Longshoring and Marine Terminals; Vertical Tandem Lifts

Federal RegisterDec 10, 2008

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1917 and 1918

[Docket No. S-025A]

RIN 1218-AA56

Longshoring and Marine Terminals; Vertical Tandem Lifts

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Final rule.

SUMMARY:

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

DATES:

This final rule becomes effective on April 9, 2009.

ADDRESSES:

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

FOR FURTHER INFORMATION CONTACT:

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

Federal Register

notice, contact OSHA, Office of Publications, U.S. Department of Labor, Room N-3101, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-1888. Electronic copies of this

Federal Register

notice, as well as news releases and other relevant documents, are available at OSHA's Web page on the Internet at

http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

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

I. Background

II. Pertinent Legal Authority

III. International Aspects.

IV. Significant Risk

V. Summary and Explanation of the Final Rule

VI. Final Economic Analysis and Regulatory Flexibility Analysis

VII. Environmental Impact

VIII. Federalism

IX. Unfunded Mandates

X. Office of Management and Budget Review Under the Paperwork Reduction Act of 1995

XI. State Plan Requirements

XII. Effective Date

XIII. Authority and Signature

I. Background

A. Acronyms and Abbreviations

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

1998-Tr. Transcript page number from the public meeting on VTLs in January 1998

ACEP Approved Continuous Examination Program

DOL Department of Labor

Ex. Exhibit

FEA Final Economic Analysis

ICHCA International Cargo Handling and Coordination Association

ILA International Longshoremen's Association

ILO International Labor Organization

ISO International Organization for Standardization

ISO/TC 104 ISO Technical Committee Number 104 Freight Containers

ILWU International Longshore and Warehouse Union

NEPA National Environmental Policy Act

MACOSH Maritime Advisory Committee for Occupational Safety and Health

NIOSH National Institute for Occupational Safety and Health

NIST National Institute of Standards and Technology

NMSA National Maritime Safety Association

NPRM Notice of Proposed Rulemaking

OMB Office of Management and Budget

OSHA Occupational Safety and Health Administration

PCMSC Pacific Coast Maritime Safety Code

PMA Pacific Maritime Association

RFA Regulatory Flexibility Act

SNTRI Swedish National Testing and Research Institute

Tr. Transcript page number from the public hearing held on July 29 (Tr. 1-page) and July 30 (Tr. 2-page), 2004

SATL Semiautomatic twistlock

TEU 20-foot equivalent unit

UMRA Unfunded Mandates Reform Act of 1995

USMX United States Maritime Alliance

VTL Vertical tandem lift

B. Introduction

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

The International Organization for Standardization (ISO) is a worldwide federation of national standards bodies whose mission is to promote the development of international standards to reduce technical barriers to trade. There are several ISO standards addressing the design and operational handling of intermodal containers and interbox connectors. In particular, ISO 3874,

Series 1 Freight Containers—Handling and Securing

, addresses the size and strength of containers and corner castings, the size and strength of the interbox connectors, and proper lifting techniques. During shipment, containers above deck are secured by interbox connectors to each other and to the deck of the ship. In the conventional loading and unloading process, the container gantry crane lifts one container (either 6.1 or 12.2 meters long) at a time, using the crane's specially developed spreader beam. ISO 3874 also addresses the lifting of two 12.2-meter containers end to end but, until 2003, it had not addressed the practice of VTLs. A VTL is the practice of a container crane lifting two or more intermodal containers, one on top of the other, connected by a particular type of

interbox connector known as a semi-automatic twistlock or SATL.

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

1986

Matson Terminals, Inc., requests permission to perform VTLs, and OSHA responds with letter allowing VTLs with two empty containers or with automobiles.

1993

OSHA issues a letter to Sea-Land Service, Inc., allowing VTLs with two empty containers under certain conditions.

1994

OSHA publishes a proposed rule to revise the Marine Terminals and Longshoring Standards.

1997

OSHA publishes the final rule revising the Marine Terminal and Longshoring Standards, reserving the VTL issue for future consideration.

OSHA reopens the VTL record and announces a public meeting on the safety, risk, and feasibility issues associated with VTLs.

1998

OSHA holds the public meeting on the safety, risk, and feasibility issues associated with VTLs.

2003

OSHA publishes a proposed rule permitting VTLs of no more than two containers with a maximum load of 20 tons.

2004

OSHA holds a public hearing on the proposed rule on VTLs.

The issue of vertical tandem lifting was first raised to OSHA by Matson Terminals, Inc. In 1986, through a series of meetings and correspondence with OSHA (Exs.

40-1, 40-2, 40-3, 40-4, 40-5, 40-6, 40-6-1, 40-7), Matson asked to be permitted to lift two containers at a time, connected by SATLs, either empty or with one or both containers containing automobiles. At that time, OSHA regulations did not directly address or prohibit this practice. The container handling regulation formerly in § 1918.85(c) stated, “all hoisting of containers shall be by means which will safely do so without probable damage to the container, and using the lifting fittings provided.”

In November 1986, OSHA, in a letter to Matson (Ex. 40-8), allowed the company to lift containers, either empty or with one or both containers containing automobiles, in VTLs. The letter to Matson stated:

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

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

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

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

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

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

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

A gantry crane's container spreader bars are considered a “lifting appliance,” according to the International Labor Organization (ILO) Convention 152 Dock Work, portions of which OSHA incorporated or adopted in the Longshoring Standards in 29 CFR Part 1918. The ILO is a specialized, independent agency of the United Nations with a unique tripartite structure of business, labor, and government representatives. Its mandate is to improve working conditions (including safety), create employment, and promote workplace human rights,

globally. Under ILO Convention 152, a lifting appliance, including the twistlocks, must be proof-load tested and inspected before initial use and periodically retested and reinspected. However, applying that same requirement to the VTL situation would be much more difficult to accomplish. It would require a specific container (the one being used to lift another container) and four specific SATLs to be tested and inspected as a unit and to remain as a unit for retesting and reinspection. Given the millions of intermodal containers and millions more SATLs used in the maritime cargo handling industry, matching a specific container and four SATLs for VTL use over any length of time is nearly impossible. In view of this impracticality, OSHA sought an interpretation about the matter from the ILO, which is discussed later in this section of the preamble.

On October 9, 1997, OSHA reopened the VTL record with a

Federal Register

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

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

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

b. Meet with the International Cargo Handling and Coordination Association

(ICHCA) about international safety aspects of VTLs;

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

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

d. Monitor the ISO deliberations regarding VTLs; and

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

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

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

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

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

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

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

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

Footnote 1 stated:

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

Footnote 2 stated:

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

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

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

II. Pertinent Legal Authority

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

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

A standard is technologically feasible if the protective measures it requires already exist, can be brought into existence with available technology, or can be created with technology that can reasonably be expected to be developed. American Textile Mfrs.

Institute

OSHA (ATMI)

, 452 U.S. 490, 513 (1981);

American Iron and Steel Institute

OSHA (AISI)

, 939 F.2d 975, 980 (D.C. Cir 1991).

A standard is economically feasible if industry can absorb or pass on the cost of compliance without threatening its long term profitability or competitive structure. See

ATMI

, 452 U.S. at 530 n. 55;

AISI

, 939 F.2d at 980. A standard is cost effective if the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection.

ATMI

, 453 U.S. at 514 n. 32;

International Union, UAW

OSHA (“LOTO II”)

, 37 F.3d 665, 668 (D.C. Cir. 1994).

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

All safety standards must be highly protective. (See, 58 FR 16614-16615;

LOTO II

, 37 F.3d at 668.) Finally, whenever practical, standards shall “be expressed in terms of objective criteria and of the performance desired” (29 U.S.C. 655(b)(5)).

III. International Aspects

OSHA has developed this final rule in light of international trade considerations. In the Trade Agreements Act of 1979 (“TAA,” codified at 19 U.S.C. 2501

et seq.

), the United States implemented the Agreement on Technical Barriers to Trade, negotiated under the General Agreement on Tariffs and Trade. In particular, Congress has indicated that federal agencies may not “engage in any standards-related activity that creates unnecessary barriers of trade” (19 U.S.C. 2532). A standard is “necessary” in this context:

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

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

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

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

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

Moreover, even if the regulation did constitute a barrier to trade, it still would not be “unnecessary” in the sense of the TAA. As discussed at length in the Summary and Explanation, OSHA has given extensive

consideration to the question of the safety of VTLs, and it has determined that the limitations in the final rule are necessary to protect workers from the significant risk of death or injury inherent in the procedure. Thus, in the terms of the TAA, “the demonstrable purpose” of the final rule is “to achieve a legitimate domestic objective including, but not limited to, the protection of legitimate health or safety * * * interests” (see 19 U.S.C. 2531(b)). Therefore, the final rule complies with the TAA.

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

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

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

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

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

IV. Significant Risk

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

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

As Mr. Signorino noted, the Supreme Court has held that before OSHA can promulgate any permanent health or safety standard, it must make a threshold finding that significant risk is present and that such risk can be eliminated or lessened by a change in practices (

Industrial Union Dept., AFL-CIO

American Petroleum Institute

, 448 U.S. 607, 641-42 (1980) (plurality opinion)). The Supreme Court ruled that, before OSHA can issue a new standard, the Agency must find that the hazard being regulated poses a significant risk to workers and that a new, more protective, standard is “reasonably necessary and appropriate” to reduce that risk. The requirement to find a significant risk does not mean, however, that OSHA must “wait for deaths to occur before taking any action,”

. at 655, or “support its findings with anything approaching scientific certainty.”

. at 656. “[T]he requirement that a ‘significant' risk be identified is not a mathematical straightjacket.”

. at 655.

The Act allows OSHA considerable latitude to devise means to reduce or eliminate significant workplace hazards. Clearly, OSHA need not make individual quantitative or qualitative risk findings for every regulatory requirement in a standard. Once OSHA has determined that a significant risk of

material impairment of health or well being is present, and will be redressed by a standard, the Agency is free to develop specific requirements that are reasonably related to the Act's and standard's remedial purpose. OSHA standards are often designed to reduce risk through an integrated system of safety practices, engineering controls, employee training, and other ancillary requirements. Courts have upheld individual requirements based on evidence that they increase the standard's effectiveness in reducing the risk posed by significant workplace hazards. See

Forging Indus. Ass'n.

, 773 F.2d at 1447-1452 (finding ancillary provisions of hearing conservation standard, including requirements for audiometric testing, monitoring, and employer payment for hearing protectors, reasonably related to the standard's purpose of achieving a safe work environment);

United Steelworkers

, 647 F.2d at 1237-1238 (finding lead standard's medical removal protection provisions reasonable).

While OSHA often uses fatality, injury, and illness reports and statistics to support its findings of significant risk, the finding of significant risk does not strictly require a history of injury. As Mr. Signorino noted, there is no evidence in the record of this rulemaking showing a worker injury due to VTL, despite the thousands of lifts that have occurred in the U.S. since 1986. However, evidence in the record does support a finding of significant risk for unregulated VTL operations. First, and foremost, as described in detail later in this preamble,

numerous VTL accidents have occurred in which employees were not injured. There is substantial evidence, discussed in more detail later in this preamble, that not all interbox connectors properly engage in VTLs, creating the risk of partial or complete separations. And the record contains evidence of at least nine VTL separations in the United States and Canada over the past 15 years, which are detailed later in this preamble. Any one of these accidents could have resulted in injury to or death of one or more employees. It was simply good fortune that worker injury was avoided. As the Supreme Court noted, OSHA need not “wait for deaths to occur before taking any action,”

American Petroleum Institute

, 488 U.S. at 655.

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

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

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

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

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

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

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

V. Summary and Explanation of the Final Rule

This section of the preamble discusses the important elements of the final standard and explains the purpose of the individual requirements. This section also discusses and resolves issues raised during the comment period, significant comments received as part of the rulemaking record, and any substantive changes that were made from the proposed rule. References in parentheses are to exhibits in the rulemaking record (Ex.) or to page numbers in the transcript of the public hearing held on July 29 and 30, 2004 (Tr.) or the Agency's public meeting on VTLs in January 1998 (1998-Tr.).

Except as noted, OSHA is carrying forward the language from the proposal into the final rule without substantive differences.

Exhibits 100-X, 101-X, 102-X, and 103-X contain the transcripts for the 2-day hearing.

Volume 1 (Tr. 1-page) is the transcript for July 29, 2004, and Volume 2 (Tr. 2-page) is the transcript for July 30, 2004.

A. Strength of the Container-Connector System

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

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

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

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

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

BILLING CODE 4510-26-P

ER10DE08.000

BILLING CODE 4510-26-C

An explanation of basic strength of materials theory will clarify the underlying principles on which OSHA is basing its determination in this rulemaking.

These principles govern how materials react to external forces imposed on them. To simplify the discussion and avoid the need for the conversion of units between systems, the Agency is using the International

System of Units exclusively in this discussion and in the analysis of the record that follows.

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

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

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

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

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

ER10DE08.001

To limit the forces on a component to a safe level, engineers usually set a maximum stress limit on the material at a value much less than its yield strength. This is done using maximum rated loads and safety factors. A maximum rated load is the highest load permitted to be carried by the component. A safety factor is the ultimate strength

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

As noted earlier, the ultimate strength is the maximum stress a material can withstand before failure, and stress is measured in N/m

. However, when dealing with components, the cross-sectional area is constant, and loads (in N) are usually substituted in the calculation of safety factors.

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

Table 1—ISO Standards Relevant to VTLs

ISO standard No.

Title

ISO 668:1995

Series 1 freight containers—Classification, dimensions and ratings.

ISO 1161:1984 (Ex. 11-6B)

Series 1 freight containers—Corner fittings—Specification.

ISO 1161:1984/Cor. 1:1990 (Ex. 11-6B)

Technical corrigendum 1:1990 to ISO 1161:1984.

ISO 1496-1:1990 (Ex. 11-6D)

Series 1 freight containers—Specifications and testing—Part 1: General cargo containers for general purposes.

ISO 1496-1:1990/Amd. 1:1993

Amendment 1:1993 to ISO 1496-1:1990, 1 AAA and 1 BBB containers.

ISO 1496-1:1990/Amd. 2:1998

Amendment 2:1998 to ISO 1496-1:1990.

ISO 3874:1997 (Ex. 11-6C)

Series 1 freight containers—Handling and securing.

ISO 3874:1997/Amd. 1:2000

Amendment 1:2000 to ISO 3874:1997, Twistlocks, latchlocks, stacking fittings and lashing rod systems for securing of containers.

ISO 3874:1997/Amd. 2:2002 (Ex. 40-9)

Amendment 2:2002 to ISO 3874:1997, Vertical tandem lifting.

Source:

Ex. 41.

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

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

ISO 3874 sets requirements for the dimensions and strength of twistlocks. This standard requires twistlocks to have a minimum load-bearing surface of 800 mm

and, for those used for lifting, to be capable of withstanding a tensile force of 178 kN without any permanent deformation. The test used to determine compliance with the tensile strength requirement must be made using two corner castings or equivalent devices.

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

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

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

The NIST study revealed that the ultimate tensile loads

of the twistlock shafts tested ranged from 562 to 802 kN. The SNTRI study reported similar test results in 1997, with ultimate tensile loads ranging from 477 to 797.1 kN.

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

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

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

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

[Ex. 40-10]

ISO 3874 requires that the load-bearing area between a twistlock and a corner casting be a minimum of 800 mm

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

when connected to a corner casting with an opening of the maximum width permitted by the ISO standard (65.0 mm).

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

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

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

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

APM/Maersk reported a VTL separation occurring in Houston while employees were loading a barge with empty containers, in which two twistlocks broke during a lift, causing the bottom container to fall 1.2 to 1.5 meters to the dock (Ex. 61).

In addition, as noted in the ANPR, Sea-Land reported two VTL incidents involving twistlocks that would have been avoided by following proper practices. In the first, the VTL separated at one end because the two front twistlocks did not enter the corner castings of the lower container, and as a result Sea-Land instituted a prelift procedure (1998-Tr. 206). In the second, 13.7-meter containers were hoisted in a VTL, against company policy, and the twistlocks released when the VTL struck the crane's legs (1998-Tr. 206-207).

The ILWU further argued:

The ILWU believes that other such accidents have occurred and that there has been poor reporting of them.

The fact that no one has yet been injured or killed as a result of these operations is merely extreme good fortune. [Ex. 11-1P]

Mr. Ross Furoyama, testifying on behalf of the ILWU, stated that in his experience near-misses are not reported (Tr. 2-395). He described what happened as follows:

[W]hen they are taking [a VTL] up to a ship, there will be instances where they would lift, the back would alligator, because the cones did not activate properly, then it will slam back down, jarring the crane cab operator. This happened numerous times. I couldn't count how many times it happened during a ten hour operation. [Tr. 2-396; see also Ex. 11-1-H]

Mr. Furoyama also testified that he observed corners unlock in VTLs after prelifts as the containers were being lifted (Tr. 2-396). Mr. Matthew Lepore, an ILA crane operator working for Sea-Land in Port Elizabeth, NJ, testified about two separate occasions when a twistlock disengaged as a VTL was traveling from a ship to the dock (Ex. 20). He also testified that he has observed VTLs separate on one end or be attached by only one twistlock (1998-Tr. 236-237).

Mr. Tyrone Tahara estimated that there was approximately one separation for every 40 lifts (Tr. 2-405).

OSHA does not believe that the lack of injuries in VTL operations to date is an indication that these operations are safe. At least eight incidents in this country have been reported in the 15 years since the Agency issued the Gurnham letter to Sea-Land in 1993.

In addition, VTLs represent a fraction of the total number of container lifts, as described by the ILWU:

OSHA had issued a similar letter to Matson in 1986. However, unlike Sea-Land, which reported the three incidents on the record, Matson apparently did not have a mechanism to report near-misses associated with VTL operations, and there was evidence in the record that Matson did experience separations that were not reported (Tr. 2-410—2-411).

[A]t least 100,000 single picks of containers are made daily in United States ports. Despite this enormous volume of single container hoists, dropped containers are an extremely rare event. By comparison, there have been relatively few tandem picks of containers during the past five years. According to SeaLand statements, 150,000 to 200,000 vertical tandem lift hoists have been made during this period. This is equivalent to one to two days of standard container single pick operations. Consequently, it is clearly evident that even with this insignificant number of vertical tandem hoists that, statistically speaking, there have been an extremely large number of VTL hoist accidents. [Ex. 11-1-B]

The conditions in the Gurnham letter restrict the number of VTLs to empty containers only. Furthermore, labor agreements in many ports prohibit VTLs. There was also largely unrebutted testimony that partial separations occur, with some witnesses claiming that partial separations are relatively commonplace (Tr. 2-396, 2-405). Although many of these partial separations occurred during prelifts, the frequency at which they occur is a strong indication that a significant portion of VTLs are accomplished with one or more twistlocks disengaged from their associated corner castings. This experience calls into question the assumptions (1) that forces imposed by VTLs would be distributed over four twistlock-corner casting combinations and (2) that forces would be evenly distributed over these combinations. As will be seen later, these are key assumptions made in the calculation of safe working loads conducted by several parties and submitted to the record.

A number of commenters believed that vertical tandem lifting is an unsafe practice regardless of the weight of the load (Exs. 8A, 10-1, 11-1B, 11-1C, 11-1G). Their major concern was disengagement or failure of one or more interbox connectors or corner castings. The position against VTL operations was taken primarily by union groups, such as the International Longshoremen's Association (ILA, Exs. 8A) and the International Longshore Warehouse Union (Ex. 11-1B), as well as other participants: Germanischer Lloyd, the German shipping industry classification society (Ex. 11-1C), W. A. Verwoerd, Inspector, Port of Rotterdam (Ex. 10-1), and former OSHA Regional Administrator James W. Lake (Ex. 11-1G).

OSHA believes that disengagement or the failure of a twistlock to engage the corner casting fully is a significant concern. When this happens, the remaining twistlocks and corner castings must support a greater portion of the load. As noted earlier, this is a concern in a significant portion of the lifts, and the final rule must account for this possibility. For VTLs to be permitted, the final rule must set requirements that are reasonably necessary and appropriate to prevent failure of a twistlock or corner casting during these operations. This can be done by using adequate safety factors and conservative estimates of the ultimate strength of twistlocks and

corner castings in developing the final rule.

During the rulemaking, several parties raised issues as to whether the NIST and Swedish studies properly considered all significant factors in evaluating the safety of VTLs (Exs. 11-1B, 50-11-2). Robert N. Anderson, Ph.D., P.E., an expert in forensic materials (the investigation of materials, products, structures or components that fail or do not operate or function as intended) and metallurgical engineering and sciences, testified on behalf of the ILWU (Ex. 50-11-2). He pointed out underlying problems with the NIST report, as well as the Swedish National Testing and Research Institute's report. According to Dr. Anderson, both reports were incomplete because they lacked data that would assist in determining the dynamic behavior of the interbox connectors during a VTL. In addressing the NIST report, he stated,

I found in analyzing this report that it does not support using connectors for intermodal containers and moreover, the data shows that the connectors they tested were not suitable for the intended purpose.

In my opinion, the NIST report is incomplete in that it only looks at static or slow applied loads. In addition there is no information on the hardness from heat treating of the connectors, or on their resistance to fatigue loading. However, there is enough information to determine that the connectors are not suitable for intended use. [Ex. 50-11-2]

He also faulted the Swedish study, stating:

Apparently the SNTRI used an INSTRON testing machine * * * which is suitable only for static slow strain rate loading. Therefore, its shortcomings are comparable to the NIST report, and their work is not appropriate to determining the dynamic behavior of the interbox connectors during a VTL. [Ex. 50-11-2]

NIST made no attempt to conduct a statistically rigorous testing program, but only attempted to assess in broad terms the structural performance of the connectors and identify their failure mechanism and the weakest link. It only tested several twistlocks out of the hundreds of thousands that are in current use, and this is not a statistically significant sample from which a decision can be reached about the quality of SATLs in general. Indeed, the NIST report warned that the results should not be extrapolated to other types of connectors not included in the study (Ex. 40-10).

Another limitation of the NIST study was that it focused on investigating interbox connectors and connector-corner casting assemblies only. No attention was given to the overall structural integrity of the container. As NIST pointed out, the welded connection between the corner casting and the corner post may present a weaker connection than the connector-corner casting assembly (Ex. 40-10).

OSHA has concluded that the testing performed by NIST and the Swedish National Testing and Research Institute does not, by itself, demonstrate what are the strengths of twistlocks and corner casting combinations. As noted earlier in this section of the preamble, the ISO design requirements tightly control the dimensions and material strength of corner castings. This is evidenced by the need to ensure dimensional compatibility so that the containers can be readily stacked for shipment. If container did not closely follow the ISO standards, stacking and transporting the containers would be problematic. For this reason, the NIST testing results are likely representative of existing and future corner casting designs, and OSHA has concluded that further regulation of corner castings is unnecessary. However, as NIST noted, the testing was not of a statistically significant sample of twistlock designs, as this would require testing multiple samples of as many twistlock designs as possible. In addition, even if the testing were representative of all existing twistlock designs, it would not be valid for designs that may be produced in the future. The ISO standards do not control the dimensions of the cones on twistlocks nearly as tightly as they do the corner castings. Therefore, the Agency must look to product standards to determine what strength requirements apply to this equipment.

As noted by Michael Bohlman, Director of Marine Services for Sea-Land Service, who authored a number of papers on freight containers and related technology, the ISO standards require corner castings to safely handle a tensile force of 150 kN over a minimum load-carrying area of 800 mm

of the interior horizontal face surrounding the aperture (Ex. 50-10-2). According to his prepared testimony, the ISO standards limit the loading on twistlocks and corner castings used in VTL operations to 75 kN (Ex. 50-10-2). In addition, as noted earlier, ISO 3874 requires twistlocks used for lifting to be capable of withstanding a tensile force of 178 kN without permanent deformation. Mr. Bohlman stated that this results in a structural safety factor of five based on the ultimate tensile strength of the components.

However, this safety factor is apparently based on the results of the tests performed by NIST and the Swedish National Testing and Research Institute, not on design requirements in the ISO standards themselves (Tr. 1-41—1-42).

Using a safety factor of five, the ultimate strength of components with a 150-kN safe working load should be 750 kN. As noted earlier, the NIST study found that the ultimate strength of the twistlock-corner casting assemblies they tested was as low as 408 kN. Based on this value, which may not be representative of the weakest combination twistlock-corner casting assembly, the maximum safe working load for a safety factor of five would be 80 kN. Twistlock-corner casting assemblies that were not tested, and those produced in the future might be even weaker.

There is a provision for a safety factor of five in section 5.1.6 of ICHCA's “Vertical Tandem Lifting of Freight Containers,” but this is a guideline, not an international standard.

In addition, as noted earlier, NIST found that some twistlocks had insufficient bearing areas when connected to corner castings with the largest acceptable openings based on tolerances given in ISO 1161 (Ex. 40-10). Furthermore, the twistlock-corner casting combination failing with the smallest tensile load (408 kN) failed when the top cone pried off the shaft of the twistlock (Ex. 40-10). Because the corner casting dimensions and strength are tightly controlled by the ISO standards, the ultimate strength of the twistlock-corner casting assembly is dependent on the bearing surface area of the twistlock and the ability of the twistlock to withstand tensile forces when loaded on this bearing surface.

For these reasons, OSHA does not believe that the ISO standards adequately regulate the ultimate strength of semi-automatic twistlocks when used in combination with a corner casting. Therefore, as explained more fully later in this section of the preamble, the Agency has decided to impose a requirement for all twistlocks used in VTLs to have a minimum load-bearing area of 800 mm

and a safe working load of 10,000 kg with a safety factor of five

when tested as an assembly with standard corner castings with openings that are 65.0 mm wide. OSHA believes that imposing these requirements will ensure that all components used in VTLs will be strong enough to perform such lifts without failure provided the other conditions imposed by the final rule are met. This requirement will also provide assurance that the calculations are based on valid

assumptions about the strength of interbox connections.

The minimum ultimate strength of a corner casting meeting this requirement is 490 kN (10,000 kg * 5.0 * 0.00980665 kN/kg).

OSHA has also determined that a safety factor of five will be sufficient to protect employees from the hazards of component failure and that this safety factor is reasonable and consistent with good engineering practice. ISO Technical Committee 104, which has jurisdiction over ISO standards related to containers, used a safety factor of five in its calculations for developing standards on VTLs (Ex. 50-10-2). A report by ICHCA International Limited, entitled “Vertical Tandem Lifting of Freight Containers,” claimed a safety factor of five in their calculations and specifically imposed a safe working load for lifting on twistlocks used for VTLs of 10,000 kg “on the basis of a safety factor of not less than 5” (Ex. 41). Michael Bohlman stated that a safety factor of four or five is commonly used in setting standards for cargo handling and securing (Ex. 50-10-2, see also Ex. 41).

The Agency has thus concluded that a safety factor of five is reasonably necessary and appropriate.

Mr. Bohlman also stated that the safety factor is the ratio between the ultimate strength and the safe working load. However, as noted earlier, ISO standards do not specify the ultimate strength of twistlocks or corner castings. The safety factor in those standards is based on the anecdotal testing performed by NIST and the Swedish National Testing and Research Institute.

Testifying on behalf of the USMX, Mr. Michael Arrow, P.E., an expert in the area of container engineering and manufacturing specifications and international standards, testified on the strength of containers and twistlocks. He said:

On the issue of strength of containers and lift locks, as OSHA acknowledges, the NIST study notes that corner castings may fail before semi-automatic twist-locks fail.

Contrary to the opinion of another commentator, this does not mean that the corner fitting is weak or dangerous, or likely to fail when VTL operation is conducted according to OSHA and ICHCA requirements.

The NIST study tested corner fittings, twistlocks, and combinations of these to destruction in order to determine the load that would cause ultimate failure.

The NIST study concluded that this tensile failure load of the combined corner fitting and twistlock assembly was not less than 408 [kN], or 91,800 pounds, and ranged as high as 710 [kN], or 159,000 pounds.

However, both ISO and ICHCA allow a maximum tensile load of only 75 [kN], or 16,875 pounds, meaning that even the weakest assembly tested has a safety factor of more than five.

Such a safety factor is sufficient with tests to a safe working load that exceeds ISO and ICHCA requirements. It should also not be forgotten that the NIST tested assemblies consist of a twist-lock and a corner fitting.

This means that both components exceed the safe, conservative safe working load. That the corner fitting ultimately may fail before the twist-lock does is technically irrelevant. [Tr. 1-41—1-42]

Michael Bohlman maintained that the ISO-required tests were more than adequate to ensure that intermodal containers are capable of safely performing tandem lifting. In his prepared testimony for OSHA's public meeting in 1998, Mr. Bohlman presented his views on ISO test methods as follows:

ISO 1496 establishes a series of tests to determine the adequacy of a container to perform its fundamental cargo carrying function within the multimodal operating environment. The tests were devised by ISO TC 104 specifically to test and verify the adequacy of the container to survive in the real world. They are static tests developed with appropriate factors of safety considered to reflect the dynamic loads containers are subject to during transportation and cargo operations. These static tests provide a margin of safety for dynamic, full load operating conditions. Dynamic testing was specifically avoided because it is much more dangerous, less reproducible and more expensive [than] static testing without any demonstrable benefit. [Ex. 18]

In his prepared testimony for OSHA's public hearing in 2004, Mr. Bohlman stated that the ISO Technical Committee 104 concluded that partially loaded containers could be safely handled in a VTL, and the forces to which the containers would be subjected would be within their design strength (Ex. 50-10-2). According to Mr. Bohlman, the committee's conclusion was based on the structural testing of corner castings and twistlocks conducted by NIST and the Swedish National Testing and Research Institute, as well as the committee's own deliberations and calculations. In his prepared testimony, he stated:

ISO/TC 104 concluded that the existing design and testing requirements contained in the TC 104 family of standards cover VTL operations. We determined that containers, their fittings and the twistlocks specified in the ISO standards have sufficient structural strength to allow VTL operations to be safely carried out within the limits specified in the [relevant ISO] standards. [Ex. 50-10-2]

OSHA has concluded that ISO TC 104 provided for a safety factor of five

based, in part, on (1) the ultimate strength of twistlock-corner casting connections being adequately represented by the NIST and Swedish testing and (2) all four twistlock-corner casting connections being fully engaged during VTLs. As explained earlier in this section of the preamble, OSHA has concluded that the NIST and Swedish studies do not, by themselves, demonstrate the ultimate strengths of twistlocks. Because TC 104 relied on the results of these two studies to set safety factors, the Agency further concludes that the analysis performed by TC 104 in setting VTL standards is flawed. In addition, the committee did not account for disengaged connections in their analysis. The Agency believes that it is essential for employee safety to ensure that VTLs are safe even when up to two twistlock-corner casting connections are disengaged. As described earlier, the record shows that it is not uncommon for employees to encounter two disengaged twistlocks during VTL operations. When the twistlocks at two adjacent corners are disengaged, the containers will partially separate and provide evidence during the prelift that the twistlocks are not fully engaged. However, twistlocks at opposite corners may give little indication that they are disengaged during the prelift. In fact, Michael Bohlman, testifying on behalf of USMX, stated that an employee would have to be looking closely to be able to tell that twistlocks on opposite corners were disengaged (Tr. 1-177). Based on evidence from employee representatives (Exs. 43-10, 50-7; Tr. 1-345), OSHA does not believe that employees during the loading or unloading of a container vessel are likely to examine the connections that closely. Thus, OSHA has concluded that VTLs must have a safety factor of five when only two twistlocks, at opposite corners, are engaged.

Amendment 2, “Vertical Tandem Lifting” (July 1, 2002) to ISO 3874,

Series I Freight Containers—Handling and Securing

, added a new section 6.2.5, and two footnotes to that section (Ex. 40-9). The new section requires twistlocks used in VTLs to be “certified for lifting.” One of the footnotes reads: “The certification process envisaged is to use a safety factor of at least four based on the ultimate strength of the material.” However, ISO TC 104 used a safety factor of five in the ICHCA guidelines (Ex. 41) in sections 5.1.6 and 8.1.3.1.2. The ICHCA guidelines were published in 2003, after Amendment 2 to ISO 3874. In fact, the guidelines call for twistlocks manufactured after December 31, 2002, and used in VTLs to be certified as having a safe working load of 10,000 kg with a safety factor of not less than five. Thus, OSHA has concluded that ISO TC 104 provided for a safety factor of five.

Mr. Bohlman also testified that VTLs could be performed safely when only two twistlocks were fully engaged (Tr. 1-99—1-100). However, in such cases, the safety factor would be reduced by a factor of two. With a safety factor of five with four fully engaged twistlocks, the safety factor is reduced to 2.5 when only two twistlocks are fully engaged, which OSHA believes is unacceptable.

The ILWU (Ex. 11-1B) raised a number of objections regarding the safety of vertical tandem lifting. Their objections, at least in part, were based on the underlying premise that SATLs were designed to connect and secure

intermodal containers that are stowed on the deck of a vessel, and were not intended to be used to lift multiple containers. The ILWU stated:

Clearly, twistlocks (SATL's) are not designed to lift containers. As their name indicates, twistlocks are designed and manufactured as locking or securing devices. It is instructive to compare SATL's which are manufactured as securing devices with the twistlocks found on container hoisting beams. Container beam twistlocks are

designed to hoist containers.

They are machined from a block of high grade steel. They are tested and certified and subject to periodic inspection and recertification. They are designed to turn a full 90 degrees into the locked position; this ensures a maximum bearing surface for hoisting.

In comparison, SATL's designed as securing devices are predominantly manufactured from cast parts, using metal considerably inferior to that utilized in container beam twistlocks. Also, SATL's do not turn 90 degrees into a full locking position. Almost all SATL's have a considerably smaller bearing surface than that of twistlocks on container beams. This is because SATL's

were not designed to act as lifting devices.

[Ex. 11-1B, emphasis included in original document]

The ILWU also argued that the age and abuse SATLs receive could contribute to failure over time (Ex. 11-1B). They believe that more failures are likely in the future.

Mr. Ronald Signorino, president of The Blueoceana Company, Inc., and representing the USMX at OSHA's public hearing in 2004, stated that much of the gear manufactured years ago was vastly inferior to that which is the norm in today's marine cargo handling and marine transportation world (Ex. 50-10-1). He stated that the quality of steel used currently in manufacturing gear is far superior in today's products.

Mr. Arrow countered ILWU's assertion that semi-automatic twistlocks were not originally designed for lifting of containers in the VTL operating mode (Ex. 50-10-3-1). Mr. Arrow, representing the USMX, pointed to the NIST study as proof that such twistlocks are more than capable of handling VTL lifting stresses. He also disputed ILWU's assertions regarding safe working strengths of connectors relative to their history and age. He claimed that the NIST study selected both well used and new test specimens and that the results of their testing revealed that some used specimens were stronger than the new specimens.

Dr. Anderson testified that the likely reason for the increased strength of the well used twistlocks was that they had been work hardened, giving them extra tensile strength but also making them more brittle (Tr. 2-255—2-256). However, as noted in a posthearing submission (Ex. 65-2), the plastic deformation that occurs when a material is loaded beyond its yield point does not result in an increase in ultimate strength. In his posthearing submission, Dr. Anderson replied that the evidence he examined did not address the cause of the higher maximum test load for used connectors found in the NIST report (Ex. 68-1). He concluded:

Since no other metallurgical testing was performed by NIST or LPI on used connectors and no further data is available, the logical conclusion is that the connectors have strain hardened by plastically deforming. This would produce an increase in yield strength, a reduced toughness and increased sensitivity to stress corrosion cracking. More importantly, it indicates that the used connectors were over stressed and plastically deformed during their use. [Ex. 68-1]

During use, twistlocks are subjected to varying dynamic and static forces. Their use to keep containers from displacement while at sea imposes compression and shear forces (Tr. 1-45—1-46). Their abuse at ports during container stacking and unstacking, with containers slamming against them and with their being dropped to the deck and to ground (Tr. 2-396—2-397, 2-404), could strain harden, or cold work, the twistlocks and increase the yield strength, if not the ultimate strength, of the twistlocks. Dr. Anderson's point that cold working the twistlocks also makes them more brittle, and thus more subject to cracking, was uncontroverted. At a minimum, this evidence points to a need for an examination of each interbox connector before use in a VTL to ensure that there is no obvious evidence of cracking.

There is insufficient evidence in the record to determine why the used twistlocks had higher ultimate strengths than new ones. It could be that newer designs have less strength, or it may simply be an indication of the range of strengths of these devices. The fact that used twistlocks had higher ultimate strengths has no effect on OSHA's determinations in this rulemaking. As explained previously in this section of the preamble, the Agency has concluded that it cannot rely solely on the NIST and Swedish tests to determine the ultimate strength of twistlocks. In any event, it is the minimum ultimate tensile strength of twistlock-corner casting connections that must be used to calculate the maximum safe working load. This ensures that the minimum acceptable safety factor is met for the weakest available combination. The standard's requirement that twistlocks used in VTLs have a minimum safe working load of 10,000 kg with a safety factor of five when connected to corner castings with openings that are 65.0 mm wide will ensure that the interbox connections can safely support VTLs under the worst reasonably anticipated conditions.

The ILWU was also concerned about the strength of welds in corner castings and posts, frequently finding them loose, damaged, or improperly connected.

Union mechanics regularly discover improper attachment of lower corner castings to corner posts and faulty repair work. Frequently, lower corner castings are discovered to have been “tack welded” back into place or welds are found to have no penetration. Often there is a lack of fusion of ferrous metals even when welding has been done. It is not unusual for ILWU mechanics to have to remove a container's cargo and the container floor to properly repair bottom corner castings. [Ex. 11-1B]

Mr. Arrow replied that ISO/TC 104 and ICHCA developed standards, testing procedures, and guidelines for vertical tandem lifting that takes these factors into account (Ex. 50-10-3-1).

OSHA agrees, in part, with Mr. Arrow. The Agency believes that the ISO standards provide adequate assurance that the ultimate strengths of the welded connection of the corner casting to the container and the container corner posts are sufficient for VTLs. After all, the strength of these components must be adequate to ensure that lifts of single containers, which when loaded can weigh substantially more than the total weight of all the containers in a VTL,

can be performed safely. Inadequately strong welds or corner posts would lead to container failures during single-container lifts, and evidence in the record shows that problem welds are detected in visual inspections and corrected (Tr. 1-44—1-45). The forces on these components in a VTL meeting the requirements imposed by the final rule will generally be no higher than the forces imposed when a single, fully loaded container is lifted. In fact, a bad weld would pose a greater hazard for a fully loaded container lifted alone because the forces on the weld would be higher during such a lift than during a VTL. Thus, OSHA believes that the condition of welds merits no greater consideration for VTLs than for lifts of single containers loaded to their maximum weights. The final rule addresses the adequacy of welds by requiring visual inspection of the container immediately before a VTL is conducted and

prohibiting VTLs when welds are found to be defective.

Loaded containers with a maximum gross mass of more than 30,000 kg are not uncommon.

In his notice of intention to appear at the 2004 public hearing, Dr. Anderson further criticized the failure to consider dynamic forces. He stated that he had reviewed prepared testimony and the reports that were submitted to OSHA on vertical tandem lifting (Ex. 50-8). He claimed that a number of presenters, safety panels, groups and associations that had calculated the effect of wind speed on a multiple container lift made errors in their calculations by considering all forces to be constant. He stated that no consideration was given to gusts of wind or wind shear, and consequently “the dynamic situation is ignored and the static situation is put forward as the only issue.” He requested that OSHA do further testing and that strain gage data from the connectors and corner castings should be collected during actual vertical tandem lifting to determine the actual load dynamics experienced by the connectors. Dr. Anderson suggested that NIST be asked to repeat their tests or to show the full results from their tests of used connectors. In addition, he felt that NIST should determine the damage tolerance of the connectors in normal use, the fatigue behavior of the connectors, and the susceptibility of the connectors to stress corrosion cracking.

Mr. Bohlman stated that the ISO Technical Committee considered the maximum wind loading that could be imparted to an interlocked VTL unit of containers by a 100-km/h wind, the tare weight of the coupled empty containers, and the weight that could result from the cargo within the containers (Ex. 50-10-2). He argued that a structural safety factor of five was used in the calculations carried out by ISO. In addition, he stated that the technical committee used a constant wind load equivalent to an additional 28.9 kN load inside the coupled containers in the calculations to account for wind loading. Mr. Bohlman stated that, based on these considerations, the ISO concluded that a gross weight of up to 219 kN could be safely handled as a VTL.

USMX and the Pacific Maritime Association engaged Lucius Pitkin, Inc., Consulting Engineers to perform strain gage tests on VTL components in simulated terminal conditions (Ex. 65-1). In its report, the consulting firm, which specializes in engineering analysis and failure investigation, responded to questions raised at the hearing concerning the adequacy of reliance on the NIST and Swedish reports. Lucius Pitkin's report presented the results of a series of strain gage and accelerometer tests of twistlocks and container corner castings performed during vertical tandem lifting and horizontal movement out over the water (Ex. 65-3). Carol Lambos, the attorney representing USMX, submitted the report in December 2004 during the posthearing comment period. It addressed some of the questions raised by Dr. Anderson at the hearing as follows:

The results of the strain gage tests during two and three 40 foot cargo container lifts carried out by LPI on November 1, 2004 at the APM Terminals Port Newark, NJ facility indicate that the strain rates that occur during VTL lifting are intermediate loading rates. Also, all of the maximum strains measured during the container lifts indicate that the stresses in the twist locks and corner castings are significantly less than the yield stress, Sy, that would be expected for the materials used in the twist locks and corner castings. [Ex. 65-3]

As noted by Michael Arrow, static testing is commonly used in the testing, design, and standardization of containers, and dynamic forces are accounted for using adequate safety factors (Tr. 1-55—1-56).

The Agency generally agrees with Mr. Arrow and believes that most dynamic forces can be accounted for by selecting an appropriate safety factor, by limiting the maximum load imposed on interbox connections during a VTL, and by limiting the wind speed during which VTLs are permitted. However, OSHA has concluded that dynamic forces should also be considered in the calculation of forces imposed during VTLs. Consequently, in determining the maximum safe working load for a VTL, the Agency has accounted for dynamic forces in two ways. First, OSHA has considered the lack of complete information on the dynamic forces imposed during VTLs in determining what an adequate safety factor is. Second, in calculating the maximum forces that the final rule allows to be imposed, OSHA has included forces imposed by accelerating the load during a lift and by the wind. In any event, the Agency does not believe that testing interbox connections to determine their strength under dynamic conditions, as suggested by Dr. Anderson, is necessary. Like the NIST and Swedish tests, dynamic tests would also be limited to existing twistlock designs and would likely be conducted on a small sample of existing designs to limit the cost of testing. Therefore, in using this two-fold method of accounting for dynamic forces, the Agency has adequately considered dynamic loads in setting the final rule and has concluded that further dynamic testing is unnecessary.

Mr. Arrow called this “static equivalency,” in which higher loads are assumed than are actually expected to take place under static conditions. Thus, the higher forces caused by dynamic factors are accounted for by considering higher static loads.

Determination of maximum safe loads.

Guidance for calculating forces on twistlocks and corner castings in VTLs is presented in “Vertical Tandem Lifting of Freight Containers,” a paper authored by ICHCA International (Ex. 41). Appendix 4 of that document is a technical and engineering analysis of VTL operations. This analysis considered: lifting up to three containers vertically; the effect of wind speeds up to 100 km/h; and the forces involved in lifting containers of different sizes. The analysis assumed that all four twistlock-corner casting connections were fully engaged, assumed that a safe working load of 75 kN provided a safety factor of five based on the NIST and Swedish testing, and determined the safety of the lift based on the forces at the top corner castings of the top container in the lift.

OSHA will follow the ICHCA methodology in calculating forces imposed on interbox connections during VTLs, except that the Agency is substituting more restrictive assumptions about the capabilities of these connections. As discussed earlier in this section of the preamble, OSHA has determined that it is necessary to include the following conditions in the calculation of a safe working load for VTLs:

(1) The ultimate strength of the twistlock-corner casting connection is 490 kN (10,000 kg safe working load with a safety factor of five) as required by the final rule (the ICHCA analysis assumed that the ultimate strength was at least 375 kN);

(2) The safety factor is five as explained earlier in this section of the preamble (the ICHCA analysis also assumed a safety factor of five);

(3) The calculations must account for the dynamic loads imposed by lifting the load and the wind (the ICHCA analysis only calculated loads imposed by the wind); and

(4) Two twistlock-corner casting connections on opposite corners of vertically coupled containers are carrying the entire load (the ICHCA analysis spread forces across four fully engaged interbox connectors).

In addition, the Agency has concluded that the only connections to which this analysis should apply are connections involving SATLs. In other words, OSHA has only calculated the loads on fully engaged SATLs. As noted by the ILWU, the connection of the spreader bar to the top of the container

is made through high quality, fully rated equipment specifically designed to lift containers and generally subject to the gear certification requirements of 29 CFR Part 1919 (Ex. 11-1B). The spreader bar to top container attachment must be capable of supporting its rated load in any single container lift. Loads imposed by VTLs on the top container's corner castings, the twistlocks on the spreader bar, and the spreader bar itself are no greater than the loads imposed in lifting a single container loaded to its maximum gross weight. Consequently, OSHA is not placing any additional limits on the spreader-bar-top-container connection beyond those imposed in lifting a single container. In other words, the total weight of the VTL lift must still be within the maximum load rating of the crane and spreader bar.

It could be argued that some factors that OSHA included in its strength analysis (that is, assuming that only two interbox connectors are fully engaged, that a force of acceleration equal to 2.0 g is applied (which is explained fully later in this section of the preamble), and that a maximum wind force of 100 km/h is imposed) should be accounted for by the safety factor rather than applying the safety factor after considering those factors. OSHA believes that its analysis is the correct one. The 2.0-g force due to acceleration will be present in every lift. The Agency believes that it is essential that the interbox connector-to-corner casting assembly be capable of withstanding this force within its rating (that is, before the safety factor is applied). Similarly, the effect of unengaged interbox connectors, which happens on a regular basis, must be accounted for in the rating of the system. If the analysis ignored those two factors, there would be little difference between the ultimate strength of the system and the expected load under very typical conditions. The remaining factor, the wind, could have been adjusted downward to match the maximum wind speed permitted under the standard. However, ICHCA used a 100-km/h wind speed in their calculations, and the difference in force between that imposed by the 55-km/h maximum wind speed allowed by the standard and the 100-km/h speed used in the analysis is relatively small. OSHA's conclusions on whether to require containers lifted in VTLs to be empty would be the same with either wind speed.

Under OSHA's analysis, the safety factor accounts for other unplanned, but not unexpected additional forces, such as those that could be caused by contact with obstructions during movement of the VTL (see 1998-Tr. 206—207). For example, if the VTL contacted an obstruction during descent and then slipped off that obstruction, there would be an additional force caused by the deceleration of the containers as the slack in the load line was taken up. The safety factor also helps counteract failures in work practices necessary to comply with the final rule. For example, a defective interbox connector might be missed during inspection, or employees might have failed to determine that a loaded container was not empty. Thus, the Agency has determined that its analysis takes a reasonable, and not overly conservative, approach to calculating forces during a VTL.

In addition, OSHA's analysis looks only at the connection between the top and bottom containers. This approach is less conservative than the approach taken in the ICHCA analysis, which examined forces at the connection between the top container and the spreader bar. OSHA's analysis considers only the forces in play where there is a concern about the adequacy of the devices used to support the load (that is, the interbox connectors and corner castings). ICHCA's analysis examines the strength of devices that might sustain even greater forces during single-container lifts.

For these reasons, the Agency believes that its approach is reasonable and not overly conservative.

To perform the calculations used in the analysis, OSHA must first determine the magnitude of forces due to acceleration from lifting the load and due to the wind. Lucius Pitkin measured the acceleration that occurs during a VTL and included the results in its report (Ex. 65-3). The findings show that the maximum acceleration resulting in tensile forces in the twistlocks is approximately 2.0 g.

The force imposed by this acceleration is given by the following formula:

g represents the constant acceleration of gravity, or 9.8 meters per second squared.

F = m × a

Where:

F = force,

m = mass of the load, and

a = acceleration.

This force is in addition to the weight of the load.

The forces imposed by the wind can be calculated using the American Bureau of Shipping formula, as was done in the ICHCA paper (Ex. 41):

= 0.6203 × C

× C

Where:

= force caused by the wind (in kN)

= container height

= container length.

This formula assumes a wind speed of 100 km/h, which is higher than the 56 km/h permitted by the final rule. (The maximum permitted wind speed is discussed later in this section of the preamble.) The ICHCA paper performed its calculations with a wind speed of 100 km/h, which OSHA has determined is appropriate. This accounts for unanticipated wind gusts substantially above the maximum permitted wind speed. Paragraph (g)(3) of § 1917.45 requires rail-mounted bridge and portal cranes located outside of an enclosed structure to be fitted with an operable wind-indicating device. OSHA believes that employers will generally rely on these devices or on weather reports to determine wind speed. Because their settings are based on manufacturers' recommendations, the warning devices may be set higher than the maximum wind speed allowed for VTL operations. In addition, weather reports may not always include maximum wind gusts. Consequently, OSHA believes that VTLs may experience higher actual wind speeds under real-world conditions than permitted by the rule. Furthermore, calculating forces based on a higher wind speed than permitted by the final rule will help account for any dynamic forces imposed by the wind that are in addition to the calculated static force.

The force from the wind on the containers being lifted is assumed to be perpendicular to the length of the containers. This results in the maximum force. This horizontal force must then be converted to the vertical tensile force on the interbox connection using moment arms.

A moment arm, which is also known as a lever arm, is the perpendicular distance from the center of rotational motion to the line of application of force.

OSHA is performing the calculations assuming a 12.2-meter, high-cube container equivalent to case I in the ICHCA paper (Ex. 41).

This case represents the worst general scenario for lifting more than one container at a time. Each of these containers is 12.2 meters long, 2.44 meters wide, and 2.90 meters high.

Container sizes are typically characterized, in part, by their length in English units. Standard container lengths are 6.1 and 12.2 meters, and the containers are known as 20-foot and 40-foot containers, respectively.

The ICHCA paper calculated the worst-case wind force with all four connections intact. However, as noted previously, OSHA is assuming that only two connections diagonally opposite each other are intact. Thus, OSHA's calculations must double the force on each connection (as calculated in the paper) because there is only one

connection on the windward side. In addition, OSHA is only concerned with the contribution of the wind on the connection between the topmost container and the next container down. This is equivalent to the force imposed by the top container in a two-container-high VTL. The ICHCA paper calculated the force on each of the top two windward connections as 6.5 kN. Consequently, under OSHA's assumptions, the force on the single windward connection between the top container and the bottom container is 2 × 6.5, or 13.0 kN.

The force of the wind on the connections must be added to the weight supported by each connection. The maximum tare weight (the empty weight) of a container is 4.5 metric tons, which results in a force of 22 kN in each connection. However, as noted earlier, this weight is accelerated during a VTL, with a maximum of 2.0 g of acceleration. The force from this acceleration must be added to the force due to the wind and the force due to the weight of the container to determine the baseline force on each of the two intact connections between the top container and the bottom. Thus, the total maximum force imposed by an empty bottom container on each interbox connection is 13.0 + 22 + (2 × 22), or 79 kN. Applying a safety factor of five to this figure yields 395 kN.

Thus, the interbox connections must have an ultimate strength of at least 395 kN to account for an adequate safety factor for the heaviest empty container. This leads OSHA to the following conclusions:

First, the Agency must ensure that interbox connections have an ultimate strength at least equal to this value. Therefore, OSHA has concluded that the proposed requirement for a minimum safe working load of 10,000 kg with a safety factor of five (490 kN) is reasonably necessary and appropriate.

Second, as discussed in more detail later in this section of the preamble, the Agency has decided to limit VTLs to empty containers only. Although lifting VTLs with a maximum load that imposes a tensile force of 98 kN (equivalent to the 10,000-kg safe working load) on interbox connections of the required ultimate strength would yield a safety factor of at least five, OSHA has concluded that, without separately weighing the containers, there is no ready and reliable way to determine the weight of the bottom container and its load during VTL operations. In addition, OSHA believes that the difference between the 79-kN force arising from the tare weight of the container and 98 kN is too small to permit even the lightest loaded containers to be lifted. With the heaviest containers, the maximum load that could be safely lifted in a VTL is only 12.7 kN, or a little more than 1295 kg (1.25 tons).

Although it might be possible to select lighter containers with full loads that provide a sufficient margin of safety, there are other reasons why the final rule does not permit lifting loaded containers in a VTL, as described in more detail later in this section of the preamble.

This is calculated as follows: (98−79) * 2/3) = 12.7 kN. The total additional force would be triple the force from gravity alone because of the force from accelerating the load. Consequently, the allowable additional force would be one third of the extra force due to weight alone. In addition, the additional force would be spread over two interbox connectors, so the total additional force would be double that for a single interbox connector.

Conclusion.

OSHA had proposed to allow VTLs of two containers with a maximum load of 20 tons using twistlocks with a safe working load of 10,000 kg. The proposal was based primarily on data provided by NIST that twistlocks and corner castings were sufficiently strong to lift containers connected vertically in tandem safely. Based on evidence submitted during the rulemaking, OSHA has concluded that:

(1) The NIST study does not adequately represent the strength of all current twistlocks or of twistlocks designed in the future;

(2) It is not uncommon for one or more interbox connectors to be disengaged during VTL operations; and

(3) Existing analyses performed by the ISO technical committee and ICHCA do not fully consider loads imposed by acceleration or the consequences of the previous two factors.

OSHA has performed its own rigorous engineering analysis based on evidence in the record, as described previously, and has concluded that VTLs are safe provided that the interbox connectors have a minimum load-bearing surface area of 800 mm

and a minimum safe working load of 10,000 kg with a safety factor of five and provided that the containers are empty.

1. Two-container or Three-container VTLs

OSHA proposed to allow VTLs of no more than two ISO series 1 containers, with a total weight (containers plus cargo) of up to 20 tons. However, ISO standards and ICHCA guidelines on VTLs would allow up to three containers with the same total weight. In its proposal, OSHA requested comments on whether three-container VTLs of up to 20 tons could be handled as safely as two-container VTLs with the same weight limitation.

Several rulemaking participants recommended that three-container VTLs be permitted by the final rule (Exs. 43-7, 47-1, 47-2-1, 47-5, 54-2; Tr. 1-49, 1-76, 1-109). Several pointed to international standards and the ICHCA guidelines as evidence of the safety of three-container VTLs (Exs. 47-1, 47-2, 47-2-1, 50-10-1). Others pointed to international experience with three- and even four-container VTLs (Exs. 47-1, 47-5, 50-10-1, 50-10-2, 54-20). For example, in his prepared testimony for the 2004 public hearing, Mr. Ronald Signorino, representing USMX, stated:

OSHA has proposed a regulation that limits a VTL unit to two container tiers. The agency has attempted to [buttress] such a limitation by stating that practical VTL experience in the United States is confined to the two container tiers. This simply does not address the issue that operationally three container tiers are handled in VTL configurations efficiently and safely elsewhere in the world. [Ex. 50-10-1]

Other arguments for allowing three-container VTLs concerned the strength and durability of containers, corner castings, and interbox connectors (Exs. 43-7, 47-5, 50-12). These comments have been addressed earlier in this section of the preamble. OSHA's conclusions on the issue of whether to permit three-container VTLs are based, in part, on an analysis of the strength of containers, corner castings, and interbox connectors. It is clear from this analysis that the corner casting-interbox connector assembly does not have sufficient strength to perform three-container VTLs safely. The analysis shows that the maximum force on either of the two corner casting-interbox connector assemblies is 98 kN. A two-container VTL imposes a force of 79 kN on each assembly. The addition of a third container would roughly double this amount to 158 kN, far exceeding the 98-kN limit to achieve a safety factor of five.

However, OSHA has not decided to limit VTLs to two containers simply based on insufficient strength. The Agency has weighed the evidence in the record and has concluded that, even if the system were strong enough to perform three-container VTLs safely, other factors make three-container VTLs too hazardous.

According to some witnesses at the 2004 pubic hearing, as VTLs increase in size and weight, there is greater potential for helicopter effects during crane operations. This effect can cause the containers to spin out of control because of wind lift or uneven loading or both (Tr. 1-119, 2-350—2-351). The witnesses explained that, as loads get larger, they become more difficult for

the crane operator to control when moving or landing the load. For example, under questioning from an OSHA representative, Mr. Michael Bohlman explained why ICHCA limited VTLs to three containers at a time as follows:

MR. MADDUX: Yes. What I'm hearing is, when you went from three to four containers, that you had more sway.

MR. BOHLMAN: Well, you have a less compact, harder unit to control because it's bigger.

MR. MADDUX: As the bulk gets bigger, it gets more difficult to control, more difficult to land.

MR. BOHLMAN: * * * It's just [the] size, the effect of external forces, the pendulum effect that gets greater as the size gets bigger. [Tr. 1-119]

Mr. Jerry Ylonen, testifying on behalf of the ILWU, stated that he had experienced the helicopter effect firsthand and noted that it introduces such hazards as swinging the load into an adjacent bay or into a truck waiting for a load being lowered, endangering employees working in the bay or the truck driver sitting in his or her cab (Tr. 2-350—2-351).

OSHA has concluded that the risk of employees being seriously injured by these hazards is significant. Mr. Ylonen testified to the presence of these hazards in single container lifts and argued that two- and three-container VTLs would be catastrophic (Tr. 2-351). With a wind speed of 100 km/h, the wind force on two containers connected vertically would be a maximum of 43.9 kN. On three containers connected vertically, it would be a maximum of 65.8 kN. The sideways force on a three-container VTL would thus be 50 percent greater than the sideways force on a two-container lift. Based on the testimony of Mr. Ylonen and the substantial side forces on the containers during VTLs, OSHA believes that three-container VTLs would not provide a sufficient margin of safety from the helicopter effects of the wind.

In addition, transporting stacked containers around terminals presents tipover hazards about which several hearing participants expressed concern (Tr. 2-227, 2-283, 2-424). There is evidence in the record that tipover accidents have occurred in the past (Tr. 2-295, 2-358—2-359). Three-container VTLs would likely entail transporting containers stacked three high during VTL makeup. Because containers stacked three high would have a higher center of gravity, transporting them would pose a greater tipover hazard than transporting single containers or even containers stacked two high. Thus, OSHA is also concerned that permitting three-container VTLs would lead to an increase in the number of tipover accidents.

For these reasons, OSHA has concluded that the risk of serious injury to employees during three-container VTLs is too high, and the final rule does not permit such lifts.

Mr. Michael Bohlman, representing USMX, was concerned that the proposal did not specifically address tiers of containers in a VTL (Ex. 50-10-2; Tr. 1-75). Instead, he noted, the proposal limited VTLs to two containers. Mr. Bohlman testified on this point as follows:

One of the concerns that I have, reading the OSHA proposed rule, is that OSHA does not talk about tiers, but talks about numbers of containers. Regardless of whether it's two or three containers that they decide is the right number, if they don't talk about tiers of containers, there's going to be confusion as to what's actually meant.

When we start looking at unique spreader configurations that are in existence and are being safely used such as a twin-lift spreader that would allow, in a two-container configuration, a four-container VTL lift, or in a three-container, three-tier configuration, a six-container lift.

So I think it's very important that, when we do have the final rules, that they talk about tiers of containers being lifted and not number of containers. [Tr. 1-75]

OSHA's analysis of the safety of VTLs is based on the capability of two single containers connecting vertically to maintain a safety factor of five during lifting. As long as the tiers are lifted so that each set of two vertically connected containers is not connected to the other containers, then each vertically connected pair will be considered as separate VTLs for the purpose of the final rule. Therefore, tiers connected in such a manner are permitted by the final rule.

However, if the containers in a tiered VTL are connected horizontally, then some of the assumptions made in OSHA's strength analysis would be invalid. For example, if the bottom tier of two two-container VTLs is connected horizontally, then it would be possible for fewer than two interbox connectors to be fully engaged for each VTL. The connection of the bottom tier of containers could mask, during the prelift, the possibility that only a single interbox connector is fully engaged for one of the sets of vertically coupled containers. This would overload the single interbox connector-corner casting assembly for that portion of the VTL. Consequently, OSHA would consider containers coupled horizontally as counting toward the maximum of two containers permitted in a VTL by final § 1917.71(i)(2). Therefore, tiers with horizontally coupled containers would be prohibited by the final rule.

2. Empty or Partially Loaded Containers

A related issue is whether the standard should set a limit on the gross weight of containers and their loads lifted in a VTL or require that only empty containers be lifted. The proposed standard, which was based on ISO standards and the ICHCA guidelines, would have limited VTLs to a combined weight for load and containers of 20 tons.

Some rulemaking participants argued that, if VTLs were to be permitted, then the final rule should require containers to be empty (Exs. 43-5, 44-1, 54-30-2). Other rulemaking participants supported OSHA's proposed 20-ton limit (Exs. 10-4, 10-5, 10-6, 36, 37, 47-2-1, 50-12, 54-1-1, 54-2, 54-3, 65-3). No one urged the Agency to adopt a substantially higher weight limit.

The ICHCA guidelines and ISO standards set a limit of 20,000 kg (22 tons, or 20 metric tons), slightly more than OSHA's proposed 20-ton limit.

The ILWU and the ILA argued that lifting loaded containers in a VTL was unsafe (Exs. 43-5, 54-1, 54-30-2). The ILWU stated that inaccuracies in the paperwork describing the weights of loaded containers could lead to overloaded VTLs exceeding the crane's capabilities (Ex. 43-5). The ILA argued that it is likely that loaded containers will have errors in weighing and that overweight lifts would be attempted if loaded containers were permitted to be lifted in a VTL (Ex. 54-1).

As noted previously, a number of rulemaking participants, including the Institute of International Container Lessors, the Carriers Container Council, Inc., and the USMX, argued that VTL operations were safe up to a total load of 20 tons (Exs. 10-4, 10-5, 10-6, 36, 37, 47-2-1, 50-12, 54-1-1, 54-2, 54-3, 65-3). They reasoned that the lack of accidents (Exs. 10-5, 10-6) and the strength of containers, corner castings, and interbox connectors (Exs. 47-2-1, 50-10-2) demonstrate the safety of allowing lightly loaded containers to be lifted in VTLs.

As discussed previously, OSHA has concluded that the lack of injuries in VTL operations does not prove their safety and that the existence of a substantial number of incidents indicates the need to regulate VTLs to ensure that they are performed safely. Furthermore, existing experience in the U.S. is based on compliance with the Gurnham letter, which requires containers to be empty. In addition, OSHA's analysis of the strength of

containers, corner castings, and interbox containers shows that these devices are not capable of performing VTLs weighing 20 tons with a safety factor of five when only two interbox connectors are fully engaged. In fact, the analysis demonstrates that, with the heaviest containers, only an additional 1295 kg is available as load to ensure a safety factor of five.

OSHA also agrees with the ILWU and the ILA that errors in determining the weights of loaded containers could lead to overweight VTLs. Limiting VTLs to empty containers also protects against shifting or uneven loads, which could overload one of the corner casting-interbox connector assemblies.

Furthermore, permitting VTLs involving only empty containers helps ensure compliance, as it will be relatively easy to ascertain that a container is empty by visual observation. On the other hand, the weight of each loaded container would have to be individually measured to ensure the safety of a VTL of loaded containers.

For these reasons, the Agency has decided to limit VTLs to empty containers only.

OSHA's analysis assumes a uniform weight distribution. If the weight of the container and its contents are not uniform, more of the force could be concentrated on one of the two corner casting-interbox connector assemblies, perhaps overloading it.

Since OSHA's strength analysis is based on the capability of the corner casting-to-interbox connector-to-corner casting assembly between the containers, the weight of the bottom container determines whether the VTL is safe to lift. By this analysis, the bottom container would be limited to a maximum of 98 kN, and the employer would have to measure the weight of the bottom container by itself to ensure that the VTL was safe to lift.

B. Training

With respect to VTL operations, OSHA did not include specific training requirements in the proposed rule. However, existing Marine Terminals and Longshoring standards address crane operator training in §§ 1917.27(a)(1) and 1918.98(a)(1), respectively. Those standards require that only an employee determined by the employer to be competent by reason of training or experience, and who understands the signs, notices, and operating instructions and is familiar with the signal code in use, may operate or give signals to the operator of any hoisting apparatus.

As noted earlier in this section of the preamble, the International Safety Panel of ICHCA has established comprehensive guidelines that could potentially serve as a foundation for domestic and international VTL operations (Ex. 41). The guidelines stipulate that “all persons connected with VTL operations, including planning, examining, inspecting, stacking, transporting, hoisting, landing, securing and dividing containers handled in VTL units, should be appropriately trained.” They require that “the extent and content of such training should be guided by the physical characteristics of the terminal and the containers to be handled, the container movement flow, the equipment to be used for lifting and transporting the containers and the experience of the personnel involved.” Many rulemaking participants supported the ICHCA guidelines and recommended that OSHA's standard be consistent with them (Exs. 43-6, 43-7, 50-10-2, 50-10-3; Tr. 1-239).

In the notice of proposed rulemaking, OSHA solicited comments on training—taking into consideration international standards and current domestic practices—that may be necessary for safe and efficient VTL operations. Rulemaking participants largely supported mandatory training for selected trades or positions affected by VTL operations (Exs. 43-7, 43-10, 44-1, 54-16). In fact, most rulemaking participants addressing the training issue reflected the need to train

all

persons involved in VTL operations (Exs. 43-10, 44-1, 54-16).

“The ILA deems it essential for its members and others in ILA ports to be trained in the techniques, risks and safety measures involved in VTL lifts and in assembling/disassembling VTL-connected containers,” Herzl S. Eisenstadt stated (Ex. 44-1). “This must include simulated training in handling emergencies caused by near-misses, sudden disengagements, etc., which are not identical for those occurring while handling single-lift containers,” he elaborated.

Christine S. Hwang, appearing on behalf of the ILWU, agreed with the majority view that specialized training needs to be conducted for all job classifications, urging that “specialized training on VTL operations be mandatory for all port workers in all classifications, including the casual labor pool” (Ex. 43-10). Ms. Hwang went on to say that “port-wide training should be required irrespective of whether a terminal employer in any given port chooses to perform VTLs in light of the fact that workers may travel to ports where they are required to perform VTL container operations.”

Taking into consideration these comments from rulemaking participants, OSHA agrees with the mainstream recommendation that some VTL-specific training is not only appropriate—but indeed necessary—for operation and employee safety in all U.S. marine terminals where VTLs are performed. However, the Agency believes that the depth of this training should be determined by employers based on individualized terminal criteria, rather than on a defined directive that inhibits customization. Therefore, OSHA has included a performance-based requirement for the employer to provide training for each employee involved in VTL operations. This provision requires the training to be commensurate with the employee's duties.

Beyond the consensus on widespread training, rulemaking participants voiced their opinion on further training specifics, such as to whom VTL operation training should apply and how extensive that training should be. Broad areas of discussion included training for preparation and performance, inspection and container integrity, ground movement, and work zone safety. The following sections summarize comments relevant to those topics.

1. Preparation and Performance

One example of possible procedural differences in performing VTLs is the operation of cranes to hoist the stacked and connected containers. Historically, VTLs have been performed by crane operators without off-site training specific to VTLs. Some rulemaking participants expressed the view that crane operator training is considered a crucial component to safe VTLs (Ex. 43-10).

Commenting on behalf of the ILWU, Hwang concurred as follows, “Supplementary training (other than on the job) on special VTL handling should also be mandatory for crane operators.” If a rule is adopted, “ILWU strongly urges that various terminals' plans be standardized * * * and that crane operators be provided with additional training on how to read them,” she continued (Ex. 43-10).

Mr. Joseph Curto, representing Maher Terminals, stated that VTL handling is one component of Maher Terminals' general training program (Tr. 2-117). Ron Hewitt of APM Terminals testified that his company also provided training in VTL procedures (Ex. 61; Tr. 2-208—2-210). He also recommended terminal-specific indoctrination (Tr. 2-208—2-209).

The ILA considered training in VTL procedures to be essential, as follows:

In this regard, the ILA deems it essential for its members and others in ILA ports to be trained in the techniques, risks and safety measures involved in VTL lifts and in assembling/disassembling VTL-connected containers. This must include simulated

training in handling emergencies caused by near-misses, sudden disengagements, etc., which are not identical for those occurring while handling single-lift containers. [Ex. 44-1]

2. Inspection and Container Integrity

Another aspect rulemaking participants considered was the twistlocks themselves (Exs. 43-7, 54-30-2). The condition and proper operation of interbox connectors are more important for safe VTL operations than for connecting containers for transport aboard ship.

For example, APM Terminals' training program covers the examination of interbox connectors (Ex. 61; Tr. 2-153—2-154).

Though not thoroughly supportive of a specific OSHA requirement for training every worker involved in VTLs, Mr. Ronald Signorino, president of The Blueoceana Company, Inc., stated that training specific to interbox connectors would be advisable (Ex. 43-7). Mr. Signorino advised that mandatory training for personnel carrying out inspection-program-related functions was vital especially since he supported a continuous inspection program rather than an annual one. “In that manner, all such liftlocks would be subject to more than just an annual examination and an occasional perfunctory perusal,” he stated.

Mr. Le Monnier of ILWU Canada also provided testimony about the scope of inspections he thought OSHA should require, stating: “A true inspection would require the dismantling of the SATL in order to view the internal components. Then, the SATL would need to be properly reassembled. Both the inspection and reassembly would require training procedures” (Ex. 54-30-2).

The ILWU emphasized the point that adequate inspection of containers would also require training (Ex. 43-10-3). “Only the obvious wrecks are likely to be identified by the average longshore worker, whose business it is to move the container, not subject it to rigorous inspection. Adequate inspection requires training, technology and ample time to accomplish such an inspection,” the ILWU representative explained.

3. Ground Movement

The ICHCA guidelines (Ex. 41) specifically address concern for training of drivers of vehicles used to transport VTL units. The language dictates that:

training of drivers of vehicles etc. used to transport VTL units should be based on the organization's safe operating procedures. These should place particular emphasis on the speeds at which the vehicles enter turns, in order to avoid overturns and other accidents. Assessing the effect of wind speed on equipment stability and imposing a maximum wind speed above which the movement of VTL units will not take place. This speed should not be more than 15 m/s (55 kph, 34 mph or 30 knots). [Ex. 41]

The guidelines take a direct approach by stating in paragraph 7.6, “all persons expected to be involved in VTL operations should be suitably trained.”

4. Safe Work Zone

Again, the ILWU was among the strongest supporters of widespread training to ensure a safe work zone for those directly and indirectly involved in VTLs (Ex. 43-10). Specifically, Ms. Hwang suggested that training topics should include, but not be limited to, “safe handling of VTLs, emergency handling, cone and SATL inspection and maintenance, operation of all vehicles used to transport VTLs and particular concerns unique to transporting VTLs, methods of verifying weights of containers and reading vessel stowage plans.”

As stated earlier, most rulemaking participants addressing the training issue were firmly supportive of a practice that requires workers performing or supporting the performance of VTL operations to receive training applicable to their assigned duty. The opponents of the VTL process suggested a wide, scattergun-type of training requirement, presumably meant to train

every

worker (in any marine terminal or longshore work category) regarding VTL aspects. (See Ex. 54-2.) OSHA considers such an approach to be ineffective and inefficient.

While an industry or port-wide approach to VTL training may be an option, it would be overly burdensome as an OSHA requirement. In its VTL Guidelines, the ICHCA Safety Panel formulated a training matrix that could serve to fill the gap between training for essential personnel and more widespread informational practices. In fact, Mr. Signorino, testifying on behalf of USMX, recommended that OSHA use the matrix (found in exhibit 41, Appendix 5) as a practical and useful guide (Exhibit 54-2).

OSHA is adopting a performance-based requirement for VTL training but has decided not to specify the exact scope, scale, and details of that training. OSHA will allow employers to determine how to best satisfy these requirements for safe VTL operations in their specific workplaces. The Agency strongly recommends, however, that employers examine the ICHCA recommendations (found on the aforementioned matrix; Ex. 41) as a foundation for training parameters. Based on criteria unique to each terminal and employee, employers should supplement the ICHCA guidelines as necessary to protect employees. Employers are cautioned to consider the need for specific training in the areas discussed above, as OSHA will judge compliance based on employee knowledge and skill at performing the job safely.

C. Crane Type

Within OSHA's final rule on VTL practices in Longshoring and Marine Terminals, the type of crane that can be used to perform VTLs is addressed in § 1917.71(i)(4). The Agency's final rule requires VTLs to be performed by shore-based container gantry cranes or other types of cranes that have similar characteristics as described in more detail in this section of the preamble.

In the proposed rule, the Agency limited the practice of VTLs in the Marine Terminals Standard

exclusively to container gantry cranes based on three premises:

OSHA did not propose a corresponding requirement for the Longshoring Standard.

1. The container gantry crane is the only type of crane specifically designed to handle intermodal containers;

2. The container gantry crane is the only crane that has the precision control needed for such lifts;

3. The container gantry crane is the only crane capable of handling the greater load volume and wind sail potentials.

(68 FR 54303)

However, because many rulemaking participants (Exs. 43-1, 43-11, 47-5, 50-10-1, 54-4, 54-5, 54-14) voiced significant opposition to a requirement specifying the type of crane that may perform VTLs, OSHA has amended the language in the final rule to permit other types of cranes meeting the aforementioned mandatory criteria. The final rule takes into consideration comments, testimony, and evidence submitted by the participants, including Liebherr-Werk Nenzing Crane Company, which offered evidence about the cranes the company manufactures that have the capability to handle VTLs (Ex. 54-15; Tr. 1-314).

The most extensive comments came from Mr. Ronald Signorino, testifying for USMX (Ex. 50-10-1), who disagreed with the Agency's position, reasoning that “[its] sense is that OSHA has imposed a totally unnecessary restriction in that the proposed rule would limit VTL operations to those in which a container gantry cranes is

present, [when] other lifting appliances may, in fact, provide the same attributes that, in their sum, lend themselves to a safe VTL operation.” Mr. Signorino testified at length about other types of cranes that had the necessary capability for VTLs and submitted documentation to the record showing the capabilities and certifications of these cranes (Exs. 54-4, 54-14; Tr. 1-280—290). The following discussion summarizes Mr. Signorino's further comments, as well as those from other rulemaking participants, and explains the Agency's final determination on the issue.

1. Design

In the rulemaking process, crane manufacturers, terminal operators, shipping concerns, and other companies maintained that the container gantry crane was not the only crane that was specifically designed to handle intermodal freight containers or that had the necessary precision for VTLs (Exs. 43-1, 43-11, 50-10-1, 54-14, 54-5). USMX (Ex. 47-5) argued that “there are other types of cranes * * * that perform in a manner similar to shoreside container gantry cranes and provide equivalent handling stability and safety.” The association explained that “other types of marine cargo handling equipment, such as reach stackers and straddle carriers, can [also] be utilized to conduct VTLs.”

These participants argued that cranes of different designs were capable of performing VTLs. Commenting on behalf of Tropical Shipping and Birdsall, Inc., Mr. Signorino (Ex. 54-14) used the Gottwald HMK 260 E as an example, stating, “lateral stability is accomplished through the means of solid state electronic drives and an operator controlled, precision rotator ring.” Mr. Signorino also cited the Manitowoc 4100 W (Series 2), stating “[With this crane], such lateral stability is accomplished through a system of automatic lanyards that are attached to outriggers on either side of the box spreader. * * * In this system, undesired lateral movement is automatically compensated for in a unique take-up system of lanyards, which ensures lateral stability throughout the entire range of motion from ship to shore and vice-versa.”

Representing USMX, Mr. Signorino (Ex. 50-10-1) further stated

Some, such as rubber tired gantry cranes, straddle carriers, and certain other high capacity industrial trucks, can in fact perform all hoist and (when applicable) gantry and trolley functions in an extremely stable vertical and horizontal plane. Others, such as purpose-designed container handling harbor cranes, are fitted with highly precise mechanical and hydraulic stabilizing equipment, which ensures the lateral and rotational stability so necessary to safely conduct VTL operations

I know the agency did not intend to be that restrictive, and I believe that language can be crafted to accommodate all container handling devices that can safely qualify for use in VTL operations. The goal, here, is to be cautious and deliberate not only in terms of safe working load design capacities, but also in lateral and rotational stability abilities, as well. [Ex. 50-10-1]

2. Control

Also important is the degree of precision with which a crane may be controlled. Mr. Signorino explained that:

precision control of any crane engaged in the handling of intermodal containers is a very relative matter. * * * [S]ome cranes offer a more precise means and a more precise sense to operators. The better, more experienced operators tend to make more effective use of such attributes. * * * [T]he load is moved (whether in a hoist or lowering exercise) in a relatively straight, level plane. [Ex. 54-14, emphasis included in original document.]

He also elaborated on how the Gottwald's “[j]oystick controls permit the operator to correct any unwanted lateral movement by a simple, incremental activation of the rotator.” Mr. Signorino noted that container gantry cranes have sufficient precision to perform VTLs: “[they] can offer that control, in part, by moving the load on a set, level track (or trolley).”

3. Capability

Finally, commenters discussed the overall capability of different cranes. Mr. Signorino (Ex. 50-10-1) advised: “The real concern that OSHA should rightly consider is not a limitation in terms of actual lifting appliances, but rather, how to ensure the stability of the load (mass) notwithstanding the lifting appliance being used. * * * [T]he remaining concerns all center upon lateral and rotational stability of the mass.” Mr. Signorino continued to explain that even though container gantry cranes have a proven track record, there are other cranes with the capability to safely perform VTLs. “Container gantry cranes achieve * * * stability (when operated correctly) by their design characteristics, i.e., gantry, trolley, hoist functions, each moving in a relatively straight plane.”

4. Other Concerns

There were no specific comments from rulemaking participants calling for the exclusive use of shore-based container gantry cranes. In the same vein, there was no opposition to the container gantry crane being the preferred delivery method for VTLs. Rulemaking participants objected to the exclusivity and limitation to shore-based gantry cranes in the proposed rule on the grounds that it would hinder efficient operations (Exs. 43-1, 43-11, 47-5, 50-10-1, 54-4, 54-5, 54-14).

Beyond this general consensus on the proposed rule, there was some concern on other aspects of crane operation including aging infrastructure and load stability. As offered by Virginia International Terminals, Inc., represented by Anthony Simkus, Assistant Director of Engineering and Maintenance, and Charles Thompson, Safety Officer (Ex. 54-16), “by factoring in age and condition, most older cranes probably could not stop an overload when the brake is applied at other than near zero speed. This may even be true of newer cranes whose brake designs have not been dynamically tested at the factory under rated conditions.”

Though in the context of testimony in overall opposition to the proposed rule on a variety of points, the USMX (Ex. 47-5) similarly agreed with infrastructure considerations, stating, “VTL regulations must be written to accommodate future enhancements in current equipment as well as new equipment designs and technology.”

OSHA agrees with USMX's position that there are other types of cranes that perform in a manner similar to shoreside container gantry cranes and provide adequate handling stability and safety. The Agency has concluded that the criteria noted in Mr. Signorino's comments accurately describe the characteristics of cranes that can safely handle containers in VTL operations. Therefore, the language in the final rule will broaden the parameters contained in the proposed rule, stipulating the preference for shore-based container cranes, but allowing other types of cranes that (1) are verified to be designed to handle intermodal containers, (2) have the precision control needed for VTLs, and (3) are capable of handling the greater load volume and wind sail potentials associated with VTLs.

While this language allows for more discretion by employers, the Agency will judge compliance on the design, capability, and precision parameters, and it expects employers to evaluate cranes performing VTLs using these same criteria.

As noted later in this section of the preamble, ship's cranes, because they are not shore-based, must meet the alternative criteria listed in final § 1917.71(i)(4).

D. Platform Containers

Proposed paragraph § 1917.71(f)(3)(iv) addressed platform containers, or “flat racks,” stating:

No platform container with its end frames erect may be lifted as part of a VTL unit. Empty platform containers with their end frames folded may be lifted in a VTL unit in accordance with the applicable regulations of this part. If the interbox connectors are an integral part of the platform container and are designed to lift other empty platform containers, they may be interlocked and lifted in accordance with the manufacturer's recommendations.

Platform containers are open on the wider sides and top, but have panels on the narrow sides, or ends. The end panels are either fixed in an upright position or folded flat with the floor of the container, depending on the design of the flat rack. The proposal would not have permitted flat racks to be used in VTLs if the end panels were in the upright position. The lack of sides and top lessen the strength and stability of the container, making it a possible safety hazard to lift them in tandem. However, if empty platform containers had the ends folded down and built-in connectors that were designed for the purpose of simultaneously lifting multiple units, the proposal would have permitted the flat racks to be handled in accordance with manufacturers' recommendations. Also in the proposed rule, two flat rack containers with the ends folded down could be handled as a VTL if they were connected by interbox connectors that were not built-in.

In a letter dated October 31, 2003, the ILWU contacted OSHA with flat rack concerns. Larry Hansen, ILWU Local 19 Union (Ex. 48), wrote to the Seattle OSHA field office:

We have a problem in Seattle of lifting empty flat rack containers bundled four or five at a time for both inbound and outbound loads. In some cases, the hoisting fits within the Gurnham letter where twist locks are being used to fasten one container to another. In other cases, the containers are fastened by internal mechanisms securing one container to another, which is outside the Gurnham provisions.

In dealing with the Gurnham provisions, the employers are not inspecting the containers for visible defects prior to hoisting, ensuring that damaged containers will not be hoisted in tandem as stated in Item 1 of his letter. Nor are we receiving documents from the manufacturer which verifies the capacities of the twist locks and corner castings, as stated in Item 7.

The Agency responded (Ex. 48-1) with the following comments:

Although the Gurnham letter does not specifically mention VTL lifts of [flat rack] containers, OSHA concluded that the provisions listed in the letter also apply to VTL lifts of two empty [flat rack] containers with their end frames folded and connected by semi-automatic twist locks.

Though the Agency received few comments on this issue during the rulemaking process, the ILWU was present to voice some further concerns regarding the lifting of flat racks vertically in tandem (Ex 43-10). Overall, the ILWU opposed the lifting of multiply stacked platform containers with end panels in the upright position; but the ILWU also strongly opposed the complete discretion afforded to users and manufacturers of platform containers with end panels folded down. The ILWU argued: “There is no record or analysis regarding new or already existing connectors' strength, durability and/or capacity or of the corner castings of [flat racks].” The union suggested that “[t]he hoisting of multiply-stacked [flat racks] be prohibited in light of the absence of evidence demonstrating that this type of lift can be performed safely.” The ILWU also argued that flat rack VTLs “pose even greater problems [than container VTLs] due to the inferior quality of the corner castings.” An ILWU representative (Ex. 43-10) explained that “corner castings on [flat racks] are made from thinner metal and have larger openings through which SATLs and interbox connectors are even more likely to fall through, irrespective of whether they are adequately locked.” The representative went on to say that flat racks “endure even greater damage through wear and tear due to the fact that they are used to carry bulk cargo, which is often made of steel and hard materials.”

During the rulemaking period, the ILWU went on to cite numerous incidents when flat racks have proved hazardous (Ex. 43-10; Tr. 2-369-2-370, 2-419-2-420). According to the ILWU (Ex. 43-10), “on November 14, 1997 in Tacoma, Washington, four stacks of [flat racks] were [bundled] together and connected by the cones that are built into the [flat racks] and by Evergreen SATLs. The [flat racks] were also banded together. When the bundle of [flat racks] was hoisted, the bands broke, the cones failed and the bottom [flat racks] fell approximately sixty to seventy feet.” Mr. Ross Furoyama, an ILWU representative (Tr. 2-419-2-420), pointed out that among the unspecified number of incidents he had witnessed involving flat racks failing, there was one when the bands around three stacked flat racks secured with 2-inch bands and specialized nonstandard twist locks still broke. Following this incident, the company instituted a “prechecking” policy. Employees were then required to prelift the stacked flat rack bundles before hoisting them, to make sure they were properly connected. After implementing the precheck procedure, the bands continued to break, so the company started using chains to secure the bundles. Mr. Furoyama remained dubious about the safety of the procedure.

Other rulemaking participants supported allowing platform containers to be lifted in VTLs (Exs. 10-2, 52-3; Tr. 1-57). Mr. Michael Arrow of USMX supported lifting flat racks in VTLs, stressing that “ISO Standard 1496.5, Section 7.3, clearly indicates that [flat racks] not only may be lifted in a stacked pile, but are specifically designed and tested to be able to do so” (Tr. 1-57).

Another proponent of flat racks, Domino Flatracks, attempted to support its views with data on existing platform containers (Ex. 52-3). Domino Flatracks stated that “there are 80,000 Domino [flat racks] in service and several thousand platforms using these twist locks, some of which have been in service for more than 24 years.” Domino's representative went on to say that “the assembly successfully held the design loads of both 15 and 30 tons and is thus concluded to satisfy the customer requirements.” Nevertheless, the company was also quick to point out that assembly failure did occur at 38 tons (Ex. 52-3). As noted earlier in this section of the preamble, the Agency has concluded that a safety factor of five is reasonably necessary to ensure the safety of VTLs, and OSHA considers the margin of safety noted in the Domino Flatrack comments to be insufficient.

After carefully considering all the materials in the record on flat racks, OSHA has determined that flat rack corner castings and connectors are inferior to corner castings on standard containers and interbox connectors required for use in VTLs in the final rule. The Agency has therefore concluded that flat racks should not be considered appropriate elements of safe VTLs in marine terminals. The anecdotal evidence of flat rack VTL failures indicates that lifting bundles of flat racks connected solely by interbox connectors is unsafe. The comments of Domino Flatracks, a platform container manufacturer, suggests a simple explanation of why these failures have occurred: these devices simply do not offer a sufficient factor of safety to ensure a safe VTL. Further, the evidence that the corner castings and interbox connectors do not match the

standardized types used in ISO Series 1 containers indicates that OSHA strength analysis is not applicable to flat rack VTLs. Consequently, in the final rule, the Agency is banning the practice of lifting flat racks connected by built-in connectors or by separate interbox connectors. Employers may still lift multiple flat racks in bundles by following §§ 1917.13 and 1918.81 for unitized loads.

E. Coordinated Transportation

The safe transport of vertically connected containers in marine terminals was largely addressed in the proposed rule in paragraphs § 1917.71(i) and § 1917.71(j). These paragraphs address the communication, equipment, and operational parameters required for safe transportation practices during VTLs.

OSHA believes that these two provisions, as they were introduced in the proposed rule, could substantially reduce the risk of injuries related to VTLs, and therefore has carried them forward into the final rule largely unchanged as § 1917.71(j)(1) and (j)(2). The requirements expressly stipulate:

1. Equipment used to transport vertically connected containers must be either specifically designed for this application or evaluated by a qualified engineer and determined to be capable of operating safely in this mode of operation.

2. The employer must develop, implement and maintain a written plan for transporting vertically connected containers in a terminal. The written plan must establish safe operational parameters, such as optimal operating and turning speeds; as well as address any other conditions in the terminal that could affect the safety of the movement of vertically coupled containers.

A safe, organized transport plan also involves communication and coordination among all affected employees. To coordinate transportation efforts in Marine Terminals, proposed paragraph § 1917.71(b)(9) would have required that a copy of the vessel cargo stowage plan be given to the crane operator and that the vessel cargo stowage plan be used to identify the location and characteristics (that is, weight and content) of any containers being used in a VTL.

As explained in detail later in this section of the preamble, the Agency has decided that existing requirements in § 1917.71(b)(1) and (b)(2)(ii), which mandate that the gross weight of containers be marked or a stowage plan be available, are not sufficient for safe VTL operations; therefore, the final rule does not carry forward proposed paragraph (b)(9). As the final rule only permits VTLs with empty containers—and requires employers to verify that each container in a VTL is empty before it is lifted—OSHA has concluded that requiring the stowage plan to be provided to the crane operator and for the plan to be used to identify containers lifted in VTLs is redundant, and therefore unnecessary.

The following is a summary of the rulemaking comments that prompted OSHA to arrive at the final rule's provisions related to transport safety.

1. Equipment

Paragraph (i) of proposed § 1917.71 would have prohibited the movement of VTLs on flatbed trucks, chassis, bomb carts, or similar types of equipment, unless the equipment was specifically designed to handle VTLs or evaluated by a qualified person (defined in proposed § 1917.71(i) as “one with a recognized degree or professional certificate and extensive knowledge and experience in the transportation of vertically connected containers; also one who is capable of design, analysis, evaluation and specifications in that subject”) and determined to be safe in this mode of operation.

This section of the proposed rule met with support, as there was general apprehension among rulemaking participants (Tr. 2-27) about moving tandem stacked containers around the terminal using unmodified chassis and bomb carts, due to a greater chance of vehicle tipover because of a higher center of gravity. Transporting two containers on such equipment can raise the center of gravity higher than the equipment was designed for, increasing the possibility of the vehicle tipping over (Ex. 41).

Rulemaking participants discussed a study that was conducted at the request of the ICHCA VTL workgroup,

Vertical Tandem Lifting of Freight Containers

, which evaluated the safe turning radius and speed at which VTLs may be moved in a terminal (Ex. 41). The study provided chassis stability calculations for determining the speed at which a fifth wheel and chassis carrying vertically coupled containers would tip over while making a turn.

Alternative examples, offered by Mr. Ronald Signorino of the Blueoceana Company, Inc. (Tr. 1-160), could also reduce the risk of vehicle tipovers to a safe level. Mr. Signorino stated that straddle-carriers, top-loaders, MAFIs, low-beds, and bomb carts are used to move containers around the terminal; but that personnel typically move vertically connected containers only a very short distance away from the crane and break them down using terminal industrial trucks.

Rulemaking participants also offered comments that were not specific to vehicles, rather more supportive of other equipment requirements as part of an overall safety program. “[W]e have experienced tipover in Hawaii,” said ILWU member Mr. Ross Furoyama (Tr. 1-211). “[W]e did transport tandems on chassis and we did flip over.” Though Mr. Furoyama did not offer a specific solution (except to ban VTLs altogether), some rulemaking participants argued that speedometers on transport equipment could further prevent tipovers and other accidents. For example, Daniel Miranda of the ILWU (2-339) testified that safety essentials, like speedometers, should be in place when transporting containers around the terminal because of the potential for accidents. “Currently on the west coast, our employers have refused to provide [utility tractors], hustlers, with speedometers, a device that is so basic in controlling speeds within the terminals for the movement and transport of these VTLs,” he explained (Tr. 2-339). “Without this basic device and other necessary controls, the safe movement of VTLs within a main terminal is not possible. * * * Those controls must be mandated first before we even take it off the ship, on or off,” he continued.

The lack of speedometers was important, Mr. Miranda (Tr. 2-358) testified, because accidents that have occurred could be attributed to excessive speed. These incidents prompted Mr. Miranda to stress that a transport plan should be developed because of the speeds in the yard (Tr. 2-358).

The Agency has concluded that it is not necessary to require speedometers in the final rule. Though OSHA agrees that speedometers can be useful for equipment operators, it does not consider them the only precautionary measure to be taken during ground transportation. For instance, as Mr. Signorino pointed out, vertically connected containers are typically moved very short distances away, and there are other vehicles—vehicles that may not be equipped with speedometers—capable of performing the transport (Tr. 1-174). In terminals such as those Mr. Signorino referred to, speed would not be a prime safety factor to prevent potential accidents. The Agency considers speed to be of lesser consequence if transporting the vertically coupled containers does not require turns or involve uneven ground surfaces. However, as noted later in this section of the preamble, OSHA does not

believe it to be appropriate to impose speed limits in an employer's transportation plan for vehicles that do not have speedometers. For these vehicles, the transport plan must include other measures to ensure the safe movement of vertically coupled containers.

2. Operational Parameters—Transport Plan

Operations before, during, and after VTLs all create an environment with potential for injury. Proposed paragraph (j) of § 1917.71 would have required that a written transport plan be developed and implemented to include safe operating speeds, safe turning speeds, and any conditions unique to the terminal that have the potential to affect VTL-related operations. In the notice of proposed rulemaking, OSHA asked for comment on what information should be in the terminal VTL handling plan and which safe practices would be necessary to ensure safe transport of stacked containers via ground transport.

Rulemaking participants supported the proposed requirement and gave reasons to develop a written plan for transporting containers around the terminal. Herzl Eisenstadt of the ILA (Ex. 47-3) described his concern saying: “It is quite possible that even the ground-handling aspects have been susceptible to danger-laden incidents in preparing for and transporting VTL-lifted containers. In any and all events, the terminal plan must provide for carefully laid-out coordination of ground and lift operations that emphasize

safety first

for all terminal personnel in the vicinity of VTL operations.” (Emphasis included in original.)

The support for a written transport plan notwithstanding, participants did ask OSHA to remain cognizant of the unique characteristics within each terminal as it moves forward with the VTL standard. Mr. Michael Bohlman of Horizon Lines (Tr. 1-196-1-197) testified that though turning radius, weight distribution, and speed studies have been conducted, each terminal needs to be looked at within its individual context before any safety requirements are set for that terminal. James M. McDonald, Vi

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