Longshoring and Marine Terminals
Federal RegisterJul 25, 1997
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SUMMARY: The Occupational Safety and Health Administration (OSHA) is
revising its Safety and Health Regulations for Longshoring and those
parallel sections of its Marine Terminals Standard. These rules address
cargo handling and related activities conducted aboard vessels (the
Longshoring Standard) and landside operations at marine terminals (the
Marine Terminals Standard). The comprehensive revisions to the
Longshoring Standard essentially rewrite that standard for the first
time since it was adopted in 1971 under Section 6(a) of the
Occupational Safety and Health Act, while the amendments being made to
the Marine Terminals Standard will provide consistency with the
language of the new Longshoring Standard. The changes that OSHA is
making to both standards are part of OSHA's continuing efforts to
reinvent its workplace regulations to keep them current with evolving
work practices and to reduce inconsistencies in regulatory
requirements. Although the longshoring and marine terminal rules are
``vertical'' standards that apply only to longshoring and marine
terminal activities, OSHA has also made minor changes to some of the
general industry provisions referenced within these rules. These
changes, which are non-substantive, have been made to conform the
general industry requirements to the terminology used in the marine
cargo-handling environment.
This final document contains requirements for the testing and
certification of specific types of cargo lifting appliances and
associated auxiliary gear and other cargo handling equipment such as
conveyors and industrial trucks; access to vessels; entry into
hazardous atmospheres; working surfaces; and use of personal protective
equipment. Additionally, OSHA addresses specialized longshoring
operations such as containerized cargo, logging, and roll-on/roll-off
(Ro-Ro) operations.
The principal hazards this rule addresses are injuries and
fatalities associated with cargo lifting gear, transfer of vehicular
cargo, manual cargo handling, and exposure to hazardous atmospheres.
OSHA also addresses those hazards posed by more modern and
sophisticated cargo handling methods, such as intermodalism.
DATES: Effective Dates: This rule becomes effective on January 21,
1998. The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of January 21, 1998.
Compliance: Start-up dates for specific provisions are set in
Secs. 1917.43(f)(3), 1917.71(f)(4), 1918.11(a) (1) and (2), 1918.24(d),
(f)(1), and (g), 1918.62 (h)(5)(ii), 1918.65(d)(4) and (g),
1918.85(j)(1)(1) and (ii), 1918.86(g), and 1918.98(b)(1). However,
affected parties do not have to comply with the information collection
requirements in Sec. 1917.25 (g) warranty of fumigated tobacco,
Sec. 1917.26(d)(7) labelling of stretcher closets, Sec. 1917.50(i)(2)
labelling of cargo handling gear, Sec. 1917.71(f)(4) marking of
trailers, Sec. 1918.22(g) labelling gangway hazards, Sec. 1918.74(i)(1)
tagging ladders, Sec. 1918.61(b)(2) labelling gear, Sec. 1918.86(g)
labelling trailers, and Sec. 1918.94(b)(3) maintenance of air sampling
results, until the Department of Labor publishes in the Federal
Register the control numbers assigned by the Office of Management and
Budget (OMB). Publication of the control numbers notifies the public
that OMB has approved these information collection requirements under
the Paperwork Reduction Act of 1995.
Comments: Interested parties may submit comments on the information
collection requirements for this standard until September 23, 1997.
ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates
the Associate Solicitor for Occupational Safety and Health, Office of
the Solicitor, Room S-4004, U.S. Department of Labor, 200 Constitution
Ave., N.W., Washington, D.C. 20210, as the recipient of petitions for
review of the standard.
Comments on the paperwork requirements of this final rule are to be
submitted to the Docket Office, Docket No. ICR97-3, U.S. Department of
Labor, Room N-2625, 200 Constitution Ave., N.W., Washington, D.C.
20210, telephone (202) 219-7894. Written comments limited to 10 pages
or less in length may also be transmitted by facsimile to (202) 219-
5046.
Copies of the referenced information collection request are
available for inspection and copying in the Docket Office and will be
mailed immediately to persons who request copies by telephoning Vivian
Allen at (202) 219-8076. For electronic copies of the final Longshoring
and Marine Terminals Standards and Information Collection Request,
contact OSHA's WebPage on Internet at http://www.osha.gov/ under
Standards.
FOR FURTHER INFORMATION CONTACT: Mr. Larry Liberatore, Director of the
Office of Maritime Safety Standards, or Paul Rossi, Project Officer,
Office of Maritime Safety Standards, Occupational Safety and Health
Administration, Room N-3609, U.S. Department of Labor, 200 Constitution
Avenue, NW, Washington, D.C. 20210, (202) 219-7234.
SUPPLEMENTARY INFORMATION: The principal author of this final rule is
Paul Rossi, Directorate of Safety Standards Programs, with editorial
assistance from Joseph Daddura, Michael B. Moore and Odet Shaw of the
Directorate of Safety Standards Programs and Paul Bolon of the
Directorate of Policy; the economic analysis was developed by Paul
Bolon and Clarinda Giddings of the Directorate of Policy; and James
Estep of the Office of the Solicitor provided legal assistance.
General
The preamble to the final rule on the Longshoring and Marine
Terminals Standards discusses the events leading to the final rule, the
Summary of the Final Economic Analysis and Regulatory Flexibility
Analysis, and the rationale behind the specific provisions set forth in
the final Standard. The discussion follows this outline:
I. Background
II. Pertinent Legal Authority
III. Review of General Industry Standards for Applicability to
Longshoring Operations
IV. Summary and Explanation of the Final Rule
V. Other Issues
VI. Summary of the Final Economic Analysis and Regulatory
Flexibility Analysis
VII. Environmental Impact
VIII. Recordkeeping and Paperwork Requirements
IX. State Plan Requirements
X. Federalism
XI. Unfunded Mandates
I. Background
Because of the high number and serious nature of accidents
occurring to port employees in the United States, Congress, in 1958,
amended the Longshore and Harbor Workers' 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 (Pub. L. 85-742, 72 Stat.
835)
[[Page 40143]]
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, in 1960, 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).
LSB amended these standards several times 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), granted the Secretary of Labor the authority for
two years to adopt, under section 6(a) of the Act, ``any established
Federal standard'' as an OSHA standard. OSHA adopted the Longshoring
Standard, then codified as 29 CFR part 1504, under section 6(a) in
1971, and recodified the standard 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 existing Longshoring Standard
was designed largely for activities using methods and equipment that
have since been overshadowed or replaced by more modern methods of
cargo handling. The final rule will modernize OSHA's regulatory
approach to deal with these changes in the industry. However, because
some older, more conventional vessel types, equipped with features and
aspects addressed in the existing standard, continue to call at U.S.
ports, the Agency will retain in this final rule several provisions
whose utility, although diminished, continues on a more limited scale.
On July 5, 1983, OSHA published its final rule for Marine Terminals
(48 FR 30886) (Ex. 1-101). OSHA issued the Marine Terminals rule to
address the shoreside segment of marine cargo handling operations.
Since the Marine Terminals Standard currently addresses equipment and
situations (i.e., powered industrial trucks, conveyors, passage between
levels and across openings, etc.) that have shipboard counterparts,
appropriate provisions from the Marine Terminals Standard were
incorporated into this rulemaking for shipboard cargo handling as well.
Accordingly, the Agency relied upon background material and data used
to support OSHA's Marine Terminals Standard and incorporated the docket
(Docket No. S-506) developed in that rulemaking into the record of this
rulemaking.
OSHA published a Notice of Proposed Rulemaking (NPRM) for
Longshoring and Marine Terminals on June 2, 1994 (59 FR 28594). As part
of the NPRM, OSHA announced three public hearings to be held in
Charleston, SC on September 20, 1994; Seattle, WA on October 19, 1994;
and in New Orleans, LA on November 15, 1994. Later, OSHA published a
notice of correction changing the dates of the hearings and announcing
the specific hearing sites. Hearings were held October 4-6, 1994 in
Charleston, SC; October 19-21, 1994 in Seattle, WA; and November 15-17,
1994 in New Orleans, LA. Administrative Law Judge Stuart A. Levin
presided at the hearings. After receipt of all evidence and testimony,
the record was closed on May 15, 1995.
This final rule will provide continuity for the cargo handling
industry because it addresses both the more conventional and time-
proven methods of cargo handling and more modern and innovative
approaches. In keeping with OSHA's commitment to clarity, flexibility,
and in order to encourage employers to comply with these standards,
OSHA has adopted the performance approach except in those cases in
which employee safety would be enhanced by more specific requirements.
Longshoring Hazards
Traditionally, the longshore industry, which is classified within
Standard Industrial Classification (SIC) 449, has been notable in terms
of its accident experience. The work environment found in marine cargo
handling exposes employees to a greater risk of injury than is true for
most other industries. In fact, in 1993, the last calendar year for
which full tables of industrial illnesses and accidents are currently
available, this industrial sector had one of the highest rates of lost
workdays in the nation. The following data, shown in Table A below,
came from Bureau of Labor Statistics reports (Exs. 1-109, 1-110, 1-111,
1-112, 1-113, 1-154, and 1-155), and are useful in making a comparative
assessment:
Table A--Rate of Total Lost Workday Cases
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Total lost workday cases (rate per 100 full time employees) 1989 1990 1991 1992 1993
----------------------------------------------------------------------------------------------------------------
Private sector overall............................................. 4.0 4.1 3.9 3.9 3.8
Construction....................................................... 6.8 6.7 6.1 5.8 5.5
SIC 449............................................................ 9.1 7.8 8.5 6.1 7.1
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Thus, serious job-related injuries have continued to occur in the
marine cargo handling industry at an unacceptably high rate. Based on
this historical injury data, OSHA concludes that regulatory action is
necessary to meet its mandate under the Act. The standards being
published today, which were developed by OSHA with substantial input
from labor and industry representatives from the marine cargo handling
industry, have been developed specifically to address the principal
causes of these illnesses, injuries, and fatalities.
II. Pertinent Legal Authority
The purpose of the Occupational Safety and Health Act, 29 U.S.C.
651 et seq. (``the Act'') is to ``assure so far as possible every
working man and woman in the nation safe and healthful working
conditions and to preserve our human resources'' (29 U.S.C. 651(b)). To
achieve this goal, Congress authorized the Secretary of Labor to
promulgate and enforce occupational safety and health standards. (See
29 U.S.C. 655(a) (authorizing summary adoption of existing consensus
and federal standards within two years of the Act's enactment), 655(b)
(authorizing promulgation of standards pursuant to notice and comment),
654(b) (requiring employers to comply with OSHA standards).)
A safety or health standard is a standard ``which requires
conditions, or the adoption or use of one or more practices, means,
methods, operations, or processes, reasonably necessary or appropriate
to provide safe or healthful employment or places of employment.'' 29
U.S.C. 652(8).
[[Page 40144]]
A standard is reasonably necessary or appropriate within the
meaning of section 652(8) if it substantially reduces or eliminates
significant risk, and is economically feasible, technologically
feasible, cost effective, consistent with prior Agency action or
supported by a reasoned justification for departing from prior Agency
actions, supported by substantial evidence, and is better able to
effectuate the Act's purposes than any national consensus standard it
supersedes. See 58 FR 16612-16616 (March 30, 1993).
The Supreme Court has noted that a reasonable person would consider
a fatality risk of 1/1000 to be a significant risk, and would consider
a risk of one in one billion to be insignificant. Industrial Union
Department v. American Petroleum Institute, 448 U.S. 607, 646 (1980)
(the ``Benzene decision''). So a risk of 1/1000 (10-3)
represents the uppermost end of a million-fold range suggested by the
Supreme Court, somewhere below which the boundary of acceptable versus
unacceptable risk must fall. The Court further stated that ``while the
Agency must support its findings that a certain level of risk exists
with substantial evidence, we recognize that its determination that a
particular level of risk is significant will be based largely on policy
considerations.'' See, e.g. International Union, UAW v. Pendergrass,
878 F.2d 389 (D.C. Cir. 1989) (formaldehyde standard); Building and
Constr. Trades Department, AFL-CIO v. Brock, 838 F.2d 1258, 1265 (D.C.
Cir. 1988) (asbestos standard).
A standard is technologically feasible if the protective measures
it requires already exist, can be brought into existence with available
technology, or can be created with technology that can reasonably be
expected to be developed. American Textile Mfrs. Institute v. OSHA 452
U.S. 490, 513 (1981) (``ATMI''), American Iron and Steel Institute v.
OSHA, 939 F.2d 975, 980 (D.C. Cir 1991) (''AISI'').
A standard is economically feasible if industry can absorb or pass
on the cost of compliance without threatening its long term
profitability or competitive structure. See ATMI, 452 U.S. at 530 n.
55; AISI, 939 F.2d at 980.
A standard is cost effective if the protective measures it requires
are the least costly of the available alternatives that achieve the
same level of protection. ATMI, 453 U.S. at 514 n. 32; International
Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994) (``LOTO III'').
All standards must be highly protective. See 58 FR 16614-16615;
LOTO III, 37 F.3d at 668. However, health standards must also meet the
``feasibility mandate'' of section 6(b)(5) of the Act, 29 U.S.C.
655(b)(5). Section 6(b)(5) requires OSHA to select ``the most
protective standard consistent with feasibility'' that is needed to
reduce significant risk when regulating health hazards. ATMI, 452 U.S.
at 509.
Section 6(b)(5) also directs OSHA to base health standards on ``the
best available evidence,'' including research, demonstrations, and
experiments (29 U.S.C. 655(b)(5)). OSHA shall consider ``in addition to
the attainment of the highest degree of health and safety protection *
* * the latest scientific data * * * feasibility and experience gained
under this and other health and safety laws.'' Id.
Section 6(b)(7) of the Act authorizes OSHA to include among a
standard's requirements labeling, monitoring, medical testing and other
information gathering and transmittal provisions (29 U.S.C. 655(b)(7)).
III. Review of General Industry Standards for Applicability to
Longshoring Operations
Among the work environments OSHA regulates, the marine cargo
handling industry ranks high in terms of the number of hazards that are
not adequately addressed by OSHA's general industry regulations (29 CFR
part 1910). Longshoring is essentially a transport industry and, as
such, is free from some of the hazards found in general industry such
as those associated with woodworking machinery, spray painting, power
presses, and so on. On the other hand, many hazards that are common in
longshoring, such as those posed by falling loads and working on the
top of intermodal containers, are less common in other types of
workplaces.
The Longshoring Standards (part 1918) were designed to deal with
these and other unique hazards encountered in marine cargo handling.
Where the standards in part 1918 did not provide coverage of hazards
encountered in longshoring they were supplemented by the applicable
General Industry Standards. This final rule updates and revises OSHA's
existing Longshoring Standard (29 CFR part 1918) but continues to rely
on OSHA's General Industry Standards (29 CFR part 1910) to address a
number of hazards and operations that are not unique to longshoring.
The applicable standards from part 1910 are cross-referenced in the
final rule. Examples of such provisions are the toxic and hazardous
substances requirements from subpart Z of 29 CFR part 1910 (with an
exception for intact or sealed cargo and the Bloodborne Pathogens
Standard), and 29 CFR part 1910 subpart T, which addresses commercial
diving operations. In other instances, such as when addressing
container and roll-on roll-off (Ro-Ro) operations, OSHA has developed
new regulatory language specifically to address the hazards posed by
these specialized operational aspects of modern stevedoring. This
approach is similar to the one followed by OSHA in developing its
Marine Terminals Standard (part 1917) for shoreside cargo handling
promulgated in 1983.
In many situations, shipside cargo handling (i.e. longshoring)
hazards are directly parallel to those encountered in shoreside cargo
handling (i.e. marine terminals), such as hazards requiring the use of
personal protective equipment and risks associated with the handling of
intermodal containers. One of the goals of this rulemaking effort has
been to provide consistent coverage of these hazards, regardless of
whether the cargo handling is shipside or shoreside. Accordingly, in
drafting its revised provisions for longshoring (part 1918), OSHA
incorporated similar language into the Marine Terminals Standard (part
1917).
IV. Summary and Explanation of the Final Rule
This section discusses the important elements of the final
standard, explains the purpose of the individual requirements, and
explains differences between the final rule, the proposed rule, and
existing standard. Issues raised in the public hearings and in written
comments to the standard's docket are presented and summarized. The
Agency also presents its discussion of the issues and its reasoning for
specific determinations. References in parentheses are to exhibits and
transcript \1\ pages in the rulemaking record.
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\1\ CH--Transcript of the hearings held in Charleston, SC,
October 4, 5, 6, 1994.
SEA--Transcript of the hearings held in Seattle, WA, October 19,
20, 21, 1994.
NO--Transcript of the hearings held in New Orleans, LA, November
15, 16, 17, 1994.
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In developing the final rule the Agency actively worked with the
marine cargo handling industry to build a consensus among labor and
management with OSHA. This was possible because the marine cargo
handling industry is relatively small and well-defined. In addition, a
high percentage of employees are represented by labor unions. Employers
are also well-organized into employer groups at each port and in each
of the four major port regions of the country--East Coast,
[[Page 40145]]
West Coast, Gulf Coast, and Great Lakes and Inland Waterways. Drafts of
the 1994 proposal were circulated to key stakeholders, and many issues
were resolved before the proposed rule was published. As a result,
there was considerable support for the proposed regulation.
General comments of support such as ``supports OSHA efforts to
promote workplace safety'' or ``strongly supports revision'' were
expressed by several commenters (Exs. 19, 6-20, 6-21, 6-35, and 6-44).
Many commenters submitted statements to the effect that they
``wholeheartedly endorse'' the comments submitted by the National
Maritime Safety Association (NMSA) in Ex. 8-20. These commenters, who
wished to go on record as concurring with the views expressed by the
NMSA in Ex. 8-20 are represented by Exs. 6-6, 6-7, 6-8, 6-9, 6-11, 6-
12, 6-13, 6-14, 6-15, 6-16, 6-17, 6-27, 6-32, 6-34, 6-35, 6-36, 6-39,
6-40, and 6-43. Another group of commenters submitted statements to the
effect that they concurred with the Pacific Maritime Association's
(PMA's) written comments, which were submitted as Ex. 8-8. These
commenters are represented by Exs. 6-7, 6-27, 6-32, 6-34, 6-40, and 6-
43. Accordingly, throughout this preamble, whenever reference is made
to ``Ex. NMSA et al.'', the citation reflects the written comments
received from NMSA and those commenters listed above that supported
NMSA. The same applies to exhibit ``Ex. PMA et al.'' which refers to
PMA's comments and those of the commenters that supported the PMA. This
condensed referencing technique streamlines the document.
A. 29 CFR Part 1910--General Industry
In the proposal (59 FR 28594 et seq.), OSHA proposed a number of
editorial changes to several provisions of part 1910 (the General
Industry Standards being incorporated by reference into the Longshoring
Standard) to make the application of the General Industry Standards to
the Longshoring and Marine Terminals Standards clearer. OSHA received
no substantive comments on the proposed editorial changes to the
General Industry Standards. Accordingly, these editorial revisions have
been made in the final rule.
Paragraphs (a) and (b) of Sec. 1910.16, Longshoring and Marine
Terminals, have been updated and revised editorially. The definition of
a ``marine terminal'' (Sec. 1910.16(b)(4)) has been amended to be
consistent with the revised definition in Sec. 1917.2(u). The Marine
Terminals Standard preamble, which follows, has a detailed explanation
of this definitional change.
B. 29 CFR Part 1917--Safety and Health Regulations for Marine Terminals
1. Non-substantive changes. In the proposal, OSHA proposed numerous
revisions to provisions in OSHA's existing Marine Terminals Standard
(29 CFR part 1917) that were considered non-substantive. These changes
were widely supported by commenters. For the purposes of this final
regulation, OSHA has divided these changes into two categories:
correction of typographical errors \2\ and changing the phrase ``shall
be available at the terminal'' to ``shall be made available for
inspection''.\3\ The paragraphs affected by each type of change are
identified in the appropriate footnote below.
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\2\ Sections 1917.13(g); .17(i), (j), (k); .20; .23(b)(1), (d);
.27(a)(2); .42(d)(2), (h)(4), (j)(1); .44(a), (i), (o)(3)(i); .45,
(f)(4)(iii), (f)(5)(i), (f)(7), (f)(13)(ii), (i)(5), (j)(1)(iii)(D);
.48(d)(2); .71(c); .112(a)(1); .118(d)(2)(i), (f)(2); .119(b)(1),
(d)(2), (f)(4); .121(b)(3); .156(b)(3)(iii)(D); .157(n).
\3\ Sections 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).
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OSHA had proposed deleting the introductory phrase ``the employer
shall ensure'' from various requirements to correct technical drafting
amendments from the final Marine Terminals Standard published on July
5,1983 (48 FR 30886). These paragraphs included: 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).
However, after the June 2, 1994, publication of the Longshore and
Marine Terminals proposal, OSHA compliance staff reported that deletion
of this phrase in other standards actions (e.g. 61 FR 19547) had caused
difficulty in connection with the employer's obligation to have
employees wear personal protective equipment (PPE). Therefore, OSHA is
retaining this language in the current part 1917 paragraphs noted
above. For the sake of clarity and consistency, the word ``required''
(which is used extensively in parts 1917 and 1918) and the word
``ensure'' shall be synonymous for compliance purposes.
In keeping with the Agency's efforts to develop regulatory language
that is more ``user-friendly'' and easier to follow, the references to
part 1910 (OSHA's General Industry Standards) in Sec. 1917.1(a) have
been renumbered and placed in alphabetical order.
2. Substantive changes made in both parts 1917 and 1918. OSHA
proposed substantive, identical changes to OSHA's existing part 1917
(the Marine Terminals Standard) and part 1918 (the Longshoring
Standard) to provide consistency between them. The rationale for these
changes to part 1917 can be found in Section IV of this preamble,
Summary and Explanation of the Final Rule, at the respective part 1918
section discussion. The following table (Table B, Parallel Changes in
parts 1917 and 1918) lists the sections or paragraphs changed in part
1917, along with the sections or paragraphs in part 1918 in which
parallel changes were made:
Table B--Parallel Changes in Parts 1917 & 1918
------------------------------------------------------------------------
Part 1918 sections/
Part 1917 sections/paragraphs paragraphs
------------------------------------------------------------------------
Sec. 1917.22 (hazardous cargo)........... Sec. 1918.89
Sec. 1917.24(a) (carbon monoxide)........ Sec. 1918.94(a)(1)(ii)
Sec. 1917.25(a) (fumigants).............. Sec. 1918.94(d)
Sec. 1917.26(c) (first aid).............. Sec. 1918.97(c)
Sec. 1917.26(d) (stretchers)............. Sec. 1918.97(d)
Sec. 1917.27(a)(2) (personnel)........... Sec. 1918.98(a)(2)
Sec. 1917.30 (emergency response)........ Sec. 1918.99
Sec. 1917.42(g)(2)(vi) (slings criteria). Sec. 1918.62(g)(2)(vi)
Sec. 1917.45(f)(5) (crane glass)......... Sec. 1918.55(b)(1)
Sec. 1917.45(j)(2) (cranes).............. Sec. 1918.66(c)(2)
Sec. 1917.45(j)(9) (riding the load)..... Sec. 1918.85(h)
Sec. 1917.50(c)(5) (special gear)........ Sec. 1918.61(f)
Sec. 1917.51 (hand tools)................ Sec. 1918.69
Sec. 1917.71(f) (vertical lifts- Sec. 1918.85(f)(1)(i)
containers).
Sec. 1917.71(b)(6) (autos in containers). Sec. 1918.85(b)(6)
Sec. 1917.73(a)(2) (menhaden)............ Sec. 1918.94(f)(4)
Sec. 1917.91(a)(1) (eye protection)...... Sec. 1918.101(a)(1)
Sec. 1917.93(b) (head protection)........ Sec. 1918.103(b)
Sec. 1917.94(b) (foot protection)........ Sec. 1918.104(b)
Sec. 1917.95(b)(2) (PFDs)................ Sec. 1918.105(b)(2)
Sec. 1917.124(c)(5),(6) (dockboards)..... Sec. 1918.25(a)(4)
Sec. 1917.124(d)(1),(5) (ramps).......... Sec. 1918.25(b)(5)
Sec. 1917.127(a)(1) (sanitation)......... Sec. 1918.95(a)(1)
Sec. 1917.151 (machine guarding)......... Sec. 1918.96(e)
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3. Substantive changes only in part 1917. OSHA also has made
several substantive changes to the Marine Terminals Standard that have
no
[[Page 40146]]
parallel in the Longshoring Standard. These changes are discussed in
the following paragraphs. In final subpart A, Scope and Definitions of
the Marine Terminals Standard, SHA has updated and clarified the scope,
applicability, and definitions sections of the Marine Terminals
Standard. The Marine Terminals Standard (part 1917) covers all
shoreside activities taking place within a marine terminal (48 FR
30891) except those that are specifically exempted in
Secs. 1917.1(a)(1) and 1917.2(u). It is OSHA's intent that the marine
cargo handling standards (part 1917 for shoreside and part 1918 for
shipboard) apply to all functions that are associated with the movement
of cargo. However, the current marine terminal definition
(Sec. 1917.2(u)) includes a geographical as well as functional test to
be applied when determining when the Marine Terminals Standard, rather
than the General Industry Standards applies. Section 1917.1(a),
entitled ``Scope and applicability,'' is worded as follows in OSHA's
existing Marine Terminals Standard:
The regulations of this part apply to employment within a marine
terminal as defined in Sec. 1917.2(u), including the loading,
unloading, movement or other handling of cargo, ship's stores or
gear within a marine terminal or into or out of any land carrier,
holding or consolidation area, or any other activity within and
associated with the overall operation and functions of the terminal,
such as the use and routine maintenance of facilities and equipment.
(Emphasis added)
The definition of ``marine terminal'' in the existing standard is
as follows:
``Marine terminal'' means wharves, bulkheads, quays, piers, docks
and other berthing locations and adjacent storage or contiguous
areas and structures associated with the primary movements of cargo
or materials from vessel to shore or shore to vessel including
structures that are devoted to receiving, handling, holding,
consolidation and loading or delivery of waterborne shipments or
passengers, including areas devoted to the maintenance of the
terminal or equipment. The term does not include production or
manufacturing areas having their own docking facilities and located
at a marine terminal nor does the term include storage facilities
directly associated with those production or manufacturing areas.
(Emphasis added)
OSHA received comments to the effect that the relationship of the
work being performed to cargo handling operations should determine
whether an activity is included within the scope of the Marine
Terminals Standard, not the location where the work is being performed.
For example, the National Maritime Safety Association (NMSA) stated,
Additional language should be added to allow gear and maintenance
shops located off-terminal to fall under the scope of 1917. Even
though the same workers perform the same job tasks in both shop
locations, the off-terminal shops must [currently] comply with the
rules found in 1910. In many cases, the local Port Authority will
not allow shops to be located on their terminal so the Stevedore or
Marine Terminal operator has no choice but to locate off-terminal.
As long as work performed in off-terminal shops is the same as work
performed in shops located on-terminal and is primarily in support
of Longshoring or Marine Terminal operations, the same rules should
apply to both locations. (Ex. 8-20)
OSHA finds merit in this recommendation, and no views to the
contrary were presented. There is no geographical limitation to
maritime jurisdiction on shore other than the limitation of the Act
itself, and it is not OSHA's intent to impose an artificial geographic
boundary through the standards-setting process. The controlling test
should be whether the operation is associated with the primary movement
of cargo. If maintenance of terminal equipment is performed within the
limitations of OSHA's marine cargo handling rules, then part 1917
applies regardless of where the ``terminal'' gate exists. In the final
standard, OSHA has therefore relaxed the language suggesting a strict
geographical test. In Sec. 1917.1(a) of the final rule, the first
sentence of the term ``marine terminal'' is changed to read: ``Marine
Terminal means wharves, bulkheads, quays, piers, docks and other
berthing locations and adjacent storage or adjacent areas and
structures associated with the primary movement of cargo or materials
from vessel to shore or shore to vessel including structures which are
devoted to receiving, handling, holding, consolidation and loading or
delivery of waterborne shipments or passengers, including areas devoted
to the maintenance of the terminal or equipment * * *''. In addition,
for purposes of clarity, the phrase, ``having their own docking
facilities and located at a marine terminal,'' is deleted in the final
rule. This deletion does not change the intended effect of this
definition.
Another marine terminal-related scope issue was previously
addressed by OSHA after publication of the final Marine Terminals
Standard in 1983. In 1984, OSHA and the National Grain and Feed
Association (NGFA) came to a settlement agreement that identified those
provisions of the Marine Terminals Standard (part 1917) that are
generally applicable and those that are not applicable at marine
terminal grain elevators. (For a copy of the agreement, see Ex.1-156.)
In the present rulemaking, OSHA has made no substantive changes to
those sections of the Marine Terminals Standard that were part of this
agreement. For information purposes, OSHA is providing the following
excerpt (Table C) from the 1984 agreement that lists the provisions of
the Marine Terminals Standard (part 1917) that are generally not
applicable to marine terminal grain elevators:
Table C--Provisions Generally Inapplicable To Marine Terminal Grain Elevators
--------------------------------------------------------------------------------------------------------------------------------------------------------
Part 1917 Section Subject
--------------------------------------------------------------------------------------------------------------------------------------------------------
.13.................................... Slinging
.14.................................... Stacking of Cargo and Pallets
.15.................................... Coopering
.17(c),(d)(1), (f),(h)&(k)............. Railroad Facilities
.18.................................... Log Handling
.22.................................... Hazardous Cargo
.23.................................... Hazardous Atmospheres and Substances
.41.................................... House Falls
.43(g)&(h)............................. Powered Industrial Trucks
.46.................................... Crane Load and Limit Devices
.48(b),(c), (d)&(e).................... Conveyors
.49(e)&(g)............................. Spouts, Chutes, Hoppers, Bins and Associated Equipment
.71.................................... Terminals Handling Intermodal Containers or Roll On Roll Off Operations
.73.................................... Terminals Handling Menhaden and Similar Species of Fish
.114................................... Cargo Doors
[[Page 40147]]
.115................................... Platforms and Skids
.124................................... Passage between Levels and across Openings
.153................................... Spray Painting
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed Sec. 1917.25(g), which concerned tobacco that has been
loaded into containers and then fumigated prior to loading the
container onto a vessel, required that the contents of the container be
aerated by opening the container doors for a 48-hour period after
fumigation and before loading. The proposed requirement also stipulated
that the aeration period be extended to 72 hours in cases where the bag
liners of the cases in which the tobacco is shipped are made of
polyethylene or similar material. The proposal required that employers
obtain a warranty from the fumigator stating that the aeration period
had been met. This requirement differs from the fumigated tobacco issue
addressed in subpart I of part 1918, which applies to cargoes that are
break-bulk such as bales or hogsheads (Sec. 1918.94(c)). Tobacco
cargoes, both imported and exported, are shipped most typically in
bales, in hogsheads, and in intermodal containers. Thus,
Sec. 1917.25(g) applies to tobacco that is fumigated while it is in
containers but before it is loaded into the vessel.
In determining the appropriateness of required aeration intervals,
OSHA is relying on documents from the U.S. Department of Agriculture
and the Tobacco Association of the United States. The studies reported
in these documents concluded that intermodal containers loaded with
fumigated tobacco required an additional 48 to 72 hours of aeration to
be free of hazardous fumigant levels, depending on whether or not the
tobacco is within shipping cases having polyethylene or similar bag
liners (Exs. 1-70, 1-95).
Comment was received on proposed Sec. 1917.25(g); commenters asked
OSHA to delete the proposed requirement for a 48-hour aeration period
for fumigated tobacco that is loaded into containers before those
containers are loaded on a vessel (Exs. 6-1, NMSA et al.):
OSHA's attention is directed to document number 1, earlier submitted
into evidence by NMSA. This document contains a copy of a letter
from the United States Environmental Protection Agency to Soil
Chemicals Corporation, permitting containers under fumigation to be
transferred onto and off of ships.
Also in the document is a letter from the California Department
of Pesticides regulation accepting this practice.
NMSA feels that the words ``and prior to loading'' should be
deleted from the end of the first sentence. Aeration of fumigated
containers aboard ship is a common practice that has been in effect
for many years. Continuing this practice will result in a delay in
cargo delivery and disrupt vessel sailing schedules. (NO Tr. p.150)
OSHA has determined that the studies and data supplied by the U.S.
Department of Agriculture and the Tobacco Association which show that
48-and 72-hour aeration periods are necessary to reduce fumigant levels
to non-hazardous levels in containers without and with polyethylene
lined bags, respectively, are more compelling than the evidence
submitted by these commenters. Accordingly, Sec. 1917.25(g) of the
final rule remains the same as proposed and requires employers to
provide the appropriate aeration period for tobacco that is fumigated
in a container prior to loading.
In Sec. 1917.45(f)(5)(ii), OSHA proposed to require seat belts for
the operators of high speed container gantry cranes.\4\ This new
proposed requirement would have allowed a 90-day phase-in period for
the installation of the seat belts. Comment was received that supported
the requirement for seat belts but requested that a 180-day phase-in
period be given to allow more time to purchase and install the
necessary equipment (Exs. 6-1, 6-16b, 6-31a). The majority of U.S.
marine terminals are owned by quasi-governmental organizations (i.e.,
port authorities). Typically, major capital equipment such as container
gantry cranes are owned and maintained by the aforementioned quasi-
governmental organizations. In order to allow sufficient time to
accommodate government budget cycles, OSHA has concluded that a 180-day
phase-in period is appropriate and has written Sec. 1917.45(f)(5)(ii)
of the final rule accordingly.
---------------------------------------------------------------------------
\4\ High speed container gantry cranes are those 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) or faster.
---------------------------------------------------------------------------
Paragraph (a)(1) of Sec. 1917.46 of the existing and proposed
Marine Terminals Standard, crane load and limit devices, requires all
cranes, except those specifically exempted, to be equipped with a load
indicating device. OSHA received one comment (Ex. 82) requesting that
overhead cranes used in marine terminals be included in the types of
cranes exempted from this requirement. This commenter pointed out that
overhead cranes are similar to bridge-type container gantry cranes,
which are exempted from this requirement, in that the load capacity of
the crane is the same regardless of the actual position of the load. In
other words, the load capacity of the crane does not depend on a boom
that can change radius (and thus the load capacity); it is this factor
that makes a load indicating device necessary. OSHA agrees with this
commenter, and final rule Sec. 1917.46(a)(1)(viii)(A) specifically
exempts overhead cranes from the requirement to have a load indicating
device.
C. 29 CFR Part 1918--Safety and Health Regulations for Longshoring
Subpart A--Scope and Definitions
This subpart updates and clarifies the scope, applicability, and
definition sections of the Longshoring Standard.
Section 1918.1 Scope and application
The Longshoring rules apply from the foot of the gangway up to the
vessel and address all activities related to cargo handling aboard the
vessel. This means that ship-to-shore/shore-to-ship cargo transfer
operations using shore-based material handling devices and all lifting
device-specific aspects of such transfers will be covered by the Marine
Terminals Standard (29 CFR part 1917). When cargo handling is
accomplished using ship's cargo gear, the Longshoring Standard (29 CFR
part 1918) applies.
This final rule has been written to stand by itself, i.e., to be a
``vertical standard.'' Vertical standards are those that apply to a
specific industry and address the hazards present in that industry. For
industries such as longshoring, the vertical standards in part 1918 are
intended to provide comprehensive coverage of the hazards in an
industry and make it unnecessary for employers in that industry to
refer to, or comply with, most other OSHA standards. However, in
several areas of coverage, OSHA's General Industry Standards have been
incorporated into the Longshoring Standard by reference, and these 29
CFR part 1910
[[Page 40148]]
incorporations are listed in paragraph (b) of the final rule's scope
and application section. This approach follows the approach taken by
OSHA in its other marine cargo handling standard, the Marine Terminals
Standard, 29 CFR part 1917 (48 FR 30886). The Agency is incorporating
by reference the General Industry Standards (from 29 CFR part 1910)
that are needed to supplement the specific marine cargo handling
provisions in the Longshoring Standard. The incorporation-by-reference
approach is an efficient means of providing coverage for those hazards
that are not unique to the marine cargo handling industry. This idea
was endorsed by many commenters (Ex. NMSA et al.). For example, in his
testimony at the October 20, 1994, Seattle hearing, Mr. Hank Bynaker,
manager of environmental safety and health for American President
Lines, stated `` . . . I would like to recognize OSHA's efforts to
modernize their approach and to support that effort.'' (SEA Tr. p. 295)
The following 29 CFR part 1910 General Industry Standard provisions
will have application to longshoring operations, under Sec. 1918.1:
(b)(1) Access to employee exposure and medical records. Subpart Z,
Sec. 1910.1020;
(b)(2) Commercial diving operations. Subpart T;
(b)(3) Electrical. Subpart S when shore-based electrical
installations provide power for use aboard vessels;
(b)(4) Hazard communication. Subpart Z, Sec. 1910.1200;
(b)(5) Ionizing radiation. Subpart Z, Sec. 1910.1096;
(b)(6) Noise. Subpart G, Sec. 1910.95;
(b)(7) Nonionizing radiation. Subpart G, Sec. 1910.97; and
Note: Exposures to nonionizing radiation emissions from
commercial vessel radar transmitters are considered hazardous under
the following situations: (a) where the radar is transmitting, the
scanner is stationary, and the exposure distance is 19 feet (6 m) or
less; or (b) where the radar is transmitting, the scanner is
rotating, and the exposure distance is 5 feet (1.8 m.) or less.
(b)(8) Respiratory protection. Subpart I, Sec. 1910.134.
(b)(9) Toxic and hazardous substances. Subpart Z applies to marine
cargo handling activities except for the following:
(A) when a substance or cargo is contained within a sealed, intact
means of packaging or containment complying with Department of
Transportation or International Maritime Organization requirements; \5\
---------------------------------------------------------------------------
\5\ The International Maritime Organization publishes the
International Maritime Dangerous Goods Code to aid compliance with
the international legal requirements of the International Convention
for the Safety of Life at Sea, 1960.
---------------------------------------------------------------------------
(B) Bloodborne pathogens, Sec. 1910.1030;
(C) Carbon monoxide, Sec. 1910.1000 (See Sec. 1918.94 (a)); and
(D) Hydrogen sulfide, Sec. 1910.1000 (See Sec. 1918.94 (f)).
These subparts and sections of OSHA's General Industry Standards
are also incorporated into the Marine Terminals Standard
(Sec. 1917.1(a)(2)) by reference along with several other part 1910
sections that have application only in a marine terminal. Incorporating
the same General Industry Standards into the Longshoring and Marine
Terminals Standards will make both of OSHA's marine cargo handling
rules similar with respect to these issues, an approach that has long
been advocated by the marine cargo handling industry and is supported
by this record.
OSHA's Bloodborne Pathogens Standard (29 CFR 1910.1030) does not
apply to marine cargo handling operations. OSHA will continue its past
policy of applying the first aid requirements of Secs. 1917.26 and
1918.97. In a letter dated July 31, 1992, to the National Maritime
Safety Association, OSHA addressed the coverage of the Bloodborne
Pathogen Standard to the marine cargo handling industry. It states, in
pertinent part, as follows:
* * * the bloodborne pathogen standard primarily applies to general
industry establishments and not the cargo handling industry that
N.M.S.A. represents. (Ex. 6-158).
Bloodborne pathogens are most commonly encountered in the cargo-
handling environment during a first aid response when an injured
employee is bleeding. Under these circumstances, first aid, which
encompasses universal precautions (procedures for handling human blood
and certain human body fluids in a manner that prevents the
transmission of infection), must be followed by first aid responders.
For further guidance, particularly for small employers, OSHA has
included a non-mandatory appendix, Appendix V, titled Basic Elements of
a First Aid Training Program.
In addition, as was proposed, OSHA is exempting from subpart Z all
sealed, intact packages or containers that meet the Department of
Transportation (DOT) or International Maritime Organization (IMO)
requirements. OSHA's existing Longshoring Standard contains no such
exemption, although the existing Marine Terminals Standard
(Sec. 1917.1(a)(2)(ii)) does. Packages and containers that are sealed
present no exposure hazards to marine cargo handling employees,
provided that such containment remains intact. In order for packages
and containers to qualify for the exemption in Sec. 1918.1(b)(9)(B),
they must meet DOT or IMO requirements. This will ensure that exempted
packages are properly packaged, and thus highly unlikely to expose
workers to toxic or hazardous substances. Including the exemption for
intact packages and containers in the final Longshoring Standard will
thus make that standard consistent with the Marine Terminals Standard.
OSHA also proposed to incorporate various other provisions of the
General Industry Standards into the Longshoring and Marine Terminals
Standards. These included subpart P of 29 CFR part 1910, which covers
hand and portable tools, 29 CFR 1910.120(q), which addresses emergency
response to hazardous substance releases, and subpart O of 29 CFR part
1910, which covers machine guarding. At the time of the proposal, OSHA
had made an initial determination that these general industry
provisions provided more comprehensive coverage than the corresponding
provisions of the Longshoring and Marine Terminals Standards. However,
commenters did not support the incorporation of these general industry
provisions, as discussed in detail below.
To ensure safe practices in the use of hand tools, in
Sec. 1918.1(b)(5), OSHA proposed deleting the current longshoring
requirements for hand tools, Sec. 1918.72, titled ``Tools,'' and
replacing this section with the more comprehensive requirements of
subpart P of 29 CFR part 1910, titled Hand and Portable Powered Tools
and Other Hand Held Equipment. OSHA also proposed to incorporate the
same general industry section into the Marine Terminals Standard
(proposed Sec. 1917.1(a)(2)(vii)). This approach was not supported by
rulemaking participants, however. For example, the Pacific Maritime
Association in their comments asserted that:
About the only hand tools used by longshoremen aboard vessels
are hammer-hatchets, chain saws, hand saws, hydraulic wire cutters
and manual wrenches. There is no need for OSHA to require the
adoption of 1910 Subpart P that includes hand tools never used
aboard vessels (Ex. 8-8).
This position was also voiced by several respondents (Ex. NMSA et
al.). In addition, OSHA has re-examined its compliance history for
marine cargo handling found in its Integrated Management Information
System (which contains computerized data on all OSHA compliance
inspection data,
[[Page 40149]]
dating back to 1972). While citations were found for the provisions
addressing the hazards associated with hand and portable power tools
found in Parts 1917 and 1918, no such citations were found for Part
1910. After considering these comments and in light of the Agency's own
enforcement data, OSHA has determined that the hand tool provisions in
the Agency's existing Marine Terminals and Longshoring Standards do
address the hand tool hazards present in marine cargo handling
operations more effectively than would be the case if subpart P of the
General Industry Standards were incorporated by reference. Accordingly,
the final rule does not incorporate these general industry
requirements.
OSHA proposed to include from the General Industry Standards a
paragraph from Subpart H, Hazardous waste operations and emergency
response, Sec. 1910.120(q), to address the issue of appropriate
coverage of emergency response to hazardous incidents. 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 have provided an emergency action plan and met other
requirements in accordance with Sec. 1910.38(a).
The existing longshore and marine terminals regulations address the
issue of responding to hazardous cargo spills in Sec. 1917.22 (marine
terminals) and Sec. 1918.86 (longshoring). In general, these sections
require the employer to remove employees from the area that the cargo
has been spilled in, to determine the hazard involved, and to instruct
employees in proper clean-up procedures.
Many commenters felt that adding this general industry provision
duplicated the existing marine terminal and longshoring regulations
discussed in the last paragraph (Exs. 6-29a, 6-39, NMSA et al.).
Mr. Richard Buonocore, Director of Safety for Matson Terminals,
Incorporated and Matson Navigation Company, Incorporated, and Shore
Side Operations, stated at the Seattle hearings:
I also direct the Committee's attention to proposed 1918.89(a)
and (c). These sections would repeat in the marine terminals rules
existing sections 1917.22(a) and (c) from the longshoring rules.
We're still with preparation for receiving hazard cargo and for
responding to hazard cargo spills.
We believe these proposals, both of which deal with hazard
materials, awareness, and responses to hazard material incidents,
are unnecessary because these subjects are adequately and
appropriately addressed by other existing provisions.
Emergency response plans were addressed in 1910.38(a), preparing
for receipt of hazard cargos and dealing with spills are addressed
in 1918.86(a) and (c).
Hazard communications issues are addressed in 1918.90,
particularly subpart (h), as well as in the general OSHA hazard
communication standard of 29 CFR 1910.1200.
Ventilation risks for particular hazard commodities are
addressed by 1918.93.
Perhaps most importantly in this regard is DOT's HAZMAT employee
training rules, 49 CFR 172.204, which was alluded to by John Pavelko
but not by citation number, requiring training on hazard material,
risk, and emergency response.
Under the DOT rules, all employees, including longshore
personnel working with hazardous materials and transportation must
be given awareness and safety training and must know how to
recognize potential dangers and how to take appropriate actions to
protect their personal safety in the event of a hazardous release
(SEA Tr. pp. 218-219).
Mr. John Pavelko, the Pacific Maritime Association Coast Director
for Training and Accident Prevention testified to the issue that the
marine cargo handling industry does not do hazardous material clean-up:
Again, the PMA members on the West Coast have an agreement that if
there is an emergency, the emergency will be responded to by a
professional vendor. Longshoremen will not be called to respond to
any emergency.
Under the HAZWOPER, the HAZWOPER, as you know, was designed for
hazardous waste generators. It was for big time corporations that
generate a lot of hazardous waste. The maritime industry just kind
of got sucked into this thing by that one little sentence in there
that says if there's going to be an emergency, then you've got to
have a plan.
Then if you don't respond to an emergency, then you've got to
refer to, what was it, 1910.38. So all of our members fall under
1910.38 and not under the HAZWOPER, but yet when a compliance
officer, on several--I shouldn't say several--on at least two or
three occasions when compliance officers have come to the
waterfront, they try to cite our employers under the HAZWOPER.
We're saying, it's not us, it doesn't apply, and there's back
and forth, back and forth, and this is another issue that causes a
lot of problems for employers. (SEA Tr. pp. 189-190)
Mr. Ron Signorino, Director of Regulatory Affairs, Universal
Maritime Service Corporation, testified in the New Orleans hearings:
The HAZWOPER rule was written by OSHA in response to a mandate by
Congress to have rules in place, whereby employees responding to an
emergency situation could be protected from the hazards that are
associated with that response.
Now, the position of the National Maritime Safety Association
has been traditionally that when employees employed by members of
NMSA are aware of the spill that those employees be directed to
evacuate any area in a spill, so that a professional team can come
in and respond to that emergency, the professional teams are outside
contractors who have no affiliation with the work.
Typically, they're specialists in performing these clean-ups of
these hazard emergency responses.
Then, as a consequence, the provisions of HAZWOPER, rightly
should not apply to employees who have, in fact, no exposure (NO Tr.
p. 202).
OSHA agrees with the commenters that the HAZWOPER regulations are
for those employers and employees that are in the business of cleaning
up spills of hazardous chemicals and hazardous waste generators.
However, if a marine cargo handling employer decides to respond to an
emergency that is beyond the scope of the Emergency Action Plan
developed by the employer in accordance with the final rule
(Secs. 1917.30 and 1918.100), that employer ceases to be acting in a
``marine cargo handling'' capacity and the appropriate sections of
OSHA's General Industry Standards (e.g., 29 CFR 1910.120(q), HAZWOPER)
would apply. This is reflective of the application of
Sec. 1910.120(q)(1) which reads in relevant part:
Employers who will evacuate their employees from the danger area
when an emergency occurs, and who do not permit any of their
employees to assist in handling the emergency, are exempt from the
requirements of this paragraph if they provide an emergency action
plan in accordance with Sec. 1910.38(a) of this part.
In the final rule, OSHA has decided to address these hazards by
adding a new section to each of the Longshoring and Marine Terminals
Standards. These new sections, which are identical, will alleviate the
duplication and confusion that would be caused by the proposed cross-
referencing of paragraphs from the Hazardous Waste Operations and
Emergency Response Standard, Sec. 1910.120(q), and from the Emergency
Action Plans Standard Sec. 1910.38(a). These new sections, which are
codified in subpart B, Marine Terminal Operations (Sec. 1917.30), and
subpart I, General Working Conditions (Sec. 1918.100), require marine
terminal and longshoring employers, respectively, to develop a written
(if there are 10 or fewer employees, oral
[[Page 40150]]
communication of the emergency action plan is acceptable) emergency
action plan to handle anticipated emergencies of all types, including
those involving fires and toxic substances, before the commencement of
emergency response operations. These sections identify the basic
elements of an emergency action plan (escape route planning,
accountability, employer contacts); an alarm system; evacuation
procedures; and training requirements. OSHA believes that, as a
practical matter, the emergency action plan can be adequately
communicated to a small group of employees of 10 or fewer when the
requirements of the plan are orally explained; a written plan is
therefore unnecessary in this circumstance.
OSHA proposed to protect marine cargo handling employees from the
hazards of fixed machines by referencing the comprehensive list of
machine guarding provisions contained in OSHA's General Industry
Machine Guarding Standards (29 CFR 1910 subpart O) into the scope of
both the Marine Terminals and Longshoring Standards.
The existing regulations address machine guarding in different
ways. In the Longshoring Standard, machine guarding is addressed in
several areas such as cargo winches (``When moving parts of winches or
other deck machinery present a hazard, they shall be guarded,''
Sec. 1918.53(a)(1)) and in powered conveyors (``All conveyor and
trimmer drives which create a hazard shall be adequately guarded,''
Sec. 1918.69(c)). In the Marine Terminals Standard, the existing
regulations on machine guarding center around the ``danger zone''
concept. A ``danger zone'' is defined in the Marine Terminals Standard
as any place in or about a machine or piece of equipment where an
employee may be struck by or caught between moving parts, caught
between moving and stationary objects or parts of the machine, caught
between the material and a moving part of the machine, burned by hot
surfaces or exposed to electric shock. The danger zone performance
approach to machine guarding provides coverage of all hazards within
the danger zone without the need to address each hazard separately.
This approach also requires employers to use their judgment about which
machine parts or areas at or near a machine do in fact expose employees
to workplace hazards.
Several commenters noted that the existing danger zone concept used
in the Marine Terminals Standard provided the necessary employee
protection and that the proposed machine guarding provisions were
unnecessary (Exs. 6-29a, 6-31a, 6-35). Other commenters favored the
danger zone approach and stated that the machine guarding provisions in
the General Industry Standards were voluminous and addressed several
types of machinery that were not found in marine cargo handling
operations (Ex. NMSA et al.).
Mr. Signorino addressed this issue during the hearings in New
Orleans, testifying as part of a panel representing the National
Maritime Safety Association:
We adopt the approach that was originated by OSHA, implemented by
that agency in the promulgation of the 1917 standards; and, in the
space of time since the promulgation of those standards, has borne
significance in terms of lack of accident experience, in terms of
moving parts of machinery. That concept is, of course, the dangers
[zone] (NO Tr. p. 413).
OSHA agrees with the above comments and testimony and in the final
rule has decided that the same danger zone approach to machine guarding
hazards pioneered in the Marine Terminals Standard (Secs. 917.2(g) and
1917.151) will provide appropriate protection from machine guarding
hazards in marine cargo handling operations regardless of location,
i.e., in both marine terminal and longshoring operations. In addition,
using the danger zone concept will allow employers some compliance
flexibility. For example, although an unguarded nip point near an
employee's work station will usually present a significant caught-in
hazard, a nip point located 10 feet above the working surface is far
less likely to present such a hazard.
Accordingly, the final rule does not incorporate subpart O of the
General Industry Standards into the scope of the Marine Terminals and
Longshoring Standards as proposed. Instead the final rule retains the
existing machine guarding protections provided by Sec. 1917.151 of the
Marine Terminals Standard and brings these provisions into the final
Longshoring Standard as Sec. 1918.96(e). (Guidance on a wide range of
machine guarding techniques and background information may be found in
the OSHA pamphlet ``Concepts and Techniques of Machine Guarding'' (OSHA
3067-1992) or the American National Standards Institute (ANSI)
publication ``American National Standard for Machine Tools'' (ANSI
Bll.l9-1990).)
In keeping with the Agency's efforts to develop regulatory language
that is easier to follow, the references to part 1910, OSHA's General
Industry Standards in Sec. 1918.1(b) have been renumbered and placed in
alphabetical order.
Section 1918.2 Definitions
Final rule Sec. 1918.2 carries over many definitions from the
proposed and existing Longshoring Standards because those definitions
are still relevant and are used in the final rule. However, some new
definitions and modifications to existing definitions were proposed and
have been added or made to reflect changes in current custom and
practice in the longshore industry.
The existing rule's references to ``Federal maritime jurisdiction''
and ``navigable waters'' in the definitions of ``employee'' in
Sec. 1918.2 paragraph (e) and ``employer'' in paragraph (f) were not
included in the proposal. The existing rules were originally
promulgated under the Longshore and Harbor Workers' Compensation Act
(33 U.S.C. 941), whose jurisdiction was limited to navigable waters.
The promulgation of the OSH Act, which applies to private sector
employment in covered workplaces, no longer uses navigable waters to
establish jurisdiction. The final rule does not include these
references.
New definitions or definitions that OSHA has revised substantially
in the proposal or final are described below.
The definition of ``danger zone'' in the final rule is taken from
OSHA's existing Marine Terminals Standard, as discussed above. This
definition exists in the existing Marine Terminals Standard and is
being added to the final Longshore Standard. OSHA finds it appropriate
to include identical definitions of this term in the Marine Terminals
and Longshoring Standards because various kinds of equipment that pose
similar hazards to employees are present in both marine cargo handling
environments.
OSHA proposed a new definition for ``designated person,'' which
received considerable support (Ex. NMSA et al., Ex. 6-22). This term
has been incorporated in the final rule, and is defined to mean a
person who has a special skill in a particular area and has been
assigned by the employer to do a specific task in that area. Examples
of the use of this term in the final Longshoring Standard are:
Sec. 1918.51(b) which requires that a designated person inspect a
vessel's cargo gear before use and at intervals during use; and
Sec. 1918.55(c)(7) which requires that a designated person supervise
tandem lifting operations.
The definitions for ``enclosed space'' and ``fumigant'' in the
final are essentially unchanged from those proposed in the Longshore
Standard. In
[[Page 40151]]
addition, these definitions are essentially identical to those found in
the Marine Terminals Standard.
A definition for ``fall hazard'' has been added to the final rule
in Sec. 1918.2. According to the final rule, a fall hazard exists when
employees are working within 3 feet of the unprotected edge of a work
surface that is 8 or more feet above the adjoining surface and 12
inches or more horizontally from the adjacent surface, or when weather
conditions are such as to impair the vision or footing of employees
working on top of containers. This definition was proposed as a
footnote to the container top fall protection section; however, because
it has application in several other sections of the Longshoring
Standard (Secs. 1918.32, 1918.85, and 1918.87), it has been placed in
the definitions section. The definition makes it clear that it is the
unprotected edge that poses a fall hazard and not necessarily the
entire work surface (except in bad weather or when ice, grease etc. is
present so the entire surface may be slippery). Additionally, any gap
of 12 inches (.31 m) or more on a horizontal surface formed by
containers is considered an unprotected edge and would constitute a
fall hazard under this definition. OSHA believes that any work within 3
feet (.92 m) of an unprotected edge constitutes a hazard (Ex. 1-139),
providing that the second essential element of this definition exists,
i.e. that the vertical distance is such as to constitute a fall hazard.
In proposed Sec. 1918.85(j), the Agency defined the fall height trigger
at 10 or more feet above the adjoining surface. The final rule,
however, sets the vertical height for fall hazards at 8 or more feet
above the adjoining surface; this fall height is consistent with the
fall height established in the final rule for non-containerized cargo
(see Sec. 1918.32(b)). The final trigger height of 8 feet is identical
to the existing requirement for fall protection found in
Sec. 1918.32(b). OSHA believes that this height was originally adapted
from an industry practice that pre-dated containerization. At that
time, cargo was usually palletized into a standard 4 foot high pallet.
It became an industry practice that whenever pallets were stacked two
or more, the top working surface would be considered a fall hazard,
thus requiring nets or other equivalent protection.
The definition of ``Hazardous cargo, materials, substance or
atmosphere'' in the final longshore rule has been expanded to reflect
the Marine Terminal Standard's definition of hazardous cargo. This
definition goes beyond the existing part 1918 definition by including
references to subpart Z of part 1910 and oxygen-deficient atmospheres.
The definition for ``intermodal container,'' which remains
unchanged from the definition in the proposal, reflects a combination
of definitions found both in the International Labor Organization (ILO)
Code of Practice for Safety and Health in Dock Work (Ex.1-135) and the
definition found in the International Standards Organization (ISO)
Standard 830, Freight Containers-Terminology (Ex.1-134). The definition
in the final rule more accurately describes an intermodal container
than the definition that is in the existing rule. This updated
definition is also in the Marine Terminals Standard at Sec. 1917.2.
The definitions of ``dockboards'' and ``ramps,'' found in the
existing Marine Terminals Standard, have been brought into the
Longshoring Standard with minor editorial modifications.
The extensive list of definitions that were included in
Sec. 1918.3(r) of the existing Longshoring Standard that specifically
refers to existing Sec. 1918.13, ``Certification of shore-based
material handling devices,'' has been deleted in the final rule. These
definitions are no longer needed in the Longshoring Standard because
part 1917, the Marine Terminals Standard, now contains OSHA's
regulations for the certification of shore-based material handling
devices.
The proposed definition for ``vessel's cargo handling gear'' had
been modified by adding language to reflect cargo gear included under
the ILO Convention 152. The final definition gives examples of the
kinds of cargo handling gear that are included in this newer definition
to reflect comments received that requested a more descriptive
definition (Ex. 6-22).
For the sake of clarity and consistency, the word ``required''
(which is used extensively in parts 1917 and 1918) and the word
``ensure'' shall be synonymous for compliance purposes.
Subpart B--Gear Certification
Section 1918.11 Gear Certification
In OSHA's current Longshoring Standard, subpart B includes
requirements for vessels' cargo gear certification, the certification
of shore-based material handling equipment, and some provisions for
gangways. The final rule's requirements for the certification of shore-
based material handling equipment and for gangways are essentially
unchanged from those in the current Longshoring Standard, although they
have been moved from this subpart to the Marine Terminals Standard and
to subpart C of the Longshoring Standard, respectively, as explained
below. The final rule's requirements relating specifically to vessels'
cargo gear certification, entitled ``Gear Certification,'' have been
streamlined and are now consolidated in subpart B of the Longshoring
Standard. The gangway requirements in subparts B and C of OSHA's
existing Longshoring Standard have, in the final rule, been moved to
subpart C ``Gangways and Other Means of Access'' (Sec. 1918.21).
Furthermore, existing Secs. 1918.13 through 1918.15, which covered
shore-based material handling devices and container cranes, have been
removed from part 1918 because shore-based handling devices are
currently covered exclusively under part 1917, the Marine Terminals
Standard. In the existing definitions section, Sec. 1918.3(r)(5) (i) to
(vi) listed material handling devices that were exempted from the
certification requirements of existing Sec. 1918.13. Section 1918.13
required that shore-based material handling devices be certified in
accordance with part 1919, OSHA's gear certification regulations. As
mentioned above, these requirements are now found in part 1917, the
Marine Terminals Standard. Material handling devices are now exempted
from certification only if they are listed in Sec. 1917.50(h). Huletts,
bridge cranes, ore and taconite loading facilities, and bulk coal
loading facilities, which were exempted from certification under
existing Sec. 1918.3, are not exempted under existing and final
Sec. 1917.50.
Some commenters (Exs. 6-16a and NMSA et al.) urged OSHA to move the
remaining regulations from subpart B of the Longshoring Standard to
subpart F of that standard, ``Vessels's Cargo Handling Gear,'' on the
grounds that doing so would consolidate all vessel cargo handling gear
requirements into one section (Ex. 8-20). OSHA disagrees with this
position because subpart B's vessel cargo gear certification
requirements are procedural in nature, have international significance,
and apply to all lifting appliances aboard the vessel, such as
elevators and material handling equipment. In contrast, subpart F
primarily addresses the specific operational requirements for cranes
and derricks. Accordingly, the final rule continues to address vessel
cargo gear certification in subpart B.
Section 1918.11 of the final rule, entitled ``Gear certification,''
requires employers to ensure that the vessel has a current and valid
cargo gear register and certificates that are in accord with the
recommendations of the International Labor Organization (ILO)
Convention No. 152 as these pertain to
[[Page 40152]]
the testing and examination of cargo gear (paragraph (a)). Vessels
holding a valid Certificate of Inspection from the U.S. Coast Guard
(USCG) or public vessels are deemed to meet the requirements of
paragraph (a). Paragraphs (c) and (d) of Sec. 1918.11 specify the
competencies that persons and organizations making entries and issuing
the certificates required by paragraph (a) of this section must have,
both with regard to U.S. vessels not holding a valid USCG Certificate
of Inspection and vessels under foreign registry.
These requirements of the final rule are essentially unchanged from
the corresponding provisions of the proposal. However, by requiring
that vessel cargo gear be certificated in accordance with ILO 152
rather than ILO 32, OSHA is effecting a change from the Agency's
existing Longshoring Standard.
Since 1960, safety and health regulations designed to protect U.S.
dockworkers (with particular regard to vessels' cargo handling gear)
have relied upon the documentary proofs of tests and examinations
mandated by ILO 32 (Ex. 1-34). In Article 9 of that Convention, units
and articles comprising ships' cargo handling gear are specified 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 regulations promulgated by: (1) the U.S. Coast Guard,
regarding inspected U.S. flag vessels; and (2) OSHA, regarding foreign
flag vessels (existing Sec. 1918.12). The Coast Guard has promulgated
cargo gear regulations that exceed those found in ILO 32, namely those
codified at 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 use.
Under ILO 32, proof load testing \6\ was only required initially
before gear was put into service. After that initial test, such gear
received various degrees of visual scrutiny, supplemented occasionally
by nondestructive testing, e.g., a hammer test. Components such as
derricks, goosenecks, mast bands, derrick bands and any other difficult
to disassemble fixed gear, were to be ``thoroughly examined'' every 4
years and ``inspected'' every 12 months. Other hoisting machinery, such
as cranes, winches, blocks, shackles, and any other accessory gear, was
to be ``thoroughly examined'' every 12 months.
---------------------------------------------------------------------------
\6\ Proof load testing, as used here, means lifting a known
weight that is in excess of the safe working load (SWL) of the
lifting appliance being tested.
---------------------------------------------------------------------------
ILO 152, adopted June 25, 1979, requires that proof load testing be
conducted at least every 5 years, and applies to all ships' lifting
appliances. Within Article 3 of ILO 152, the term ``lifting appliance''
means:
Lifting appliance covers all stationary or mobile cargo-handling
appliances 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, p. 2).
Thus, because the final rule requires compliance with ILO 152
instead of ILO 32, it expands testing and certification requirements
for cargo handling equipment on board vessels. Such testing and
certification, which was formerly restricted to specific assemblies and
components (i.e., derricks, cranes, winches, etc.) will now include all
``lifting appliances'' as defined by the newer ILO Convention. This
includes forklifts and other powered 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 (including vehicles) from one deck level to
another, in addition to the vessel's cranes and derricks. Under final
rule Sec. 1918.11, all of this equipment is required to be: tested and
thoroughly examined initially before being put into use; retested and
thoroughly examined every 5 years; and thoroughly examined every 12
months.
In 1993, OSHA received a letter from Sea-Land Service, Inc.
requesting that OSHA interpret the current regulations to allow the
lifting of two empty 40 foot ISO freight containers that are vertically
coupled using semi-automatic twist locks (Ex. 1-161). OSHA's response
allowed the practice under the existing regulations, provided that
certain additional requirements were met (Ex. 1-160). However, the
existing regulations, which reference Convention 32, did not require
the certification of the ``lifting appliance,'' i.e., the top container
and the semi-automatic twist locks.
In the preamble to the proposed rule, the Agency discussed
differences between Convention 32 and Convention 152, including the
requirement in the latter convention to certify lifting appliances.
OSHA stated that, under Convention 152, when a container was used to
lift another container, the top container would fall within the
definition of ``lifting appliance'':
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. Page 28602.
In response to this proposed interpretation of Article 3, paragraph
(e) of ILO Convention 152, OSHA received comments only from the
International Longshoremen's and Warehousemen's Union (ILWU) (Exs. 19,
6-19, and 78). Although these comments favored the proposed
interpretation and requested the Agency to include it as a requirement
in the regulatory text, they included no specific information regarding
lifting containers vertically coupled. Furthermore, while Sea-Land
Services, Inc. submitted a detailed six page comment (Ex. 1-6)
addressing a number of the proposed changes to the Marine Terminals and
Longshoring Standards, it did not address this issue. In addition, OSHA
received a late, post-hearing submission from the International
Longshoremen's Association (ILA) that indicated a serious problem with
this type of lift, citing several incidents at U.S. ports where
failures occurred (L-90a). While this letter cannot be the basis of
rulemaking at this time since it is not part of the record, it has made
OSHA aware of safety concerns that may need to be addressed by the
Agency. The record contains a dearth of information regarding safety
considerations associated with double container lifts, as well as
feasibility information regarding certificating containers and twist
locks as ``lifting appliances''. In light of this lack of information,
OSHA has decided to reserve judgment on this issue, pending further
study.
In the near future, OSHA will reopen the record on this narrow
issue and publish a notice requesting specific information regarding
whether or not OSHA should allow the practice of lifting vertically
coupled containers, and, if so, under what circumstances. The notice
will request information regarding the lifting of one container by
another container using twist locks, including data on the following
issues:
Have the bottoms of intermodal containers been designed and tested
for the purposes of ``lifting''?
Have the twist locks been designed and tested for ``lifting''of
containers?
What information do the manufacturers of containers and twist locks
have regarding the use of their products as lifting appliances?
Do any international bodies currently certify containers and twist
locks as ``lifting appliances''?
[[Page 40153]]
Is there any scientific data that addresses maintenance testing and
``life'' of the components used for lifting purposes?
Has the impact of adverse weather conditions been evaluated in both
design and operational concerns with regard to double container lifts?
What precautions can be taken to assure that the containers being
lifted are empty?
What precautions can be taken to assure that the twist locks are
all locked properly when the lifting occurs?
What precautions can be taken to assure that employees are not
exposed to the hazard of a falling container?
What precautions can be taken to assure that defective or damaged
containers should not be used to hoist other containers?
To what extent are lifts of vertically coupled containers currently
being conducted and by whom?
How many containers and twist locks would have to be certificated
for use as lifting appliances?
What would it cost to certificate the upper containers and twist
locks for use as lifting appliances?
In vessel sharing agreements, is it feasible for upper containers
and twist locks to be used as lifting appliances to be certificated?
What are the productivity gains, if any, associated with the
lifting of vertically coupled containers?
What information, including anecdotal information is available on
incidents involving vertically coupled containers that have fallen and
hurt or killed employees or caused ``near-misses''?
Several commenters (Exs. NMSA et al., NO Tr. pp. 388-393, 638-644)
asked that OSHA continue to recognize and allow vessel's cargo gear on
vessels whose cargo gear registers are in accordance with ILO 32 but
not ILO 152:
* * * Refusal by stevedores to work vessels of nations that have not
ratified ILO 152 will result in loss of business for the stevedore
and terminal operator and can possible [sic] damage U.S. and foreign
trade agreements. Until such nations of the world have ratified ILO
152, those still a signatory to ILO 32 should be recognized and
accepted (Ex. 8-20, p. 4).
During the three public hearings held for this rulemaking, OSHA
questioned witnesses about the difficulty posed by provisions requiring
vessel's cargo gear to comply with the pertinent parts of ILO 152 ( SEA
Tr. pp. 276-278 and 333; NO Tr. pp. 388-394, 454-455, 638-642, and
712). Several commenters (NO Tr. pp. 638-642, 1391, and 1158) expressed
concern that if OSHA requires vessel's cargo gear to meet ILO 152,
vessels with cargo gear that does not comply will go to other countries
to load and unload cargo that will then be brought into the United
States by truck and rail, thereby having an adverse economic impact on
the U.S. marine cargo handling industry. The two other countries that
were of primary concern were Mexico and Canada. However, during the
public hearings, it was pointed out by one witness that Mexico has
ratified ILO 152 and Canada is expected to adopt the basics of ILO 152
in the near future (NO Tr. p. 627). (Also see the discussion in the
section that follows, ``International Aspects.'')
OSHA recognizes that some vessels may need a longer phase-in period
to comply with the ILO 152 cargo gear requirements. In addition, OSHA
recognizes that the stevedore, who is the employer, does not own or
have control of the vessels' cargo gear and thus must depend on the
owner to accomplish the change before the stevedore can determine that
the register is current and valid. Testimony by Mr. Mike Compton, Chair
of the Safety Panel of the International Cargo Handling and
Coordination Association (ICHCA), addressed the phase-in periods
granted by the United Kingdom, for the ILO 152 cargo gear requirements.
Mr. Compton stated:
* * * there were two lead-in periods given. For the change from a
quadrennial to an annual thorough examination on derricks, there was
one year given as a lead-in period.
The way in which this worked was that all of our member ports
told their shipping company customers that this was going to happen
in a year's time, and that in a year's time they would legally not
be able to handle their derricks unless there was a thorough
examination and record of it in the register within the last 12
months, and there was no problem with that. That ship owner had a
year to see that was done.
With regard to the testing, which is now a new requirement of
testing every five years, we gave a four-year lead-in time to that,
which is more than enough time for a shipowner to ensure that the
testing required was carried out.
Again, the member ports told their shipping company customers,
who also heard about it in the course of their own trade
associations, made appropriate requirements, arrangements, and there
was no problem with that either (NO Tr. pp. 630-640).
OSHA finds Mr. Compton's recommendations persuasive and consistent
with the goals of current International Trade Agreements.
Therefore, effective a year from the publication date of the final
rule (Sec. 1918.11(a)(1)), all lifting appliances and all loose gear
are required to have had a thorough examination that is duly recorded
in a cargo gear register in accordance with ILO 152. Effective four
years from the publication date of the final rule (Sec. 1918.11(a)(2)),
all lifting appliances and all loose gear must have been tested (or
retested) with the results duly recorded in a cargo gear register in
accordance with ILO 152. At that time, vessels that do not have a cargo
gear register that is properly filled out and up to date will be
violating this regulation if the vessel's lifting appliances are used.
However, in such cases, properly certified shore-based equipment may be
used to load and unload the vessel.
A new paragraph, (a)(3), has been added to address these interim
periods (up to one year for thorough examinations and up to four years
for testing), vessels with cargo gear registers that are in accordance
with ILO 32 will continue to be acceptable during these interim
periods.
Several witnesses during the public hearings expressed concern that
the cargo gear register forms required by ILO 152 were not readily
available and that even if such forms were available, employers would
have difficulty in reading and understanding them (SEA Tr. 277-278, NO
Tr. pp. 651-655). In Appendix I of the proposed rule, OSHA provided a
sample cargo gear register that came from the International Labor
Organization's maritime office and conforms with ILO 152 requirements
(See also Ex. 58). The sample register is in English and includes
definitions and instructions on how to conduct the required inspections
and/or tests and how to fill out the forms. Non-mandatory Appendix I,
as proposed, is included in this final rule.
The International Cargo Gear Bureau, Inc. (Ex. 6-22), pointed out
that although ILO 152 requires that proof load testing be done ``at
least every five years,'' proof testing is often done and is required
by some countries to be done every four years or even more frequently.
The same commenter went on to say that this discrepancy should be
clarified because four-year proof load testing is required in current
Secs. 1917.50(c) and current 1918.61(h). In addition, this commenter
wrote:
If it is the intention of USDL/OSHA to adopt the five (5) year
proof load testing cycle for shipboard cargo handling gear within
the jurisdiction of USDL/OSHA, the justification for such relaxation
of proof load testing requirements should be explained by USDL/OSHA
considering the ``lost workdays'' statistics and statements on page
28595 of the June 2 Federal Register * * * (Ex. 6-22, p.4).
In the final rule, OSHA is not changing either the requirement at
[[Page 40154]]
current Sec. 1917.50(c), which mandates a quadrennial proof load
testing requirement for shore based material handling devices, or the
requirement at current Sec. 1918.61(h), which requires such testing for
special stevedore gear. Instead, by requiring foreign vessels using
ship's gear while working in the United States to comply with ILO 152,
OSHA is providing greater protection to employees than is currently
required, because compliance with ILO 152 requires inspection and
testing of all lifting appliances, not just cranes and derricks, and
requires retesting at least every five years. Thus, the final rule's
vessel cargo gear certification requirements substantially increase
employee protections.
One commenter wrote that OSHA should clarify in the rule what is
meant by ``vessel's cargo handling gear'' because of the expanded
requirements under ILO 152 (Ex. 6-22). OSHA modified the definition of
``vessel's cargo handling gear'' in the proposal to ``include all
stationary or mobile cargo handling appliances * * *. `` and the final
rule includes the same definition. OSHA has included a cross-reference
to that definition in Sec. 1918.11.
It should be noted that 29 CFR part 1919, provides procedures and
standards governing accreditation of persons by OSHA for the purpose of
certificating vessel's cargo gear and shore-based material handling
devices, and the manner in which such certification shall be performed.
Categories of competency have been established based on the equipment
that they have been accredited to inspect. For example, a ``full
function vessel'' accreditation would mean that the person or agency
has been recognized as competent to inspect and certify all of a
vessel's cargo handling equipment. Similarly, a ``loose gear and wire
rope'' accreditation requires the showing of a different inspection
competency. The inspection requirements of this subpart involve both of
these categories.
With regard to these inspection requirements, several commenters
wrote that paragraph Sec. 1918.11(c) should be clarified by adding the
term ``full function vessels'' to identify the type of accreditation
that persons competent to make entries in the registers and issue
certificates must have. (Exs. NMSA et al., 6-16a). OSHA agrees with
these commenters and has made the change in the final rule in both
paragraphs Sec. 1918.11(c) and (d). The words ``or loose gear and wire
rope testing'' have also been added to identify those accredited
agencies that can issue certificates for loose gear and wire rope that
are part of the cargo gear register.
One commenter (Ex. 6-5) noted that OSHA's ``proposed rules are
significantly more stringent than the existing Coast Guard
regulations.'' The U.S. Coast Guard has rules covering marine terminals
that handle bulk flammable liquids and gases. However, all employees
engaged in longshoring operations, whether on U.S. flag or foreign flag
vessels, are covered by OSHA's part 1918 regulations. These regulations
cover forklifts and other powered industrial equipment. During this
rulemaking, OSHA coordinated with, and received support from the
Commandant of the U.S. Coast Guard (Ex. 6-44). OSHA believes that its
final rule will provide longshoring and marine terminal employees with
effective protection from the hazards of marine cargo handling.
The preamble section titled ``International Aspects,'' which was in
the proposal, is repeated in this preamble to the final rule to explain
why OSHA is retaining the provision (at Sec. 1918.11(a)) that allows
foreign flag vessels to comply with ILO gear provisions instead of
requiring them to comply with U.S. standards. This issue was brought
out in written comments and during the hearings (Ex. 6-22, NO Tr. pp.
454-455, pp. 650-651).
International Aspects:
As with all Federal agencies whose regulations influence
international trade, OSHA has developed this final rule in light of
international considerations. Through both law and policy, the United
States has decided that standards-related activities should not, if
possible, be a barrier to trade. The Trade Agreements Act of 1979 (19
U.S.C. 2501 et seq.) addresses technical barriers to trade regarding
federal regulation. Section 2532 of this Act states the following:
Section 2532. Federal standards-related activities.
No Federal Agency may engage in 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
alteration's 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 approach to all foreign nations whose vessels may enter
U.S. ports. This exercise was conducted in the hope of identifying
acceptance. Reports back from responding foreign nations (Ex. 1-6)
indicated overwhelming support for the Agency's approach to these
issues. Most of the nations responding, although stipulating that they
had not yet ratified the more recent ILO Convention, suggested that
their national laws recently ratified were at least as strong, and
sometimes more stringent, than ILO 152. Thus, OSHA is confident that
the cargo gear certification requirements of the final rule are
consistent with those of ILO Convention 152 and national laws and
practices of most other countries.
Subpart C--Gangways and Other Means of Access
In final rule subpart C, OSHA has organized requirements by subject
matter and enhanced the uniformity of shoreside and shipboard
requirements.
Subpart C is titled ``Means of Access'' in the existing and
proposed Longshoring Standard. It contains requirements that employers
must meet before allowing employees to board a vessel. Several
commenters suggested that the title be changed to ``Gangways and Other
Means of Access'' to better describe the contents of this subpart (Ex.
6-16a, NMSA et al.). These same commenters also recommended that this
subpart be rearranged so that each section, such as Gangways, Jacob's
ladders, etc., contains only the specific requirements that apply to
the subject matter of that section. OSHA agrees with the recommended
changes to the title and grouping of subjects in this subpart and has
generally rearranged it accordingly.
The provisions of final Sec. 1918.21 ``General requirements,'' are
taken from the existing and proposed Longshoring Standards, with
editorial changes made for clarity. In final Sec. 1918.21(a), which
requires that the means of access to the vessel not be located under
suspended
[[Page 40155]]
loads to the extent possible, the words ``or others'' have been added
after the word ``employees''. OSHA believes that suspended loads should
not pass over a vessel's means of access, regardless of whose employees
would be exposed to the hazards of overhead loads. While OSHA
recognizes that the stevedoring employer may not have control over all
employees (or users of the gangway), employers do have control over the
movement of suspended loads and thus have the means to comply with this
provision.
Final rule Sec. 1918.21(b) stipulates that substantial steps and a
minimum of one handrail be provided between the bulwark and deck when
the upper end of the means of access rests or is flush with the top of
the bulwark. This provision is unchanged from the corresponding
provision of the proposal.
To eliminate the ambiguity of the current rule, which required that
means of access be ``adequately'' illuminated, final paragraph
1918.21(c) references Sec. 1918.92 which requires specific illumination
levels. In addition, the final rule has a footnote that gives the
candlepower requirement found in Sec. 1918.92, to make it readily
available in this section.
The title of Sec. 1918.22, currently ``Gangways and other means of
access,'' is being changed to ``Gangways'' in the final rule. The word
``gangways,'' as defined in Sec. 1918.2, includes accommodation
ladders, brows, etc. This section also joins two similar sections of
OSHA's current Longshoring rules (Sec. 1918.11--titled ``Gangways'' and
Sec. 1918.21--titled ``Gangways and other means of access''). The final
rule's Sec. 1918.22, therefore, eliminates the need for employers and
employees to look in different subparts for information on gangways.
Following the format of the current Longshoring Standard, gangway
dimensions and characteristics are set out in paragraphs (a) and (b).
Using a combination of specification language with performance-based
alternatives, the final rule provides the flexibility needed in
adapting to vessels built according to international guidelines. The
final rule allows rails to be made of materials other than those
specified in the current rule, if the material is at least equivalent
in strength to those listed. Paragraphs 1918.22 (a) and (b) are
essentially unchanged from the proposal.
Paragraph (c), which requires that the gangway be trimmed at all
times, carries over language from the current rule, plus the term
``trimmed,'' a word that is also found in the Joint Maritime Safety
Code of the New York Shipping Association/International Longshoremen's
Association (NYSA/ILA Safety Code) (Ex. 1-2). This paragraph is
designed to ensure, despite changing conditions caused by tides, cargo
operations, etc., that the gangway and its components are fully useable
at all times.
Final rule paragraphs (d), (f), (h), and (j) are essentially
identical to the corresponding provisions of the current and proposed
rules. They address fixed flat-tread accommodation ladders, handrails
on walkways, and prohibitions against obstructions (paragraphs (d),
(f), and (h), respectively), while paragraph (j) states that vessels
inspected and certified by the USCG are deemed to meet the requirements
of this section. Paragraphs (e), (g), and (i) have been editorially
modified for clarity to address problems of interpretation associated
with these provisions of the existing standard. Proposed paragraph (e)
of the final rule has been revised to require a safety net or suitable
protection when the gangway overhangs the water in a way that poses a
danger of employees falling between the ship and the dock. The purpose
of the net is 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). Final rule paragraph (g) requires gangways to be kept clear of
supporting bridles and other obstructions but allows that, in
situations where gangway supporting bridles cannot be moved because of
the design, the employer is to mark the hazard to alert employees using
such a gangway. Paragraph Sec. 1918.21(i) has been added to the final
rule to address the hazard associated with slippery handrails and
walking surfaces on gangways. Several commenters suggested the use of
more performance-oriented language (Exs. 6-31, 8-20, NMSA et al.) than
the proposal. OSHA agrees and has included the language suggested by
the commenters in the final rule, which has been renumbered as
Sec. 1918.22(i).
Final rule Sec. 1918.23, titled ``Jacob's ladders,'' carries over
language from the current rule. Paragraphs (a) and (b) of this section
contain criteria for rope ladders, also known as ``Jacob's ladders''.
In keeping with the previously mentioned public comments regarding
rearranging this subpart, two paragraphs, proposed as Sec. 1918.23 (e)
and (f), that address Jacob's ladders have been moved to become final
rule Sec. 1918.23 (c) and (d). Final paragraph (c) addresses the
potential for the lower rungs of a Jacob's ladder to be crushed between
the barge and another structure by requiring that a spacer or
equivalent means be used to prevent this from occurring. Final rule
paragraph 1918.23(d) requires that a net or equivalent protection be
provided if there is a space between the vessel, barge, or other
structure when using a Jacob's ladder; this provision is designed to
prevent an employee from falling into the water or from being crushed
between the barge and other structure. Such rope ladders are often
provided by the vessel when more traditional means of access cannot be
used. Nevertheless, the employer (who is often a contractor rendering a
service to the vessel) must comply with the provisions of this section
before employees are permitted to use Jacob's ladders.
Final rule Sec. 1918.24 is a new section titled ``Fixed and
portable ladders.'' This section was moved from proposed Sec. 1918.25
``Ladders,'' which included requirements for both fixed and portable
ladders. For streamlining purposes, the final rule combines the
requirements for portable ladders contained in the current Longshoring
Standard with similar requirements contained in Sec. 1917.119
``Portable ladders.''
Generally, final Sec. 1918.24 includes much of the current
Longshoring Standard's language for ladders. Paragraph 1918.24(a)
requires that a minimum of one ladder be provided for each gang working
in a hatch and that an effective means of gaining a handhold be
provided at or near the head of vertical fixed ladders. Paragraph (b)
requires employers to identify ladders that are visibly unsafe and
prohibit their use. Paragraph 1918.24(c) requires that portable
straight ladders be sufficiently long to extend a minimum of 3 feet
above the upper landing surface and be secured against slipping.
For fixed ladders, OSHA proposed to change the clearance required
behind the ladder rungs from four inches (.11 m) to six inches (.16 m)
on vessels built after December 5, 1981,\7\ in order to be consistent
with the recommendations of the ILO's Guide to Safety and Health in
Dock Work (Ex. 1-129). In addition, OSHA's existing Longshoring
Standard allows that where a fixed ladder has inadequate clearance, a
suitable portable ladder could be used in its place, and the final rule
continues to allow this practice. Two commenters addressed the issue of
clearance. One commenter suggested that OSHA did not give adequate
compliance time to vessel owners on this issue and stated that the
[[Page 40156]]
six-inch (.16 m) requirement should apply to vessels only after a
phase-in period or should apply only to vessels contracted for after
the effective date of the final regulations (Ex. 6-5). The New York
Shipping Association (NYSA) commented that using a permanent ladder
with a four-inch (.11 m) clearance would be safer than using portable
ladders (Ex. 6-16a). Although OSHA agrees with the NYSA comments
overall, the Agency believes that a six-inch (.16 m) clearance is
important to employee safety and OSHA also seeks to encourage
conformance with the international guidelines. To address these
commenters' concerns, however, OSHA is providing for a phase-in period
before the six inch (.16 m) clearance requirement becomes effective.
OSHA believes that this phase-in period will provide adequate time for
the international shipbuilding community to include this requirement in
its shipbuilding design criteria. On those vessels built on or after
four years after the date of the publication of the final rule, fixed
ladders must have six inches (.16 m) of clearance or more, or another
means of access must be used. In the interim period, four inches (.11
m) of clearance is acceptable.
---------------------------------------------------------------------------
\7\ This is the date when ILO Convention 152, Occupational
Safety and Health in Dock Work, was put into effect.
---------------------------------------------------------------------------
Provisions have been added to the final rule at paragraph (g) that
reference ANSI standards for manufactured portable ladders. New
provisions for ladder maintenance and usage similar to those found in
the current Marine Terminals Standard have been added to the final
Longshoring Standard in paragraph (i).
Final paragraphs (c) and (e) of Sec. 1918.24 recognize that, as an
alternative to securing the ladder, an employee(s) may hold a portable
ladder in place while another employee is climbing. The final phrase
reads ``positively secured or held against shifting or slipping while
in use'' and is consistent with the PMA-ILWU Safety Code, Rule 1506
(Ex. 1-145).
In addition, to clarify final paragraph (e), where the employer can
show that employees can safely use the cargo itself to climb in and out
of the hold (often called ``safe cargo steps''), a straight ladder is
not necessary.
Paragraph (f) of the final rule sets out the requirements for rung
strength, spacing, and positioning, and establishes the widths between
side rails required for ladders of various heights.
As mentioned above, paragraph (g) establishes standards for
manufactured portable ladders by cross-referencing the appropriate ANSI
requirements for portable wood ladders, portable metal ladders, and
portable reinforced plastic ladders.
In paragraph (h) of the final rule, minimum requirements are set
forth for job-made portable ladders. These requirements address
between-rung distances, strength requirements, and width between side
rail requirements.
The requirements in final rule paragraph (i) cover maintenance and
inspection requirements for portable ladders. They identify the kinds
of defects that require employers to take ladders out of service,
either by tagging the ladder or removing it from the vessel. In
addition, paragraph (i)(2) states that ladders must be inspected for
defects before each day's use and after any event that could damage the
ladder.
Paragraph (j), which includes provisions addressing ladder usage,
acknowledges that while some ladders may not have slip-resistant bases,
they can be positively secured against shifting or slipping while in
use (paragraph (j)(2)). The language of this paragraph allows
``holding'' as an alternative to ``lashing'' to be consistent with
paragraphs (c) and (e) of this section. Other provisions of paragraph
(j) prohibit the use of single-rail ladders, the use of ladders as
guys, braces, or skids, or as platforms, runways, or scaffolds. Other
safety procedures and prohibitions are also included in this paragraph.
Final Sec. 1918.25, which addresses bridge plates and ramps used to
span the gap between the vessel and another vessel or the dock,
combines the current language of the Longshoring Standard's provisions
with the terms that apply to similar shoreside equipment (see
Sec. 1917.124). In the proposal, OSHA would have required sideboards
that are at least six inches (.16 m) high. OSHA also proposed to
require the same six inch (.16 m) sideboards for dockboards and ramps
in the Marine Terminals Standard, Sec. 1917.124(c)(5) and (d)(1). The
six-inch height is the same as that for ``bull rails'' that were in
place on the effective date of the Marine Terminals Standard
(Sec. 1917.112). Bull rails, frequently railroad ties, are placed
around the edge of the dock of a marine terminal and are used to
prevent equipment from falling into the water. Based on the height
requirement for bull rails in the Marine Terminals Standard, OSHA
believed that six inch sideboards would prevent vehicles and equipment
from accidentally falling off the edge of a bridge plate or ramp.
Several commenters expressed reservations about the six-inch
sideboard requirement on the grounds that it was too high or was
unnecessary (Exs. 6-16a, 6-29a, 6-31a, 6-36, 80, SEA Tr. pp. 171-172,
242-243, 385-389, 422-423, NO Tr. pp. 158-160, 164, 384-386). These
commenters felt that six-inch sideboards on dockboards would create a
tripping hazard, would interfere with forklift operations, or would
fail to provide additional safety benefit. Other commenters (Exs. 6-
29a, 6-36) suggested OSHA use ANSI Standard MH14.1 as a guide; that
ANSI standard recommends a sideboard height of two and three-quarters
of an inch. Others stated their preference that performance language
and grandfathering of existing ramps would be appropriate (NO Tr. pp.
386, 432).
John Faulk of NMSA, at the public hearings in New Orleans, stated
that bridged distances rarely exceed several inches in the industry (NO
Tr. p.158). In addition, he said that there are thousands of ramps and
bridge plates in the industry that would not meet the 6-inch height
requirement and would thus require retrofitting with sideboards and
noted further that there are no accident data to justify such a
modification. In its post hearing comment, NMSA estimated that there
were 35,000 ramps and bridge plates that would require modification
under the proposal (Ex.80). NMSA estimated that it would cost $36
million to retrofit each of these ramps and bridge plates with
sideboards.
After a thorough review of the record, OSHA concludes that six
inches is an appropriate height for ``bull rails,'' but not for
sideboards. As commenters noted, sideboards of that height could cause
a tripping hazard and interfere with safe operations.
OSHA has reviewed the ANSI standard (MH14.1) and OSHA's proposed
standard on Walking/Working Surfaces and Protective Equipment (Fall
Protection Systems) (29 CFR 1910 subpart C) (55 FR 13360). In
accordance with the ANSI standard and OSHA's proposal, when the space
to be spanned is less than three feet (.91 m), no sideboard is
necessary, because the space is not large enough to allow machinery
such as a powered industrial truck to fall through. However, OSHA
believes that sideboards, or some alternative, are necessary on
dockboards and bridge plates spanning a gap greater than three feet.
OSHA believes that three feet (.91 m) is a large enough opening to
allow equipment to fall to a lower level, injuring the driver. In the
final rule, OSHA has decided to use performance language similar to
that in the proposed rule for Walking and Working Surfaces and
Protective Equipment (Fall Protection Systems) (29 CFR 1910 subpart C)
(55 FR 13360); thus, the final rule stipulates only that bridge and car
plates be designed to
[[Page 40157]]
prevent vehicles from running off the edge (paragraph 1918.25(a)(4))
and that portable ramps be similarly designed (paragraph
1918.25(b)(5)). In addition, footnotes provide specification and
compliance guidance on sideboard heights when the gap to be bridged is
greater than 36 inches.
Paragraph (b) addresses portable ramps used afloat. Except for the
requirement for sideboards, the final language remains the same as that
proposed.
Final rule Sec. 1918.26, Access to barges and river towboats, was
numbered Sec. 1918.23 in the proposal. This section has been treated
separately in the final regulation because some barge operations,
particularly those conducted in the Mississippi River system (see
definition at Sec. 1918.2), are unique.
Final rule 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. Although
the railings required by Sec. 1918.25(b)(2) are not required on these
vehicular ramps, as stated in paragraph (a), the ramps must be equipped
with sideboards that will prevent vehicles from falling off the edge.
Except for the railing requirement, ramps used for vehicle access to or
between barges must meet all of the requirements of Sec. 1918.25.
Final rule paragraph 1918.26(b) remains the same as proposed; it
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 additional means of access. In
unfavorable conditions, however, this paragraph sets forth the
provisions required for safe passage. These range from a straight
ladder to a Jacob's ladder or other safe means of access. Of
significance is the exception that recognizes the practical
difficulties that may be encountered on the Mississippi River system in
providing traditional access. Historically (Ex. 1-98), this exception
is based on tidal and current conditions on the Mississippi system.
Final rule paragraph (c) addresses the situation where a barge or
raft is being worked alongside a larger vessel. Unless other safe means
of access is provided, paragraph (c) requires a maximum of two Jacob's
ladders for any single barge or raft being worked. This is consistent
with the requirement in Sec. 1918.24(a) that requires no more than two
access ladders in a hatch. In final paragraph (c), the term ``gang'' is
used to refer to a group of longshore workers assigned to a particular
hold, deck, etc. on a ship to load or discharge cargo. The use of this
term is consistent with its use elsewhere in this final rule.
Final rule paragraph (d) mandates that barges on which longshoring
operations are taking place must be secured to the vessel, wharf, or
dolphins. The purpose of this provision is to prevent workers from
falling into the water while handling cargo.
Subpart D--Working Surfaces
Subpart D, Working Surfaces, addresses the hazards associated with
slips, trips, and falls that are common causes of injuries in the
marine cargo handling industry.
OSHA clearly understands that many hazards addressed by this and
other subparts represent working environments and physical
characteristics that are encountered much less frequently now than when
the Longshoring Standards were last revised. This primarily is a result
of the evolution of handling cargo in intermodal containers rather than
as break bulk. However, OSHA believes those conventional break-bulk
cargo handling methods, together with the more traditional vessel
characteristics, such as a yard and stay cargo handling gear and
hatches covered by hatch boards, are still encountered at U.S. ports.
In the proposal, OSHA requested comment from the public on the issue of
obsolete regulations, primarily those that addressed methods of cargo
handling that are no longer used. OSHA also received testimony on this
issue (SEA Tr. pp. 133-134).
It has been pointed out to OSHA, particularly at the West Coast
public hearing, that ex-Soviet bloc vessels that were once not allowed
to enter some United States ports, due to security reasons, are now
allowed to enter. Some of these vessels have cargo handling gear and
hatch coverings that had virtually disappeared from ports in the United
States. In the final rule, OSHA is retaining many provisions that might
otherwise have been considered obsolete because they still have
application to these vessels. To illustrate, 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, seeing vessels at
U.S. ports fitted out with hatch beams is rare. However, such
situations do still arise.
Section 1918.31, ``Hatch coverings,'' (paragraphs (a), (b), (c),
(d), and (e)) retains the same requirements as the current and proposed
regulation, except that some editorial changes have been made for
clarity.
Paragraph 1918.32, ``Stowed cargo and temporary landing surfaces,''
addresses surfaces used temporarily to load cargo, fall hazards posed
by the edges of hatch sections or by stowed cargo, and fall hazards
posed by gangs working on different levels of the hatch (paragraphs
(a), (b), and (c), respectively). Paragraph (a) specifies that
temporary surfaces used to land a load be of sufficient size and
strength to allow employees to work safely, that edges of hatch
sections or of stowed cargo be guarded by a safety net or equivalently
protective means, and that employees working in the same hatch but at
different levels be protected from falling by safety nets. The
requirements in this paragraph are essentially identical to those in
the existing rule and have only been modified minimally for clarity.
Final rule paragraph 1918.32(b) has been revised to address changes
that have occurred in technology and work practices since OSHA's
original Longshoring Standard was adopted. This paragraph does not
apply to employees working on top of intermodal containers, whether
above or below deck, because such work is now covered by Section
1918.85(j), ``Fall protection'' (for a more detailed discussion of this
issue, see the preamble to Sec. 1918.85(j), below). Instead, section
1918.32 applies when employees are working non-containerized cargo in
the hold and are exposed to falls of more than eight feet (2.4 m); it
requires that the edge of the working surface be guarded by a safety
net or that other means of fall protection (such as guardrails or fall
arrest systems) be used to prevent employee injury. This fall distance
of 8 feet comes from the original Longshoring safety rules promulgated
under the Longshoremen and Harborworker's Compensation Act (33 U.S.C.
901) in 1960 and is reflected in the existing rule. Rule 1016 of the
Pacific Coast Marine Safety Code (PCMSC) (Ex. 1-145) is very similar to
this paragraph, although the OSHA provision has been written to reflect
a more performance-oriented approach. In addition, instead of
specifying the precise fall distance, distance to the edge, and so
forth that triggers fall protection in individual provisions, OSHA has
defined the term ``fall hazard'' in the Definitions section
(Sec. 1918.2). A discussion of the definition of ``fall hazard'' can be
found in subpart A.
It is essential that employees satisfy the intent of this provision
and do not merely appear to comply with it. Many times, particularly
when safety nets have been rigged, they have been allowed to become
very slack, and have
[[Page 40158]]
even in some cases been secured only at their top ends. The improper
rigging of safety nets compromises or even removes the protection
provided to falling employees.
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 to prevent 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.
OSHA proposed to require that the safety nets specified in this
section meet the requirements of ANSI A10.11, ``Personnel and Debris
Nets.'' One commenter wrote:
Rigging and testing nets under ANSI regs in maritime conditions
may not be possible such as providing outriggers for horizontal
distance. This regulation was written for long-term construction
projects where nets can be rigged, tested and left in place. (Ex 6-
36).
Commenters also pointed out that ships often supply the safety nets
and that requiring a foreign vessel to provide a net that meets ANSI
specifications may be difficult. Other commenters also opposed
including the reference to the ANSI standard (Exs. 6-16a, 6-29a, 6-36,
8-8, 8-20). After considering the international implications of this
provision as proposed, OSHA agrees with these commenters and has
deleted the reference to ANSI A10.11 in the final rule. In its place,
OSHA has added performance language suggested by the National Maritime
Safety Association--``Safety nets shall be maintained in good condition
and be of adequate strength for the purpose intended'' (Ex. 8-20).
The language in Sec. 1918.32(c), which requires that gangs working
at different levels of the same hatch be protected by nets from falling
themselves or from being crushed by falling cargo, is unchanged from
the proposed provision. However, because this paragraph, like paragraph
(b), requires the use of safety nets, OSHA has included identical
performance language in this paragraph, i.e. that ``Safety nets shall
be maintained in good condition and be of adequate strength for the
purpose intended.''
Final Sec. 1918.33, titled ``Deck loads,'' addresses the safe
performance of work on or around deck loads; it has been carried over
from the current rule and the proposal and is unchanged in the final
rule. It requires that employees be prohibited from passing over or
around deck loads except where safe passage exists (paragraph (a)).
This requirement is designed to protect employees from falling or being
crushed by falling cargo. Paragraph (b) of the final rule requires
employees giving signals to crane operators to have safe passage if
they walk over deck loads from rail to coaming; absent such safe
passage, this provision prohibits these employees from walking over
deck loads. In situations where it is necessary for the employees
giving signals to stand or walk at the outboard or inboard edge of a
deck load having less than 24 inches (.61 m) of bulwark, rail, coaming,
or other protection, those employees must be provided with fall
protection equivalent to that provided by a safe passageway, i.e. with
a guardrail, personal fall protection system, or other equally
effective means.
Some commenters (Ex. NMSA et al.) recommended that OSHA not include
this section in the final rule because, in their opinion, it is
redundant with provisions in Sec. 1918.32 and Sec. 1918.91. However,
OSHA does not agree with these commenters, because Sec. 1918.32
addresses working below deck and section 1918.91 addresses
housekeeping. Mr. Douglas Getchell, a member of the Pacific Coast
Marine Safety Code Committee, International Longshoremen's and
Warehousemen's Union, agrees with OSHA on this point; at the hearing,
he testified that Sec. 1918.32 and Sec. 1918.91 only ``peripherally
apply'' to conditions found when working deck loads. He stated that,
since Sec. 1918.33 is more specific to the subject, it should not be
deleted (NO Tr. pp.246-250).
Final rule Sec. 1918.34, ``Other decks,'' includes requirements to
protect longshore workers from being injured while working on other
decks, e.g. skeleton decks, mechano decks. Paragraph (a) prohibits the
working of cargo on any deck that was not designed to support a load of
the weight being worked, and paragraph (b) requires that grated decks
be properly placed, supported, maintained, and designed to support
employees; grated decks that do not meet this requirement may not be
used to work cargo. OSHA proposed to change the title of this section
of the existing rule, which is ``Skeleton decks,'' to ``Other decks''
and received support from commenters to make this change (Ex. 8-20,
NMSA et al.). Accordingly, the final rule section is titled ``Other
decks.''
Final rule Secs. 1918.35 and 1918.36 address hazards longshore
workers face when conducting operations around open weather deck
hatchways or when weather deck rails are removed to conduct cargo
operations. Vessels calling at U.S. ports are of varied designs and
capabilities. Some vessels have coamings, which are the vertical
structures that surround the hatch opening on a ship, that are much
higher than the section 1918.35's minimum acceptable range (36 to 42
inches (.91 to 1.07 meters)), while other vessels may have no hatch
coamings but have flush decks or decks with a short sill. Decks of the
latter two types pose substantial fall hazards to longshore workers.
Sections 1918.35 and 1918.36 require that, when employees work around
the perimeter of open hatchways that are not protected to a height of
24 inches (.61 m) on vessels with low or no hatch coamings, appropriate
guarding, such as that provided by taut lines or barricades, must be
provided to a height of 36 to 42 inches (.91 to 1.07 m) on all but the
working side of the hatch (Sec. 1918.35). Weather deck rails must be
kept in place except when cargo is being worked, and they must be
replaced after cargo operations are finished (Sec. 1918.36). These
provisions were widely supported (Ex. NMSA et al.), and these sections
are unchanged from the proposal.
Final Sec. 1918.37, ``Barges,'' addresses the fall hazards
associated with working on the decks of lighters and barges. Final
paragraph (a) prohibits the use of marginal (less than three feet (.91
m) wide) deck space along the sides of covered lighters or barges on
all such vessels having coamings more than five feet (1.5 m) high but
allows an employer to provide, instead, a taut handline or a
serviceable grab rail. Two commenters (Exs. 6-18, 6-42) asked OSHA to
allow existing barges to be ``grandfathered'' from compliance with
Sec. 1918.37(a) on the grounds that ``Many barges currently in service
do not meet the three-foot standard [the width for walkways]. Rather
the walkways on these barges are only 18-24 inches in width'' (Ex. 6-
18). OSHA is not providing such an exemption in the final rule because
this requirement has been in place since the 1960's, and it allows
considerable compliance flexibility, e.g. the use of a taut handline or
a serviceable grab rail in lieu of a 3-foot wide walkway. This
requirement is essentially identical to that proposed.
Final rule paragraph (b) prohibits working or walking on barge
decks that have not been visually inspected to ensure that they are
structurally sound and have been maintained properly. The visual check
of such decks must be done before loading operations begin. If during
discharge operations an unsafe surface is discovered, work must be
stopped until protective measures are taken (such as bridging the
unsafe surface with steel plate or barricading a deck section deemed
unsafe). This provision is essentially unchanged from
[[Page 40159]]
the corresponding provision in the proposal.
Proposed Sec. 1918.38, titled ``Log rafts,'' which was a new
section in the proposal, has been moved to subpart H, ``Handling
Cargo'' in the final rule. It has been combined with Sec. 1918.88,
``Log operations,'' so that all requirements dealing with handling logs
from the water are in the same section, as suggested by several
commenters (Exs. 78, PMA et al., SEA Tr. p. 397, pp. 410-411). A
discussion of log rafts is found below in subpart H.
Subpart E--Opening and Closing Hatches
Final subpart E, titled ``Opening and Closing Hatches,'' remains
very similar to the corresponding subpart of OSHA's current Longshoring
Standard. This subpart addresses the hazards presented to employees by
the opening and closing of covers designed to protect cargo from the
elements. The principal hazards include employees falling into the hold
while removing or replacing hatch covers and hatch beams and employees
being struck by covers and beams as these articles are moved. The
proposed language received widespread support from commenters (Exs.
NMSA et al., PMA et al) and are thus essentially unchanged in the final
rule. OSHA is retaining sections in subpart E that address methods of
covering hatches, such as with hatch boards, even though these methods
have largely been replaced by more modern or automated methods or
equipment. In both written comments and testimony, participants stated
that vessels that require these older methods of covering hatches are
still worked in U.S. ports and thus that OSHA should retain these
requirements in the final rule (Ex. 8-20; SEA Tr. pp. 134-135).
Final rule Sec. 1918.41, ``Coaming clearances,'' addresses the fall
hazards associated with such clearances. Paragraph (a) addresses
weather deck clearances and requires that when a smooth-sided deck load
more than 5 feet high is stowed within three feet (.91 m) of the hatch
coaming, and the coaming height is less than 24 inches (.61 m), a taut
handline must be provided along the side of the deckload so that
employees are able safely to remove or replace hatch beams and covers.
This provision is essentially identical both to the corresponding
provision of the existing standard and the proposed rule; it is also
similar to requirements in the NYSA/ILA Joint Maritime Safety Code--
part C/Rule 38 (Ex. 1-2) and the PCMSC--Rule 1007 (Ex. 1-145).
Final rule paragraph (b) is titled ``Intermediate decks.''
Paragraph (b)(1) requires that a three-foot (.91 m) clear work area be
provided for intermediate deck hatchways before employees remove or
replace these hatch beams or covers when a fall hazard exists.
Paragraph (b)(1) also states an exception where the 3-foot clearance is
not required when no fall hazard exists; for example, such a clearance
is not necessary on the covered portion of a partially open hatch or
when the lower deck has been filled to hatch beam height with cargo
that itself provides a safe working surface. Paragraph (b)(2)
specifically recognizes that a fitted grating can be considered part of
the actual deck or working space if it is in good condition and is
properly spaced within the 3-foot area. In addition, OSHA has dropped
the reference to ``banana'' gratings found in the Agency's current
longshoring regulation because it is an obsolete term.
Final rule paragraph (c) addresses the hazard of falling where,
because of wing-space structures or spare parts storage, coaming
clearance is reduced below the required 3-foot clearance. It requires
employers to provide grab rails or taut hand lines in such cases.
Final paragraph (d) states that this section (Sec. 1918.41) does
not apply where the opening and closing of hatches is accomplished by
mechanical means that eliminate the need for employees to place or
remove individual sections manually. However, whenever a three-foot
clearance does not exist, means shall be taken to adequately secure
cargo that is stowed within three feet (.91 m) of the edge of the hatch
to prevent cargo from falling into the hold.
Final rule Sec. 1918.42, ``Hatch beam and pontoon bridles,'' is
carried over in its entirety from OSHA's current longshore rules,
although some editorial changes have been made for clarity. Provisions
in this section address the hazards of handling hatch beams and
pontoons, such as falling into the hatch or being struck by these
removable items. Equivalent rules can be found in section two of the
PCMSC (Ex. 1-145) and parts C and O of the NYSA/ILA Joint Maritime
Safety Code (Ex. 1-2).
Paragraph (a) of final rule Sec. 1918.42 requires that hatch beams
and pontoon bridles be long enough to fit their attachment points
easily, be strong enough to lift the load safely, and be properly
maintained. Paragraph (b) requires that bridles for lifting hatch beams
be equipped with attachment devices, such as toggles, that cannot
become accidentally dislodged. It also prohibits the use of hooks other
than those specified in paragraph (b) unless such hooks are hooked into
the standing part of the bridle.
Paragraph (c) requires that bridles used for lifting pontoons and
plugs have the number of legs required by the design of the pontoon or
plug and that all legs be used. Any legs that are not used must be hung
on the hook or ring to prevent them from swinging free.
Paragraph (d) requires that at least two legs be fitted with a
fiber rope lanyard that is a minimum of 8 feet long, is in good
condition, and has a bridle end that is made of chain or wire. The
purpose of all of the requirements in Sec. 1918.42 is to ensure proper
manual guidance of the lift.
Final Sec. 1918.43, ``Handling hatch beams and covers,'' has also
generally been carried over from OSHA's existing longshore rules, with
some editorial changes made for clarity. Provisions in this section
address the hazards associated with the handling and stowing of hatch
boards, hatch beams, and pontoons; examples include employees or hatch
covers falling into the hatch or employees being struck by improperly
stowed items. Similar requirements are found in Section X of the PCMSC
(Ex. 1-145), part O of the NYSA/ILA code (Ex. 1-2), and ILO Convention
152.
Paragraph (a)(1) requires that hatch covers or pontoons stowed on
the weather deck adjacent to hatches must be positioned in stable piles
that are a minimum of 3 feet from hatch coamings. An exception to this
requirement is permitted in the situation where hatch covers or
pontoons are spread one high between the coaming and bulwark on the
working side of the hatch and there is no space between them (providing
that the coaming is at least 24 inches high). Paragraph (a)(1) also
prohibits hatch covers and pontoons from being stacked higher than the
coaming or bulwark on the working side of the hatch.
Paragraph (a)(2) prohibits hatch boards or other covers that have
been removed from the hatch beams in a section of the hatch that has
been partially opened for the purpose of being worked, cleaned, or used
for other operations from being stowed on those covers or boards in the
hatch that have been left in place. This provision applies to seagoing
vessels only.
Final rule paragraph (b) stipulates that hatch beams be laid on
their sides or be stood on their edges and be lashed together except in
cases where the hatch beams have flanges: (1) Whose width is at least
50 percent of the height of the web and (2) that rest flat on the deck
when the hatch beam is stood upright.
[[Page 40160]]
Paragraph (c) addresses the potential dislodgement of strongbacks,
hatch covers, or pontoons. It requires that, when such items are placed
on the weather deck, they be placed so as not to obstruct clear fore-
and-aft and coaming-to-bulwark passage and be lashed or otherwise
secured. In addition, this paragraph requires that dunnage or other
suitable material be positioned under each tier of strongbacks or hatch
covers to prevent them from slipping; this provision applies only when
such items are stowed on steel decks.
In paragraph (d), the final rule requires employers to take
precautions designed to protect workers from falling hatch covers and
strongbacks. It stipulates that hatch covers and strongbacks unshipped
in an intermediate deck be placed a minimum of 3 feet from the coaming
or be removed to another deck altogether, except that strongbacks may
be placed a minimum of 6 inches from the coaming if they have been
secured so that they cannot tip over or be dragged into the lower
compartment.
To prevent accidental displacement, paragraph (e) requires that any
hatch beam or pontoon left next to an open hatch section being worked
must be locked or otherwise secured. In addition, unless portable,
manually handled hatch covers (including those that have been bound
together to form a single larger cover) have been securely lashed, they
must be removed from sections being worked and adjacent sections.
Paragraph (f)(1) of the final rule mandates that the roller hatch
beam at the edge of the open section of the hatch be lashed or pinned
back to prevent it from being dislodged and falling through the open
hatch. Similarly, paragraph (f)(2) requires that rolling, sectional, or
telescoping hatch covers on barges that open in the fore and aft
direction be secured against movement when they are in the open
position, and paragraph (g) requires similar precautions for hinged or
folding hatch covers when in the upright position (except in cases
where the design of the system precludes unintentional movement).
Paragraph (h) prohibits the opening or closing of hatches while
workers are in the square of the hatch below. This prohibition is
necessary to prevent hatch beams or covers from dislodging and falling
on the employees working on the lower level.
In the final rule, paragraph (i), which was a newly proposed
provision, addresses the hazards of unsecured materials. Lashing wires,
rods, and twist locks are often left on top of a hatch cover after the
cargo has been discharged. These items can fall from the covers when
the covers are being moved and injure employees, and this provision
thus requires that all such materials be removed from the hatch cover
or be secured before the hatch cover is removed. The words ``or secured
to prevent them from falling off the cover'' has been added to the
proposed language to recognize that, in addition to removing such
materials, employers can achieve the required protection by securing
these items to the hatch cover.
Final rule Sec. 1918.43(j) requires that hatch covers or night
tents be used to cover hatches, and that any covering that only
partially covers a hatch, such as alternating hatch covers or dunnage
strips, may not be covered by a tarpaulin. The reason for this
prohibition is that employees could fall through the tarpaulin and
partial covering. However, paragraph (i) allows an exception:
tarpaulins may be used to cover an open or only partially covered hatch
if they are used to reduce dust during bulk cargo loading and if
positive means, such as barricades with placards, have been taken to
ensure that employees do not walk on the tarpaulin. Verbal warnings,
instructions or placards alone will not satisfy this provision. The
exception has been added to the final rule, although the rest of this
provision is similar to a paragraph in OSHA's existing Longshore
Standard.
Subpart F--Vessel's Cargo Handling Gear
Subpart F applies to all gear and equipment used in cargo handling
that is the property of the vessel. Examples of such equipment include
cranes, derricks, specialized bridles, winches, wire rope, and
shackles. This subpart addresses the hazards associated with that gear,
such as using faulty gear, overloading or improperly rigging cargo
gear, or the improper operation of cargo gear, which can result in
serious injury or death (Ex. 1-103.).
Mr. Ronald Signorino, the Director of Health, Safety and Regulatory
Affairs for Universal Maritime Services, described the diminishing
amount of break-bulk cargo being handled with conventional cargo gear
since the advent of containerized cargo (Ex. 6-35). He stated that
traditional cargo handling expertise had become a ``lost art'' and
therefore recommended that language be included in the final rule
addressing the proper rigging and operating of conventional cargo gear.
He reasoned that, since some cargo is still handled by conventional
methods, including recommendations addressing the correct spotting of
cargo handling gear would provide employees unfamiliar with such gear
with guidance on its safe operation. Mr. Signorino noted that
improperly spotted conventional cargo handling gear can fail, which
causes the gear and cargo to fall and can lead to serious injury. OSHA
agrees and has added this information in non-mandatory Appendix III.
Section 1918.51 contains general requirements that apply to all
cargo handling equipment that is permanently attached to a vessel.
Final rule paragraph (a) remains essentially the same as proposed and
stipulates that the safe working load of the gear, whether marked on
the lifting appliance itself or specified in the required certificates/
gear register, may not be exceeded. It also specifies that any
limitations imposed by the authority responsible for certificating the
gear be followed.
Final rule paragraph (b) requires that each component of ship's
cargo handling gear be inspected by the employer (or his or her
designee) before every use and at appropriate intervals during use.
This paragraph clarifies the corresponding requirement in OSHA's
existing Longshore Standard by making clear that the employer has an
obligation to do a visual inspection. One commenter, the International
Cargo Gear Bureau, Inc. (ICGB), pointed out that the proposed paragraph
would have limited the designees to ``representatives of the
employer,'' which was not OSHA's intent (Ex. 6-22). OSHA has revised
the language of the final rule to say, ``designated person.''
Referring to the same paragraph, Sec. 1918.51(b), another
commenter, the National Maritime Safety Association (NMSA), suggested
that OSHA add the words ``and when necessary'' before the words ``at
intervals during use'' (Ex. NMSA et al.). However, OSHA disagrees with
this comment because the Agency believes that, during use, events could
occur or conditions arise that would suggest to a prudent operator that
an unscheduled visual inspection may be necessary. OSHA agrees with
NMSA that the inspection intervals required by the final rule should be
qualified but believes that the word ``appropriate'' captures the
desired meaning better than the suggested word ``necessary.'' The final
rule reflects this determination.
In final paragraph (c), employers are required to determine the
load ratings of all wire ropes and rope slings presented in the
vessel's wire rope certificate and to observe these ratings when using
this gear.
[[Page 40161]]
Final rule paragraph (d) provides criteria for splicing wire rope
and for wire rope configuration characteristics and is essentially
unchanged from the corresponding paragraph of the proposal. It
addresses eye splices, requirements for wire rope used in lifting,
natural and synthetic fiber rope slings, and chains. Additionally, this
paragraph brings the Longshore regulations for wire rope into
conformity with the same criteria as those in OSHA's rules for
shoreside marine cargo handling equipment (Sec. 1917.42) and thus
reflects OSHA's effort to maintain consistency between parts 1917 and
1918 and to enhance employee safety.
Final rule Secs. 1918.52, 1918.53, and 1918.54 all address the
subject of rigging and operating vessel's cargo handling gear. The
requirements of these sections are essentially the same as those
parallel provisions found in the existing and proposed rules, although
some language modifications have been made to enhance clarity.
Final rule Sec. 1918.52, ``Specific requirements,'' contains
provisions addressing preventers, stoppers, falls, heel blocks, coaming
rollers, and cargo hooks. Paragraphs (a)(1) and (a)(2) mandate that
preventers have sufficient strength to achieve their purpose and be
properly secured to the head of the boom (unless, for cast fittings,
the strength of the fitting exceeds the strength of all lines secured
to it (paragraph (a)(1)) and that wire rope clips and knots not be used
to form eyes in or join preventer guys (paragraph (a)(2)).
Paragraphs (b) (1), (2), and (3) contain requirements for the
condition, configuration, strength, and securing of chain topping lift
stoppers. These requirements are essentially unchanged from the
parallel provisions of the proposal. OSHA solicited comment in the
proposal regarding whether or not to delete Sec. 1918.52(b) as
obsolete. This paragraph addresses the use of chain topping lift
stoppers and clamp type stoppers that are used manually to lower and
raise the boom. This method of topping the boom is a potentially
dangerous operation and has been largely replaced by the use of
electric topping lift winches that do not require the use of stoppers.
As noted earlier, however, vessels continue to call on U.S. ports
equipped with this older equipment. Such vessels will need to be
addressed by Sec. 1918.52(b), as noted in the comments (Ex. NMSA et
al.). OSHA agrees and has accordingly left this requirement in the
final rule.
Paragraph (c) specifies requirements for the securing, conditions
of use, formation of, and winding of the fall on the drum. Again, no
comments were received on these provisions, which are essentially
unchanged from those proposed. These provisions are designed to ensure
that winch falls do not slip, break, or release while cargo is being
lifted.
Heel blocks are covered by the requirements of paragraph (d).
Paragraph (d)(1) requires that a preventer or equally effective means
be used to hold the block in the event of heel block attachment
failure. In paragraph (d)(2), OSHA requires that, in cases where the
heel block is not so rigged as to prevent its falling when not under
strain, the heel block must be secured, except where the heel block is
at least 10 feet above the deck at its lowest point.
Paragraph (e) of the final rule requires portable coaming rollers
to be secured by wire preventers, while paragraph (f) specifies that
cargo hooks be as close to the junctions of falls as the assembly
permits, but in all cases within 2 feet of the assembly. Paragraph (f)
applies only to vessels and operations where fall angles greater than
120 degrees occur.
Cargo winches are covered in Sec. 1918.53 of the final rule.
Paragraph (a) stipulates that the moving parts of winches or other deck
machinery be guarded to prevent employees from being caught in or
between moving parts. According to paragraph (b), winches may not be
used if control levers operate either with excessive play or friction;
paragraph (c) prohibits the use of double gear winches or other winches
equipped with a clutch unless a positive locking mechanism to lock the
gear shift is provided. When the gears on a two-gear winch are being
changed, paragraph (d) prohibits any load on the winch other than the
fall and cargo hook assembly.
Paragraph (e) requires that any defect or malfunction that has the
potential to affect safety be reported immediately to the officer in
charge and that the winch in question not be used until the defect or
malfunction has been corrected. The proposal added the following
language to this paragraph: ``* * * and the winch shall not be used
until the defect or malfunction is corrected.'' This addition was
supported by the International Longshoremen's and Warehousemen's Union
(Ex. 19). In addition, several comments were received regarding the
phrase ``Any defect or malfunction of winches that affects safety * *
*.'' These commenters stated that the language was too broad and that
the less specific language in OSHA's existing standard should be
retained instead (Exs. NMSA et al., PMA et al.). Other commenters
agreed with the proposed language, however (Ex. 19, NO Tr. pp. 250-
251). OSHA finds NMSA's and PMA's arguments unconvincing because the
Agency believes that employers will benefit from the more specific
requirement. However, the final language has been modified for clarity
to say ``Any defect or malfunction of winches that could endanger
employees * * *''.
Paragraph (f) requires that temporary seats or shelters for winch
drivers not be used if they create a hazard to the operator or other
employees (e.g. a ``plywood roof'' that obstructs the view of the
operator). In addition, paragraph (g) prohibits winch drivers from
using control extension levers that have not been provided by the
employer or the ship (except for short handles on wheel-type controls).
If used, such levers must be of adequate strength and be securely
fastened. Any extension lever that tends to fall under its own weight
must be counterbalanced, according to paragraph (h).
In paragraph (i) of the final rule, OSHA requires that winch brakes
be monitored during use, and that those that are not able to hold the
load be removed from service. As proposed, this requirement mandates
that winches be monitored during operation. One commenter suggested
that the phrase ``monitored for performance'' be more fully explained
in the final rule (Ex. 6-46). In response, OSHA notes that the
requirements in Sec. 1918.53 are directed to the employer of the
employees who operate the winches to load and unload cargo. If, during
operation, it is observed that the winch brakes do not prevent the
cargo gear from lowering or slipping while under a load, the winch must
be removed from service. To provide the specifics requested by this
commenter, the language of paragraph (i) now reads as follows: ``(i)
Winch brakes shall be monitored during use. If winch brakes are unable
to hold the load, the winch shall be removed from service.''
The requirement at paragraph (j) states that winches may not be
used if one or more control points are not operating properly, and
further specifies that employees are not permitted to tamper with or
adjust the winch controls. Both of these requirements are designed to
ensure the safety of hoisting and lowering operations performed with a
winch.
To ensure that unattended winch controls are not tampered with or
adjusted, paragraph (k) requires that the control levers of unattended
winches be placed in the neutral position and that the power be shut
off or the control lever be locked. As proposed, a
[[Page 40162]]
feasibility exception that is included in OSHA's existing Longshore
Standard has been deleted because it was based on a winch design
feature that is no longer in use today because of technological
improvements.
Section 1918.54, entitled ``Rigging gear,'' addresses the hazards
associated with the unsafe practice of rigging guys or preventers so
that they chafe against other guys, preventers, or stays. Such chafing
can cause the vessel's cargo gear to fail because the chafing can cause
the wires to separate, leading to possible serious injury or death as
the gear and cargo fall down on the deck or into the hold. Several
commenters supported the inclusion of this paragraph in the final rule
(Ex. NMSA et al.).
Paragraph (a) requires each guy or preventer to be placed in a
manner that prevents it from contacting any other guy, preventer, or
stay, and paragraph (b) requires that guys be placed to produce the
least amount of stress without allowing the boom to jackknife. Boom
placement is addressed in paragraph (c), which states that the head of
the midship boom must be spotted no further outboard of the coaming
than is required to control the load. Preventers are covered in
paragraph (d). Paragraph (d)(1) requires that these devices be secured
to suitable fittings (other than those to which the guys are secured)
and be as nearly parallel to the guys as the fittings permit. Except
when the cleat is also a chock and the hauling part is led through the
chock opening, the lead of preventers must be designed so that the
direction of the line pull of the preventer is as parallel as possible
to the surface on which the cleat is mounted (paragraph (d)(2)).
Paragraph (d)(3) requires that guys and associated preventers be
adjusted so that the load is shared as equally as possible when
burtoning operations are underway. An exception is allowed where guys
are designed and intended only for trimming purposes and the preventer
is used in lieu of the guy; in such cases, the guy may be left slack.
Cargo falls are covered by paragraph (e), which stipulates that
cargo falls under load are not permitted to chafe against any standing
or other running rigging. A Note to this requirement stresses that, for
the purposes of this paragraph, rigging is not to be construed to mean
hatch coamings or other parts of the vessel.
In paragraph (f)(1) of the final rule, employers are required to
secure the bull wire to the gypsy head by shackle or equivalent method
where the bull wire is taken to the gypsy head for lowering or topping
the boom. Fiber rope may not be used to comply with this provision.
Paragraph (f)(2) states that, when it is not possible to secure the
bull wire to the gypsy head or when the topping lift is taken to the
gypsy head, at least five turns of the wire must be used.
When deck loads are higher than the rail and the clearance between
the edge of the load and the inside of the bulwark or rail is less than
12 inches, paragraph (g) requires employers to provide a pendant or
other alternate device to permit trimming of the gear without its going
over the side. The provisions in section 1918.54 are essentially
unchanged from the parallel requirements in the proposal.
Final Sec. 1918.55, titled ``Cranes,'' covers deck cranes
permanently attached to a vessel. OSHA's existing rule only addresses
the hazards associated with the swing radius of the crane. The final
rule's requirements, on the other hand, provide more comprehensive
coverage of the hazards encountered in the use of ship's cranes. In
addition, these requirements closely parallel similar shoreside
requirements in part 1917 and in other OSHA crane standards.
In Sec. 1918.55(a), OSHA prohibits the use of cranes that develop a
visible or known defect affecting safe operation. In addition, proposed
paragraph (b)(1) required that the operator's station be well
maintained, with good visibility provided through the cab's glass.
Comments were received (Ex. NMSA et al., PMA et al.) recommending that
OSHA reword the language of this provision of the existing Longshore
Standard for the sake of clarity. Other commenters pointed out that the
proposed wording of this provision was similar to language found in the
Pacific Coast Marine Safety Code (although the code requires
replacement of cracked or broken glass) (Ex. 19). In response to the
comments received, OSHA has revised the language in this paragraph to
read as follows: ``Cranes with missing, broken, cracked, scratched, or
dirty glass (or equivalent) that impairs operator visibility shall not
be used.'' The same language has been used in Sec. 1917.45(f)(5),
addressing the same issue in relation to cranes used in marine
terminals.
Paragraph (b)(2) mandates that clothing, tools and equipment be
stored in a manner that does not restrict access to or operation of the
crane or interfere with the operator's view.
According to paragraph (c), areas that are within the swing radius
of the body of revolving cranes and are accessible to employees must be
guarded during cargo operations to prevent an employee from being
caught between the body of the crane and any fixed structure, or
between parts of the crane. In proposed paragraph Sec. 1918.55(c)(1),
OSHA addressed the danger of employees being caught between shipboard
gantry cranes and fixed structures on deck along the travel path of the
crane, such as would occur on a LASH (Lighter Aboard Ship) vessel or a
self-contained container ship. (Ex. 1-103, cases 26 and 27). OSHA
received both comment and testimony on this proposed language. The
commenters pointed out that there are means other than physical
guarding to protect employees in this situation, such as using a
proximity device to shut down crane travel if an employee is in danger
of being caught between the crane and a structure on the vessel (Ex.
NMSA et al., NO Tr. p. 396). OSHA agrees with these commenters and has
added the words ``or other effective means shall be taken'' to
paragraph (c)(1) of the final rule. Also, a note has been added for
clarification that says; ``Verbal warnings to employees to avoid the
dangerous area do not meet this requirement.''
An issue discussed at length during the public hearings was the
bypassing of limit switches during cargo operations. Most cranes, both
shore-based and shipboard, are equipped with limit switches. Limit
switches are designed to prevent the crane and boom from damage by
deactivating the crane when certain limits are exceeded. Limit switches
can prevent the crane from the following hazards: boom collapse,
unwanted contact with the vessel or other structure, exceeding the safe
working load, or dropping a container. Another example of a limit
switch is the anti-two-blocking device. The calibration of limit
switches always incorporates a specific margin of safety.
In the proposal, OSHA did not allow the bypassing of limit switches
during cargo operations. The National Maritime Safety Association, in
their written comments, asked that OSHA allow limit switches to be
bypassed, but only after an officer of the vessel has been notified,
and only where a designated person directs the operation (Ex. NMSA et
al.). During the public hearings in Seattle, members of the
International Longshoremen's and Warehousemen's Union (ILWU) Longshore
Coast Safety Committee testified that limit switches should not be
bypassed except in certain situations, such as an emergency. They
expressed concern that bypassing limit switches could put stresses on
cranes for which they were not designed, resulting in a dangerous
situation. The ILWU also stated that this issue had been considered by
the Joint Co-Safety Committee, which consists of
[[Page 40163]]
members from labor and management, and that Committee had determined
that cranes with a load should never be put in a bypass mode (SEA Tr.
pp. 106-113).
Further, a member of the Pacific Maritime Association (PMA)
testified at the Seattle hearings that because of the discussions
between the PMA and the ILWU, Rule 277 of the Pacific Coast Marine
Safety Code had been adopted:
Bypass keys where ships' cranes equipped with limit switches,
shall not be left in the override locks. That * * * [is], the keys
were not to be maintained in the override locking position.
That was the result of the discussion. There was never unanimous
agreement on if bypass switches could be turned on for special moves
or special types of operations (SEA Tr. p. 158).
During the Seattle hearings, further testimony on the issue of
bypassing limit switches was given by Don Lawson, principal surveyor
with Marine Surveyors and Consultants, Inc., a company accredited by
the Department of Labor under part 1919 to inspect and certify vessel
and shore-based cargo handling gear. Mr. Lawson stated:
The purpose of the limit switch is:
[First] to prevent stresses on the structure, particularly the
boom, when the maximum radius is reached, and if the safe working
load was on the hook at the time, to go below the safety switch, the
lower limit safety switch, would be an overstressed situation.
The second reason for a limit switch is preventing physical
damage, physical contact with structures a
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