Marine Terminals; Proposed Rule DEPARTMENT OF LABOR

SUMMARY: The Occupational Safety and Health Administration (OSHA)

proposes to revise its Safety and Health Regulations for Longshoring

and, to a far lesser extent, to amend its Safety and Health Regulations

for Marine Terminals. The proposed rule covers cargo handling and

related activities conducted aboard vessels and at Marine Terminals.

The proposed amendments to the Marine Terminals standard are intended

primarily to provide regulatory consistency with the proposed

Longshoring ship-board rules. The proposed rules would be ``vertical''

standards which apply to longshoring and marine terminal activities

only, except for those general industry provisions referenced within

this proposed rule.

This proposal contains requirements for longshoring and marine

terminal operations; the testing and certification of specific types of

cargo lifting appliances and associated auxiliary gear; other cargo

handling equipment such as conveyors and industrial trucks; access to

vessels; working surfaces; and personal protective equipment.

Additionally, specialized longshoring operations such as containerized

cargo, roll-on roll-off (Ro-Ro) and menhaden are specifically

addressed.

The principal hazards addressed by this proposal are injuries and

accidents associated with cargo lifting gear, vehicular cargo

transferral, manual cargo handling, hazardous atmospheres and

materials, and finally, those hazards posed by the more modern and

sophisticated cargo handling methods brought about by intermodalism.

This provides notice of OSHA's intent to schedule informal public

hearings on OSHA's proposed rulemaking on Longshoring and the related

Marine Terminal provisions.

DATES: Written comments on the standard must be postmarked on or before

September 23, 1994. Notices of intention to appear at the informal

public hearings must be postmarked by August 24, 1994.Written comments,

testimony, and all evidence which will be offered into the hearing

record must be postmarked by 21 days prior to the date of the hearing

to be attended. The hearings will begin at 9:30 a.m. and be held in the

following cities, beginning on the following dates:

Charleston, South Carolina on September 20, 1994;

Seattle, Washington on October 19, 1994; and

New Orleans, Louisiana on November 15, 1994.

Requests for public hearings in locations other than the above must

be received by July 11, 1994.

Parties who request more than 10 minutes for their presentation at

the informal public hearing and parties who will submit documentary

evidence at the hearing must submit the full text of their testimony

and all documentary evidence, postmarked on or before 21 days prior the

date of the hearing to be attended.

ADDRESSES: Written comments and requests for additional hearings should

be submitted to the Docket Office, Docket S-025, Room N-2625, U.S.

Department of Labor, Occupational Safety and Health Administration, 200

Constitution Avenue, N.W., Washington, D.C. 20210. Telephone: (202)

219-7894. Comments of 10 pages or less may be faxed to the Docket

Office, if followed by a hard copy. The OSHA Docket Office fax number

is (202) 219-5046.

Notice of intention to appear, testimony and documentary evidence

to be submitted at the hearing are to be sent to Mr. Tom Hall, OSHA

Division of Consumer Affairs, Docket No. S-025, Room N-3647, U.S.

Department of Labor, 200 Constitution Avenue N.W., Washington, DC

20210, telephone (202) 219-8615.

Actual addresses for the locations of the regional hearings in

Charleston, South Carolina, Seattle, Washington, and New Orleans,

Louisiana will be announced in a later Federal Register document.

FOR FURTHER INFORMATION CONTACT: Mr. James F. Foster, Director, Office

of Information and Consumer Affairs, OSHA, U.S. Department of Labor,

Room N-3647, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Telephone (202) 219-8148.

SUPPLEMENTARY INFORMATION

I. Background

As a result of the high number and serious nature of accidents

occurring to port workers in the United States, Congress, in 1958,

amended the Longshore and Harborworker's Compensation Act (LHWCA) (33

U.S.C. 901 et seq.) to provide a large segment of port based employees

with a safer work environment. The amendments (P.L. 85-742, 72 Stat.

835) significantly strengthened Section 41 of the LHWCA (33 U.S.C. 941)

by requiring employers covered by that Act to ``furnish, maintain and

use'' equipment, and to establish safe working conditions in accordance

with regulations promulgated by the Secretary of Labor. Two years

later, the Labor Standards Bureau (LSB) of the Department of Labor

issued the first set of safety and health regulations for longshoring

activities as 29 CFR part 9 (25 FR 1565). These standards were amended

on several occasions between 1960 and 1971. Since 1971, there have been

no substantive changes to these provisions.

The Occupational Safety and Health Act of 1970 (the Act) (29 U.S.C.

650 et seq.), which established the Occupational Safety and Health

Administration (OSHA), directed the Secretary of Labor to adopt, under

the authority conferred by section 6(a) of the Act, ``Any established

Federal standard'' as an OSHA standard during the first 2 years of the

Act. The Longshoring standards, then codified as 29 CFR part 1504, were

adopted by OSHA under section 6(a) in 1971, and were recodified as 29

CFR part 1918.

The longshoring industry has changed dramatically since 1971. The

methods of cargo handling and the equipment associated with those

methods have undergone significant modification. Vessels designed

specifically for the carriage of intermodal containers, vehicular

rolling stock, and even barges, are now the most common types of ships

calling at U.S. ports. By contrast, the established Longshoring

standard was designed largely for activities being conducted using

methods and equipment that have been overshadowed or replaced by more

modern methods of cargo handling. The proposal being published today

will seek to modernize OSHA's regulatory approach to deal with these

changes in the industry. It is important to consider, however, that

some of the older, more conventional vessel configurations, equipped

with features and aspects that are addressed in the current standard,

continue to call at U.S. ports. For that reason, the Agency will retain

in this proposal a number of provisions whose utility, although

diminished, will continue to be necessary. Nevertheless, the Agency

requests the public to comment on certain provisions that it considers

obsolete and no longer in use. For example, the Agency is considering

deleting the provisions that address the manually lowering or topping

of booms based on a determination that these operations are no longer

performed as a part of longshoring work.

On July 5, 1983, OSHA published its final rule for Marine Terminals

(48 FR 30886)(Ex. 1-101). These rules were designed to address the

shoreside segment of marine cargo handling. Since the Marine Terminal

standards currently address equipment and situations (i.e., powered

industrial trucks; conveyors; passage between levels and across

openings; etc.) that have shipboard counterparts, appropriate

provisions from those standards are incorporated into this proposal for

shipboard cargo handling, as well. Accordingly, the Agency will rely

upon background material and data used to substantiate OSHA's rule for

Marine Terminals, and incorporates the docket (S-506) developed in that

rulemaking.

This proposal seeks to provide a practical continuity as it

addresses the more conventional and time proven methods of cargo

handling along with those more modern and revolutionary. The Agency

welcomes all suggestions on how to better meet this goal.

Longshoring Hazards

Traditionally, the longshore industry has been notable in terms of

its accident experience. The work environment found in the marine cargo

handling sector exposes workers to a greater risk of injury than is

true for most other industries. In fact, in the last calendar year for

which industrial illnesses and accidents are fully tabulated, this

industrial sector had one of the highest rate of lost workdays in the

nation. The following tables found in BLS reports (Exs. 1-109, 1-110,

1-111, 1-112, and1-113) are useful in making a comparative assessment:

Table A

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

Total of lost workdays (rate per 100 full

time employees) 1985 1986 1987 1988 1989 1990 1991

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

Private sector 64.9 65.8 69.9 76.1 78.7 84.0 86.5

Construction 129 134 136 142 143 148 148

SIC 446 (449) 350 405 422 436 343 284 329

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

Note: These 1988 to 1991 figures are based on SIC Code 449, which includes water transportation. It should be

noted that the SIC Code for water transportation was changed from 446 to 499 in 1987.

Table B

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

Total cases (rate per 100 full-time

employees) 1985 1986 1987 1988 1989 1990 1991

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

Private sector 7.9 7.9 8.3 8.6 8.6 8.8 8.4

Construction Trades 15.2 15.2 14.7 14.6 14.3 14.2 13.0

SIC 446 (449) 16.3 18.0 17.0 14.5 14.7 13.5 13.9

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

Note: These 1988 to 1991 figures are based on SIC Code 449, which includes water transportation. It should be

noted that the SIC Code for water transportation was changed from 446 to 449 in 1987.

In 1985, OSHA requested the Bureau of Labor Statistics (BLS) to

initiate a survey that could be used to develop common aspects of

accidents occurring within the current longshore sector (Ex. 1-73).

This survey helped to point out that in spite of the increases in

automation that have occurred in the industry, injuries and lost

workday cases continue to remain high and the break bulk type of

operation still accounts for a major portion of the injuries that occur

aboard ship.

OSHA sought to validate even further the conclusions it could draw,

both from this survey and from regularly published BLS occupational

safety and health statistics. In so doing, the Agency reviewed data

published in Seafarer magazine (April 1987). In an article entitled

``WGMA reports safety statistics for 85-86 contract year'' (Ex. 1-14),

that periodical listed a number of pertinent figures that serve to

corroborate the other accident information OSHA has secured. The West

Gulf Report, prepared by Mr. Hal Draper, Director of Safety; Health and

Training for the West Gulf Maritime Association, addressed the accident

experience of several ports from Lake Charles, Louisiana to

Brownsville, Texas. Quoting directly from the article:

West Gulf Report. Draper's report on West Gulf longshore

accidents during the 1985-86 contract year covered a total of 1,192

incidents.

According to his analysis, 70% of the accidents occurred on

board ships; the remaining 30% on the dock or in the warehouse/

terminal. Cargo was involved in 30% of the accidents, 64% of which

involved sacks/bags, and 12% steel/pipe. Two hundred and forty of

the incidents (20%) involved the individual being struck by a moving

object; 221 (19%) resulted from lifting, pushing, pulling or bodily

reaction; 208 (17%) from falls from the same level-slip or trip; 142

(12%) from striking against, or stepping/jumping on an object; 130

(11%) from being struck by a falling object; and 109 (9%) from being

caught in, under, or between objects. Thirteen percent of all

accidents involved stevedore gear/equipment.

Another way the Agency attempted to identify the major sources of

longshoring accidents for rulemaking purposes was to examine a number

of fatal or near fatal accidents reported to OSHA from this industry

sector during the period July 1972-March 1992. In conducting this

analysis, OSHA examined these case files to determine the precise cause

of the accident. A brief summary of a few of the more than 250 such

accidents reviewed is provided below.

Boston, Massachusetts--August 1974. A longshoreman, seriously

injured while working in the hold of a bulk cargo vessel, was placed

aboard a stokes basket stretcher to be transported ashore by the

vessel's cargo hoisting gear. The stokes basket had no effective means

to secure the injured worker to the stretcher. While in transit, the

injured worker fell out of the litter, back into the hold (Ex. 1-90).

Port Elizabeth, New Jersey--June 1978. One employee was killed and

one seriously injured when an intermodal container lifting beam, being

lowered to hoist the container both men were standing on, suddenly

fell. The device, weighing in excess of 4 tons, crushed both employees.

Compliance with proposed Sec. 1918.81(k) would have prevented this

accident (Ex. 1-87).

Port Newark, New Jersey--August 1976. An employee aboard an

elevator Ro-Ro ship, while in the process of discharging automobiles,

drove into what was thought to be an available elevator to gain access

to the ramp or discharge deck. The elevator was actually at a higher

deck. The employee and vehicle fell into the shaft and down three

decks. Barricading of the open deck spaces could have prevented this

accident (Ex. 1-88).

San Juan, Puerto Rico--August 1978. An employee aboard a seagoing,

multi-deck Ro-Ro barge was run over and killed by a tractor trailer

while the trailer was being maneuvered into its stowage position. No

signalman was provided to protect employees from the hazard that

ultimately killed this lasher (an employee engaged in securing cargo).

Additionally, illumination was severely lacking within the confines of

the vessel's below deck cargo spaces. The use of proper illumination

and a signaller for this operation could have prevented the fatality

(Ex. 1-89).

Port Elizabeth, New Jersey--August 1984. Two workers, while driving

in a vehicle within a large Ro-Ro vessel, fell from the end of an

elevated internal ramp back down to deck level. These employees thought

the ramp could take them to the next higher deck, however, the ramp was

not so positioned. The car they were operating landed on its roof. One

employee was killed, the other was injured. Barricading of the ramp

could have prevented this accident (Ex. 1-86).

Houston, Texas--July 1987. Two longshoremen were killed while

positioned atop a deck stowed intermodal container. As they were

performing their work, an empty forty foot container being passed over

their heads became disengaged from the lifting gear and fell on them.

These fatalities could have been prevented if the employees had stayed

clear of the overhead drafts (Ex. 1-74).

Port of Los Angeles, California--March, 1992. One longshoreman was

killed while working on top of a stack of containers on the deck of a

container vessel. A container top safety device was available, but the

longshoreman was not attached to it. The safety device, which was

attached to the container crane spreader bar, moved and became hung up.

When it released, it catapulted the longshoreman off of the stack of

containers and onto the dock. This incident could have been prevented

if the employee had not been working on the top of the container, or

had been using fall protection if it were necessary to be working there

(Ex. 1-108).

Based on the BLS data, the West Gulf Maritime Association's

accident analysis, and OSHA's own analysis of fatal or near fatal

accidents in the cargo handling industry , OSHA concludes that

regulatory action is necessary in order to meet its mandate under the

Act. See Section III, Statutory Considerations, below, for a complete

discussion of OSHA's ``significant risk'' findings.

II. General Format of the Standard

A. Vertical vs. Horizontal Standards

This proposed Longshoring standard has been drafted in a manner

that will allow it to stand by itself, i.e., to be a ``vertical''

standard. Vertical standards are those that apply specifically to a

given industry, in lieu of any other OSHA standard. In several areas of

coverage specified in the proposal's scope section, OSHA's General

Industry standards are incorporated by reference. This approach follows

OSHA's other marine cargo handling standard, Marine Terminals, 29 CFR

part 1917 (48 FR 30886). Vertical standards can encourage voluntary

compliance because they are directed to the particular problems of the

industry, and because they only contain provisions that are appropriate

to the industry in question. On the other hand, since many industries

covered by OSHA do in fact use the same or similar equipment and

processes, and therefore have employees who are exposed to the same

hazards, it is usually a more efficient use of the Agency's resources

to develop ``horizontal'' standards (those applying across industry

lines). It is also more efficient to train field personnel in general

safety programs tailored to the horizontal General Industry standards

than to train field staff in individual programs designed for specific

industries.

In 1983, OSHA promulgated a vertical standard for the shoreside

aspect of marine cargo handling (48 FR 30886)--OSHA's rules for Marine

Terminals. As was the case in that rulemaking, the Agency is proposing

the inclusion of a list of applicable General Industry standards which

will supplement the specific provisions in part 1918. This provides

coverage for hazards for which the marine cargo handling industry is

neither unique nor different from other industries. As an example, OSHA

proposes to adopt by reference Sec. 1910.95, titled ``occupational

noise exposure.'' The detrimental effects of prolonged high levels of

noise is the same whether the exposure takes place aboard a vessel or

in a factory. The exposure may not be as constant or the workforce may

not be subjected to the same type of noise day after day, however the

potential for overexposure is there. OSHA does not feel it is necessary

to write a ``vertical'' standard that covers exposure to noise when the

General Industry standard will suffice. This is entirely consistent

with the current coverage provided by OSHA rules for Marine Terminals

(part 1917).

The majority of this proposed Longshore standard is a ``vertical''

standard. The work environment aboard ship is unique in many respects.

Longshore workers must continually work in the harsh environment of the

waterfront, which requires exposure both to work-related hazards, such

as falling cargo, and to environmental hazards, such as drowning and

working around machinery in bad weather. Longshore workers perform some

of the same high-hazard tasks, and confront many of the same heavy-

industry hazards, as those typically associated with the construction

industry. Examples of such hazards include falls, and crushing and

caught-in injuries. Cargo handling and construction work are also both

weather-dependent and have a high proportion of part-time and transient

employees. The extremely high occupational injury and illness incidence

rates for the marine cargo handling industry, mentioned in the previous

section, testify to the hazardous nature of the longshoring industry.

OSHA has decided to continue a vertical standard for many aspects

of this high-hazard industry, supplemented by general industry

standards where necessary and appropriate. The Agency believes that

this approach is necessary to adequately address the unique hazards and

working conditions of this industry. OSHA also has a vertical standard

for the construction industry (29 CFR part 1926), another hazardous

industry with a large workforce.

OSHA solicits comments both as to the merits and the limitations of

a vertical standard for longshoring operations.

B. Performance vs. Specification

The format and substance of this standard reflect OSHA's effort to

eliminate unnecessary regulations and to simplify and update others. To

achieve these goals, the Agency has adopted a performance approach to

writing new rules and revising existing ones. A performance-based

standard identifies a hazard and the level of control required to

protect against the hazard, without specifying the precise means of

achieving such control, while a specification standard stipulates

design and construction criteria to be met to achieve a particular

safety objective. The lack of flexibility in many specification

standards fails to take into account the adequacy of many existing

operations and work practices and discourages innovation. In keeping

with OSHA's commitment to clarity, flexibility, and in order to

encourage employers to comply with the standards, this longshore

industry proposal has adopted the performance approach except in those

cases in which employee safety would be enhanced by more specific

requirements. The Agency is interested in receiving comments from

persons who feel that certain of the proposed provisions would benefit

from a greater degree of specification or from a more goal-oriented

approach.

III. Statutory Considerations

A. Introduction. Throughout this proposal, OSHA describes the

hazards confronted by employees who are engaged in longshoring

activities and the measures required to protect affected employees from

those hazards. The Agency is providing the following discussion of the

statutory mandate for OSHA rulemaking activity to explain the legal

basis for its determination that the Longshoring standard, as proposed,

is reasonably necessary to protect affected employees from significant

risks of injury and death.

Section 2(b)(3) of the Occupational Safety and Health Act

authorizes ``the Secretary of Labor to set mandatory occupational

safety and health standards applicable to businesses affecting

interstate commerce'', and section 5(a)(2) provides that ``each

employer shall comply with occupational safety and health standards

promulgated under this Act'' (emphasis added). Section 3(8) of the OSH

Act (29 U.S.C. Sec. 652(8)) provides that:

. . . the term `occupational safety and health standard' means 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 and

places of employment.

In two recent cases, reviewing courts have expressed concern that

OSHA's interpretation of these provisions of the OSH Act, particularly

of section 3(8) as it pertains to safety rulemaking, could lead to

overly costly or under-protective safety standards. In International

Union, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991), the District of

Columbia Circuit rejected substantive challenges to OSHA's lockout/

tagout standard and denied a request that enforcement of that standard

be stayed, but it also expressed concern that OSHA's interpretation of

the OSH Act could lead to safety standards that are very costly and

only minimally protective. In National Grain & Feed Association v.

OSHA, 866 F.2d 717 (5th Cir. 1989), the Fifth Circuit concluded that

Congress gave OSHA considerable discretion in structuring the costs and

benefits of safety standards but, concerned that the grain dust

standard might be under-protective, directed OSHA to consider adding a

provision that might further reduce significant risk of fire and

explosion.

OSHA rulemakings involve a significant degree of agency expertise

and policy-making discretion to which reviewing courts must defer. (See

for example, Building & Constr. Trades Dept. AFL-CIO v. Brock, 838 F.2d

1258, 1266 (D.C. Cir. 1988); Industrial Union Dept. AFL-CIO v. American

Petroleum Inst., 448 U.S. 607, 655 n. 62 (1980).) At the same time, the

Agency's technical expertise and policy-making authority must be

exercised within discernable parameters. The lockout/tagout and grain

handling standard decisions sought from OSHA more clarification on the

agency's view of the scope of those parameters. In light of those

decisions, OSHA believes it would be useful to include in the preamble

to this proposed safety standard a statement of its view of the limits

of its safety rulemaking authority and to explain why it is confident

that its interpretive views have in the past avoided regulatory

extremes and continue to do so in this rule.

Stated briefly, the OSH Act requires that, before promulgating any

occupational safety standard, OSHA demonstrate based on substantial

evidence in the record as a whole that: (1) the proposed standard will

substantially reduce a significant risk of material harm; (2)

compliance is technologically feasible in the sense that the protective

measures being required already exist, can be brought into existence

with available technology, or can be created with technology that can

reasonably be developed; (3) compliance is economically feasible in the

sense that industry can absorb or pass on the costs without major

dislocation or threat of instability; and (4) the standard is cost

effective in that it employs the least expensive protective measures

capable of reducing or eliminating significant risk. Additionally,

proposed safety standards must be compatible with prior agency action,

must be responsive to significant comment in the record, and, to the

extent allowed by statute, must be consistent with applicable Executive

Orders. These elements limit OSHA's regulatory discretion for safety

rulemaking and provide a decision-making framework for developing a

rule within their parameters.

B. Congress concluded that OSHA regulations are necessary to

protect workers from occupational hazards and that employers should be

required to reduce or eliminate significant workplace health and safety

threats. At section 2(a) of the OSH Act (29 U.S.C. Sec. 651(a)),

Congress announced its determination that occupational injury and

illness should be eliminated as much as possible: ``The Congress finds

that occupational injury and illness arising out of work situations

impose a substantial burden upon, and are a hindrance to, interstate

commerce in terms of lost production, wage loss, medical expenses, and

disability compensation payments.'' Congress therefore declared ``it to

be its purpose and policy ... to assure so far as possible every

working man and woman in the Nation safe ... working conditions [29

U.S.C. Sec. 651(b)].''

To that end, Congress instructed the Secretary of Labor to adopt

existing Federal and consensus standards during the first two years

after the OSH Act became effective and, in the event of conflict among

any such standards, to ``promulgate the standard which assures the

greatest protection of the safety or health of the affected employees

[29 U.S.C. Sec. 655(a)].'' Congress also directed the Secretary to set

mandatory occupational safety standards [29 U.S.C. Sec. 651(b)(3)],

based on a rulemaking record and substantial evidence [29 U.S.C. Sec.

655(b)(2)], that are ``reasonably necessary or appropriate to provide

safe ... employment and places of employment.'' When promulgating

permanent safety or health standards that differ from existing national

consensus standards, the Secretary must explain ``why the rule as

adopted will better effectuate the purposes of this Act than the

national consensus standard [29 U.S.C. Sec. 655(b)(8)].''

Correspondingly, every employer must comply with OSHA standards and, in

addition, ``furnish to each of his employees employment and a place of

employment which are free from recognized hazards that are causing or

are likely to cause death or serious physical harm to his employees [29

U.S.C. Sec. 654(a)].''

``Congress understood that the Act would create substantial costs

for employers, yet intended to impose such costs when necessary to

create a safe and healthful working environment. Congress viewed the

costs of health and safety as a cost of doing business.... Indeed,

Congress thought that the financial costs of health and safety problems

in the workplace were as large as or larger than the financial costs of

eliminating these problems [American Textile Mfrs. Inst. Inc. v.

Donovan, 452 U.S. 490, 519-522 (1981) (ATMI); emphasis was supplied in

original].'' ``[T]he fundamental objective of the Act [is] to prevent

occupational deaths and serious injuries [Whirlpool Corp. v. Marshall,

445 U.S. 1, 11 (1980)].'' ``We know the costs would be put into

consumer goods but that is the price we should pay for the 80 million

workers in America [S. Rep. No. 91-1282, 91st Cong., 2d Sess. (1970);

H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. (1970), reprinted in Senate

Committee on Labor and Public Welfare, Legislative History of the

Occupational Safety and Health Act of 1970, (Committee Print 1971)

(`Leg. Hist.') at 444 (Senator Yarborough)].'' ``Of course, it will

cost a little more per item to produce a washing machine. Those of us

who use washing machines will pay for the increased cost, but it is

worth it, to stop the terrible death and injury rate in this country

[Id. at 324; see also 510-511, 517].''

[T]he vitality of the Nation's economy will be enhanced by the

greater productivity realized through saved lives and useful years

of labor. When one man is injured or disabled by an industrial

accident or disease, it is he and his family who suffer the most

immediate and personal loss. However, that tragic loss also affects

each of us. As a result of occupational accidents and disease, over

$1.5 billion in wages is lost each year [1970 dollars], and the

annual loss to the gross national product is estimated to be over $8

billion. Vast resources that could be available for productive use

are siphoned off to pay workmen's compensation and medical

expenses....Only through a comprehensive approach can we hope to

effect a significant reduction in these job death and casualty

figures. [Id. at 518-19 (Senator Cranston)] Congress considered

uniform enforcement crucial because it would reduce or eliminate the

disadvantage that a conscientious employer might experience where

inter-industry or intra-industry competition is present. Moreover,

``many employers--particularly smaller ones--simply cannot make the

necessary investment in health and safety, and survive

competitively, unless all are compelled to do so [Leg. Hist. at 144,

854, 1188, 1201].''

Thus, the statutory text and legislative history make clear that

Congress conclusively determined that OSHA regulation is necessary to

protect workers from occupational hazards and that employers should be

required to reduce or eliminate significant workplace health and safety

threats.

C. As construed by the courts and by OSHA, the OSH Act sets a

threshold and a ceiling for safety rulemaking that provide clear and

reasonable parameters for agency action. OSHA has long followed the

teaching that section 3(8) of the OSH Act requires that, before it

promulgates ``any permanent health or safety standard, [it must] make a

threshold finding that a place of employment is unsafe--in the sense

that significant risks are present and can be eliminated or lessened by

a change in practices [Industrial Union Dept., AFL-CIO v. American

Petroleum Inst, 448 U.S. 607, 642 (1980) (plurality) (Benzene);

emphasis was supplied in original].'' When, as frequently happens in

safety rulemaking, OSHA promulgates standards that differ from existing

national consensus standards, it must explain ``why the rule as adopted

will better effectuate the purposes of this Act than the national

consensus standard [29 U.S.C. Sec. 655(b)(8)].'' Thus, national

consensus and existing federal standards that Congress instructed OSHA

to adopt summarily within two years of the OSH Act's inception provide

reference points concerning the least an OSHA standard should achieve

(29 U.S.C. Sec. 655(a)).

As a result, OSHA is precluded from regulating insignificant safety

risks or from issuing safety standards that do not at least lessen risk

in a significant way.

The OSH Act also limits OSHA's discretion to issue overly

burdensome rules, as the agency also has long recognized that ``any

standard that was not economically or technologically feasible would a

fortiori not be `reasonably necessary or appropriate' under the Act.

See Industrial Union Dept., v. Hodgson, [499 F.2d 467, 478 (D.C. Cir.

1974)] (`Congress does not appear to have intended to protect employees

by putting their employers out of business.') [American Textile Mfrs.

Inst. Inc., 452 U.S. at 513 n. 31 (a standard is economically feasible

even if it portends `disaster for some marginal firms,' but it is

economically infeasible if it `threaten[s] massive dislocation to, or

imperil[s] the existence of, the industry')].''

By stating the test in terms of ``threat'' and ``peril,'' the

Supreme Court made clear in ATMI that economic infeasibility begins

short of industry-wide bankruptcy. OSHA itself has placed the line

considerably below this level. (See for example, ATMI, 452 U.S. at 527

n. 50; 43 FR 27360 (June 23, 1978). Proposed 200 g/m\3\ PEL

for cotton dust did not raise serious possibility of industry-wide

bankruptcy, but impact on weaving sector would be severe, possibly

requiring reconstruction of 90 percent of all weave rooms. OSHA

concluded that the 200 g/m\3\ level was not feasible for

weaving and that 750 g/m\3\ was all that could reasonably be

required). See also 54 FR 29245-246 (July 11, 1989); American Iron &

Steel Institute, 939 F.2d at 1003. OSHA raised engineering control

level for lead in small nonferrous foundries to avoid the possibility

of bankruptcy for about half of small foundries even though the

industry as a whole could have survived the loss of small firms.)

Although the cotton dust and lead rulemakings involved health

standards, the economic feasibility ceiling established therein applies

equally to safety standards. Indeed, because feasibility is a necessary

element of a ``reasonably necessary or appropriate'' standard, this

ceiling boundary is the same for health and safety rulemaking since it

comes from section 3(8), which governs all permanent OSHA standards.

All OSHA standards must also be cost-effective in the sense that

the protective measures being required must be the least expensive

measures capable of achieving the desired end (ATMI, at 514 n. 32;

Building and Const. Trades Dept., AFL-CIO v. Brock, 838 F.2d 1258, 1269

(D.C. Cir. 1988)). OSHA gives additional consideration to financial

impact in setting the period of time that should be allowed for

compliance, allowing as much as ten years for compliance phase-in. (See

United Steelworkers of America v. Marshall, 647 F.2d 1189, 1278 (D.C.

Cir. 1980), cert. denied, 453 U.S. 913 (1981).) Additionally, OSHA's

enforcement policy takes account of financial hardship on an

individualized basis. OSHA's Field Operations Manual provides that,

based on an employer's economic situation, OSHA may extend the period

within which a violation must be corrected after issuance of a citation

(CPL. 2.45B, Chapter III, paragraph E6d(3)(a), Dec. 31, 1990).

To reach the necessary findings and conclusions that a safety

standard substantially reduces a significant risk of harm, is both

technologically and economically feasible, and is cost effective, OSHA

must conduct rulemaking in accord with the requirements of section 6 of

the OSH Act. The regulatory proceeding allows it to determine the

qualitative and, if possible, the quantitative nature of the risk with

and without regulation, the technological feasibility of compliance,

the availability of capital to the industry and the extent to which

that capital is required for other purposes, the industry's profit

history, the industry's ability to absorb costs or pass them on to the

consumer, the impact of higher costs on demand, and the impact on

competition with substitutes and imports. (See ATMI at 2501-2503;

American Iron & Steel Institute generally.) Section 6(f) of the OSH Act

further provides that, if the validity of a standard is challenged,

OSHA must support its conclusions with ``substantial evidence in the

record considered as a whole,'' a standard that courts have determined

requires fairly close scrutiny of agency action and the explanation of

that action. (See Steelworkers, 647 F.2d at 1206-1207.)

OSHA's powers are further circumscribed by the independent

Occupational Safety and Health Review Commission, which provides a

neutral forum for employer contests of citations issued by OSHA for

noncompliance with health and safety standards (29 U.S.C. Secs. 659-

661; noted as an additional constraint in Benzene at 652 n. 59). OSHA

must also respond rationally to similarities and differences among

industries or industry sectors. (See Building and Construction Trades

Dept., AFL-CIO v. Brock, 838 F.2d 1258, 1272-73 (D.C. Cir. 1988).)

OSHA safety rulemaking is thus constrained first by the need to

demonstrate that the standard will substantially reduce a significant

risk of material harm, and then by the requirement that compliance is

technologically capable of being done and not so expensive as to

threaten economic instability or dislocation for the industry. Within

these parameters, further constraints such as the need to find cost-

effective measures and to respond rationally to all meaningful comment

militate against regulatory extremes.

D. The proposed revisions of the Longshoring and Marine Terminal

standards comply with the statutory criteria described above and are

not subject to the additional constraints applicable to section 6(b)(5)

standards.

Standards that regulate hazards that are frequently undetectable

because they are subtle or develop slowly or after long latency

periods, are frequently referred to as ``health'' standards. Standards

that regulate hazards, like explosions or electrocution, that cause

immediately noticeable physical harm, are called ``safety'' standards.

(See National Grain & Feed Assn., v. OSHA (NGFA II), 866 F.2d 717, 731,

733 (5th Cir. 1989). As noted above, section 3(8) provides that all

OSHA standards must be ``reasonably necessary or appropriate.'' In

addition, section 6(b)(5) requires that OSHA set health standards which

limit significant risk ``to the extent feasible.'' OSHA has determined

that the proposed revisions of the Longshore and Marine Terminal

standards are safety standards, because these standards address

hazards, such as falling, falling objects and crushing, that are

immediately dangerous to life or health, not the longer term, less

obvious hazards subject to section 6(b)(5).

The OSH Act and its legislative history clearly indicate that

Congress intended for OSHA to distinguish between safety standards and

health standards. For example in section 2(b)(6) of the OSH Act,

Congress declared that the goal of assuring safe and healthful working

conditions and preserving human resources would be achieved, in part:

... by exploring ways to discover latent diseases, establishing

causal connections between diseases and work in environmental

conditions, and conducting other research relating to health

problems, in recognition of the fact that occupational health

standards present problems often different from those involved in

occupational safety. The legislative history makes this distinction

even clearer:

[The Secretary] should take into account that anyone working in

toxic agents and physical agents which might be harmful may be

subjected to such conditions for the rest of his working life, so

that we can get at something which might not be toxic now, if he

works in it a short time, but if he works in it the rest of his life

might be very dangerous; and we want to make sure that such things

are taken into consideration in establishing standards. [Leg. Hist.

at 502-503 (Sen. Dominick), quoted in Benzene at 648-49].

Additionally, Representative Daniels distinguished between

``insidious `silent killers' such as toxic fumes, bases, acids, and

chemicals'' and ``violent physical injury causing immediate visible

physical harm'' (Leg. Hist. at 1003), and Representative Udall

contrasted insidious hazards like carcinogens with ``the more

visible and well-known question of industrial accidents and on-the-

job injury'' (Leg. Hist. at 1004). (See also, for example, S.Rep.

No. 1282, 91st Cong., 2d Sess 2-3 (1970), U.S. Code Cong. & Admin.

News 1970, pp. 5177, 5179, reprinted in Leg. Hist. at 142-43,

discussing 1967 Surgeon General study that found that 65 percent of

employees in industrial plants ``were potentially exposed to harmful

physical agents, such as severe noise or vibration, or to toxic

materials''; Leg.Hist at 412; id. at 446; id. at 516; id. at 845;

International Union, UAW at 1315.)

In reviewing OSHA rulemaking activity, the Supreme Court has held

that section 6(b)(5) requires OSHA to set ``the most protective

standard consistent with feasibility'' (Benzene at 643 n. 48). As

Justice Stevens observed:

The reason that Congress drafted a special section for these

substances ... was because Congress recognized that there were

special problems in regulating health risks as opposed to safety

risks. In the latter case, the risks are generally immediate and

obvious, while in the former, the risks may not be evident until a

worker has been exposed for long periods of time to particular

substances. [Benzene, at 649 n. 54.] Challenges to the grain dust

and lockout/tagout standards included assertions that grain dust in

explosive quantities and uncontrolled energy releases that could

expose employees to crushing, cutting, burning or explosion hazards

were harmful physical agents so that OSHA was required to apply the

criteria of section 6(b)(5) when determining how to protect

employees from those hazards. Reviewing courts have uniformly

rejected such assertions. For example, the Court in International

Union, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991) rejected the view

that section 6(b)(5) provided the statutory criteria for regulation

of uncontrolled energy, holding that such a ``reading would

obliterate a distinction that Congress drew between 'health' and

'safety' risks.'' The Court also noted that the language of the OSH

Act and the legislative history supported the OSHA position

(International Union, UAW at 1314). Additionally, the Court stated:

``We accord considerable weight to an agency's construction of a

statutory scheme it is entrusted to administer, rejecting it only if

unreasonable'' (International Union, UAW at 1313, citing Chevron

U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 (1984)).

The Court reviewing the grain dust standard also deferred to OSHA's

reasonable view that the Agency was not subject to the feasibility

mandate of section 6(b)(5) in regulating explosive quantities of grain

dust (National Grain & Feed Association v. OSHA (NGFA II), 866 F.2d

717, 733 (5th Cir. 1989)). It therefore applied the criteria of section

3(8), requiring the Agency to establish that the standard is

``reasonably necessary or appropriate'' to protect section 3(8),

requiring the Agency to establish that the standard is ``reasonably

necessary or appropriate'' to protect employee safety.

As explained in Section I, Background, above, and Section V,

Summary and Explanation of the Proposal and in Section VIII,

Preliminary Regulatory Impact Analysis and Regulatory Flexibility

Analysis, below, OSHA has determined that marine cargo handling

activities pose significant risks to employees (18 fatalities and 7,593

injuries annually) and that the provisions of the proposed rule are

reasonably necessary to protect affected employees from those risks.

The Agency estimates that compliance with the proposed revisions of the

Longshoring and Marine Terminal standards will cost $4.7 million the

first year and $1.8 million annually thereafter and will reduce the

risk of the identified hazards (preventing 3 fatalities and 1,262

injuries annually). This constitutes a substantial reduction of

significant risk of material harm for the population at risk of

approximately 93,000 employees. The Agency believes that compliance is

technologically feasible because all of the provisions of the proposed

standard can be met by using currently available equipment, facilities,

supplies, and work practices. Additionally, OSHA believes that

compliance is economically feasible, because, as documented in the

Regulatory Impact Analysis, all regulated sectors can readily absorb or

pass on compliance costs during the standard's first five years, and

economic benefits will exceed compliance costs thereafter.

As detailed in Section VIII, Preliminary Regulatory Impact Analysis

and Regulatory Flexibility Analysis and Table 1, below, the standard's

costs, benefits, and compliance requirements are consistent with those

of other OSHA safety standards, such as the Hazardous Waste Operations

and Emergency Response (HAZWOPER) standard.

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

Number of Number of

Final rule date (FR cite) deaths injuries Annual cost Annual cost

Standard (CFR cite) prevented prevented first five next five

annually annually yrs (mill) yrs (mill)

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

Grain handling (1910.272) 12-31-87 (52 FR 49622) 18 394 5.9 to 33.4 5.9 to 33.4

HAZWOPER (1910.120) 3-6-89 (54 FR 9311) 32 18,700 153 153

Excavations (Subpt P) 10-31-89 (54 FR 45,954) 74 800 306 306

Process Safety Mgmt 2-24-92 57 FR 6356 330 1,917 880.7 470.8

(1910.119)

Permit-Required Confined 1-14-93 58 FR 4462 54 5,041 202.4 202.4

Spaces (1910.146)

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

OSHA assessed employee risk by evaluating exposure to marine cargo

handling hazards. The Agency acknowledges that some industries covered

by the proposed revisions of the Longshoring and Marine Terminal

standards have more documented marine cargo handling injuries or

fatalities than do others. OSHA does not believe that the risk

associated with exposure to marine cargo handling related hazards

varies according to the number of incidents documented for a particular

SIC code. OSHA has set the scope of the proposed revisions of the

Longshoring and Marine Terminal standards to address those situations

where employees are exposed to marine cargo handling hazards,

regardless of the relative frequency of incidents. The Agency believes,

based on analysis of the elements of the hazards identified, there is

sufficient information for OSHA to determine that employees in the

covered sectors face significant risks marine cargo handling

activities. Therefore, the Agency has determined that all employees

within the scope of the proposed standard face a significant risk of

material harm and that compliance with the proposed revisions of the

Longshoring and Marine Terminal standards is reasonably necessary to

protect affected employees from that risk.

IV. Review of General Industry Standards for Longshoring Operations

Applicability

Of all the work environments OSHA regulates, the shipboard

workplace ranks high among those that do not track easily with many of

the regulations that comprise 29 CFR part 1910 (General Industry

standards). For instance, subjects such as scaffolding; powered

platforms; power presses; wood working machinery; abrasive wheels;

forging machines; pulp and paper mills; bakery equipment; laundry

machinery; sawmills; logging; telecommunications; and spray painting,

all of which receive comprehensive discussion within the text of part

1910, are virtually non-existent concerns in shipboard longshoring

operations. Essentially longshoring is a transport industry and, as

such, is free from many of the hazards found in general industry.

Accordingly, these provisions are not included in this proposed rule.

In some areas where there is current coverage in part 1918, there

is similar coverage in part 1910. OSHA's primary concern is to make

sure that the 1910 provisions needed to supplement the 1918 coverage

are included in the proposal. For instance, subjects such as ladders;

slings; conveyors; industrial trucks; cranes and personal protective

equipment, which are fully addressed within part 1910, are presently

addressed with a specific regard for the maritime workplace, within

OSHA's current Longshoring rules. This proposal seeks to update and

revise the existing part 1918 and in some instances has relied in

substantial measure upon part 1910 language. In other instances, such

as when addressing container and roll on/roll off operations, entirely

new concepts have been developed to take account of the sometimes

unique operational aspects of the modern stevedoring community.

Where the hazards present in shipside cargo handling are directly

parallel to those encountered in the shoreside aspect of marine cargo

handling, such as in sanitation considerations, OSHA is proposing that

the language of provisions designed to address such shoreside hazards

be the same as in the Marine Terminal standards in 29 CFR part 1917.

Interested parties are requested to submit any information related

to the coverage of this proposed revision of the Longshoring rules. For

example, are specific hazards adequately addressed in this proposal?

Are longshore worker exposed to safety and health hazards which this

proposal does not adequately address? Have unnecessary provisions been

included in the proposal? Are there any areas of general industry

coverage that have not been included in the proposal that should be?

OSHA would particularly appreciate information on these issues.

V. Summary and Explanation of the Proposal

Subpart A--Scope and Definitions

Section 1918.1 Scope and applicability. Proposed Sec. 1918.1

describes the scope and applicability of the Longshoring standard. The

Longshoring rules apply from the foot of the gangway up, to include all

cargo handling related activities aboard a given vessel. It is

important to remember, however, that in ship to shore/shore to ship

cargo transfer operations using shore based material handling devices,

all lifting device specific aspects of such transfers will be covered

by the part 1917 rules. When cargo transfer is accomplished using

ship's cargo gear, the part 1918 rules shall apply.

In keeping with the concept outlined in the foregoing section of

this preamble (II. General Format of the Standard), certain selected

provisions currently found in OSHA's part 1910 standards have been

identified to have application to shipboard longshoring operations.

Sections 1918.1(b)(1) through (4), (b)(6) through (8), and (b)(10)

through (12) provide coverage for hazards for which the marine cargo

handling industry is neither unique nor different from other

industries. These hazards are not otherwise addressed by existing

maritime standards. The hazards addressed by Sec. 1918.1(b)(5) (Tools)

and (b)(9) (Machine Guarding), on the other hand, are addressed by

existing maritime standards but do not receive the comprehensive

treatment afforded by part 1910, subpart P, (Hand and Portable Powered

Tools and Other Hand-Held Equipment) and subpart O, (Machinery and

Machine Guarding).

OSHA is proposing to delete the current requirements for hand

tools, Sec. 1918.72, titled Tools, and replace it with Subpart P of 29

CFR part 1910, titled Hand and Portable Powered Tools and Other Hand-

Held Equipment. OSHA believes that the general Industry Subpart P

regulations are more comprehensive and afford better protection. OSHA

proposes to do the same in the Marine Terminal regulations by replacing

the paragraphs under the sections heading Hand tools, Sec. 1917.51 and

replacing them with 29 CFR 1910 subpart P.

For the same reasons, OSHA is also proposing to remove the

requirements under Sec. 1917.151 titled Machine guarding, and replace

them with Subpart O of the General Industry standards, part 1910,

titled Machinery and Machine Guarding. OSHA is also proposing to

include Subpart O, Machinery and machine guarding, to the Scope and

Applicability section of part 1918.

OSHA promulgated the hazardous waste operations and emergency

response (HAZWOPER) standard on March 6, 1989 (54 FR 9294). OSHA'S

decision to cover all emergency response was based upon the high risk

associated with emergency response by untrained and unprotected

employees and the need for proper training and equipment to be provided

for emergency response to hazardous substance releases. This standard

currently applies in its entirety to shipboard longshoring operations.

HAZWOPER divides emergency response into three separate areas: (1)

Response at uncontrolled hazardous waste sites (Sec. 1910.120(l)); (2)

response at Resource, Conservation and Recovery Act of 1976 (RCRA), as

amended, facilities (42 U.S.C. 6901 et seq.) Sec. 1910.120(p)(8); and

(3) response to emergency hazardous substance releases not covered by

the previously noted paragraphs Sec. 1910.120(q). Since the activities

described in the first two areas of the HAZWOPER standard do not

represent marine cargo handling activities within the scope of part

1917 or part 1918, OSHA is proposing to only apply Sec. 1910.120(q) to

longshore (part 1918) and marine terminal operations (part 1917).

Paragraph (q) covers employees engaged in toxic substance emergency

response no matter where it occurs. This paragraph, essentially,

requires employers to develop and implement an emergency response plan

to handle anticipated toxic substance emergencies prior to the

commencement of emergency response operations. If employers decide to

evacuate their employees from the danger area when an emergency occurs

and do not permit their employees to assist in handling the emergency,

they are exempt from the requirements of this paragraph if they provide

an emergency action plan and meet other requirements in accordance with

Sec. 1910.38(a) which states:

The emergency action plan shall be in writing * * * and shall

cover those designated actions employers and employees must take to

ensure employee safety from fire and other emergencies.

Simply stated, if an employer decides ``not to fight a fire''

(i.e., not to respond to an emergency), then Sec. 1910.120(q) does not

apply but Sec. 1910.38(a) does.

OSHA is proposing to delete the current requirements for hand

tools, Sec. 1918.72, titled Tools, and replace it with subpart P of 29

CFR Part 1910, titled Hand and Portable Powered Tools and Other Hand-

Held Equipment. OSHA believes that the general Industry subpart P

regulations are more comprehensive and afford better protection. OSHA

proposes to do the same in the Marine Terminal regulations by replacing

the paragraphs under the sections heading Hand tools, Sec. 1917.51 and

replacing with 29 CFR part 1910 subpart P.

For the same reasons, OSHA is also proposing to remove the

requirements under Sec. 1917.51 titled Machine guarding, and replace

them with subpart O of the General Industry Standards, part 1910,

titled Machinery and Machine Guarding.

Proposed Sec. 1918.2 carries over many of the definitions from the

current Longshoring regulations. However, there are some new

definitions or some modifications to existing definitions that reflect

changes in current custom and practice in the Longshore industry.

For example, the term ``designated person'', which is not used in

the current longshore regulation, is used in this proposal. The term is

used to identify a person who has a special skill in a particular area

and has been so noted by the employer. Because of this skill, this

employee is assigned to perform specific tasks in this area of

expertise. While the concept of ``designated person'' is found

throughout the current requirements, it is expressed in many different

ways. This proposal tightens up the use of this concept by its

consistent use of the term ``designated person'' throughout the

standard. Some examples of the use of the term are: Sec. 1918.51(b)

requires that a designated representative, in lieu of the employer,

shall inspect vessel's cargo gear before use and at intervals during

use; and Sec. 1918.55 (c)(7) where a designated person is one with

knowledge in crane operations, specifically when using two or more

cranes to hoist in unison, along with knowledge in rigging.

In addition, the current references to the ``Federal maritime

jurisdiction'' and ``navigable waters'' in the definitions of

``employee'' in paragraph (e) and ``employer'' in paragraph (f) are

being dropped. The current rules were originally promulgated under the

Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941) for

which the navigable waters was a jurisdictional prerequisite. With the

promulgation of the OSH Act, which applies to private sector employment

in workplaces in a covered jurisdiction, however, such a prerequisite

was no longer necessary. Therefore, OSHA is proposing to update these

rules by eliminating the reference to navigable waters in this

definition.

Additionally, several new or substantially revised definitions are

found in paragraphs (d), (g), (h), (j), (k), and (n) of this section.

The definitions for enclosed space and fumigant are added to this

section for clarity since these terms are used in the standard. In

addition, they are virtually identical, with the exception of the

examples, to those found in the Marine Terminal standards. The term

``hazardous cargo'' has been expanded to reflect the Marine Terminal's

definition of ``hazardous cargo, materials, substance or atmosphere.''

This definition goes beyond the current part 1918 definition by

including references to subpart Z as well as oxygen-deficient

atmospheres. Additionally, it is, in turn, consistent with the

Hazardous Communication standard found at 29 CFR 1910.1200. Another new

definition is integral to the major impetus for revising part 1918, as

discussed above: ``intermodal container.'' The definition for

``intermodal container'' reflects both the definition found in the

International Labor Organization (ILO) Code of Practice for Safety and

Health in Dock Work, (Ex. 1-135) and the definition found in

International Standards Organization (ISO) Standard 830, Freight

Containers-Terminology, (Ex. 1-134). This definition is also being

proposed to replace the current definition for ``intermodal container''

found in the Marine Terminal standard, Sec. 1917.2(u).

The definitions of ``dockboards'' and ``ramps'', currently found in

the Marine Terminal standard, are being proposed for Longshoring, as

well, with minor modification.

Certain definitions currently in part 1918 would be deleted.

Existing definitions referring to the existing Sec. 1918.13,

certification of shore-based material handling devices were deleted

because they were superseded by the Marine Terminal standard. The

existing definition of the term ``shall'' is being deleted as

unnecessary.

Subpart B--Gear Certification

A. Section 1918.11 Gear certification. Since 1960, safety and

health regulations designed to protect U.S. dockworkers (with

particular regard to vessel's cargo handling gear) have relied upon the

documentary proofs of tests and examinations mandated by International

Labor Organization (ILO) Convention 32 (Ex. 1-34). In Article 9 of that

Convention, units and articles comprising ship's cargo handling gear

are enumerated and assigned an annual/quadrennial schedule of tests/

examinations that must be attended and attested to by individuals

judged to be ``competent'' by the national authorities of the vessel's

registry. Although not a signatory to that Convention, the United

States has conformed to this Convention via regulation promulgated by:

(1) the U.S. Coast Guard, with regard to inspected U.S. flag vessels;

and (2) OSHA, with regard to foreign flag vessels (Sec. 1918.12). The

Coast Guard has promulgated cargo gear regulations that exceed those

found in Convention 32, namely 46 CFR part 91, that promote safe and

unencumbered operations for U.S. flag vessels trading at foreign ports.

On foreign flag vessels trading at U.S. ports, however, OSHA has sole

responsibility for regulating and enforcing rules that address the

cargo gear U.S. longshore workers utilize.

Under Convention 32, proof load testing\1\ was only required

initially before being taken into service. Thereafter, components such

as derricks, goosenecks, mast bands, derrick bands and any other

difficult to disassemble fixed gear, were to be ``thoroughly examined''

every four years and ``inspected'' every 12 months. Other hoisting

machinery, such as cranes, winches, blocks, shackles, and any other

accessory gear, were to be ``thoroughly examined'' every 12 months.

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

\1\Proof load testing, as used here, means lifting an known

weight that is in excess of the safe working load (SWL) of the

lifting appliance being tested.

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

Under Convention 32, the vessel's cargo handling gear was proof

load tested initially, and then perhaps never again. After that initial

test, such gear received various degrees of visual scrutiny,

complemented on some occasions by non-destructive testing, i.e., a

hammer test.

Convention 152, adopted June 25, 1979, requires that such proof

load testing is to occur at least every five years, and applies to all

ship's lifting appliances. Within Article 3 of the new Convention, the

term ``lifting appliance'' is defined as follows:

Lifting appliance covers all stationary or mobile cargo-handling

appliances, including shore-based power-operated ramps, used on

shore or on board ship for suspending, raising or lowering loads or

moving from one position to another while suspended or supported.

(Ex. 1-5, pg.2)

Thus, the extent of cargo handling equipment found aboard ship

requiring testing and certification, heretofore restricted to specific

assemblies and components (i.e., derricks, cranes, winches, etc.) is

being expanded in this proposal to include all ``lifting appliances''

under the terms of the newer ILO Convention. This would include

forklifts and other powered industrial equipment used to handle cargo

that might be carried by a Ro-Ro vessel; and elevators found on Ro-Ro

vessels used to move cargo from one deck level to another--in addition

to vessel cranes and derricks. Under this proposal in Sec. 1918.11, all

this equipment would be required to be tested and thoroughly examined

initially before being put into use; retested and thoroughly examined

every five years; and thoroughly examined every 12 months.

In those situations where one container is used to lift another

container, using twist locks, then the upper container and twist locks

become, in effect, a lifting appliance and must be certified as such.

International Aspects

As is the case with all Federal agencies whose regulations impact

international trade, OSHA has developed this proposal in light of

international considerations. Through both law and policy, the United

States has decided that standards-related activities shall not

unnecessarily be a barrier to trade. The Trade Agreements Act of 1979

(19 U.S.C. 2501 et seq). addresses technical barriers to trade with

regard to federal regulation. This Act states in Title 19 of the U.S.

Code as follows:

Sec. 2532. Federal standards-related activities

No Federal Agency may engage any standards related activity that

creates unnecessary obstacles to the foreign commerce of the United

States, * * *.

(1) Nondiscriminatory treatment. * * *

* * * * * * *

(2) Use of international standards.--

(A) In general. * * * each Federal agency, in developing standards,

shall take into consideration International standards and shall, if

appropriate, base the standards on International standards.

Additionally, and consonant with this country's position on

barriers to international trade, the United States is a signatory to

the Multilateral Convention on the Facilitation of International

Maritime Traffic (1965) (Ex. 1-3). As a contracting government, the

United States has agreed to:

* * * Undertake to cooperate in securing the highest practicable

degree of uniformity in formalities, documentary requirements and

procedures in all matters in which such uniformity will facilitate

and improve international maritime traffic and keep to a minimum any

alterations informalities, documentary requirements and procedures

necessary to meet special requirements of a domestic nature.

(Article 3)

Mindful of these international aspects, OSHA sought to formulate an

acceptable approach to the vessel's cargo handling gear issue, and to

other issues. The Agency requested the Department of State (Ex. 1-7) to

present OSHA's tentative approach to all foreign nations whose flags

may enter U.S. ports. This exercise was conducted in hope of

ascertaining global acceptance. Reports back from responding foreign

nations (Ex. 1-6) indicated overwhelming support for the Agency's

approach to these issues, and OSHA has incorporated it in this

proposal. Most nations, although stipulating that they had not as yet

ratified the more recent ILO Convention, indicated that national laws

recently ratified or those currently in the legislative process were at

least as strong, and in some cases more stringent, than Convention 152.

In consideration of this widespread international acceptance of ILO

Convention 152's approach to testing and certification of cargo gear,

OSHA has decided to propose it in this revision of the Longshoring

standards. The Agency is interested in any additional comment on this

issue that interested parties may be in a position to offer.

Subpart C--Means of Access

Section 1918.21 Gangways and other means of access. This proposed

section joins together two similar sections (Sec. 1918.11--Gangways and

Sec. 1918.21--Gangways and Other Means of Access) of OSHA's current

Longshoring rules. Clarity is improved in that rules addressing the

same specific issue will no longer be situated in two different

subparts of part 1918. As is the case in the current rules, gangway

dimensions and characteristics are set out in proposed paragraph (a) to

provide the safe access to vessels necessary for longshore workers. By

using a blend of specification with performance based alternatives, the

proposal lends the flexibility needed in accommodating foreign vessels.

Language has been added that allows the use of materials that have been

developed since the current rule was written, as long as the material

has a strength equivalent to those that are listed.

Proposed paragraph (b) carries over language from the current

rules, as well as the term ``trimmed'' found in the Joint Maritime

Safety Code of the New York Shipping Association/ International

Longshoremen's Association (NYSA/ILA Safety Code) (Ex. 1-2) part M,

paragraph 1), and requires that despite changing conditions brought

about by tides, cargo operations, etc., the gangway and its components

must be wholly serviceable.

Proposed paragraphs (c) through (k) are similar to the language

found in the current rules. Some paragraphs have been modified to

address some problems associated with the current language. Paragraph

(d) has been modified to require a safety net or suitable protection

when the gangway overhangs the water in such a manner that there is a

danger of employees falling between the ship and the dock. The net is

required to prevent an employee from falling to a lower level. This is

consistent with ILO'S ``Safety and Health in Dock Work,'' (Ex. 1-138).

A new paragraph (i) has been added to address the hazard associated

with slippery handrails and walking surfaces on gangways. Paragraph (j)

references Sec. 1918.92 for illumination requirements on a gangway. In

summary, these paragraphs address the requirement for a safe passage

from the dock to the deck.

Proposed paragraph (l) recognizes the U.S. Coast Guard's authority

relating to jurisdictional matters aboard vessels having a current and

valid certificate of inspection. Notwithstanding, for the purpose of

this rule, if access is attained other than by the vessel's regular

gangway, that access shall conform to the entirety of this section.

Proposed Sec. 1918.22 carries over language from the current rules.

Both paragraphs of this section contain the standard universal criteria

for rope ladders, also known as ``Jacob's ladders'', namely, that such

ladders be either double-runged or flat-treaded, so as to provide a

more substantial tread surface; that they be well maintained and

properly secured to available fittings; and that they not be permitted

to hang from their lashing points with slack in them.

It is often the case that such ladders are provided by the vessel

when a more traditional means of access cannot be utilized.

Notwithstanding, under these proposed rules the employer (who is often

a contractor rendering a service to the vessel) must comply with this

proposed section before employees are permitted to use these ladders.

Proposed Sec. 1918.23 also carries over language from the current

rules. Paragraph (a) sets out criteria for ramps used to gain vehicular

access to or between barges. Of primary importance is that such ramps

be of sufficient strength for the intended load. These ramps must be

equipped with sideboards that will prevent vehicles from falling. They

must also be well maintained and properly secured during use.

Paragraph (b) addresses employee passage to and from certain

floating craft. Under favorable conditions, it is sometimes possible to

pass to and from such vessels without the aid of any device. In other

than favorable conditions, however, this paragraph sets forth the

criteria to provide safe passage. Of significant importance is the

exception included at the end of the paragraph. That exception

recognizes practical difficulties encountered on the Mississippi River

system in providing traditional means of access on all occasions. When

originally promulgated in 1960, the longshore rules (Ex. 1-39) took no

cognizance of these special difficulties. In 1965, the Labor Standards

Bureau published the following proposed clarification, (Ex. 1-40):

In order to provide practical solutions in cases where current

requirements cannot be met, because of local river and bank

conditions (this section) should be amended by the addition of a

provision. (p.7609)

A provision to that effect was published in the Federal register in

final form on May 21, 1966 (Ex. 1-41). Historically (Ex. 1-98), this

exception has been based on tidal and current conditions on the

Mississippi system (see definition at proposed Sec. 1918.2(s)). OSHA's

experience has thus far concluded that such exceptional conditions

prevail only on this inland system; however, the Agency solicits

comments from interested individuals with other information on this

issue.

A sentence has been added to proposed Sec. 1924.23(c) that requires

no more than two Jacob's ladders for any single barge, raft, or log

boom being worked. This proposal is consistent with the requirements in

Sec. 1918.25(a) which requires a maximum of two access ladders in a

hatch. The term ``gang'' is used here and several other places in this

proposal. It refers to a group of longshore persons that are assigned

to a particular hold, deck, etc. on a ship for the purpose of loading

or discharging cargo.

A new paragraph (e) has been added to this section to address the

problem associated with the lower rungs of a Jacob's ladder being

crushed between the barge and another structure by requiring that a

spacer or equivalent means be used to prevent it from occurring. If the

lower rungs are crushed, this could cause an employee to fall between

the barge and other structure.

Another new paragraph (f) has been added to this section. This

paragraph requires the a net or equivalent protection if there is a

space between the vessel, barge or other structure when using a Jacob's

ladder to prevent an employee from falling into the water.

Proposed Sec. 1918.24 combines the current language of the existing

longshore provisions for bridge plates and ramps with the terms that

apply to similar shoreside equipment within 29 CFR part 1917 (Marine

Terminals, Sec. 1917.124).

In the adoption of such parallel rules, OSHA hopes to enhance the

uniformity of regulation that is critical to safety performance both

shipboard and shoreside. Throughout this proposal, the Agency has

attempted to foster such uniformity and requests comments as to how

this goal can be better achieved.

Paragraphs (a)(1)(iv) and (b)(1)(v) would be revised to require

sideboards that are at least 6 inches (.16 m) high. This height is the

same as found for bull rails that were in place at the time of the

effective date of the Marine Terminal standard, found in Sec. 1917.112.

OSHA believes that specifying the height of the sideboards will provide

the necessary protection to prevent vehicles and equipment from

accidently falling off the edge. OSHA requests comment from the public

concerning appropriateness of the height of the sideboards. OSHA is

also proposing to require the same 6 inch (.16 m) sideboards for

dockboards and ramps that are in the Marine Terminal standard,

Sec. 1917.124.

Proposed Sec. 1918.25 combines the current requirements for

portable ladders contained in the existing Longshoring rules with the

similar rules of Sec. 1917.119. For fixed ladders, however, there is a

distinction between the proposed and current Longshore standard which

has to do with clearance in back of the ladder rungs. The existing

requirement is 4 inches (.11 m), but the proposed clearance is 6 inches

(.16 m), which reflects the current ILO Standard.

Consistent with ILO's Guide to Safety and Health in Dock Work, (Ex.

1-129), OSHA is proposing that vessels built after December 5, 1981,

(the date when ILO Convention 152, Occupational Safety and Health in

Dock Work was put into effect), have a 6-inch (15 cm) clearance between

the ladder and the surface to which it is fastened. Vessels built prior

to December 5, 1981, however, may have a 4 inch (10 cm) clearance

between the ladder and the surface to which it is fastened. OSHA

encourages comment on this issue. (It should be noted where a fixed

ladder has inadequate clearance, a suitable portable ladder could be

used.)

Generally, proposed Sec. 1918.25 includes much of the current

language for ladders with some modifications. Provisions have been

added that reference ANSI standards for manufactured portable ladders.

There are also proposed provisions for ladder maintenance and usage

that are similar to what is in the Marine Terminals standard, but are

new to Longshoring.

In paragraphs Sec. 1918.25(c) and (e) the phrase ``positively

secured against shifting or slipping'' has been changed to ``positively

secured or held against shifting or slipping while in use''. This

change acknowledges that a worker(s) may hold a portable ladder in

place while another worker is climbing the ladder in situations where

the ladder cannot be secured and is consistent with the PMA-ILWU Safety

Code, Rule 1506 (Ex. 1-145).

In addition, for the purpose of clarifying paragraph (e), where the

employer can demonstrate that employees can safely use the cargo itself

to climb in and out of the hold (often referred to as ``safe cargo

steps''), a straight ladder is not necessary.

Paragraph (j)(8) on, ladder usage, acknowledges that while some

ladders may not have slip-resistant bases, they can be readily secured

by lashing them in place to prevent slipping or shifting when being

used.

Subpart D--Working surfaces

OSHA clearly understands that many of the falling hazards addressed

in part by this and other subparts, represent working environments and

physical characteristics no longer observed with the type of frequency

that was the case when the current Longshoring rules were last revised.

Nonetheless, conventional cargo handling methods together with more

traditional vessel designs are still encountered at U.S. ports. For

this reason, OSHA proposes to retain current provisions that still have

application.

As an example, proposed Sec. 1918.31(c) prohibits employers from

allowing work to be conducted on surfaces comprised of missing, broken

or poorly fitting hatch covers. Currently, it is relatively rare to

experience a vessel trading at U.S. ports, fitted with the type of

removable hatch covers this provision addresses. Despite that rarity,

such situations do arise.

Proposed Sec. 1918.31(d) prohibits the placing of poorly fitting

hatch covers and hatch beams that would constitute a work surface. As a

practical matter, it is rare to see vessels at U.S. ports fitted out

with hatch beams. In those instances, however, identifying marks are

usually permanently fixed to such equipment. Those marks correspond to

marks found on receptacle fittings on the vessel proper. In all cases,

notwithstanding the presence of corresponding marks, the employer must

make sure that all hatch beams and covers are seated securely,

providing a strong and stable work surface.

Proposed Sec. 1918.32(a) carries over language from the current

Longshoring rule. Frequently cargo must be landed on temporary

surfaces, generally presented by other cargo stows, prior to its

ultimate place of rest. When this is so, it is important that employees

have enough available space to work in safety upon such a surface, and

that the temporary table is strong enough to safely support the loads

being imposed. There are obviously many strength and size

possibilities, which will be dictated by the size and weight of the

drafts being landed.

Proposed Sec. 1918.32(b) has been revised to address changes that

have occurred in technology and work practices. Employees working on

the tops of containers are now covered by Sec. 1918.85(j), Container

top safety. (For a full discussion see the preamble to Sec. 1918.85(j)

below). When employees working in cargo holds, are exposed to falls of

more than 8 feet (2.4 m), the edge of the working surface must be

guarded by a safety net, or must be otherwise rendered safe (such as by

providing guardrails or fall arrest systems) to prevent employee

injury. It should be noted that proposed Sec. 1918.32(b) does not

include employees working on the top of intermodal containers in a hold

as this is also covered under Sec. 1918.85(j).

Of prime importance is that the intent of this provision is

satisfied, rather than providing just the appearance of compliance.

Many times, particularly when safety nets have been rigged, they have

been allowed to become very slack, and have sometimes been secured only

at their top ends. The improper rigging of safety nets compromises or

even removes the protection provided to falling employees. In these

very critical fall hazard situations, this provision insists that fully

considered precautions are taken. The Pacific Coast Marine Safety Code

(PCMSC) Rule 1016 (Ex. 1-145) is very similar in construction.

This paragraph has also been revised to distinguish between the

purpose and use of vertical safety nets, which rise at right angles at

the perimeter of a work surface thus preventing employees from falling,

and trapeze nets, which are designed to be placed horizontally below a

raised work surface to prevent falling employees from striking the

surface below. Additionally, this section requires that any nets used

for purposes of fall protection meet the applicable requirements.

Proposed Sec. 1918.33(a) and (b) are carried over from the current

Longshoring rules. As the heading of this section indicates, these

provisions address the safe performance of work on or around deck

loads. Provisions for work performed by employees atop deck-stowed

intermodal containers will be found at proposed Sec. 1918.85(j).

OSHA is proposing to change the title and text of Sec. 1918.34. The

current title of this section is ``Skeleton decks.'' OSHA has

consulted, without success, numerous individuals from the maritime

community and researched several maritime publications, textbooks, etc.

in an effort to define the terms ``skeleton deck'' and ``mechano

deck.'' OSHA feels that the use of these terms and the practice of

working cargo on these particular types of decks are obsolete. Since

the hazards remain even though these terms do not, OSHA is proposing to

change the title of the section to ``Other decks'' in order to group

unique or uncommon decks; using generic language to address the hazards

associated with landing cargo on such decks that are not designed for

such use. OSHA encourages the public to comment on whether the terms

``skeleton deck'' and ``mechano deck'' should be kept in the text of

the standard and on whether these provisions are necessary.

Proposed Sec. 1918.35 addresses hazards longshore workers face when

conducting operations around open weather deck hatchways. Vessels

calling at U.S. ports are of varied designs and capabilities. Some

vessels have coamings, which are the vertical structure that surrounds

the hatch opening on a ship, that are substantially higher than the

proposed section's minimum acceptable range (36 to 42 inches) (.92 to

1.07 m) other vessels may have no hatch coamings at all, but rather

flush decks or decks with an abbreviated sill, which present

substantial fall hazards to longshore workers. On such vessels, when

workers work around the perimeter of open hatchways, appropriate

guarding must be provided. This proposal stipulates that taut lines or

guardrails attaining the acceptable range be erected on all but the

working side of the hatch. This proposal mandates that stanchions or

uprights used in their construction be supported or secured in a manner

that will prevent them from coming accidentally loose.

Proposed Sec. 1918.37 addresses the fall hazards associated with

working on the decks of lighters and barges. Proposed paragraph (a)

retains language from the current rule. It prohibits the use of

marginal (less than 3 feet (.92 m) wide) deck space along the sides of

covered lighters or barges on all such vessels having coamings over 5

feet (1.5 m) high. Alternately, an employer must provide a taut

handline or, as is most often the case, the vessel must be fitted with

a serviceable grab rail.

Proposed paragraph (b), also retains language from the current

rule. It prohibits working or walking on unsound surfaces. This can be

a particularly important consideration on barges, in that powered

industrial trucks are often brought aboard to assist in operations. The

proposed rule requires a visual check of such decks before loading

operations begin. If during the course of discharge operations an

unsafe surface is discovered, work must be discontinued until

protective measures are taken (such as bridging the unsafe surface with

steel plate or barricading a deck section deemed unsafe).

Proposed Sec. 1918.38, as well as Sec. 1918.88 titled ``log

operations'' are entirely new sections addressing log loading

operations and reflect current industry practice. Section 1918.38 is

based on Rules 640 and 641 of the PCMSC (Ex. 1-145); on a report on log

operations submitted to OSHA's Maritime Safety Standards Office by

Region X (Ex. 1-146); and a training video on log operations produced

by the PMA and ILWU (Ex. 1-147). Loading logs from water presents very

serious falling and drowning hazards. Thus, safe walking working

surfaces are extremely important to longshore workers who are

positioned offshore during log loading operations. Sound footing is

essential during access to and while working on log rafts, which are in

fact the cargo. The proposed requirements provide for safe access to

the worksite and a safe working surface area. The working surface must

be wide enough to allow for stable footing, securely fastened together,

and substantial enough to support the weight of the employees on it.

OSHA has concluded that the basic requirements for providing such safe

surfaces should be included in this rulemaking, and seeks comment on

their completeness.

Subpart E--Opening and closing hatches

Proposed Sec. 1918.41 addresses coaming clearances and provides

requirements to protect longshore workers from fall hazards and from

being struck by falling cargo during the process of opening up and

closing hatches. Proposed paragraph (a) addresses weather deck

clearances. When a smooth-sided deck load is stowed within 3 feet (.92

m) of the hatch coaming, and the available coaming height is -TWA of 50 ppm and a

TLV-STEL of 400 ppm for (CO) (Ex. 3-8). NIOSH (Ex. 3-1)

recommends an 8-hour TWA limit of 35 ppm and a 200 ppm ceiling. For

both Longshoring and Marine Terminals, OSHA is proposing to lower the

PELs for CO to 35 ppm (8-hour TWA) and is proposing a 200 ppm (ceiling,

measured over 5 minutes) in outdoor, non-enclosed spaces. OSHA is

proposing to retain the 100 ppm ceiling for CO in enclosed spaces in

Marine Terminals and Longshoring. NIOSH concurs (Ex. 3-2) that the

proposed limits are appropriate.

Carbon monoxide is a flammable, colorless, practically odorless

gas. It is used as a reducing agent in metallurgical operations, in the

manufacture of metal carbonyls and zinc-based white pigments, and as a

chemical intermediate. Most occupational exposures to this ubiquitous

substance are the result of the incomplete combustion of organic

material (HSDB 1990; Ex. 3-18).

Carbon monoxide has caused a large number of industrial fatalities

as a result of its tendency to combine readily with hemoglobin to form

carboxyhemoglobin (COHb). The Immediately Dangerous to Life and Health

(IDLH) level for carbon monoxide is 1500 ppm (Ex. 3-3). At levels above

this, workers quickly lose consciousness; if exposure is not terminated

immediately, death by asphyxiation follows quickly.

In experimental animals, asphyxiation occurs when the air-borne

concentration of CO exceeds 3 percent (30,000 ppm) (HSDB 1990). CO also

causes reproductive and developmental effects in animals. The LD50

in rats is 1807 ppm for 4 hours (Ex. 3-4).

Excessive accumulations of COHb cause hypoxic stress in healthy

individuals as a result of the reduced oxygen carrying capacity of the

blood. In patients with cardiovascular disease, such stress can further

impair cardiovascular function. A number of studies show that 8-hour

TWA exposures to 50 ppm carbon monoxide generally results in COHb

levels of 8 to 10 percent. Such levels are not generally associated

with overt signs or symptoms of health impairment in healthy

individuals with strong cardiovascular systems who are working under

nonstressful conditions. However, the ACGIH believes that a

TLV-TWA of 25 ppm, which results in COHb levels of 4 percent

or less, may be necessary to protect workers with cardiovascular

disease, because this condition places workers at higher risk of

serious cardiovascular injury (Ex. 3-8, p. 1106). The NIOSH REL of 35

ppm TWA is also aimed at protecting workers with chronic heart disease

(CHD); NIOSH believes that such workers should not be allowed to have

carboxyhemoglobin levels that approach 5 percent. In the part 1910 air

contaminants rulemaking, several commenters questioned the need to

lower the 8-hour TWA and to add a STEL.In response to these commenters,

OSHA quoted the ACGIH (Id.):

Each molecule of CO combining with hemoglobin reduces the oxygen

carrying capacity of the blood and exerts a finite stress on man.

Thus, it may be reasoned that there is no dose of CO that is not

without an effect on the body. Whether that effect is physiologic or

harmful depends upon the dose of CO and the state of health of the

exposed individual. The body compensates for this hypoxic stress by

increasing cardiac output and blood flow to specific organs, such as

the brain or the heart. When this ability to compensate is

overpowered or is limited by disease, tissue injury results

[emphasis added].

Exposure to CO sufficient to produce COHb saturations in the 3-

5% range impairs cardiovascular function in patients with

cardiovascular disease and in normal subjects. * * * The primary

effect of exposure to low concentrations of CO on workmen results

from the hypoxic stress secondary to the reduction in the oxygen-

carrying capacity of blood. * * * Workmen with significant disease,

both detected and undetected, may not be able to compensate

adequately and are at risk of serious injury. For such workers, a

TLV of 25 ppm * * * might be necessary. Even such a concentration

might be detrimental to the health of some workers who might have

far advanced cardiovascular disease. * * * It would appear to the

Committee that the time-weighted TLV of 50 ppm for carbon monoxide

might also be too high under conditions of heavy labor, high

temperatures, or at high elevations (Ex. 3-8).

Thus, the ACGIH also regards a lower limit for CO as necessary to

protect workers with cardiovascular or pulmonary disease or those

working under stressful conditions.

OSHA believes that it is clearly necessary to set a CO level that

protects workers who have CHD because (1) a large percentage of

employees have it, (2) it is often not diagnosed or diagnosable, and

(3) it is frequently fatal. The 35 ppm 8-hour TWA is designed to

protect employees with asymptomatic CHD. The term CHD is generally used

to refer to the process of atherosclerosis of the coronary arteries,

which leads to disturbances in the myocardial blood supply.

The general worker population in the United States is composed of a

very significant number of persons with CHD. Since the identification

of such persons in the absence of overt clinical symptoms is virtually

impossible, it is necessary to assume that the average worker has

asymptomatic CHD, especially when his/her first clinical symptom may be

sudden death (Ex. 3-1). Several studies demonstrate the significant

risk associated with CO exposure, particularly with respect to coronary

heart disease. A study of firefighters in Los Angeles (Ex. 3-10)

suggests that CO exposure during firefighting may be responsible for

the high incidence of heart disease in firefighters. In some fires,

peak exposures were occasionally as high as 3000 ppm CO, with 40

percent of peak values in the 100-to 500-ppm CO range. However, in some

fires, the peak CO exposure was below 100 ppm. Although these peak

exposures in firefighters were high, firefighters are likely to be

exposed overall for fewer hours than the workers of concern in this

rulemaking.

A prevalence study was recently performed on angina pectoris, ECG

changes, and blood pressure that involved 1,000 workers from 20

foundries (Ex. 3-11). A clear dose-response was found with regard to

the prevalence of angina (as obtained by history on a World Health

Organization-recommended questionnaire) and CO exposure in workers

(both smokers and nonsmokers).

NIOSH conducted a prospective cohort mortality study among 1,558

white male motor vehicle examiners who were employed in New Jersey for

a minimum of 6 months between 1944 and 1973 (Ex. 3-12). Industrial

hygiene surveys indicated that the examiners were exposed to carbon

monoxide at a time-weighted-average (TWA) of 10 to 24 ppm. Using a

modified life table technique, the expected deaths were compared to the

expected deaths through August 1973. The overall deficit of mortality

observed (SMR180) in this occupational cohort during the first 10-year

period was to be expected as a result of the widely accepted ``healthy

worker effect.'' However, the component SMR for cardiovascular disease

deaths (134) was unexpected, since the ``healthy worker effect'' had

been most significantly associated with decreased cardiovascular

disease mortality (Ex. 3-13). This evidence suggests that slightly

elevated COHb may contribute to excess cardiovascular disease rates in

a healthy population that is of average fitness (since the work is not

physically hard).

A recent study (Ex. 3-14) reviewed the epidemiological evidence for

an association between carbon monoxide and heart disease and concluded

that carbon monoxide exerts acute and possibly reversible short-term

effects that can increase the risk of cardiovascular disease.

In another recent study, male volunteers aged 35 to 75 with stable

exertional angina pectoris and positive exercise treadmill tests were

exposed to CO concentrations designed to cause 2.2 to 4.4 percent COHb

levels after exercise. The subjects performed a symptom-limited

exercise test on a treadmill, followed by exposure for 1 hour to CO,

and then performed a second treadmill test. All subjects who completed

the study (N=63) showed significant decreases in time to onset of

ischemic ST-segment changes; in the 2 percent COHb group, this change

equalled 5.1 percent, and in the 4 percent COHb group it averaged a

12.1 percent decrease (Allred, Bleecher, Chaitman, Dahms, Gottlieb,

Hackney et al. 1989, in Res. Rep. Hlth. Effect. Inst. 25:79).

As pointed out above, cardiovascular disease (detected or

undetected) and pulmonary impairment are widespread in the general

population in this country, in workers as well as other sub-

populations. In addition, OSHA is particularly concerned about the

adverse effects of CO because workers regularly encounter complex and

stressful situations at work, including heat stress, jobs demanding

heavy exertion, and tasks requiring both judgment and motor

coordination. OSHA standards are intended to protect workers of average

and below-average fitness and those who engage only intermittently in

heavy physical labor and who do not therefore receive the benefit of

physical conditioning.

OSHA thus has determined that, in Longshoring and Marine Terminals,

the proposed 8-hour TWA of 35 ppm for carbon monoxide is needed to

reduce the significantly increased risk of cardiovascular disease that

is associated with overexposure to CO. The Agency also believes that a

ceiling of 200 ppm in outdoors, non-enclosed spaces is necessary to

ensure that peak CO exposures are kept below the 1500 ppm IDLH level by

a reasonable safety factor. The ceiling limit will also assist in

keeping COHb levels below 5 percent; the ceiling will be measured over

5 minutes to permit the use of simpler monitoring techniques.

Based on this evidence, OSHA is proposing an 8-hour TWA of 35 ppm

and a ceiling of 200 ppm in outdoor, non-enclosed spaces as the PELs

for carbon monoxide in the longshoring and marine terminal industries.

In these industries, however, most employees regularly enter and work

in a compartment, hold, or other enclosed space, in which CO levels can

increase rapidly if uncontrolled. CO, therefore, presents an especially

great danger of death from IDLH levels of CO. Consequently, OSHA is

retaining the 100 ppm ceiling for CO in such spaces, as well as the

provision requiring monitoring of these spaces. The Agency would

continue to require that the employer monitor the ambient air within

any cargo space where internal combustion engines discharge their

exhaust. Therefore, when concentrations of CO in these enclosed spaces

reach 100 ppm, work shall be suspended and the workers removed from the

spaces. Work shall not resume until concentrations of CO, as determined

by actual monitoring, have been reduced to within the allowable limits.

The Agency believes that these limits will ensure that the COHb

levels of exposed workers (especially of non-smokers) in these sectors

are maintained at or below 5 percent, which will protect those workers

at greater risk because of cardiovascular or pulmonary impairment. In

addition, these revised limits will protect healthy workers in the

affected sectors who must work in environments involving intermittent

exertion, heat stress, or other strenuous conditions. OSHA believes

that these limits are necessary to substantially reduce the significant

occupational risk associated with both chronic and peak exposures to

carbon monoxide in the workplace. The hypoxic stress associated with

exposure to carbon monoxide clearly constitutes a material impairment

of health and functional capacity. For a more complete discussion of

these health effects see 57 FR 26371.

If natural or vessel supplied ventilation is not sufficient to

maintain levels within the allowable limits, the employer must utilize

supplemental methods until such levels are reached (generally

accomplished with portable blowers). It should be noted that the

proposed requirement deletes the language ``before work is resumed.''

This is to make the requirement reflect more clearly the actual

industry practices being employed to control exposure to CO through the

use of engineering controls. The longshoring work itself generates CO

through the use of the loading equipment. In reality, then, it is not

the circumstance that 100 ppm is routinely reached, the hold is cleared

of workers, supplemental blowers are used to clear the air and then the

workers return to work. Rather, when a sustained build-up of CO is

detected, even at much lower levels, the supplemental blowers or other

additional means are employed to maintain the exposures to within the

allowable limits.

Portable ventilating equipment must be guarded to prevent employee

injury, and they must be effectively grounded by a grounding conductor

run with or enclosing the circuit conductors. In situations where

portable ventilating equipment is run by vessel supplied power, the

grounding conductor must be bonded to the structure of the vessel.

Given the shipboard environment, careful attention must be paid to the

electric cords of portable equipment, making certain they are not worn

or otherwise unserviceable.

OSHA is proposing to retain the requirement for recording tests of

the atmosphere. The stevedoring community is successfully using such

testing logs as a frame of reference in assessing atmospheric

conditions from one point in time to the next.

In proposed paragraph (b), OSHA addresses the longshoring hazards

associated with handling grain that has been treated with fumigants.

Grain is subject to infestation by insects and rodents during storage

and shipping. Fumigants used to control infestation can be liquid or

solid compounds that release poisonous gases and can be applied in the

form of sprays, fogs or gases or by direct contact (Ex. 1-104).

* * * these gases are harmful, possibly fatal, to humans as long

as they remain potent. Therefore, they constitute a safety hazard

from the time of application throughout the duration of their

potency--which may last for several days. (Id. p.36).

Here, OSHA would require that the employer determine whether or not

grain to be loaded or discharged aboard a vessel had been fumigated.

Such a determination shall be based on direct communication with

knowledgeable persons from both the grain elevator and the vessel.

When a cargo has been fumigated, an employer shall designate a

person (see Sec. 1918.2(c)), who is thoroughly familiar with the

characteristics of the fumigant being used and how to properly assess

contaminant levels; fully aware of the manufacturer of the fumigant's

use recommendations and warnings; and knowledgeable about the proper

personal protective equipment which must be worn to safely guard

against the possible effects of the fumigant. The designated person

must test the vessel's compartments after loading begins, but before

longshore employees (generally trimmers) enter. Subsequent tests must

be made to ensure that fumigant concentrations to exposed personnel

never attain levels that are beyond the allowable limits. Records of

those tests are retained by the employer for a period of 30 days.

Whenever the concentration in any compartment reaches the level

specified as hazardous by the fumigant manufacturer or by subpart Z of

29 CFR part 1910, whichever is lower, all employees shall be removed

from such compartments and shall not be permitted to re-enter until

such time as tests demonstrate that the atmosphere is within allowable

limits.

Consistent with Sec. 1917.25 of the Marine Terminal standard,

during emergencies or while tests are being undertaken in compartments

that have hazardous or unknown concentrations of fumigant, the

designated person entering the compartment must be properly outfitted

with personal protective equipment, (See criteria at proposed

Sec. 1918.94(b)(3)(v)), and must be observed while conducting such

tests by two standby employees, who are themselves properly outfitted.

The personal protective equipment used by the designated person and the

observers, will be required to be readily available wherever fumigated

grains are handled.

In situations where it is necessary to carry out insecticide or

pesticide treatment of a localized nature, such as in rodent control,

paragraph (b)(4) would require that employees conducting the treatment

and those that may be exposed to the chemical(s) applied, be equipped

with personal protective equipment that meets the specifications set

out by the manufacturer of the chemical(s) being used.

In proposing these rules covering fumigated grain cargoes, the

Agency has relied upon the existing rule for longshore employment (Ex.

1-39) but has also utilized the Agency's experience in promulgating the

general industry Permit-required Confined Space standard (29 CFR

1910.146, 58 FR 4549), together with accident data (Ex. 1-104) relating

to fumigated grain cargoes aboard ship. Finally, these rules are

further supported by similar provisions found in the Pacific Coast

Marine Safety Code (Ex. 1-145) and the U.S. Coast Guard's ``Interim

Regulations for Shipboard Fumigation,'' 46 CFR-147A (Ex. 1-105).

In proposed paragraph (c), the Agency proposes requirements for

handling cargoes of fumigated tobacco. Tobacco cargoes, both ported and

exported, are shipped most typically in bales, in hogsheads, and in

intermodal containers. OSHA's proposed Longshoring requirements apply

when cargoes are break-bulk, i.e., piece lots of bales or in hogsheads.

When such cargoes are containerized, OSHA addresses employee exposure

in the Marine Terminal standard (29 CFR 1917.25(g)).

In the case of break-bulk fumigated tobacco cargoes, the employer

would be required to determine (by written notification) if the cargo

has in fact been fumigated. If so, the employer would be further

required to obtain a written warranty from the fumigator(s) that the

cargo has been sufficiently aerated (concentration of fumigant is

within allowable limits.) OSHA notes that this practice is currently in

place at all longshore operations in the U.S. handling tobacco. In the

case of containerized shipments of fumigated tobacco, OSHA is proposing

new language that can be found in the proposed changes to the Marine

Terminal regulations, Sec. 1917.25(g), which is part of this proposal

and which is discussed in Section VI of this rulemaking.

Proposed paragraphs (d) and (e) remain virtually identical to the

existing provisions. Paragraph (d) involves a work practice to discover

hazardous exposures to fumigants of any cargo other than grain and

tobacco while paragraph (e) involves the use of personal protective

equipment to protect against heavy concentrations of dust.

Proposed paragraph (f) addresses operations aboard vessels engaged

in the menhaden trade. Menhaden is a term that refers to several

species of trash fish. Menhaden is used to produce, among other

products, fertilizer, pet food and fish oil. (See 46 FR 4213.) As cargo

to specialized menhaden marine terminals, menhaden presents a health

hazard to longshore workers when it decomposes, generating hydrogen

sulfide (H2S). As recently as 1987, a hydrogen sulfide incident

aboard a menhaden vessel led to serious injury and a fatality (Ex. 1-

80). OSHA's current limit for hydrogen sulfide in Marine Terminals is

20 ppm as an 8-hour TWA; the current Longshore standard is silent with

regard to both H22S and menhaden. The 1986 ACGIH TLVs

for hydrogen sulfide are 10 ppm as an 8-hour TWA and 15 ppm as a 15

minute STEL (Ex. 3-8); NIOSH has a 10-ppm, 10-minute REL for this

substance (Ex. 3-3). OSHA is proposing an 8-hour TWA of 10 ppm in

Longshoring and Marine Terminals with a STEL of 15 ppm. Promulgation of

these PELs will make OSHA's limits for hydrogen sulfide consistent with

the best available evidence on the hazards of H2S exposure.

Hydrogen sulfide is a colorless, flammable gas with the odor of

rotten eggs. It is widely used as a chemical intermediate, an

analytical reagent, and in the manufacture of ``heavy water''

(H2O2) in the utilities sector. In agriculture, it is used as

a disinfectant (HSDB 1985). It is also generated by the fermentation of

animal manure. Many farm workers have been exposed to this substance

while working in the vicinity of liquid manure storage pits and have

been asphyxiated as a consequence (Ex. 4-1). Hydrogen sulfide also is

encountered in natural oil and gas deposits and in sewers, caissons,

tunnels, and other construction sites (Grant 1986, p. 495). When used

in pesticidal applications and as directed on the label, this substance

is regulated by the EPA under the Federal Insecticide, Fungicide, and

Rodenticide Act (FIFRA). In longshoring, the hazard is brought about by

the generation of hydrogen sulfide gas, caused by the decomposition of

the menhaden (and similar species) catch.

Hydrogen sulfide's effects on experimental animals are similar to

those seen in exposed workers: conjunctivitis, pulmonary irritation,

acute poisoning, and death by chemical asphyxiation (Ex. 4-2). The

LD50 in mice is 673 ppm for 1 hour (Ex. 4-3). A number of

experiments have demonstrated that exposure to hydrogen sulfide

concentrations of 50 to 100 ppm for several hours (or sometimes longer)

causes damage to the corneal epithelium of dogs, cats, rabbits, and

guinea pigs; animals are believed to be somewhat less sensitive than

humans to hydrogen sulfide's ocular effects but may be more sensitive

to its pulmonary effects (Grant 1986, p. 1496).

When inhaled at concentrations exceeding 500 ppm, exposure to

hydrogen sulfide has caused respiratory paralysis and death. Acutely

poisoned individuals who recover may experience headaches, fatigue,

dizziness, and nystagmus; eventually, however, recovery is usually

complete (Ex. 4-4). The 1986 ACGIH Documentation (Ex. 1-3, p. 1318)

cites several reports (Ex. 4-6) of the occurrence of adverse ocular

effects, including conjunctivitis, caused by exposure to 20 ppm or less

of hydrogen sulfide. A study by Poda and Aiken (Ex. 4-7) reports that

the adoption of a voluntary limit of 10 ppm in two heavy-water plants

eliminated exposure problems at those facilities. An early study by

Flury and Zernik (1931f) reports that the conjunctivitis caused by the

exposure of volunteers to 10 to 15 ppm of hydrogen sulfide for six

hours endured for several days; however, this substance is not known to

have caused irreversible eye damage.The author of the best-known

general source on the toxicology of the eye (Grant 1986) states that

``where the concentration [of hydrogen sulfide] is regularly kept below

10 ppm in air, it is rare to have any irritation of the eyes'' (p.

1496). OSHA believes that the proposed STEL will ensure that

concentrations are maintained close to the 8-hour TWA and that

excursions above irritant levels are thus minimized.

Based on this evidence, OSHA believes that the current 10-ppm 8-

hour TWA limit alone does not adequately protect workers in Longshoring

and Marine Terminals against the adverse ocular effects associated with

exposure to concentrations of hydrogen sulfide above 10 ppm. OSHA

believes that the eye irritation and conjunctivitis associated with

such exposures represent a significant risk of material health

impairment to these workers because they may experience pain and other

ocular effects and be forced to seek medical treatment after such

exposures. OSHA is accordingly proposing an 8-hour TWA limit of 10 ppm

for hydrogen sulfide with a short-term limit of 15 ppm in these parts

1917 and 1918. Based on available information, the Agency has

determined that these limits are necessary to provide protection from

the significant risk of exposure-related ocular effects, including

conjunctivitis, corneal edema, and distortion of vision, associated

with occupational exposure to hydrogen sulfide.

Since the hazard this paragraph seeks to avoid is brought about by

the generation of hydrogen sulfide gas, caused by the decomposition of

the menhaden (and similar species) catch, the requirements are not

applicable to operations aboard vessels with operable refrigerated

compartments used to hold the catch. Paragraph (f) requires that tests

be performed before and during discharge, by designated personnel who

are trained and competent in their understanding of the potential

hazards involved within the catch hold(s). The test would include

assessments of hydrogen sulfide and oxygen content of the atmosphere(s)

within the hold(s). Employers would be prohibited from sending

employees into the hold(s) unless the hydrogen sulfide level was kept

below 10 parts per million on a time weighted average with a short term

exposure limit of 15 ppm measured over a 15 minute sampling period.

Oxygen levels must be maintained to at least 19.5 percent.

In arriving at these proposed requirements, OSHA utilizes

information that supported similar requirements for the shoreside

aspect of menhaden operations in the Agency's rules for Marine

Terminals (Sec. 1917.73; See discussion at 46 FR 4213). Also, in the

development of the proposed requirements, the National Fish Meal & Oil

Association was clearly supportive of the proposed regulatory posture.

In communications between that group and the Department of Labor, and

in memoranda to the association's membership (Ex. 1-56), it is clear

that industry practice is quite consistent with OSHA's proposal.

Proposed Sec. 1918.95 contains requirements for sanitary

considerations at all longshoring operations. OSHA believes that the

hazards associated with poor sanitation and sanitary practices are well

established and need not be elaborated here. The proposed provisions

are fully consistent with the current regulations for shoreside cargo

handling (Sec. 1917.127), providing the uniformity that is necessary

between the two segments of marine cargo handling. OSHA is proposing in

both Secs. 1917.127 and 1918.95 to include tables which specify the

number of toilet facilities according to the number of employees at the

worksite. This table has been taken from the sanitation section in

OSHA's Construction Safety Regulations, 29 CFR 1926.51(c). OSHA

requests the public to comment on the inclusion of this table in this

proposal.

Summarizing the section, OSHA would require that employers provide

their workers with washing and toilet facilities that are equipped with

hot and cold (or tepid) running water; soap; clean hand towels (or warm

air blowers); clean and functional toilets (that offer separate

compartments with a latched door), and clean drinking water (with no

common cups). The consumption of food or drink would continue to be

prohibited wherever hazardous materials are stowed or being handled

(see definition at Sec. 1918.2(g)). Additionally, cargo handling

operations are to be separated (by barriers) from the vessel's

uncovered refuse and, in the unlikely event of a sanitary line

overboard discharge, from it as well. Since longshoring work is

performed adjacent to a marine terminal, if the marine terminal's

sanitation facilities are available for longshore employees' use, this

would constitute compliance with Sec. 1918.95. (Section 1917.127, which

covers sanitation at marine terminals, is virtually identical to

proposed Sec. 1918.95.)

Because longshoring operations generally take place in a location

with restricted space, i.e., aboard a ship, other non-associated but

often necessary work (such as ship's maintenance and repair) must be

conducted carefully, with due deference to the cargo handling being

performed. In such circumstances, employees may be exposed to hazards

associated with excessive noise leading to impaired communications,

excessive light or heat from hot work, overspray from abrasive blasting

or spray painting, or non-ionizing radiation. In OSHA's current rules

for Longshoring (Sec. 1918.95), the Agency has prescribed requirements

to account for the hazards that can be anticipated when maintenance and

repair work are concurrently undertaken with cargo handling. Those same

rules are proposed in Sec. 1918.95 (with very minor change) to be

included in the revision of this part. Summarizing them, longshoring

operations would be prohibited when noise produced by such concurrent

work interferes with the communication of warnings or instructions;

when falling objects could fall on cargo handlers from such work being

conducted overhead; when welding slag, burning sparks or welding rod

flash could injure cargo handlers; and when abrasive blasting or spray

painting is being performed in the vicinity of cargo operations.

Additionally, OSHA is proposing to prohibit cargo handling

operations where the employees are exposed to electromagnetic (non-

ionizing) radiation that is emitted from the radio and radar equipment

on the vessel. This could be especially dangerous when employees are

working on the tops of containers while work is being done to the radar

or radio equipment. OSHA is also aware of the dangers associated with

non-ionizing radiation emitted from radio and television towers that

are close to marine cargo handling facilities and has included the

words ``or from radio or television transmitting towers ashore'' in

this paragraph. OSHA issued a Hazard Information Bulletin on September

5, 1990, concerning a non-ionizing radiation incident caused by radio

transmitting towers that were near a cargo handling facility. The radio

frequency emissions were aimed in the direction of the cargo handling

operation and the radiation caused longshore workers touching the crane

wires and hooks to be burned. This situation was corrected by having

the transmissions directed away from the cargo handling area, however

other options were available such as, insulating the cargo hook, or

providing proper personal protective equipment (Ex. 1-137).

Proposed Sec. 1918.97 sets out requirements for first aid and

lifesaving, and parallels closely the same considerations set out by

OSHA in its rules for the shoreside aspect of marine cargo handling

(Sec. 1917.26). The hazards that this section is meant to address are

those that would occur in the absence of first aid or rescue; that is,

following an accident, this section is intended to mitigate the extent

of injury to the employee.

In summarizing this proposed section, the employer would be

required to direct all employees to report all injuries. A first aid

kit would be required to be available at each vessel being worked, with

at least one person holding a valid first aid certificate also

available to administer first aid. OSHA does not stipulate who the

certificate's issuing organization must be, but remains consistent with

its position taken while developing the Marine Terminals rule, wherein

the agency stated at 46 FR 4193:

No particular first aid course or approving agency is

designated, so long as the certificate is issued by a responsible

organization which requires successful completion of a course as

evidence of qualification.

OSHA sets out no specific criteria for the contents of the required

first aid kit(s). The Agency does, however, propose to have those needs

individualized by a physician who, in consultation with the employer,

can customize first aid kit contents to the hazards to be encountered.

This is consistent with the approach taken by OSHA in its General

Industry (Sec. 1910.151(b)) and its Construction standards

(Sec. 1926.50(d)(1)). OSHA believes this approach to be not only more

flexible, but more protective as well. It should be noted that OSHA is

proposing to amend the Marine Terminal regulations to read the same as

what is being proposed in this draft in regards to first aid kits and

emergency stretchers. Requiring weekly checks of the contents of first

aid kits is again consistent with OSHA's Safety and Health Regulations

for Construction, Sec. 1926.50(d)(2).

Additionally, OSHA proposes to include more specific requirements

addressing strength and design characteristics of emergency stretchers

(Stokes baskets). These requirements reflect the terms of an agreement

between the West Gulf Maritime Association and individual locals of the

I.L.A. operating on the Gulf of Mexico, which OSHA considers to be

appropriate for inclusion in the proposal. The requirement that the

stretcher have at least four sets of ``effective'' patient restraints

means that the restraints must be able to secure the patient to the

stretcher even if the stretcher and patient is being lifted vertically.

In an accident cited earlier in the preamble, (Ex. 1-90), where the

employee was being carried vertically in the stretcher, the restraints

were not effective and the patient fell off.

In proposed Sec. 1918.98, OSHA sets out requirements for the

qualifications of machinery operators, i.e., crane or winch operators,

industrial truck drivers, conveyor operators, etc., and provides

proposed language to require the training of supervisory personnel,

i.e., gang foremen, stevedore superintendents, etc., in accident

prevention. The hazards addressed by this section arise from

inexperienced, untrained or inappropriate operators of cargo handling

machinery; and hazards created by improperly trained supervisory

personnel. These hazards can readily lead to accidental injury or

death.

Both topics originate in the shoreside rules (Sec. 1917.27), and

focus on very important aspects indisputably tied to safe cargo

operations. The proposed provisions would require that all employees

(except supervised trainees) be familiar with signs, signals and

operating instructions before operating cargo handling machinery or

before giving signals to operators. OSHA would require that employee

competency to perform such work be determined by the employer, using

training and experience as criteria in making such a determination. The

employer would be prohibited from allowing employees with a known

incapacitating ailment, such as heart disease or epilepsy, or employees

with defective uncorrected hearing or eyesight, from operating that

equipment. Because supervisory training is considered to be essential

to reducing the amount of accidents in any industrial setting, the

Agency proposes to set requirements for the shipboard cargo handling

workplace that will complement such requirements already in place for

shoreside work. OSHA asks the public to comment on the effectiveness of

the shoreside supervisory programs and benefits that have been derived.

In proposing this requirement, the Agency notes that the great majority

of supervisory persons already trained in accident prevention under the

part 1917 rules, are those same individuals who would be covered by the

training requirement under this proposal. The Agency requests

interested persons to submit comment on the proportion of supervisory

employees for whom such training would actually be required. The same

built-in transition periods established for training within the Marine

Terminals rule (two years after the promulgation of the final rule and

after that date 90 days after supervisory assignment), are proposed

also for shipboard application. The criteria for course content is

performance-based, allowing for instruction to be tailored to the

particular operation(s). The recommended topics included as a footnote

are considered to be rudimentary to most shipboard cargo handling

operations.

It should be noted that current Sec. 1918.98 entitled ``Grain

fitting'' is being deleted by this proposal. OSHA believes that this

type of longshoring operation is obsolete and no longer exists. OSHA,

however, recognizes that interested parties may have differing views

regarding this deletion and invite comment on this point.

Subpart J--Personal Protective Equipment

All proposed sections of this subpart are based in the requirements

for personal protective equipment found in the shoreside requirements

for marine cargo handling (Secs. 1917.91, 1917.92, 1917.92, 1917.93,

1917.94, and 1917.95). The hazards addressed by this section are those

that personal protective equipment can eliminate or ameliorate by its

proper use. For example, eye protection can prevent the loss of an eye;

foot protection can prevent a broken foot; respirators can prevent

toxic poisoning; and so on. As was the case in that rulemaking, (48 FR

30903), OSHA again sets out the principle that whether the PPE costs

must be borne by employers depends largely on whether the employee has

possession, responsibility and control over the specific piece of

equipment. As an example, items such as protective gloves and foot wear

are among pieces of gear that employees may bring home for personal use

between work shifts, but the employees would be protected by the gear

while at work. As such, the employer has to make available and assure

that employees wear such equipment, but the standard does not require

the employer to furnish it free of cost. Other items however, such as

respirators, fall protection systems and special protective clothing,

are pieces of gear that the employer is required to furnish and

maintain.These are items that do not leave the workplace and are always

under the control of the employer. Such items are those for which the

employee is not obligated to bear any cost under the standards. OSHA

understands that various arrangements exist for shared cost

responsibilities and sole cost responsibilities at different parts of

the Nation's waterfront, and leaves to the employers and employees the

right to resolve such issues.

Proposed Sec. 1918.101, would require employees performing work

which is hazardous to the eyes be provided with protection that meets

the requirements (evidenced by marking or labeling) of the American

National Standard for Occupational and Educational Eye and Face

Protection (ANSI Z87.1-1989). Such eye protection would be required to

be maintained in good condition, with cleaning and disinfection

performed prior to issuance to another worker.

Proposed Sec. 1918.102 refers to Sec. 1918.1(b)(12), which adopts

by reference OSHA's General Industry standard for respiratory

protection (Sec. 1910.134). The shipboard cargo handling environment is

not unique in the selection or use of respiratory protection.

In proposed Sec. 1918.103, the Agency requires that employees whose

heads are exposed to hazards associated with impact or electric shocks

or burns be equipped with and be required to wear protective hats that

meet the design requirements (evidenced by marking or labeling) of

American National Standard Requirements for Protective Head Wear for

Industrial Workers (ANSI Z89.1-1986). It also requires that cleaning

and disinfection be performed when reissued to another worker.

Proposed Sec. 1918.104 addresses foot protection, requiring that

employees exposed to impact or puncture hazards wear safety footwear

meeting the design requirements of the American National Standard for

Personal Protection--Protective Footwear. ANSI Z41-1991.

In this rulemaking, OSHA also proposes to update the American

National Standards Institute (ANSI) references that are in the Marine

Terminal standard so that they are the same as in the proposed

Longshoring standard; Sec. 1917.91 (Eye protection); Sec. 1917.93 (Head

protection); and Sec. 1917.94 (Foot protection).

In proposed Sec. 1918.105, other forms of protective measures for

personnel are addressed. In summary, OSHA adopts a general approach to

all additional protective clothing which requires that the employer

provide and see to the proper use of all such measures. The Agency

would require that all additional protective clothing be cleaned and

disinfected before reissuance. It notes, however, that some types of

equipment, such as disposable coveralls, require no cleaning or

disinfection since they are single use items and discarded once used.

Also, in some instances protective clothing may be issued, but because

never worn or soiled, necessitates no further sanitary measures.

Personal flotation devices would be provided by the employer and

required for all employees whose work exposes them to falls into the

water in any of the following circumstances: when they are working in

isolation (such as when adjusting by oneself mooring lines of a small

craft abreast of a larger vessel); where physical constraints posed by

limited working or walking area creates a fall hazard (such as when

securing lines at the outboard edge of a barge having a narrow fore and

aft walkway, or where the work area is obstructed by cargo or other

obstacles in a manner that does not allow employees safe footing (such

as when securing boom tie-downs at the outboard edge of a floating

crane whose deck is congested with auxiliary hoisting equipment). OSHA

is also proposing to add that personal flotation devices be worn by

employees that are doing any work on the deck of a barge. There are

numerous incidents of drowning which have occurred when employees have

fallen overboard from a barge. Often these falls from a barge occur in

the river system, where rapid currents increase the danger of drowning

(Exs. 1-103, Case Nos. 13, 17, 18, 72, 77, 78, 79, 80, 81, 82, 101,

130, 136, 139, 143). OSHA feels that the danger of falling overboard

while working on the deck of a barge (as opposed to working on the deck

of a ship where the edge of the deck generally is guarded by a bulwark

and railing) is sufficiently great as to add this proposed language.

All personal flotation devices would be required to be a Coast Guard

approved preserver or vest, and would be expected to be maintained in a

safe and serviceable condition (no rips, rot or punctures and all

closure devices in good order).

In all cases, it is clearly not enough just to have PPE available;

the equipment needs to be used. The standard requires the employer to

enforce the wearing of each type PPE whenever it is needed.

Appendices I, II, and III

Appendix I is a non-mandatory appendix that sets out the format of

vessel cargo gear registers and certificates, under the terms of ILO

Convention 152 (Ex. 1-33), discussed earlier in reference to

Sec. 1918.11. Major changes from the original ILO Convention 32 (Ex. 1-

34), include a new Form (Form No. 2 (U) which is a certificate issued

by a ``competent person'' (most often a surveyor under the employ of a

vessel classification society or inspection surety service) that

contains the results of testing and examination of derricks used in

union purchase.

In the case of foreign flagged ship's gear with which U.S.longshore

workers load or discharge cargo, OSHA acts in the role of the

``competent authority'' in determining which ``competent person(s)''/

``responsible person(s)'' are in fact qualified to witness tests/exams

and execute certificates and registers. For this purpose, as a

practical matter, OSHA recognizes persons and organizations acceptable

to the Nation under whose laws the particular vessel is registered. In

the event that a given flag has no laws that specifically apply (Ex. 1-

91), OSHA would rely upon the vessel having a register and certificates

endorsed by an entity approved for that purpose by the Commandant of

the U.S. Coast Guard (see 46 CFR 91.37) or, alternately, an

organization accredited by OSHA under part 1919 of this chapter (see

proposed Sec. 1918.11). Another significant change from the original

Convention, is the interval between tests of cargo handling gear. Such

gear, under the terms of Convention 32, was required to be tested (for

the assignment of a safe working load) initially before being taken

into use. Because OSHA's current rule adopts the testing and

examination requirements for vessel's cargo gear contained in

Convention 32 (see Sec. 1918.12(a) of the current rules), the Agency

can presently require that such gear is initially tested but, absent

special circumstances, the gear is not required to be tested again. As

a practical matter, most vessels (those operating under the rules of

classification societies and international inspection services) have

been operating under a quadrennial test schedule. With the advent of

Convention 152, the international standard has shifted to ``at least

once in every five years,'' giving latitude to all organizations

desiring to maintain the four year cycle. In proposing to stay in step

with the international standard, OSHA offers this Appendix to assist

employers and employees in correctly ascertaining the form and content

of registers and certificates prescribed for in the newer Convention.

Appendix II, which is also non-mandatory, is offered as an aid to

employers and employees in arriving at strength values of various

pieces of gear used aboard ship in longshoring operations. Although the

primary source for information on component gear strength is ``the

manufacturer's recommendations'' or ``the manufacturer's recommended

ratings,'' the Agency appreciates that instances will arise wherein

such recommendations or ratings will not be available (such as when

some preslung cargoes are to be discharged from foreign ports). In such

instances, proposed Appendix contains tables which can be used to

evaluate hoisting equipment. Many of the tables appearing in this

Appendix are taken directly from the latest American National Standard

(ASME B30.9-1990 and addenda titled, Slings) (Ex. 1-148). The balance

of the tables (those for allowable chain wear; shackle safe working

loads; and wire rope clips) are derived from an amalgam of other OSHA

rules for Longshoring, Construction (Sec. 1926.251), and General

Industry (Sec. 1910.184). These tables have been carefully assessed by

OSHA as to their appropriateness for cargo handling applications, and

the Agency believes that they will serve as fully protective criteria.

Appendix III, which is also non-mandatory, recognizes that, in some

very limited situations, the use of fall protection may be infeasible.

OSHA has listed two narrowly defined situations where it feels that

fall protection may not be feasible. OSHA solicits comment from the

public regarding the appropriateness of these two examples and whether

there are additional examples of infeasibility. In addition, OSHA would

consider this as an appropriate place to include any other advisory

information regarding container top safety and solicits comments

accordingly.

VI. Proposed Amendments and Corrections To Marine Terminal

Standards

Several of the proposed amendments to the Longshoring standard

(part 1918) address marine cargo handling hazards that should be

reflected by a corresponding provision in the Marine Terminal standard

(part 1917). For example, both parts currently do not explicitly

prohibit employees from riding the hook or the load. By contrast,

proposed Sec. 1918.81(l) prohibits this practice as does proposed

Sec. 1917.45(l). The basis for this prohibition is discussed above. For

the purposes of this discussion, when the basis for a proposed

amendment is treated in the preamble above, it is not necessary to

repeat it here. OSHA is requesting comment from the public on proposed

amendments to Marine Terminals (part 1917) standards.

A new paragraph (d) has been added to Sec. 1917.11 that addresses

the hazards associated with protruding nails that may be left in

materials, such as dunnage, that have ben removed from the vessels and

placed ashore. This paragraph has been taken from language that is in

the current Longshoring regulations and is in the proposal at

Sec. 1918.91(h)(2).

Currently in both parts, the allowable exposure limits for carbon

monoxide is 50 ppm over an 8-hour time weighted average with a ceiling

of 100 ppm. OSHA is proposing to change the 8-hour time weighted

average to 35 ppm while leaving the ceiling limit at 100 ppm. This

change is reflected in both proposed parts in Secs. 1918.94 and

1917.24. (See above.)

In another example, currently in both Secs. 1918.96 and 1917.26,

the contents of a first-aid kit are specifically listed. In proposed

Sec. 1918.96, however, the contents of a first-aid kit are to be

determined by a physician. OSHA feels that the proposed part 1918

standard is more protective and proposes to amend Sec. 1917.26 to be

consistent. OSHA would also incorporate into part 1917 the more

extensive provisions that are found in proposed Sec. 1918.96 pertaining

to the requirements for stokes basket stretchers.

In Sec. 1917.45(j)(2), OSHA is proposing to require that all cranes

used to hoist personnel be equipped with and operate in the power up

and power down mode and have the brake apply automatically when not

hoisting or lowering. This is consistent with proposed

Sec. 1918.66(c)(2).

OSHA is proposing a new requirement in Sec. 1917.50(i)(1), that

prohibits exceeding the safe working load of cargo handing gear which

is similar to language found in proposed Sec. 1918.61(b)(1). OSHA is

also proposing a new requirement in Sec. 1917.50(i)(2), which requires

the safe working load be marked on cargo handling gear with a safe

working load greater than 5 short tons. This proposal is similar to

proposed Sec. 1918.61(b)(2). See the discussion on these proposed

requirements in the preamble for Sec. 1918.61.

In Sec. 1917.71(e), OSHA is proposing to allow only high-visibility

vests (or equivalent protection) to be worn and remove the words

``decals or reflectors.'' This would be in agreement with proposed

Sec. 1918.86(n). As indicated above, the reflective area of a decal on

a hard hat is obviously less than that of a vest. Also, the reflective

value is lost during daylight hours or whenever the wearer takes off

the hard hat. A number of serious accidents (Exs. 1-78, 1-89) have

occurred in the past due to the nature of the work involved in such

cargo operations. Additionally, OSHA is proposing to amend the language

found in Sec. 1917.71(f)(5) to reflect the language found in proposed

Sec. 1918.86(f), which requires that all brake air-lines be connected

when pulling trailers equipped with air brakes.

OSHA is proposing to change Sec. 1917.73(a)(2) to read 10 ppm of

hydrogen sulfide to agree with proposed Sec. 1918.94(f)(4). As recently

as 1987, a hydrogen sulfide incident aboard a menhaden vessel led to

serious injury and a fatality (Ex. 1-80). (See discussion of this for

1918.94(f) in Section V of this proposal).

OSHA proposes to carry over to Sec. 1917.71 the provision found in

proposed Sec. 1918.86(g) that requires that flat bed and low boys

trailers (mafi's) be marked with their cargo capacities and not be

overloaded.

OSHA also seeks public comment on two proposed rules to be included

in the Marine Terminal standard that do not have analogous rules in the

proposed Longshoring standard. First, OSHA proposes to require that

seat (lap) belt restraints be installed in the crane operators seat in

high-speed container gantry cranes. High speed container gantry cranes

are now capable of hoist speeds of 360 feet per minute (110 m/min)

(without a load) and trolley speeds of 500 feet per minute (152 m/min).

OSHA is concerned that the operator may be exposed to potentially

injurious effects of sudden stops and starts (Ex. 1-133). OSHA believes

that operator restraints will minimize the hazard and seeks comment

from the public on this issue.

In the case of shipments of tobacco that have been containerized

and then fumigated, OSHA is proposing, in Sec. 1917.25(g), that such

containers be aerated (before being loaded on a ship) as follows: (1)

If in unsealed bales or in hogsheads, aerated (with doors open) for 48

hours after fumigation has been completed, and, (2) if contained in a

plastic enclosure, aerated (with doors open) for 72 hours. In proposing

these requirements, OSHA relies on studies performed by the U.S.

Department of Agriculture, Agriculture Research Service (Ex. 1-70).

These studies concluded that intermodal containers so treated required

48 to 72 hours aeration to be free of hazardous fumigant levels. Past

and recent communications (Ex. 1-95) with the Tobacco Association of

the United States, also show that organization in accord with the 72-

hour aeration required for tobacco shipped in polyethylene or similarly

lined boxes carried in intermodal containers.

Upon the publication of the final Marine Terminal standard, several

technical drafting amendments were treated in the preamble that were

not consistently picked up in the subsequent regulatory text. OSHA is

now proposing that these amendments be made. Several paragraphs have

been corrected by removing the phrase, ``The employer shall

ensure...'', from the beginning of the paragraph. See the discussion

for this in 48 FR 30888-30889. The paragraphs that have been corrected

in this manner are: Secs. 1917.18(a); 1917.43(e)(1)(i);

1917.44(o)(3)(ii); 1917.44(o)(4); 1917.126(b); 1917.152(f)(1);

1917.152(f)(2) and 1917.152(f)(3)(iv). In addition, several paragraphs

are being proposed to be revised by changing the phrase, ``shall be

available at the terminal'' to the phrase, ``shall be made available

for inspection''. See the discussion for this in 48 FR 30889. The

proposed paragraphs that reflect this change are: Secs. 1917.24(d),

1917.25.(c), 1917.42(b)(4), 1917.42(c)(1), 1917.42(d)(1),

1917.42(h)(4), and 1917.42(h)(5).

OSHA is also aware of several typographical errors that are in the

current 29 CFR part 1917 and intends to correct those in this

rulemaking. For example, one of these corrections is in Sec. 1917.42. A

square root sign has been added to the formula found in paragraph

(d)(2), correcting an error that is in the current formula. OSHA seeks

public comment on any other areas in the Marine Terminal standard that

are affected because of the changes proposed to the Longshoring

standard in this rulemaking.

VII. Other Issues

A. OSHA is raising the issue of the possible harmful effects of

diesel exhaust on employees, especially those employees who work Ro/Ro

vessels where exposure to such exhaust is probably the greatest. OSHA

is aware that studies have been done concerning the effects of diesel

exhaust by the Mine Safety and Health Administration (MSHA) in the

mining industry. OSHA is not aware of any studies relating to the

longshoring industry, (although the International Cargo Handling and

Coordination Association (ICHCA) is in the process of drafting a paper

entitled ``Fumes in Ships'', which will address this topic), and

requests the public to submit pertinent information. OSHA requests

information of the following: 1. What are the health effects of diesel

exhaust? 2. What are the typical timeframes where employees are exposed

to diesel exhaust? 3. Is mechanical ventilation sufficient to eliminate

any harmful effects? 4. What other methods can be employed to reduce

any harmful effects?

B. OSHA is aware of the problem of picking up the chassis and fifth

wheel along with the container due to the failure of the container and

chassis to separate during a loading operation. This is due to one or

more of the chassis's twistlocks being in the locked position or one or

more of the twist locks ``hanging up'' while in the unlocked position.

Unfortunately, the driver of the fifth wheel is in the cab as it is

being lifted and often sustains injuries when the cab and chassis fall

back to the ground before the crane operator can lower everything back

down. OSHA requests information on the following questions: 1) How

frequently does this problem occur;? 2) OSHA believes this is primarily

a problem on the West Coast. Is this true and why;? 3) OSHA is aware of

several devices that have been developed to shut the crane down once

the device detects the fifth wheel being raised off the ground. OSHA

seeks information on the effectiveness of these devices in eliminating

the problem, and the cost to purchase and install these devices; 4) Are

there other ways to eliminate the problem, such as better

``monitoring'' of the chassis twistlocks under the hook through

training and work practices, or requiring the driver to get out of the

cab until the container is lifted clear of the chassis?

C. OSHA has long recognized the utility of comprehensive

occupational safety and health programs, and adopted non-mandatory

guidance for safety and health program management on January 26, 1989

(54 FR 3904). These guidelines were based on a distillation of safety

and health management practices used by employers that have implemented

successful comprehensive programs. The major elements OSHA identified

in the guidelines for effective occupational safety and health programs

are: 1) management commitment and employee involvement; 2) worksite

analysis to anticipate and identify potential hazards; 3) hazard

prevention and control; and 4) safety and health training.

Successfully implemented programs generally result in facilities

that have a lower incidence of occupationally related illnesses and

injuries. In particular, OSHA has found that companies which have

implemented comprehensive safety and health programs and are

participating in its Voluntary Protection Programs (VPP) have lost-

workday rates that range from one-fifth to one-third the rates

experienced by average worksites within their industrial

classification. In addition, participating sites have reported improved

employee morale, product quality, and productivity as some of the

secondary benefits of their safety and health management activities.

Occupational safety and health standards and guidelines, whether

mandatory or developed as voluntary consensus activities, traditionally

have tended to focus on specific problems or hazards rather than taking

a broad, program-oriented approach.In recent years, however, OSHA has

promulgated a number of generic standards that have program

requirements. There is now increasing evidence that a requirement for

all employers to address occupational safety and health

programmatically can provide an effective supplement to specific

hazard-related requirements, and provides an added degree of safety and

health for employees.

Properly designed and implemented comprehensive programs focus the

attention of both employers and employees on safety and health in the

workplace. With increased awareness of safety and health concerns, and

the commitment to alleviate the hazards by implementing appropriate

controls, workplace-related safety and health injuries and illnesses

are expected to decrease.

While the specific elements of existing comprehensive occupational

safety and health (COSH) programs may vary, the general concept is the

same. COSH programs are designed to coordinate and integrate all facets

of occupational safety and health into the management practices for the

facility. Rather than addressing problems on a one-by-one basis,

implementation of a COSH program requires company management to

systematically review all hazards in the facility, and develop a plan

to prevent or control them. All employees of the facility must be

involved in the development and implementation of the plan, and there

must be a company-wide commitment to controlling or eliminating

occupational safety and health problems. The program is implemented on

a continuing basis, that is, there are provisions for ensuring that the

situation in the facility is monitored on a regular basis to ensure

that the program is working. Program evaluation activities to assess

effectiveness are also part of the concept.

The logic of this approach is simple--prevent adverse effects from

occurring by identifying hazards, and implementing a plan to eliminate

or minimize them. By doing this systematically, resources are not

duplicated or wasted, and a coordinated, integrated strategy can be

implemented. Effective functioning of such a program depends largely on

the commitment and involvement of all members of the organization,

beginning with the highest level of management.

OSHA believes the COSH program approach can be applied in any

establishment, and in any size facility. The complexity of the specific

program in a particular establishment will depend on the nature of the

business, the number of employees, and the types of hazards present.

While the basic components of a COSH program would be the same in, for

example, a marine terminal and an automobile manufacturing plant shop,

the methods used to implement them would vary based on the different

needs of the facilities. Every type and size of establishment should

nevertheless have a systematic approach to addressing occupational

safety and health concerns. All workplaces, from office situations to

health care facilities, restaurants to stevedoring operations, can

benefit from the development and implementation of an appropriate COSH

program.

Request for Comments and Information

OSHA is raising this issue to solicit public input on COSH

programs. The Agency is particularly interested in learning about the

experiences of employers who have already implemented such programs,

and those of employees who work in facilities where these programs have

been implemented. The purpose of collecting these comments is to

determine whether OSHA should adopt mandatory requirements for

comprehensive occupational safety and health programs; what the

components of such programs should be; what problems employers have had

in implementing such programs, and what can be done to alleviate those

problems; the benefits of implementing COSH programs; methods that can

be used to evaluate the effectiveness of the programs; the costs and

economic feasibility of such programs; the impacts on small businesses;

and suggestions regarding existing OSHA rules that could be

consolidated or modified as a result of promulgating requirements for

mandatory COSH programs.

Format of Questions and Responses

The specific questions asked are designed to elicit the information

OSHA believes would be helpful in determining appropriate elements for

COSH programs in longshoring work. The questions are in some cases

directed towards specific audiences, such as employers who have

implemented programs. Other questions have more general applicability.

Interested persons may also submit other information or opinions which

they believe are relevant.

OSHA asks that commenters respond to the specific questions

enumerated, and to number responses in accordance with the number of

the question to which the response is addressed. In addition, it would

also be helpful for OSHA to receive copies of written materials to

supplement these responses, such as copies of written programs,

examples of forms used, and sample evaluations.

1) OSHA would like to receive information and data regarding the

respondents to this notice in order to properly profile the responses.

If you are submitting comments in response to this notice on behalf of

an employer or group of employers that have implemented a COSH program,

or employee or group of employees working in such a facility, please

provide the following specific information. If you are not one of

either of these groups, please indicate your role or relation to COSH

programs.

a) The size of the facility by number of employees;

b) When the program was implemented;

c) Why the program was implemented (e.g., voluntary decision, state

requirements, insurance carrier's requirements, etc.);

d) What the major components of the existing program are;

e) What the initial and annual costs of implementing each of these

components have been, and how you derived these costs;

f) What resources have been required to operate the programs; and,

g) What cost savings, illness or injury reductions, or other

benefits (e.g., changes in productivity, absenteeism, turnover,

insurance, etc.) have accrued due to implementation of the program, and

how you derived these benefits.Components of a COSH Program

As described above, OSHA has published and distributed guidelines

for safety and health management programs which include four major

elements. OSHA would like comments on whether these elements are

appropriate; whether more specific information should be provided

regarding what should be addressed under each of these elements; and

what other elements may be appropriate for inclusion in COSH programs.

Management commitment and employee involvement. The first element

included in the guidelines is management commitment and employee

involvement, or management leadership. Management commitment is

expected to be stated in a worksite policy which outlines the

organization's priority on safety and health, and indicates who has

primary responsibility for implementation of various aspects of the

policy. Other facets of this element include establishing and

communicating clear goals and objectives for the program; providing

visible management involvement; ensuring employee involvement;

providing adequate authority and resources for those responsible;

holding those responsible accountable; ensuring contract workers are

protected; and reviewing and evaluating the program at least annually.

2) Please comment on the inclusion of management commitment and

employee involvement as a major element of a COSH program.It has been

OSHA's experience and that there is no situation where these

considerations are inappropriate.

3) Is this a common program component? How is it implemented? Is

the program integrated into the overall management of the workplace?

How well does this work?

4) Who is responsible for managing the program? What skills and

knowledge must this person have to be the program manager? What is the

role of the President or Chief Executive Officer? The facility manager?

The supervisor? The employee? Do performance evaluations include an

assessment of performance with regard to safety and health? Are

managers and employees held accountable for safety and health

performance? How?

5) Are written policy statements prepared and distributed? Please

provide examples. Are there situations where a program can operate

effectively without having a written plan?

6) What was the primary motivation for implementing the program

(e.g., voluntary, state requirements)? Have insurance companies

encouraged adoption of COSH programs? How was this done?

7) How is employee involvement ensured in existing programs? Are

labor-management committees used? If so, please provide details about

how the committees are formed and are operating. What other suggestions

do you have for ensuring employee involvement?

8) How are existing programs evaluated to determine whether or not

they are effective? Are worksite program audits conducted? What do the

audits include? How often are workplace conditions reevaluated after

the initial assessment? Please provide copies of any evaluation

procedures that may be available. What are the criteria for determining

that the program is or is not effective? What type of evidence is

required to demonstrate that each program element has been implemented?

Is the program integrated into the overall management of the workplace?

9) Have any problems been encountered in implementing this element

in existing programs? If so, how were these problems solved? Is the

guidance provided in the voluntary guidelines sufficient to implement

this element appropriately? What other information would be useful?

Worksite analysis. The second element in the guidelines is worksite

analysis. Employers must identify all worksite hazards by conducting an

initial and subsequent periodic comprehensive baseline worksite surveys

for safety and health. The surveys would vary by the type of workplace,

and the nature of the hazards present, but would include an assessment

of both safety and health hazards. Examples of situations that would

have to be assessed would include: exposure to chemicals; exposure to

noise, radiation, or other physical hazards; ergonomics hazards;

procedures to handle chemicals that have physical effects such as

flammability and reactivity; machine guarding; shoring of trenches; and

potential for falls. Programs must include provisions for regular

worksite inspections to determine if existing controls are working, and

to identify uncontrolled hazards; investigations of accidents, or other

unusual incidents; analysis of planned and new facilities, processes,

materials and equipment; job hazard analysis; an employee hazard

reporting system; and analysis of injury and illness trends.

10) Do existing programs you are familiar with include worksite

analysis? How is it implemented, and who is responsible for doing it?

Please provide examples of how this element is being implemented in

existing programs. What criteria are used to determine what hazards are

present? Are there OSHA standards, guidelines, or other documents you

can recommend to assist employers? What do you consider to be the most

significant hazard in the workplace?

11) Do existing programs include chemical exposure assessments as

part of the worksite analysis process? Should further guidance be

provided for exposure assessment? What criteria for exposure assessment

are used in existing programs? Is exposure monitoring conducted? What

criteria are used to determine when monitoring is to be done? Who is

performing exposure monitoring? What training or background did they

have to prepare them for this? Are other types of hazards subject to

monitoring (such as noise, radiation)? What criteria are used to

monitor these hazards?

12) Do existing programs include an ergonomics component? How are

ergonomics problems identified? What criteria are used? Who does the

evaluation, and what is their relevant training or background?

13) Has any illness/injury trend analysis been undertaken in

facilities with COSH programs? What have the trends shown? What action

was taken as a result of the findings? Please provide any trend data

you have to demonstrate the effect of such programs.

14) What problems have been encountered in implementing this

element in existing programs? How were these problems solved? Is the

guidance provided in the voluntary guidelines sufficient to implement

this element appropriately? What other information would be useful?

Hazard prevention and control. Once the hazards have been

identified, the third element the COSH program must address is hazard

prevention and control. The current and potential hazards must be

corrected or controlled in a timely manner, using engineering

techniques where feasible and appropriate.Procedures for working safely

are to be established, and all affected parties must understand and

follow them. Personal protective equipment is to be made available

where appropriate; administrative controls are to be used when

necessary; provision is to be made for repair and maintenance of

equipment; emergency preparedness is to be addressed; and a medical

program must be available.

15) Do existing programs you are familiar with include hazard

prevention and control? How is it implemented, and who is responsible

for doing it? Please provide examples of how this element is being

implemented in existing programs. In particular, please provide any

available information about how hazards and risks are defined, and how

risk reduction goals are set. Who decides what control measures are

implemented? What criteria are used? Does the program include an

evaluation of occupational safety and health implications when new

facilities, processes, materials, or equipment are planned?

16) Do existing programs include standard operating procedures for

repair and maintenance?

17) Are their programs for emergency preparedness? If so, how are

they compiled and made available? Is there a plan for emergency

response? If so, what types of emergencies are addressed? Please

provide samples of your standard operating procedures and emergency

preparedness and response plans.

18) Is a medical program available? What is the scope of the

program, e.g. does it cover assessments related to workplace

conditions, wellness programs, etc.? Are medical services provided in-

house, or are they contracted out? What types of health professionals

are involved in delivering occupational health services? What are their

respective roles and what is their relevant training or background?

19) Does the medical program include preplacement medical

surveillance? Periodic medical surveillance? What criteria are used to

determine what surveillance is done? Who decides what surveillance is

to be done? Are medical records reviewed to determine if there are

trends in injuries and illnesses? Who conducts the review? What is done

with the results?

20) Have problems been encountered in implementing this element in

existing programs? If so, how were these problems solved? Is the

guidance provided in the voluntary guidelines sufficient to implement

this element appropriately? What other information would be useful?

Safety and health training. The last major element in the voluntary

guidelines for COSH programs is safety and health training. In order to

ensure that the program works effectively, all employees must be

trained to understand the safety and health concerns in their

workplace; the plan to minimize or eliminate those concerns; and their

roles in implementation of the plan. This includes training for those

in supervisory or management roles. Responsibilities must be clearly

described, and the lines of authority appropriately drawn. OSHA has

published Voluntary Training Guidelines to provide employers with

information about designing and implementing an appropriate safety and

health training program. (See Training Requirements in OSHA Standards

and Training Guidelines, OSHA 2254 (Revised), 1992.)

21) Do

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