[Federal Register Volume 68, Number 179 (Tuesday, September 16, 2003)]
[Proposed Rules]
[Pages 54298-54318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23533]



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Part V





Department of Labor





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Occupational Safety and Health Administration



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 29 CFR Parts 1917 and 1918



Longshoring and Marine Terminals; Vertical Tandem Lifts; Proposed Rule

  Federal Register / Vol. 68, No. 179 / Tuesday, September 16, 2003 / 
Proposed Rules  

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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: Proposed rule.

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SUMMARY: OSHA published a final standard on July 25, 1997, revising all 
of the Longshoring Standard and related sections of the Marine 
Terminals Standard. In the preamble to the final rule, OSHA discussed 
the practice, hereafter referred to as ``vertical tandem lifts'' 
(VTLs), of lifting two empty intermodal containers together, one on top 
of the other, connected by semi-automatic twistlocks (SATLs). The final 
standard did not cover this practice because the rulemaking record 
contained insufficient information to enable OSHA to determine how to 
regulate the practice. The proposed standard published today would 
permit VTLs of two containers with a combined weight of the containers 
and cargo not exceeding 20 tons.

DATES: Comments and hearing requests must be submitted by the following 
dates:
    Hard Copy: Comments and hearing requests must be submitted 
(postmarked or sent) by December 15, 2003.
    Facsimile and electronic transmission: Comments and hearing 
requests must be sent by December 15, 2003. (Please see the Public 
Participation section provided under SUPPLEMENTARY INFORMATION for 
additional information on submitting comments and making hearing 
requests.)

ADDRESSES: Written Comments and Hearing Requests:
    Regular mail, express delivery, hand-delivery, and messenger 
service: Submit three copies of your comments or hearing requests to 
the OSHA Docket Office, Docket No. S-025A, Room N-2625, U.S. Department 
of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. OSHA 
Docket Office and Department of Labor hours of operation are 8:15 a.m. 
to 4:45 p.m., e.s.t. Because of security-related problems, there may be 
a significant delay in the receipt of submissions by regular mail. 
Please contact the OSHA Docket Office at (202) 693-2350 for information 
about security procedures concerning the delivery of materials by 
express delivery, hand delivery, and messenger service.
    Facsimile: If your submissions, including any attachments, are 10 
pages or fewer, you may fax them to the OSHA Docket Office at (202) 
693-1648. You must include the docket number of this notice, Docket No. 
S-025A, in your comments or hearing request.
    Electronic: You may submit comments or electronic documents through 
the Internet at http://ecomments.osha.gov. If you have additional 
materials that you would like to send through the mail, you must submit 
three copies of them to the OSHA Docket Office at the address above. 
The additional materials must clearly identify your electronic comments 
by name, date, subject, and docket number so we can attach them to your 
comments.
    All comments will be available for inspection and copying at the 
OSHA Docket Office at the address above. Comments posted on OSHA's Web 
page are available at http://www.osha.gov. OSHA cautions you about 
submitting personal information such as social security numbers and 
birth dates. Contact the OSHA Docket Office at (202) 693-2350 for 
information about materials not available through the OSHA Web page and 
for assistance in using the Web page to locate docket submissions.

FOR FURTHER INFORMATION CONTACT: For technical inquiries, contact Paul 
Rossi, OSHA, Office of Maritime, Directorate of Standards and Guidance, 
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 Ms. Bonnie Friedman, OSHA, 
Office of Communications, 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 proposed rule for 
vertical tandem lifts in the Longshoring and Marine Terminals Standards 
discusses the events leading to the proposal, the necessity for the 
standard, and the rationale behind the specific provisions set forth in 
the proposal. The preamble also includes the Preliminary Economic 
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. Summary and Explanation of the Proposal
III. Issues for Discussion
IV. Preliminary Economic Analysis and Preliminary Regulatory 
Flexibility Analysis
V. Environmental Impact
VI. OMB Review under the Paperwork Reduction Act of 1995
VII. Public Participation
VIII. State Plan Requirements
IX. Federalism
X. Unfunded Mandates
XI. Authority and Signature

I. Background

    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 involves three key components: 
standardized containers with uniform corner castings; interbox 
connectors (such as SATLs) to secure the containers, either to each 
other at the four corners or to the deck of the ship; and a type of 
crane called a container gantry crane that has specialized features for 
the rapid loading and unloading of containers. Equipment and 
operational standards have been developed by the international 
community to facilitate intermodalism.
    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 Freight Containers 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 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 20 or 40 feet long) at a time, using the crane's specially 
developed spreader beam. ISO 3874 Freight Containers also addresses the 
lifting of two 20-foot

[[Page 54299]]

containers end to end but, until recently, it has not addressed the 
practice of vertical tandem lifts (VTLs). A VTL is the practice of a 
container gantry 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 (SATL).
    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 
Sec.  1918.85(c) stated, ``all hoisting of containers shall be by means 
which will safely do so without probable damage to the container, and 
using the lifting fittings provided.'' 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 that:

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

    At a 1998 OSHA public meeting on VTLs, a Matson representative 
testified that, since 1986, they had performed over 47,000 VTLs without 
incident (Tr. p. 173 (``Tr.'' refers to the transcript of the 1998 
public meeting discussed below)).
    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 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, provided 
that eight requirements were met (Ex. 2). 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 are: 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; 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 a paragraph of the Preamble 
of the proposed revisions to the Marine Terminals and Longshoring 
Standards (59 FR 28602), stating: ``In those situations where one 
container is used to lift another container, using twistlocks, then the 
upper container and twistlocks become, in effect, a lifting appliance 
and must be certified as such.'' OSHA received comments on this issue 
only from the International Longshore and Warehouse Union (Exs. 4, 5, 
and 6). Although these comments favored the proposed interpretation and 
requested the Agency to include it as a requirement in the regulatory 
text, they included no specific information regarding 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, post-hearing 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). OSHA did 
not rely on this last letter in issuing the final rule because it was 
not a timely submission to the record. However, the letter made OSHA 
aware of safety concerns that might need to be addressed through 
supplementary 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 
loadings, OSHA reserved judgment on the appropriate regulatory approach 
to this practice, pending further study (62 FR 40152).
    Up to 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 ``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 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 locked and unlocked with hydraulic power, and 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 do the same job holding the bottom container as do the twistlocks 
on the container spreader.
    A gantry crane's container spreaders 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 in the United Nations which has 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 re-inspected. However, 
applying that same requirement to a 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 from the ILO, which is discussed below.
    On October 9, 1997, OSHA re-opened the VTL record with a Federal 
Register notice that also announced a public meeting that was held in 
Washington, DC, on January 27, 1998 (62 FR 52671). The transcript for 
this public meeting is docket exhibit number ``22x.'' The transcript 
will be referred to in this Preamble as ``Tr.'' followed by a page

[[Page 54300]]

number (that is, as ``Tr. p. 33'' rather than ``Ex. 22x, p. 33''). 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.
    Shortly after the public meeting, OSHA decided on a multi-faceted 
approach to resolve the questions raised during the January 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)\1\ about international safety aspects of VTLs;
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    \1\ ICHCA is an independent, non-political international 
membership organization established in 1952, whose membership spans 
some 85 countries and comprises corporations, individuals, academic 
institutions and other organizations involved in, or concerned with, 
the international transport and cargo handling industry.
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    c. Meet with the ILO to clarify the ambiguity in existing 
interpretations of ILO Convention 152;
    d. Monitor the ISO deliberations regarding VTLs; and
    e. Form a workgroup within the Maritime Advisory Committee on 
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 its occupational safety and health standards in the 
maritime industries. Committee members on MACOSH represent employers, 
employees, the States, the National Institute for Occupational Safety 
and Health (NIOSH), 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 
management and labor representatives, with participation by many other 
interested stakeholders. Over the next several years, the VTL workgroup 
discussed VTL issues at informal working group meetings and during 
MACOSH meetings.
    On September 28, 1998, members of MACOSH's VTL workgroup met with 
ICHCA in Malm[ouml], Sweden, to discuss the VTL issue. This was 
followed by a meeting with ILO in Geneva, Switzerland. The discussion 
with the ILO focused on the issue of determining whether the components 
of a VTL (the upper intermodal container and the SATLs) are either ``a 
lifting appliance'' or ``loose gear.'' On October 21, 1998, an ILO 
official indicated to OSHA that the ILO considers SATLs used for 
lifting to be ``loose gear'' (Exs. 31 and 32). The significance of this 
decision is that loose gear, under ILO Convention 152, must be tested 
and inspected before initial use and re-inspected on an annual basis, 
as opposed to a ``lifting appliance,'' which must be retested at least 
once every five 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 five 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 kiloNewtons (kN) 
(126,400 pounds per square foot (lb/f2)) to 802 kN (180,300 
lb/f2), and that the container corner castings were more 
likely to deform and fail before the SATLs. However, he expressed 
reservations about a particular type of interbox connector, called a 
single-sided latchlock, because of its smaller bearing surface contact 
with the corner casting. The smaller surface area 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 single-sided latchlock was fully extended, the NIST 
study determined that its surface area was insufficient for doing 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.
    On September 8, 2000, the USA 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, the 
ISO/TC 104 language 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 kN1) act vertically through each corner 
fitting, and the twistlocks or other loose gear used are 
certified2) for lifting. The twistlocks or other loose 
gear shall be periodically examined (Ex. 40-9).

    Footnote 1 states:

    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 
(Ex. 40-9).

    Footnote 2 states:

    The certification process envisaged is to use a safety factor of 
at least four based on the ultimate strength of the material (Ex. 
40-9).

    Essentially, this means 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, an ICHCA VTL workgroup met in London to begin 
drafting operational guidelines for VTLs as agreed to at the Cape Town 
meeting. The ICHCA workgroup finalized their VTL guidelines in 
September 2002, and received final approval by ICHCA's Board of 
Directors in January 2003. OSHA has given careful consideration to the 
ICHCA guidelines in the drafting of this proposed rule. A copy of the 
guidelines is available in the docket (Ex. 41). The guidelines are 
available for purchase through ICHCA's Web site: http://www.ichcainternational.co.uk/.

A. International Aspects

    As with all Federal agencies whose regulations influence 
international

[[Page 54301]]

trade, OSHA has developed this proposal in light of international 
considerations. Through domestic law and international agreements, the 
United States has indicated its intention that wherever possible, 
standards-related activities should not be a barrier to trade. The 
Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.) addresses 
technical barriers to trade regarding federal regulation. Section 2532 
of this Act states the following:

    Section 2532. Federal standards-related activities. No Federal 
agency may engage in any standards-related activity that creates 
unnecessary obstacles to the foreign commerce of the United States, 
* * *.
    (1) Nondiscriminatory treatment. * * *
    (2) Use of international standards. (A) In general, * * * each 
Federal agency, in developing standards, shall take into 
consideration international standards and shall, if appropriate, 
base the standards on international standards.

    Additionally, and consonant with this country's position on 
barriers to international trade, the United States is a signatory to 
the Multilateral Convention on the Facilitation of International 
Maritime Traffic (1965) (Ex. 1-3). As a contracting government, the 
United States has agreed to:

    [U]ndertake to co-operate in securing the highest practicable 
degree of uniformity in formalities, documentary requirements and 
procedures in all matters in which such uniformity will facilitate 
and improve international maritime traffic and keep to a minimum any 
alterations in formalities, documentary requirements and procedures 
necessary to meet special requirements of a domestic nature. 
(Article 3)

    Mindful of these international aspects, OSHA has sought to 
formulate a protective but flexible approach to VTLs. OSHA is confident 
that its proposed requirements for VTLs are consistent with the 
relevant provisions of ILO Convention 152 and with most of the 
provisions of the ISO standard and ICHCA guidelines.

B. Risks and Benefits of VTLs

    VTLs can reduce the time it takes to load or unload containers from 
a ship. The productivity gain is reported to be 5 to 10 percent of the 
total time (see the Preliminary Economic Analysis below). Although 
there are some costs associated with extra engineering and work 
practice controls necessary to handle VTLs safely, the evidence 
indicates that these costs are outweighed by the overall cost savings 
to unload the ship. The fact that stevedores have requested OSHA's 
guidance in performing VTLs and that some are currently performing 
these lifts is further evidence that they provide cost savings. The 
cost savings come from reducing the time (labor costs) for the 
longshore operations (loading and unloading), and, perhaps more 
significantly, of hourly capital and labor costs for the cargo ship. 
VTLs appear to be more economically advantageous when ships are loading 
or unloading large numbers of empty containers. The extent of the use 
of VTLs may therefore be dependent on the pattern of trade; for 
example, when imports exceed exports resulting in more empty containers 
being shipped out of a U.S. port.
    OSHA's current longshoring and marine terminal standards do not 
prohibit VTLs of empty containers. The Agency's standards also allow 
for lifting of loaded containers, without specifying whether they are 
handled singly or as a VTL, if the containers are ``handled using 
lifting fittings or other arrangements suitable and intended for the 
purpose * * *'' (29 CFR 1918.85(f)(1)(iv)).
    The ISO's central criterion for VTLs is that the maximum total 
weight that can be safely lifted in a VTL is 20 tons. It would allow 
employers to perform VTLs of combinations of empty containers and 
loaded containers as long as they do not exceed 20 tons (total load 
weight). In setting a 20-ton limit, ISO evaluated the strength of 
containers, their corner castings, and the SATLS used for lifting, but 
did not evaluate the work practices and controls necessary to ensure 
safe handling . ISO based its limit on research (sponsored by OSHA) by 
NIST (Ex. 40-10), a study by the Swedish National Testing and Research 
Institute (Ex. 11-6 H), and ISO's own technical knowledge of containers 
and SATLs (Ex. 11-6-C). The 20-ton limit provides a margin of safety of 
a factor of five for strength. (A safety factor of five means that the 
SATLs and corner castings would not fail with a lift weighing 100 tons. 
It also means that for a VTL of two containers, if the bottom one was 
fully loaded, the corner castings and SATLs would still not fail.) OSHA 
preliminarily concludes that, based on the established strength of 
containers and liftlocks, VTLs up to 20 tons are safe. (Under the 
proposal, a SATL may be used as a liftlock only if it has been tested, 
inspected, certified, and marked with a safe working load.)
    ISO concluded that VTLs with a 20-ton maximum weight would mean a 
``practical'' limit for VTLs of three containers (Ex. 40-9). To the 
best of the Agency's knowledge, employers are not performing VTLs of 
more than two containers in the United States.
    OSHA has preliminarily concluded that the strength of the 
containers and liftlocks constitutes one factor, but not the only 
factor to be considered in performing VTLs safely. Employers must also 
follow safe handling procedures, including the use of appropriate 
engineering controls [such as load indicating devices (LIDs)], work 
practice controls (such as pre-lifts), and administrative controls 
(such as annual inspection of liftlocks and containers) for handling 
VTLs. Many of these control measures address risks that were first 
identified in OSHA's 1994 letter to Sea-Land, permitting VTLs of two 
empty containers.
    The ICHCA guidelines set forth a series of safe handling 
procedures. As discussed further below, OSHA's proposed rule 
incorporates many of these procedures, including: requiring annual and 
on-going inspections of liftlocks and containers; prohibiting spring-
loaded latchlocks for VTLs; requiring stevedores to have a written VTL 
terminal plan for handling VTLs in the terminal; requiring each ship to 
use only a single type of liftlock; requiring LIDs on container gantry 
cranes; prohibiting VTLs when winds exceed 34 mph; and requiring pre-
lifts to ensure that all liftlocks on the VTL are engaged and holding 
before raising the VTL unit higher.
    VTLs have been performed in the United States since 1986. As noted 
earlier, Matson reported that they had performed almost 50,000 VTLs of 
two empty containers or two containers loaded with automobiles without 
an injury to employees or a documented accident between1986 and 1998 
(Tr. p. 166). Sea-Land reported that by 1999, it had performed 300,000 
VTLs of two empty containers without injury (Ex. 36). However, Sea-Land 
has reported three accidents. The cause of one was unrelated to the 
typical risk of VTLs--the crane legs did not have sufficient clearance 
for VTLs and the containers struck the crane legs, causing the lower 
container to separate from the top container and fall. Sea-Land 
reported that the crane operator and superintendent violated company 
rules in this instance (Tr. p. 208). In the second accident, two 
containers ``alligatored'' without completely separating when the two 
SATLs on one end were not engaged in the top corner castings of the 
bottom container. Following this incident, Sea-Land reported that they 
instituted a pre-lift test when performing VTLs. In a pre-lift, the 
combined containers are lifted a few feet up to ensure that all 
liftlocks are engaged in the corner castings before continuing the 
lift. A third accident occurred when spring-loaded latchlocks were used 
to secure containers together. The design of those latchlocks leaves

[[Page 54302]]

them susceptible to becoming fouled with dirt or other debris. If that 
occurs, they may not fully extend, causing them to have insufficient 
contact area with the corner casting. In the case of the third 
accident, there were no injuries and the accident would have been 
avoided by using regular SATLs which close positively when the 
containers are mated and have handles indicating their open or closed 
state (which is required by the Proposal). The Agency contracted with 
Robert Baron, an expert in the longshoring industry, to find other 
reported incidents or accidents involving VTLs, but none besides those 
mentioned above were found and verified (Exs. 42, 42-1, 42-2).
    As will be discussed further below, provisions in OSHA's proposal 
would have prevented the second and third VTL accidents just discussed. 
(Normal operating procedures that prohibit the handling of containers 
that do not fit between the legs of a crane should have prevented the 
first accident.) The Agency preliminarily concludes that the procedures 
required in the proposal will substantially reduce the risk to 
employees of performing VTLs for these same reasons.
    The Agency is concerned that lifting loaded containers in a VTL 
presents additional hazards to those involved with lifting empty ones. 
Loaded containers are more likely to have errors in weighing; so it is 
more likely that an overweight lift will be attempted--one weighing 
more than 20 tons. Secondly, loaded containers have loads that could 
shift during ocean transit or while being lifted by the container 
gantry crane (VTLs of containers with bulk and liquid cargoes would be 
prohibited for this reason). The Agency seeks comment on these issues 
and any other issues that pertain to the risk of lifting loaded versus 
empty containers.
    The Agency is aware that containers fail even in single lifts, 
although this is very rare. The Agency has preliminarily concluded 
that, when the proper work practice precautions as specified in the 
proposed standard are followed, employers who follow the proposal will 
be able to perform VTLs safely. The industry's experience with VTLs of 
two containers (about 350,000 over 15 years) is substantial but 
relatively small when compared to the 13 million single lifts performed 
annually. In addition, to OSHA's knowledge, all VTLs performed in the 
U.S. to date have consisted of only two containers. Although the Agency 
has preliminarily concluded, based on the information in the record of 
this rulemaking, that VTLs can be performed safely with 2 containers, 
it has concerns about whether additional containers would increase the 
risk to employees and necessitate the use of additional controls and 
work practices. The Agency seeks comment on the relative risk of 
lifting VTLs of two versus three containers. What are the additional 
sources of risk in lifting three containers? Are there additional 
safety measures that would reduce the risk of VTLs of three containers? 
If VTLs of three containers separated or failed, they potentially could 
fall much further from the crane; that is they would have a bigger 
``footprint'' than VTLs with two containers, and thus would expand the 
area in which longshore workers are exposed to the risk of falling 
containers.
    Clearly the number of empty or loaded containers permitted in a VTL 
by this proposed standard is a central issue in this rulemaking. The 
Agency welcomes comment on this issue.
    OSHA also solicits information on whether employers have had 
experience with VTLs of more than two containers, either in the U.S. or 
in other countries. The Agency has preliminarily concluded that the 
proposed standard is feasible and that it will protect employees. The 
Agency also requests comment on the issue of whether or not VTLs reduce 
the number of lifts and time longshoremen spend unloading a vessel, 
thus potentially reducing the risk of handling containers. The 
performance of VTLs is an option for employers, and OSHA's intent is to 
provide safe methods for employers who choose to exercise that option.
    Based on the technical studies performed on containers and SATLs, 
and the safe work procedures required in the proposal, the Agency also 
concludes that the proposal is technologically feasible (see 
Preliminary Economic Analysis below). Indeed, VTLs of two empty or 
partially loaded containers have been performed for many years. In 
addition, since the proposal does not require the use of VTLs when 
handling containers, employers may choose to perform VTLs or continue 
to handle containers in single lifts.
    In addition, based on the Agency's Preliminary Economic Analysis 
(below) that VTLs, if they are used, may result in overall cost savings 
in cargo operations, the Agency likewise concludes that the proposal is 
economically feasible and cost-effective.

II. Summary and Explanation of the Proposal

    OSHA is proposing to issue new provisions in the Longshoring and 
Marine Terminals Standards (29 CFR parts 1918 and 1917) to regulate the 
use of VTLs. These proposed provisions are based on objective research, 
industry experience with VTLs, ISO standards, the ICHCA VTL guidelines, 
and comment and testimony from the Agency's public meeting in January 
1998. The proposed standards provide safe work procedures (engineering, 
work-practice, and administrative controls) for lifting two empty or 
partially loaded containers, with a total weight of up to 20 tons, 
connected by liftlocks. Testing has demonstrated that the liftlocks 
permitted by the proposal are substantially strong enough to lift 20 
tons with a safety factor of five.
    The proposed regulations for VTLs are contained in both the Marine 
Terminals Standard (29 CFR 1917) and the Longshoring Standard (29 CFR 
1918). OSHA proposes that VTLs only be performed by a shore-based 
container handling gantry crane. In accordance with 29 CFR 1917.1(a), 
which states that cargo handling done by a shore-based crane is covered 
by part 1917, the proposed regulations that address the make-up of a 
VTL, such as the number of containers and maximum weight, would be in 
part 1917. Proposed regulations that address the certification and 
testing of liftlocks are in both parts 1917 and 1918. Liftlocks are 
vessel's gear, that is, gear owned and maintained by the vessel, and 
they would be addressed in part 1918. However, liftlocks can also be 
used in the marine terminal to assemble VTLs prior to loading on the 
vessel: therefore, the same certification and testing requirements for 
liftlocks that are proposed in part 1918 are also proposed in part 
1917. The proposed VTL regulations for part 1917 are discussed first.
A. Part 1917--Marine Terminals Standards
    In Sec.  1917.2 and Sec.  1918.2 Definitions, OSHA is proposing to 
add the definition of a VTL as ``the operation of lifting two 
intermodal containers that are coupled together vertically (one on top 
of the other).'' OSHA is also proposing to include the definition of 
``liftlock'' to both parts. This definition differentiates liftlocks, 
which are certified and used for lifting, from SATLs or other inter-box 
connectors, which are not certified and only used for securing 
containers on a vessel.
    In Sec.  1917.3(c), Incorporation by Reference, OSHA is proposing 
to add parts of ISO Standard 3864 that apply to VTLs.
    Section 1917.46(a)(1)(viii) does not currently require a load 
indicating device (LID) for container handling gantry cranes. This is 
because the safe working load (SWL) of these cranes does

[[Page 54303]]

not vary with the location of the load. However, in using these cranes 
to perform VTLs, a LID is needed, both to prevent the crane from being 
overloaded by multiple containers and to assure the liftlocks and the 
containers used in the VTL are not overloaded. Accordingly, this 
proposal would revise paragraph 1917.46(a)(1)(viii) to require a LID 
when performing VTLs. OSHA has concluded this is necessary because if 
two containers weighing more than 20 tons are lifted in a VTL by 
mistake, the crane operator will realize this condition through the 
reading on the LID and be able to lower the load before overloading the 
liftlocks, upper container, or the crane itself. OSHA believes that the 
LID requirement is essential to the safe handling of VTLs.
    The Marine Terminal Standards require that the employer know 
whether a container is empty or loaded before it is hoisted (29 CFR 
1917.71(b)(1) and (b)(2)(ii)). For containers being discharged from a 
vessel, most employers and employees rely on the vessel cargo stowage 
plan, also called a stow plan, that shows: The location of each 
container on the vessel, the container's unique identification number, 
the weight of the container, and other information, such as if the 
container contains hazardous material. For containers being loaded onto 
the vessel, the same information is contained on a stow plan that shows 
where the containers are to be placed on the vessel. This method of 
determining the weight of a container is adequate for handling 
containers individually. This is because if the stow plan understates 
the weight of the container, the hoisting of a fully loaded container 
will not overload the crane. However, it is not adequate for handling a 
VTL, because if the weights of multiple containers are understated, the 
hoisting of those containers in a VTL could overload the crane. A crane 
operator testified that:

    I know I've picked up containers they told me were empty and I 
say it's a load. And they say, no, it's an empty. I tell them, 
listen, this is a load. And they don't know it until they get it 
down. (Tr. p.252).

    The proposed LID requirement for VTLs is supported by comments 
already received by the Agency from the public meetings. One commenter 
observed:

    What concerns Peck and Hale as an American based company that 
supplies equipment to ships worldwide is that of safety. OSHA can 
approve empty lifting but no one can guarantee that these containers 
are empty. Containers are shifted in ports. Containers are mismarked 
and not accurate [sic] weighed. (Tr. p.161.)

    Proposed paragraph 1917.71(b)(9) requires that a copy of the vessel 
cargo stowage plan be given to the crane operator. This paragraph also 
requires that the vessel cargo stowage plan be used to identify the 
location and characteristics of any VTLs to be lifted. Although crane 
operators may not be accustomed to referring to a vessel cargo stowage 
plan while handling containers, this requirement will help the crane 
operator to better anticipate and focus on the VTL operation. This 
provision would supplement existing Sec.  1917.71(b)(1) and (b)(2)(ii), 
which require those in charge of loading to be notified of the location 
of all empty and loaded containers that are to be handled as VTLs.
    Proposed paragraph 1917.71(b)(10) requires that the crane operator 
conduct a pre-lift before hoisting a VTL. A pre-lift is a pause in the 
VTL as the initial strain is taken and the lifting frame wires 
tensioned, which allows a physical testing of the liftlocks to ensure 
that they are engaged. This is consistent with the practice previously 
described by Sea-Land.
    Existing paragraph 1917.71(f) addresses the normal handling of 
containers. OSHA is proposing to add additional operational 
requirements to this paragraph for performing VTLs, based on research 
studies, ISO Standard 3874, and the ICHCA VTL guidelines.
    Proposed Sec.  1917.71(f)(3)(i) limits a VTL to two ISO series 1 
containers \2\, with a total weight of 20 tons, which includes the 
weight of the container directly under the spreader bar.
---------------------------------------------------------------------------

    \2\ An ISO series 1 container is one that is intended for 
intercontinental use and is in compliance with relevant ISO 
standards.
---------------------------------------------------------------------------

    Proposed Sec.  1917.71(f)(3)(ii) requires that VTLs be handled only 
by container gantry cranes. This is necessary because this type of 
crane is specifically designed to handle intermodal containers and has 
the precise control needed for such lifts. While this control is 
important for handling single containers, it is even more important 
when handling VTLs, because the volume of the load and the sail area 
created by the VTL are greater.
    Proposed paragraphs 1917.71(f)(3)(iii), (iv), (v), and (vi) are a 
listing of ``do nots'' when handling VTLs. Proposed paragraph 
1917.71(f)(3)(iii) would prohibit VTLs for containers with hazardous 
cargo, liquid or solid bulk cargoes, or flexible tanks that are full or 
partially full. Any failure of a container with a hazardous cargo poses 
a very significant risk to employees. Bulk cargoes can quickly shift 
inside the container, causing a free surface effect that can move the 
weight of the container to one end. This would quickly increase the 
weight on two of the four liftlocks and could lead to failure. 
Containers loaded with such cargo must be handled individually. 
Containers holding liquids pose a similar hazard of shifting or 
spilling cargo.Paragraph 1917.71(f)(3)(iv) addresses platform 
containers, or ``flat racks.'' Platform containers are those that are 
open on the sides and top, but have panels on both ends. These end 
panels are either fixed or can be folded flat with the floor of the 
container, depending on the design of the flat rack. When the end 
panels are in the upright position, handling as a VTL is not allowed in 
proposed paragraph (iv) because the lack of sides and roof lessen the 
stability and strength of the container. However, under paragraph 
1917.71(f)(3)(iv), if empty platform containers have the ends folded 
down, and have built-in connectors that are designed for the purpose of 
lifting multiple units, they may be handled in accordance with 
manufacturers' recommendations. This continues a current industry 
practice (Exs. 10-2, 10-2A, 10-2B, and 11-6C). Two flatracks with the 
ends folded down may be handled as a VTL if they are connected by 
liftlocks that are not built-in.
    Paragraph 1917.71(f)(3)(v) would prohibit VTLs of any containers 
that are in the hold of a vessel. Containers are stacked in the hold in 
cell guides, which are steel beams constructed to secure stacks of 
containers. There is not enough clearance for the handle of a liftlock 
between the liftlock and the cell guide. If used, the handles of 
liftlocks would break off in the cell guide as containers were lowered 
into the guide. It would also be very difficult or even impossible for 
the crane operator or other observer to see whether the liftlocks are 
in the locked position, or to determine the condition of the containers 
or liftlocks.
    Paragraph 1917.71(f)(3)(vi) prohibits the handling of VTLs when the 
wind speed exceeds 34 mph. At the request of the ICHCA VTL workgroup, 
an engineering analysis was conducted by a consultant to determine an 
appropriate maximum wind speed for VTLs (Ex. 41, Appendix 4). The 34-
mph limit was calculated based on a three-container VTL with a total 
weight of 20 tons.
    Existing paragraphs 1917.71(f)(3), (f)(4), and (f)(5) have been 
redesignated as 1917.71(f)(4), (f)(5), and (f)(6), respectively.
    Proposed paragraph 1917.71(i) prohibits the movement of VTLs on 
flat bed trucks, chassis, bomb carts, or

[[Page 54304]]

similar type equipment, unless the equipment is specifically designed 
to safely handle VTLs or has been evaluated by a qualified person and 
determined to be a safe mode of operation. Moving two containers on 
such equipment raises the center of gravity higher than the equipment 
was designed for, increasing the possibility of turning over. A study 
was conducted at the request of the ICHCA VTL work group to determine 
the safe turning radius and speed with which VTLs may be moved in a 
terminal (Ex. 41, Appendix 6). This study provides chassis stability 
calculations for determining the speed at which a fifth wheel and 
chassis carrying VTLs will overturn while making a turn. These 
calculations could be used by employers to determine the safe operating 
speeds for transporting VTLs at a terminal. Safe transport of VTLs and 
safe operating speeds are part of the VTL terminal plan required in the 
next paragraph. Proposed paragraph 1917.71(i) defines a qualified 
person as ``one with a recognized degree or professional certificate 
and extensive knowledge and experience in the transportation of 
vertically connected containers who is capable of design, analysis, 
evaluation and specifications in that subject.'' This definition is 
similar to the one found in Sec.  1918.85(k)(6) and (8) concerning fall 
protection systems.
    Proposed paragraph 1917.71(j) requires, in conjunction with 
paragraph (i), that a written VTL terminal plan be developed and 
implemented to facilitate the safe movement of vertically connected 
containers in a marine terminal. The plan must include safe operating 
speeds, safe turning speeds, and any conditions unique to the terminal 
that could affect VTL operations.
    Proposed Sec.  1917.71(k) requires the employer establish a system 
that keeps damaged or defective liftlocks separate from working 
liftlocks. This is now typically done by having a separate storage bin 
marked for damaged or defective SATLs and instructing employees to put 
any that do not function normally into that bin. This will typically be 
part of regular, on-going inspections of liftlocks as they are handled.
    Proposed paragraphs 1917.71(l)(1)(i) through (l)(1)(vii) and 
(l)(1)(ix) require that any liftlocks that are used to assemble VTLs 
ashore comply with the applicable standards of ISO 3874 and the loose 
gear requirements of ILO Convention 152 that are more fully discussed 
below in the section explaining the VTL proposed regulation for part 
1918.
    Proposed 1917.71(l)(1)(viii) is a requirement for liftlocks that is 
not repeated in part 1918. It requires that the liftlocks that are used 
to connect containers to be loaded as a VTL be the same as the 
liftlocks on the vessel to which the connected containers will be 
transferred. This requirement will ensure that VTLs made up on the 
terminal under the requirements of part 1917 are using certified 
liftlocks that are the same as those used on the vessel onto which the 
VTLs will be loaded. This is to eliminate the danger of having more 
than one type of liftlock on a vessel. Mixing different types of 
liftlocks could result in mismatched liftlocks on a container that do 
not all lock (or unlock) in the same direction. Longshore employees and 
crane operators look for the ``telltales'' (a part of the liftlock that 
indicates whether the liftlock is locked or unlocked), or the handles 
of the liftlocks, all to be facing in the same direction to determine 
whether or not containers are free to be lifted or, in a VTL, are 
locked together for lifting. Mixing types of liftlocks could cause a 
VTL to separate when being lifted because different liftlocks with 
reverse locking indicators could mistakenly appear to be locked when 
they are in fact unlocked.
    Proposed paragraph 1917.71(l)(2) defines a competent person as ``a 
person familiar with the proper maintenance and use of liftlocks by 
training or experience. Such a person will be able to detect defects or 
weaknesses and be able to assess their importance in relation to the 
safe and continued use of the liftlocks.'' The proposed definition for 
competent person is more appropriate for VTL operations than the 
existing definition found in OSHA's shipyard standard, 29 CFR 1915.4, 
which is concerned with atmospheric hazards.
    Proposed paragraph 1917.71(m) prohibits the use of manual 
twistlocks or latchlocks as liftlocks, which is further discussed 
below.
B. Part 1918--Longshoring
    In 29 CFR part 1918, Safety and Health Regulations for Longshoring, 
OSHA proposes to add several definitions relating to VTL operations. In 
Sec.  1918.2 Definitions, OSHA proposes to add the terms competent 
authority, liftlock, and vertical tandem lift.
    The longshoring standards require certain equipment to be 
certificated by a competent authority. Currently, loose gear (which 
under this proposal would include liftlocks) in the U.S. is 
certificated by OSHA-accredited agencies under 29 CFR part 1919, Gear 
Certification. Foreign flag vessels carry certificates issued by the 
recognized body appropriate for that country. Often the recognized body 
issuing certifications is a classification society such as the American 
Bureau of Shipping, Lloyds Register, or Bureau Veritas.
    For the purpose of this proposed VTL standard, OSHA is defining 
competent authority as ``the appropriate government agency having 
jurisdiction over VTL operations in each port of call where such 
operations are proposed.'' OSHA or the U.S. Coast Guard would be the 
competent authority for certifications in the United States. Other 
countries would have their own competent authority that would have 
jurisdiction over VTL operations in that country. Certification of 
liftlocks, which is verified by certificates issued by agencies 
authorized by a competent authority, is the primary way an employer 
will determine that liftlocks on a vessel (or ashore) can be used for 
lifting. These certificates are found in the vessel's cargo gear 
register.
    OSHA is proposing in Sec.  1918.2 to include the same definitions 
for liftlock and vertical tandem lifts as proposed and discussed 
previously for Sec.  1917.2.
    In Sec.  1918.3(c), Incorporation by Reference, OSHA is proposing 
to add parts of ISO Standard 3874 that apply to VTLs.
    Proposed Sec.  1918.85(f)(3)(i), (ii), (iii), (iv), and (v) adopt 
provisions for liftlocks (as loose gear), including testing, 
inspection, and marking before initial use. Paragraph 1918.85(f)(3)(i) 
would require that liftlocks meet the applicable requirements found in 
ISO 3874. Paragraph 1918.85(f)(3)(ii) would require that each liftlock 
has ``been inspected by a competent person, certificated, and 
individually tested in accordance with requirements for loose gear in 
ILO Convention 152 before being used for the first time and after any 
substantial alteration or repair.'' Testing means that each liftlock 
has been tested to a SWL of 10,000 kg as required in paragraph (iv) 
discussed below.
    Proposed paragraph 1918.85(f)(3)(iii) would require that liftlocks 
be thoroughly examined at least once a year by a competent person. It 
also states what is required by this thorough exam: A visual exam for 
obvious structural defects; physical operation of the parts to 
determine that the lock is fully functional with adequate spring 
tension on each head or latch; a check for excessive corrosion and 
deterioration; and immediate removal from service when found to be 
defective. This is consistent with ILO Convention 152 regarding loose 
gear.

[[Page 54305]]

    Proposed paragraph 1918.85(f)(3)(iv) would require that liftlocks 
be regularly examined, including a visual inspection, which could be 
done by employees involved in the VTL operation, before each use. This 
is consistent with OSHA standards and with ILO Convention 152 and will 
help identify defective liftlocks on an on-going basis.
    Proposed paragraph 1918.85(f)(3)(v) would require that liftlocks to 
be certificated with a SWL for lifting of at least 10,000 kg., in 
accordance with ICHCA guidelines (Ex. 41, Section 8).
    Proposed paragraph 1918.85(f)(3)(vi) would require that every 
liftlock be clearly and durably marked with its SWL for lifting, 
together with a number or mark that identifies it as a liftlock and 
connects it with its test certificate. This marking and certification 
must be done before any liftlock is used for lifting. Although the 
ICHCA guidelines allow for batch testing, OSHA's proposal would require 
individual testing in accordance with ILO Convention 152, which is 
discussed in the next section.
    Proposed paragraph 1918.85(f)(3)(vii) addresses the characteristics 
of the liftlock. All liftlocks on a vessel shall lock and unlock in the 
same manner. Some liftlocks lock and unlock in a horizontal direction, 
others in a vertical direction. What is important and required is that 
all the liftlocks on a vessel work in the same manner to allow 
employees involved in VTLs to know whether or not the locks are locked 
or unlocked before a lift is performed. In order for an observer to 
visually determine whether the liftlocks are locked or unlocked, they 
must have a ``telltale,'' which is typically a solid metal lever or a 
flexible wire, possibly painted to enhance visibility. This allows 
employees working with VTLs to see whether a liftlock is locked or 
unlocked.
    Proposed paragraph 1918.85(f)(4) defines a competent person as ``a 
person familiar with the proper maintenance and use of liftlocks by 
training or experience. Such a person will be able to detect defects or 
weaknesses and be able to assess their importance in relation to the 
safe and continued use of the liftlocks.'' The proposed definition for 
competent person is more appropriate for VTL operations than the 
existing definition found in OSHA's shipyard regulations, 29 CFR 
1915.4, which is concerned with atmospheric hazards.
    Proposed paragraph 1918.85(f)(5) prohibits the use of manual 
twistlocks or latchlocks as liftlocks. Manual twistlocks, which have 
largely been replaced by SATLs due to OSHA's container top safety 
regulations and increased productivity (see discussions in 62 FR 40174, 
Longshoring and Marine Terminals Final Rule), do not have a positive 
locking mechanism. By contrast, SATLs have a locking device that uses 
spring tension to prevent it from unlocking. Manual locks could unlock 
through normal container handling while being used for lifting, making 
them unsuitable for lifting. The limits and weaknesses of latchlocks 
for VTLs was discussed earlier in this Preamble.

III. Issues for Discussion

    1. In this Federal Register notice, OSHA is proposing to permit 
VTLs containing two containers with a total weight (containers plus 
cargo) of up to 20 tons. However, the Agency is aware that ISO 
standards and ICHCA guidelines on VTLs would allow up to three 
containers with the same total weight (up to 20 tons). Therefore, OSHA 
is seeking comment on whether three-container VTLs of up to 20 tons can 
be handled as safely as two-container VTLs with the same weight 
limitation. Are additional safeguards necessary for safety?
    2. A fundamental issue of VTLs is the strength of the containers 
and liftlocks. As discussed above, OSHA contracted with another Federal 
agency, NIST, to conduct strength tests for SATLs. The report that NIST 
issued is Exhibit 40-10. It concluded that SATLs are very strong, 
noting that container corner castings fail before the SATLs (Ex. 40-10, 
pp. 43-44). Although the Agency has received considerable information 
on the topic, it welcomes further comments. Also, is there any 
scientific or engineering data that addresses maintenance testing and 
``life'' of the components used for lifting purposes?
    3. The NIST report also noted that a particular type of locking 
device known as a ``single-sided latchlock'' has insufficient surface 
area (that part of the lock that actually contacts the container corner 
casting and bears the weight of the lift) and that the strength of that 
kind of latchlock was less than that of a SATL. The design of the 
latchlock is such that the extent of the contact made by the lock 
relies on a spring that can become clogged by debris such as salt or 
grease which, in turn, can reduce significantly the contact area with 
the container corner casting (Ex. 20). In addition, by contrast with 
latchlocks, the handle of SATLs is designed as an integral part of the 
locking mechanism. The position of the handle allows the employees to 
be assured that, when the handle is in the locked position, the lock is 
engaged. Latchlocks are not designed in the same way. For these 
reasons, the NIST report, the ICHCA guidelines, and this proposal do 
not approve of the use of latchlocks for VTLs. OSHA realizes that there 
are also double-sided latchlocks that have more surface area than 
single-sided latchlocks; however, their locking mechanism is the same 
as that of single-sided latchlocks, with the same limitations for VTL 
purposes. OSHA seeks comment on whether double-sided latchlocks could 
be used for VTLs, and under what conditions.
    4. OSHA seeks public comment on appropriate testing and examination 
requirements for existing SATLs that are to be used for lifting. OSHA 
believes that all liftlocks must be individually tested and examined 
before initial use in VTLs. However, ICHCA guidelines allow for batch 
testing instead. Batch testing means, instead of testing each liftlock, 
one liftlock out of every group (for example, 50) of liftlocks made 
during the same production run is tested and used as a representative 
sample of the group. If the selected liftlock fails the testing, the 
whole group of 50 fails. However, the ILO does not allow batch testing 
for loose gear and, in a response to ICHCA on this issue, has 
maintained this position specifically for liftlocks. Of particular 
note, in this regard, is the rough use that SATLs endure when used for 
securing containers on deck, along with their expected life expectancy 
of 7 to 10 years.
    5. Under the ICHCA guidelines, liftlocks can comply with the ILO 
Convention 152 loose gear requirement to be inspected annually by using 
an Approved Container Examination Program-type (ACEP) plan that is used 
to inspect containers. The ACEP program is a part of the International 
Maritime Organization's (IMO) Convention for Safe Containers (CSC), 
which is enforced in the United States by the Coast Guard. Under the 
ACEP plan, containers are inspected frequently on an irregular basis as 
opposed to a set time period. This is generally done at the gate of a 
marine terminal, where containers are inspected as they are brought 
into the marine terminal, and the custody of the container is 
transferred from the over-the-road trucker to the marine terminal 
operator. The same inspection occurs when the over-the-road driver 
takes a container from the marine terminal, transferring custody of the 
container from the terminal operator to the truck driver. In both 
cases, the container is inspected for damage, and, when going out of 
the terminal, it is also inspected

[[Page 54306]]

for ``roadability,'' which is compliance with the Department of 
Transportation's regulations for equipment on public roads, such as 
brakes and lights. The OSHA proposal does not consider the ACEP program 
to be sufficient for liftlocks. Instead, it requires that liftlocks be 
inspected once every twelve months by a competent person. Liftlocks are 
subject to extreme weather conditions, exposure to salt water, cold 
temperatures, stresses through the movement of the vessel on the ocean, 
stresses when used for lifting, and rough handling when being removed 
during unloading operations. For these reasons, OSHA believes that an 
ACEP-type inspection program is inadequate and that the liftlocks must 
be inspected on an annual basis by a competent person. Vessel operators 
could use some kind of color coding to determine which liftlocks had 
been examined, as a positive visual indicator that a liftlock had been 
examined. OSHA seeks comment on this issue.
    6. Currently, the inspection of intermodal containers is governed 
by the CSC, which is an international convention issued under the 
auspices of the IMO. In this country, the United States Coast Guard is 
responsible for overseeing compliance with the CSC. One of the 
provisions of the CSC is the periodic inspections of containers for 
wear and damage. This can be done in two ways. The first way is for an 
independent third party to inspect every container initially after 5 
years and then every 30 months. The second way is to develop an ACEP 
plan as described above. During the 1998 VTL public meeting, a 
representative from the U.S. Coast Guard testified that the CSC 
container inspection programs have been successful, citing few 
container failures (Tr. pp. 31-48). A concern was raised by the unions 
about the inspection of the containers' bottom corner castings under 
the CSC (Exs.11-1B, 11-1G). The bottom corner castings have a greater 
importance when doing VTLs because they carry the load of the container 
below. The concern is that the bottom corner castings may be obscured 
by the equipment that is carrying the containers so that cracks and 
other damage to corner castings could be missed during the inspection. 
OSHA seeks comment on this issue. Do the current inspections adequately 
inspect the bottom corner castings, or are additional measures needed?
    7. OSHA is requesting comment on whether or not the standard should 
include a reporting mechanism for VTL accidents and near-misses. As 
noted earlier, OSHA's experience with VTLs has primarily been with two 
empty containers. Given the relatively limited number of VTLs that have 
thus far been performed in this country, the Agency is considering 
whether to require employers to report to OSHA when any of the 
following events occur during VTLs: accidents, drops, near misses, and 
damage to containers or liftlocks. What would be an appropriate minimum 
threshold for reporting? Damage to equipment? What would be the 
appropriate authorities (OSHA or another Agency) to receive this 
information? For how long should the Agency receive this information?
    8. Another issue is the effect of wind on a VTL operation, both 
when loading and unloading from a vessel and when moving VTLs in the 
terminal. The ICHCA guidelines and OSHA's proposed standard would 
prohibit VTL operations both at the vessel and in the terminal when 
wind speed exceeds 34 mph. OSHA seeks comment on the effect of wind on 
VTLs and on the maximum wind speed allowable in VTL operations. Is a 
permissible wind speed of up to 34 mph excessive for VTLs being 
transported and handled in a marine terminal? A wind speed that is 
appropriate when handling VTLs with a container gantry crane may not be 
appropriate for VTLs being transported to the crane on a chassis or 
flatbed. As discussed, the proposed 34 mph limit was based on research 
involving VTLs of three containers. Is that limit also appropriate for 
VTLs of two containers?
    9. The Agency solicits comment on training that might be necessary 
for safe VTL operations. The current Marine Terminals and Longshoring 
Standards address crane operator training in Sec.  1917.27(a)(1) and 
Sec.  1918.98(a)(1), respectively. Those regulations 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, 
shall be permitted to operate a crane, winch, or other power-operated 
cargo handling apparatus, or any power-operated vehicle, or give 
signals to the operator of any hoisting apparatus.'' Thus far, VTLs 
have been performed by crane operators with no specific required off-
site training in VTLs. In addition, making up and breaking down VTLs is 
little different from the work already performed by longshore 
employees. Is it necessary to provide specialized training for VTLs? 
How much, in what topics, and for whom?
    10. To what extent are vertically coupled containers currently 
being lifted and by whom? What are the potential productivity gains 
associated with lifting VTLs?
    11. What information (both recorded data and anecdotes) is 
available on incidents involving vertically coupled containers that 
have fallen? Have any employees been injured or killed in VTL 
incidents? Have there been ``near-misses,'' and if so, what were the 
causes?
    12. What should be in the terminal VTL handling plan? Do VTLs 
introduce into the workplace new hazards other than those discussed in 
this notice? What safe practices are necessary to ensure safe transport 
of stacked containers via ground transport?
    13. OSHA requires the employer to ascertain that the certification 
of the liftlocks are in accordance with ILO requirements, but does not 
require that the certification records be available for inspection. 
Historically, in parts 1917 and 1918, OSHA requires that the records 
produced by the employer be available for inspection at the request of 
representatives of the U.S. Department of Labor. However, with 
liftlocks, the records are not currently the responsibility of or in 
the possession of the employer, but of the vessel owner. Does OSHA need 
to require the employer to make certificates available for inspection?
    14. OSHA is seeking comment on whether to require, when some 
containers on a vessel are handled as VTLs, that all the containers on 
the deck of the vessel be interconnected by liftlocks, regardless of 
whether they are lifted in VTLs or single-container lifts. The Agency 
is concerned that, if SATLs are used to interconnect containers to be 
lifted in single-container lifts and liftlocks are used on the same 
vessel to interconnect containers to be lifted in VTLs, SATLs may 
sometimes be used instead of liftlocks in VTLs. Requiring a vessel 
using VTLs to only employ liftlocks and not SATLs onboard would 
eliminate this safety hazard. OSHA is aware that container vessels use 
a different type of lock to secure the bottom container on the deck to 
the hatchcover. This lock is different from SATLs and liftlocks and 
cannot be used for lifting due to its design (it is flat on one end). 
The Agency intends that these flat-ended locks should continue to be 
used to secure bottom containers to the hatchcover.

IV. Preliminary Economic Analysis and Preliminary Regulatory 
Flexibility Analysis

    The Agency is proposing to incorporate provisions in its Marine 
Terminal and Longshoring Standards that permit VTLs of two containers 
with

[[Page 54307]]

a total weight of 20 tons, and incorporate comprehensive VTL work 
practices that are similar to those developed by ICHCA. The changes 
that OSHA is proposing to make are expected to benefit the regulated 
community by increasing productivity for those who choose to make use 
of VTLs. In order to make use of VTLs, the affected employers will need 
to incur some additional costs. However, this action does not 
constitute a ``significant regulatory action'' for the purposes of 
Executive Order (EO) 12866. That is, this proposal does not impose 
costs or have benefits to the regulated community in excess of $100 
million.
    Only those employers who choose to use VTLs will incur costs and 
realize productivity gains. If employers decide that VTLs will be 
beneficial to their operations, then the costs imposed by the 
regulation result from the following activities: (1) Ensuring that the 
cranes used for VTLs have LIDs; (2) developing and implementing plans 
for handling and transporting VTLs in a terminal; (3) notifying the 
crane operator through a cargo plan of the location and characteristics 
of all VTL units being handled; (4) ensuring that damaged and defective 
liftlocks are separated from operating liftlocks; and (5) ensuring that 
all liftlocks used to make up a VTL at a terminal are the same 
certified liftlocks that are on the vessel onto which the VTLs will be 
loaded.

Industrial Profile

    According to a Dun & Bradstreet's 2002 Report (D&B, 2002), the 
total number of establishments and employees potentially affected by 
the proposal are grouped in NAICS 488310 (Port & Harbor Operations), 
NAICS 483111 (Deep Sea Freight Transportation), and NAICS 483113 
(Coastal & Great Lakes Freight Transportation). The last two are the 
NAICS codes governing shippers of goods by water, and the first is the 
NAICS code (OMB, 1997) for establishments engaged in loading and 
unloading ships (see Table 1).
    The Agency estimates that only a portion of the establishments in 
the affected industries will be able to or choose to adopt the option 
this proposal makes available (see Table 2). OSHA estimates that the 
affected establishments will be the larger employers that will choose 
to incur the costs associated with performing VTLs (certifying 
liftlocks (for ship owners only), ensuring that cranes have load 
indicating devices, ensuring damaged liftlocks do not get mixed with 
operating liftlocks, ensuring that the crane operator is aware of the 
VTL locations and characteristics, and developing a plan for 
transporting VTLs in the terminal). Stevedoring establishments (in 
NAICS 488310) with more than 100 employees are most likely to encounter 
situations where they could usefully perform VTLs.

                             Table 1.--Industrial Profile for the Proposed Standard
----------------------------------------------------------------------------------------------------------------
                                                                            NAICS 483113
                               NAICS 488310  Port   NAICS 483111  Deep    Coastal & Great     Total all affected
                              & Harbor Operations      Sea Freight         Lakes Freight           sectors
                                                      Transportation       Transportation
----------------------------------------------------------------------------------------------------------------
Establishments..............                  212                  507                  301                1,020
Employees...................                6,037               15,663                8,393               30,093
Revenues....................         $643,203,331      $15,455,878,053       $4,270,754,490      $20,369,835,874
Profits (7%)................          $45,024,233       $1,081,911,464         $298,952,814       $1,425,888,511
Establishments w/<20                          179                  379                  223                  781
 Employees..................
Employees in Establishments                   850                2,152                  223                3,225
 with <20 Employees.........
Revenues Per Establishment..             $571,677           $3,802,768           $3,023,502  ...................
Profits Per Establishment...              $40,017             $266,194             $211,645  ...................
Establishments w/100 to 499                     5                   36                   15                   56
 Employees..................
Employees in Establishments                 1,052                6,575                3,293               10,920
 with 100 to 499 Employees..
Revenues Per Establishment..          $77,808,832         $155,591,006          $39,740,515  ...................
Profits Per Establishment...           $5,446,618          $10,891,370           $2,781,836  ...................
Establishments w/500 Employees...........
Employees in Establishments                 3,231                3,388                1,400                8,019
 with 500
 Employees..................
Revenues Per Establishment..          $33,305,333         $301,600,000         $357,800,000  ...................
Profits Per Establishment...           $2,331,373          $21,112,000          $25,046,000  ...................
----------------------------------------------------------------------------------------------------------------
Source: Office of Regulatory Analysis.
Profit rates taken from Robert Morris Associates, 1998-1999 (RMA, 1998).
Employees, establishments, and revenues taken from Dunn & Bradstreet, 2002.

    Owners of the ships that transport containers (in NAICS 483111 and 
483113), and have more than 100 employees, may ship containers 
organized for VTLs. OSHA assumes that smaller shipping lines will not 
choose to incur the expense of loading or unloading containers via VTLs 
which includes the costs of certifying liftlocks.
    Only those companies operating in major ports will engage in 
transporting containers using VTLs. Thus, the Agency assumes, for the 
purposes of this preliminary estimate, that all of the establishments 
in NAICS 488310, 483111, and 483113 with greater than 100 employees 
will choose to incorporate VTLs into their workplaces. The resulting 
number and characteristics of establishments likely to adopt VTLs are 
shown in Table 2. However, nothing prevents others from using VTLs. The 
Agency seeks comment on these estimates concerning the number and kinds 
of establishment likely to adopt VTLs.

[[Page 54308]]



                                 Table 2.--Affected Establishments and Employees
----------------------------------------------------------------------------------------------------------------
                                                                            NAICS 483113
                               NAICS 488310  Port   NAICS 483111  Deep    Coastal & Great     Total all affected
                              & Harbor Operations      Sea Freight         Lakes Freight           sectors
                                                      Transportation       Transportation
----------------------------------------------------------------------------------------------------------------
Total Affected                                  8                   41                   17                   66
 Establishments.............
100 to 499 employees........                    5                   36                   15                   56
                             ----------------------
    Employees...............                1,052                6,575                3,293               10,920
                             ----------------------
Revenues Per Establishment..          $77,808,832         $155,591,006          $39,740,515  ...................
Profits Per Establishment...           $5,446,618          $10,891,370           $2,781,836  ...................
 500 Employees...                    3                    5                    2                   10
    Employees...............                3,231                3,388                1,400                8,019
Revenues Per Establishment..          $33,305,333         $301,600,000         $357,800,000  ...................
Profits Per Establishment...           $2,331,373          $21,112,000          $25,046,000  ...................
----------------------------------------------------------------------------------------------------------------
Source: Office of Regulatory Analysis.
Profit rates taken from Robert Morris Associates, 1998-1999 (RMA, 1998).
Employees, establishments, and revenues taken from Dunn & Bradstreet, 2002.

Technological Feasibility

    The Occupational Safety and Health Act (OSH Act) mandates that 
OSHA, when promulgating standards for protecting workers, consider the 
feasibility of the new workplace rules. Court decisions have 
subsequently clarified ``feasibility'' in economic and technological 
terms.
    Consistent with the legal framework established by the OSH Act, 
Executive Order 12866, and Court decisions, OSHA has assessed the 
technological feasibility of the proposed standard on vertical tandem 
lifting of containers. The proposed provisions are consistent with 
current industry practice and have been developed based on industry 
recommendations and international standards. Therefore, OSHA has 
preliminarily determined that the proposal is technologically feasible.
    On ships, the process of lifting two secured containers that are 
coupled together vertically (a VTL) can only be done with containers on 
the deck level of the ship. For containers stored below deck, SATLs 
cannot be used to connect the containers. Ships use cell guides below 
deck instead of SATLs. On average, about one-third of the containers 
are stored above deck and the other two-thirds below deck. Only a few 
establishments now use VTLs to move containers. Most establishments do 
not use VTLs at all, and many probably will continue not to use them 
even after the final standard is promulgated. However, VTLs will allow 
some companies to realize substantial cost savings.

Model Container Ship Profile

    In order to model cost savings and costs for the VTL rule, OSHA 
developed a model for an average container ship loading or unloading 
operation with VTLs.
    According to 1992 data (Longshoring & Marine Terminals FEA, 1997), 
vessels carrying containers docked 1,564 times at U.S. ports, with a 
combined total carrying capacity of 1.76 million Twenty-foot Equivalent 
Units (TEUs) at U.S. ports. One TEU is equivalent to a 20-foot 
container. This estimate of vessels includes all classes of vessels 
that carry containers either in liner service or in non-liner service. 
Vessels in liner service operate on fixed routes to advertised ports on 
published schedules (OSHA, 1997). The Agency estimates that only 10 
percent of the 1,564 dockings of vessels at U.S. ports would use VTLs 
in the loading or unloading operations, or 156 jobs. This estimate of 
156 VTL jobs was used in estimating the industry costs for this 
analysis. The Agency seeks comment on this assumption.
    To develop parameters for the model container ship, the Agency 
divided the total carrying capacity of all vessels (1.76 million TEUs) 
by the total number of dockings of vessels carrying containers at U.S. 
ports (1,564) in 1992, results in 1,125 TEUs per vessel. This estimate 
is based on the 1992 data. Today, however, container ships are being 
built with carrying capacities of five to six thousand TEUs. Therefore, 
the Agency feels that it is more realistic to increase the model ship's 
carrying capacity to 3,000 40-foot containers for estimating costs. The 
model is described further in the following sections.
    OSHA thus estimated that the typical ship to use as a model for 
analytic purposes is a ship carrying 3,000 40-foot containers. A ship 
of this size would have about 2,000 containers below deck that are not 
able to be moved as VTLs. The remaining 1,000 containers would be 
stored above deck. Of these, roughly one-third are estimated to be 
moved via VTLs (333). The Agency assumes that the cycle time for a 
crane to lift a container from the dock, load it on the ship, and 
return to the dock to pick up another container is about 2 minutes for 
moving one container at a time. This includes time needed for the 
dockside longshoremen to apply or remove liftlocks to the bottom corner 
castings. For the unloading or loading of 333 containers stowed above 
deck via VTLs, the productivity gains are estimated by taking the 
estimated time that it would take moving the containers one at a time 
and subtracting the time it would take using VTLs. Table 3 presents the 
model container ship used in OSHA's analysis.

                                         Table 3.--Model Container Ship
----------------------------------------------------------------------------------------------------------------
                                                    Above deck                          Below deck
----------------------------------------------------------------------------------------------------------------
Total Storage \1\........................  1000........................  2000.
Storage Using VTLs.......................  333.........................  0.
Total Liftlocks \2\......................  4000........................  0.

[[Page 54309]]

 
Loading/Unloading VTL Profile \3\........  333 (2 at a time)...........  2000 (1 at a time).
                                           637 (1 at a time)...........
----------------------------------------------------------------------------------------------------------------
Source: Office of Regulatory Analysis.
\1\ VTLs can only be used above deck.
\2\ Since liftlocks can only be used for VTLs, the Agency assumes that all locks used to store containers will
  be certified liftlocks.
\3\ The costing will be based on a full unloading of the ship.

Benefits

    This section reviews the populations at risk of occupational injury 
or death during the vertical tandem lifting of containers. OSHA 
anticipates that the proposed standard will decrease the time 
associated with moving containers from vessel to dock and vice versa 
and may decrease risk by reducing the total number of lifts per job. To 
assess the benefits of the proposed standard, OSHA has conducted an 
historical analysis of the frequency of VTLs and the time associated 
with such lifts, using a model container ship. These data were used to 
calculate the reduced time needed to complete a job using VTLs as 
opposed to lifting one container at a time. The following section 
estimates the increase in productivity OSHA expects affected employers 
to realize and describes the methodology used to develop these 
estimates.

Cost Savings Due to Productivity Gains

    This analysis begins with the model container ship, as described 
above in Table 3. The cycle time estimates used to calculate cost 
savings are two minutes per container for single lifts (30 containers 
per hour) and 2.6 minutes for two containers (a total of 45 containers 
per hour) using VTLs. The actual amounts of time could vary 
considerably from port to port and across crane operators. These 
productivity gains are based on moving only two containers in a VTL. 
The Agency is assuming that the cycle time for loading or unloading a 
ship with containers is approximately the same. For the loading of the 
ship, the cycle time includes applying liftlocks to the bottom corner 
castings so that when they are put on the ship, they automatically lock 
into place. For the unloading of the ship, this time includes removing 
the liftlock from the containers. The actual time is dependent on the 
skill of the crane operator and the cargo plan. An experienced crane 
operator can move about 30 forty-foot containers per hour, one at a 
time, depending on the crane, characteristics of the ship, terminal, 
wind, etc. The Agency is assuming that by using a VTL, the same 
experienced crane operator can move about 45 forty-foot containers per 
hour. Using the model container ship, there are about 333 containers 
stored above deck that could be moved using a VTL. The productivity 
gains are represented by the difference between moving the containers 
one at a time and two at a time.

BILLING CODE 4510-26-P

[[Page 54310]]

[GRAPHIC] [TIFF OMITTED] TP16SE03.020

    There are several factors that will influence the cost estimate of 
moving containers one at a time versus using VTLs. Based on the model 
container ship, there are 333 containers stored above deck that can be 
moved via VTLs. Therefore, dividing the 333 containers by the total 
number of containers that the crane operator can move in an hour (30), 
it will take the crane operator about 11.1 hours for these containers. 
On the other hand, if the crane operator were moving the containers by 
VTLs, it would take about 7.4 hours, a 3.7 hour difference. This is the 
decrease in labor time needed for the unloading by VTLs instead of one 
at a time.
    Other gains in productivity will be the decreased land and crane 
rental time needed by the stevedoring companies, which is a direct 
result of the 3.7 hour

[[Page 54311]]

decrease in time using VTLs. There may also be a cost saving from 
shorter dock or pier rental time for the ship.
    As mentioned earlier, stevedoring companies rent the land and the 
cranes from the port authorities to load and unload ships. OSHA assumes 
that the crane costs $500 per hour with a 4-hour minimum rental. In 
this case, as shown in Table 4, 3.7 hours less of crane rental results 
in cost savings of $1,850 per ship unloaded using VTLs.
    In addition to the crane rental savings, changes in labor costs 
must also be considered. Without using VTLs, the container handling 
involves a labor cost of $7,875 (15 persons times 11.1 hours times the 
wage rate of $47.30). VTL unloading requires an estimated three 
additional crew members beyond that required for normal unloading, but 
for a shorter period of time. Since performing the VTL unloading will 
take 7.4 hours (based on the container ship model), the cost of 
unloading using VTLs will be $6,300 (the cost of 18 employees times 
$47.30 per hour times 7.4 hours). Comparing the two, the savings in 
labor costs is $1,575 per ship unloaded using VTLs ($7,875 minus 
$6,300).
    There may be substantial productivity gains to be realized by other 
parties. The shipping line gains a 3.7 hour reduction in time to 
deliver cargo, which translates to a higher return to capital for the 
ship owners. In addition, the shipper receives the goods 3.7 hours 
sooner, which could reduce inventory and other costs. The Agency did 
not estimate savings in port charges paid to unload the ship or in 
inventory costs to shippers. However, the Agency believes these 
efficiency cost savings may be significant and seeks comment.
    The table below on productivity gains assumes that the containers 
are pre-stacked VTLs prior to the ships docking to ensure that the 
productivity gain stems solely from the act of moving the containers 
and not from any other source. Based on the table of productivity 
gains, moving two containers at one time would yield the highest 
marginal productivity gain. Based on the model and assumptions of cycle 
times, higher total productivity gains may be possible with VTLs of 
more than two containers. When moving more than two containers 
simultaneously, the gain diminishes for each added container. This 
diminishing gain stems solely from the assumptions in the model of the 
number of containers per hour and the minutes per lift variables. This 
analysis is dependent on the estimate of the number of containers per 
hour that can be moved. The ``decreased lifts per hour'' column 
captures a possible measure of where some effect on risk may occur. 
Fewer lifts may result in less risk. The Agency has preliminarily 
concluded that, when the proper work practice precautions as specified 
in the proposed standard are followed, the relative safety risk of two-
container VTLs and single lifts are approximately the same. The Agency 
does not have any data to quantify this portion of risk. The Agency 
seeks comment on this approach.

                                          Table 4b.--Productivity Gains
----------------------------------------------------------------------------------------------------------------
                                                                                                   Marginal gain
  Number of containers per lift   Containers per  Lifts per hour    Minutes per      Decreased      from lifts
                                       hour                            lift       lifts per hour     (minutes)
----------------------------------------------------------------------------------------------------------------
1...............................              30              30               2  ..............  ..............
2...............................              45            22.5             2.7             7.5             0.7
3...............................              55            18.3             3.3             4.2             0.6
4...............................              65           16.25             3.7             2.1             0.4
5...............................              75              15             4.0             1.3            0.3
----------------------------------------------------------------------------------------------------------------
Source: Office of Regulatory Analysis.

    Based on the model container ship profile, the Agency preliminarily 
estimates the benefits of using VTLs are $3,425 in direct cost savings 
for stevedoring costs for each VTL related operation. If, as estimated 
in the next section, VTLs are used for 156 jobs per year, then the 
total annual cost savings in stevedoring costs would be $534,300 per 
year. In addition, the shipper receives the cost saving associated with 
3.7 hours less time needed to load or unload containers. This 3.7 hours 
translates into faster shipping service to shipper and improved 
productivity for shipping capital. The benefits also include decreased 
dock, or marine terminal, rental time and port fees associated with 
loading or unloading the ship. Due to the lack of data, the Agency has 
not quantified these benefits. The estimates are based on a ``per job'' 
basis; that is for a single loading or unloading operation of a 
container ship.

Costs of Compliance

    This section presents OSHA's analysis of the estimated costs of 
compliance to be incurred by affected employers. This cost analysis is 
primarily based on the profile of affected workers and industries 
presented in the Industrial Profile section of this Preliminary 
Economic Analysis. The first section outlines the provisions of the 
proposed standard that are expected to impose costs on employers and 
describes the nature of those costs. The next part presents OSHA's 
assumptions and preliminary assessments with regard to current 
compliance, unit costs, life of equipment and programs, baseline data, 
and other data required to make compliance cost estimates. This section 
also describes OSHA's model container ship profile. Following the 
discussion of analytical assumptions and baseline data, this section 
examines, requirement by requirement, the expected costs of compliance 
by the model container ship and for the Marine Cargo Handling and 
Longshoring industries.
    Performing VTLs is not mandatory. Employers could avoid using VTLs 
altogether by simply continuing to lift containers one at a time. Thus, 
a case can be made that this is a no cost rule with only net 
productivity gains. The proposal requires liftlocks to be inspected 
before using them for lifting and annual examinations thereafter. These 
requirements reflect ILO's loose gear requirements. Many of these costs 
of the proposal's initial inspection and annual examinations of 
liftlocks would be absorbed by vessel owners rather than the stevedores 
(who are the employers of longshoremen).

Provisions in the Proposal With Major Cost Impacts

    The most important provisions of the proposal are reviewed in the 
following paragraphs. Although many new provisions are being proposed, 
only five may create costs on the regulated community. A proposed 
provision in Sec.  1917.46(a)(1)(viii)(A) requires container gantry 
cranes that handle VTLs to be fitted with a LID. This would

[[Page 54312]]

allow the crane operator to know precisely the weight of the load.
    Proposed Sec.  1917.71(b)(9) requires the employer to notify the 
crane operator through a cargo stowage plan of the location and 
characteristics of all VTL units being handled. This is important so 
that the crane operator is aware of what he/she will be lifting and 
when.
    Proposed Sec.  1917.71(j) requires employers to develop and 
implement a plan for transporting VTLs in a terminal. This plan must 
include safe operating speeds; safe turning speeds; and any conditions 
unique to the terminal that could affect VTL operations.
    Proposed Sec.  1917.71(k) requires that the employer have a means 
of keeping damaged or defective liftlocks separate from operating 
liftlocks. This is currently being done for SATLs for lifts of single 
containers. Therefore, the Agency did not estimate additional 
compliance costs for this requirement.
    The proposed Sec.  1917.71(l) requires employers to ensure that 
liftlocks used to make up VTLs at a terminal are the same type of 
certified liftlocks that are on the vessel onto which VTLs will be 
loaded. This requirement will impose compliance costs not on the 
stevedore but on the ship owner. This cost is attributed to proposed 
Sec.  1918.85(f)(3)(i) & (ii), which requires the ship owner to get the 
SATLs inspected prior to initial use as a liftlock for VTLs, and 
annually examined thereafter, based on ILO 152 convention requirements 
for loose gear. The requirements of initial testing, marking, and 
numbering the liftlocks with the safe working load (SWL) are tasks that 
will usually be done by the manufacturer, but for existing SATLs may be 
done by another company or the vessel owner. The logistics of testing, 
inspecting, and certifying liftlocks is difficult (for the employer/
stevedore) since the ship owner has control of the locks and most of 
the locks are in nearly continuous use. The Agency seeks comment on 
this issue. The overall breakdown of costs by sector are as follows:

    Table 4c.--Provisions With Potential Cost Implications by Sector
------------------------------------------------------------------------
           1917 Marine terminals                   1918 Longshoring
------------------------------------------------------------------------
Sec.   1917.46(a)(1)(viii)(A)--Load          Sec.   1918.85(f)(3)(i)--
 Indicating Devices.                          Initial Testing of SATLs.
Sec.   1917.71(b)(9)--Notify crane operator  Sec.   1918.85(f)(3)(ii)--
 of cargo plan for VTLs.                      Annual inspection of
                                              liftlocks by a competent
                                              person.
Sec.   1917.71(j)--Plan for transporting
 VTLs in the terminal.
Sec.   1917.71(k)--Means for keeping
 damaged or defective liftlocks from
 operating liftlocks.
Sec.   1917.71(l)(a)(vii) and (viii)--
 Liftlocks must be identical.
------------------------------------------------------------------------
Source: Office of Regulatory Analysis.

    Not all of the requirements in Table 4c will incur compliance costs 
on employers. Specifically, the requirement for keeping damaged 
liftlocks separated from operating liftlocks is currently being done 
for all single lifts, thus no compliance costs are being estimated. The 
employer (shipper) could either replace his/her existing locks with new 
already certified liftlocks or have existing SATLs certified to be 
liftlocks. If the employer chooses to have existing SATLs certified, 
the Agency estimated that this activity will cost the employer $1 per 
lock to perform the initial testing of the lock. The SATLs would be 
sent to an independent testing company for these tests to be done. The 
testing company would also develop the certification record for the 
employer. The annual inspection of the liftlocks would also be done by 
an independent testing company at the same rate of $1 per lock.
    A higher cost alternative is that the owner of the ship would 
simply buy new liftlocks. This would impose an enormous initial cost 
burden on the ship owner. Since these locks will come directly from the 
manufacturer, already tested, marked, inspected, and certified for 
lifting, the unit cost is $30 per lock. Thus, in considering the model 
container ship that is using 4,000 SATLs, the cost per ship would be 
$120,000. This cost would only be realized if the ship owner feels that 
it would be easier to purchase new liftlocks to enable the cargo 
handlers to comply with the proposal. Also, even with the model, if the 
ship owner is going to prepare containers for handling as VTLs, all 
SATLs on board need to be certified liftlocks, and they must be of a 
uniform type throughout the ship. The Agency believes that this is 
already industry practice based on the Agency's knowledge of the 
industry and information in the public meetings on VTLs.

Estimated Cost Using the Model Container Ship

    For simplicity, the Agency is assuming that two container gantry 
cranes will load the empty model container ship with all 3,000 40-foot 
containers (the ship's full carrying capacity). Based on the 
specifications in Table 1, the containers being loaded will be a mix of 
20 and 40-foot containers. (For purposes of space on container ships, 
two 20-foot containers, can be stored in the space of one forty-foot 
container.) However, for the purposes of this analysis, only the 40-
foot containers will be used in VTLs. Forty-foot containers are more 
common and the analysis would not be essentially different with twenty-
foot containers. Of the 3,000 40-foot containers, only 333 containers 
will be lifted in a VTL.
    Since about half of the overhead container gantry cranes currently 
in operation already have LIDS, there will be little difference in the 
average rental cost for stevedoring companies renting the cranes. The 
cost of retrofitting a crane with a LID is estimated to be $10,000. 
When this cost is discounted over 10 years at a 7 percent discount 
rate, the annualized cost of the LID is $1,424. In a worst-case 
scenario, this total annualized cost would be passed along in full to 
the stevedoring company whose longshoremen are performing the VTLs. So 
for the purposes of this analysis, the Agency is assuming that the 
cranes being used for VTLs already have a LID; thus, the Agency did not 
estimate any additional compliance costs for this requirement.
    Also, the stevedoring supervisor must inform the crane operator of 
the vessel cargo stowage plan, which shows the location and 
characteristics of all VTL units to be handled (proposed in Sec.  
1917.71(b)(9)). The Agency estimates that it will take ten minutes 
(0.1667 hours) to perform this task. Thus, multiplying the hourly wage 
rate ($60.92) by this fraction of one hour, the cost is $10.
    According to the proposed standard, employers are required to 
develop a plan for transporting vertically connected containers in a 
terminal (Sec.  1917.71(j)). The Agency assumes that this plan would be 
developed by the

[[Page 54313]]

stevedoring supervisor along with information from the port authority 
(the owner of the land) prior to the ship's arrival in port. OSHA 
estimates that it will take four hours of supervisory time to develop 
this plan. The cost of this task is estimated by multiplying the 
supervisor's average wage rate of $60.92 per hour (PMA, 2003) by the 
four hours to complete this task. This totals $244 per establishment. 
In addition to the time to develop the plan, the Agency estimates that 
it will take employers one hour each to maintain and update the plan as 
necessary. The second and recurring cost year for this requirement is 
$61 annually per plan.
    The employer would also need to ensure that the liftlocks used to 
make up VTLs at a terminal are the same type of certified liftlocks 
that are on the vessel. The ship owner and stevedore must ensure that 
the liftlocks are certified. The ship owner owns the liftlocks. The 
Agency estimates that the 4,000 SATLs needing to be certified on the 
model container ship will cost about $1 per lock for testing, 
certification, and annual examination. Thus, the cost to comply with 
this requirement for the model container ship is $4,000. The Agency 
assumes that each affected shipper will have at least one ship that 
will do VTLs and need to have all of its SATLs certified. The Agency 
seeks comment on this assumption.
    Table 5 presents the estimates for the total cost of performing 
VTLs using the model container ship operation. Performing VTLs actually 
results in a net cost saving; the savings are calculated in the 
Benefits section of this Preliminary Economic Analysis.
    OSHA does not believe that the entire industry will use VTLs. At 
most ports, unions and stevedores must negotiate work practices, which 
may include the decision to perform VTLs. The potential for VTLs is 
also highly dependent on the pattern of trade in each port or the cargo 
of each ship. The majority of the costs would not be imposed directly 
on the stevedore (employer), because the ship owners would need to 
ensure that SATLs are certified before being used as liftlocks.

    Table 5.--Model Container Ship Operation Cost and Total Industry
                            Compliance Costs
------------------------------------------------------------------------
                                                            Estimate
                                            Model           industry
                                        containership    compliance cost
                                       operation cost          \1\
------------------------------------------------------------------------
Sec.   1917.46(a)(1)(viii)(A)--Load                  0                 0
 Indicating Devices.................
Sec.   1917.71(b)(9) Notifying the                  10             1,584
 crane operator of the VTLs.........
Sec.   1917.71(j) Plan for                         244             1,949
 transporting VTLs in the terminal..
Sec.   1917.71(k) Means of                           0                 0
 Separating Damaged and Working
 Liftlocks \2\......................
Sec.   1918.85(f)(3)(i)&(ii) Testing             4,000           232,000
 and Examining Liftlocks............
                                     -------------------
        Total Costs.................             4,254          235,533
------------------------------------------------------------------------
Source: Office of Regulatory Analysis.
\1\ These estimates were calculated mostly by multiplying the model
  container ship operation cost by 156 (estimate of the number of VTL
  jobs).
\2\ This practice is already being done whether VTLs are being done or
  not, as discussed in the text.

    The costs of compliance in Table 6 illustrate total annualized 
compliance costs, estimated on a per establishment basis for each 
affected NAICS code. Table 6 assumes that each establishment would have 
at least one ship that would need to replace all of its SATLs to have 
them certified for the purposes of VTLs. OSHA recognizes that this 
assumption may overstate the costs. Based on this data and the 
discussion above in the Industry Profile section, the Agency is 
estimating that 58 vessels would have their ship's SATLs certified for 
VTLs.

                        Table 6.--Estimated Annualized Compliance Cost per Establishment
----------------------------------------------------------------------------------------------------------------
                                                                                                 NAICS 483113
                                                     NAICS 488310 Port    NAICS 483111 Deep    Coastal and Great
                                                         and harbor          sea freight         Lakes freight
                                                         operations         transportation      transportation
----------------------------------------------------------------------------------------------------------------
Affected Establishments Engaging in VTLs..........                    8                   41                  17
Load Indicating Devices...........................                   $0                   $0                  $0
Notifying the crane operator......................               $1,584                   $0                  $0
Plan for Transporting VTLs........................             $278 \1\                   $0                  $0
Means of Separating Damaged and Working Liftlocks.                   $0                   $0                  $0
Testing and Examining Liftlocks...................                   $0             $164,000             $68,000
Total Annualized Compliance Cost..................               $1,862             $164,000             $68,000
Annual Compliance Cost Per Affected Establishment.                 $233               $4,000             $4,000
----------------------------------------------------------------------------------------------------------------
Source: Office of Regulatory Analysis.
\1\ This total represents the cost for developing the plans for transporting VTLs in the marine terminal
  ($1,949) discounted by a 7 percent rate over 10 years, which totals $278.

    OSHA estimates that for every dollar spent in NAICS 488310 to 
comply with the proposal, the employer would save approximately ten 
dollars by using VTLs. For the shippers, the cost invested in initially 
inspecting SATLs and annually examining liftlocks is estimated to 
reduce their shipping time by about 4 hours each for 156 cargoes in 
NAICS 483111 and NAICS 483113 (Table 6).

Economic Impact Analysis

    This proposed rule presents no issues of economic infeasibility. 
The use of VTLs is an option available to the employers. Any employer 
that finds that using VTLs would result in an increase in its costs 
need not adopt this option, and thus need not incur any costs. OSHA has 
examined the economic impacts for those who incur the costs of using 
VTLs.

[[Page 54314]]

    First, the Agency computed compliance costs on a per establishment 
basis, which required consideration of the number of potentially 
affected establishments. As indicated earlier in this analysis (see 
Table 6), approximately 66 establishments are potentially affected by 
this proposal. For the purpose of conducting the regulatory flexibility 
screening analysis, OSHA estimated that small firms will not bear the 
cost associated with performing VTLs. These costs may be incurred by 
the larger establishments in the industry, particularly the high volume 
ports.

                            Table 7.--Estimated Economic Impacts for Affected Sectors
----------------------------------------------------------------------------------------------------------------
                                                                               Compliance cost
                                                             Compliance cost   as a percentage   Compliance cost
              NAICS                      Description               per          percentage of    as a of pre-tax
                                                              establishment       revenues           profits
----------------------------------------------------------------------------------------------------------------
488310..........................  Port and Harbor                       $233              0.00              0.01
                                   Operations.
483111..........................  Deep Sea Freight                     4,000              0.00              0.04
                                   Transportation.
483113..........................  Coastal & Great Lakes                4,000              0.01             0.14
                                   Freight Transportation.
----------------------------------------------------------------------------------------------------------------
Source: Office of Regulatory Analysis.

    The economic impacts outlined in Table 7 of this analysis are based 
on using the lowest estimate of revenues and costs from either the 100 
to 499 size class or the 500 size class (see Table 2). The 
costs of the proposal are extremely small, and the proposed standard is 
economically feasible.

Regulatory Flexibility Analysis

    According to the Small Business Administration (SBA), a small 
business in NAICS 483111 or 483113 is any firm with less than 500 
employees (see references below). However, for NAICS 488310, SBA 
defines a small business by total sales of less than $21.5 million. 
Using the average sales per establishment, OSHA found that the firms 
with less than 250 employees earned less than $21.5 million in sales 
annually, while establishments with more than 250 employees exceeded 
that sales figure. For reasons discussed in the Industry Profile, 
establishments with less than 20 employees are unlikely to perform VTLs 
because of the size and kind of ships they service. Table 8 shows even 
under a worst-case scenario, the proposed requirements would have 
minimal impacts on small firms. Accordingly, OSHA certifies that this 
standard will not have significant impact on a substantial number of 
small entities.

                                     Table 8.--Estimated Small Firm Impacts
----------------------------------------------------------------------------------------------------------------
                                                     Number of                      Compliance      Compliance
                                                    small firms     Compliance       cost as a       cost as a
                      NAICS                         potentially    cost per firm   percentage of   percentage of
                                                     affected                        revenues         profits
----------------------------------------------------------------------------------------------------------------
488310--Port & Harbor Operations................               3            $233            0.01            0.18
483111--Deep Sea Freight Transportation.........              36           4,000            0.00            0.06
483113--Coastal & Great Lakes Freight                         15           4,000            0.11           1.62
 Transportation.................................
----------------------------------------------------------------------------------------------------------------
 Source: Office of Regulatory Analysis.

References

    Dunn & Bradstreet [D&B, 2002]. Market Profile Database. 2002
    Office of Management and Budget [OMB, 1997]. North American 
Industry Classification System Manual. 1997
    Occupational Safety and Health Administration [OSHA,1997]. Final 
Economic Analysis for the Longshoring and Marine Terminals Standards. 
1997 (Ex. L-91)
    Pacific Maritime Association [PMA, 2003]. Report: Hours with Wages 
Paid to Registered Work Force. 2003
    Robert Morris Associates [RMA, 1998-1999]. Annual Statement 
Studies. 1998
    Small Business Administration [SBA, 2002]. Table of Size Standards 
Matched to North American Industry Classification System Codes. 2002

V. Environmental Impact

    Finding of No Significant Impact. OSHA has reviewed the proposed 
rule according to the requirements of the National Environmental Policy 
Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.), the Guidelines of the 
Council on Environmental Quality (40 CFR parts 1500 through 1517), and 
the Department of Labor's (DOL) NEPA Procedures (29 CFR part 11). Based 
on this review, the Assistant Secretary for OSHA finds that the 
proposed rule will have no significant environmental impact.
    The revisions and additions to 29 CFR parts 1917 and 1918 focus on 
the reduction of employee death and injury. OSHA will achieve this 
reduction through the updating of its regulations for longshoring and 
marine terminal operations to provide safe practices for employers who 
choose to perform VTLs. The new language of these rules does not affect 
air, water, or soil quality, plant or animal life, the use of land, or 
other aspects of the environment. Therefore, the new rules are 
categorized as ``excluded actions'' according to Sec.  11.10(a)(1), of 
the DOL NEPA regulations.

VI. OMB Review Under the Paperwork Reduction Act of 1995

    The proposed rule for VTLs for longshoring and marine terminals 
contains two new collections of information (paperwork) that are 
subject to review by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995 (PRA 95), 44 U.S.C. 3501 et seq., 
and its regulation at 5 CFR part 1320. In addition, the proposal 
redesignates a currently approved collection of information, Sec.  
1917.71(f)(4) to Sec.  1917.71(f)(5). The collection of information is 
approved under OMB control number 1218-0196. PRA 95 defines collection 
of information to mean, ``the obtaining, causing to be obtained, 
soliciting, or requiring the disclosure to third parties or the public 
of facts or opinions by or

[[Page 54315]]

for an agency regardless of form or format'' (44 U.S.C. 3502(3)(A)).
    The title, description of the need for and proposed use of the 
information, summary of the collections of information, description of 
respondents, and frequency of response of the information collection 
are described below with an estimate of the annual cost and reporting 
burden as required by Sec.  1320.5(a) (1)(iv) and Sec.  1320.8(d)(2). 
The reporting burden includes the time for reviewing instructions, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information.
    OSHA invites comments on whether each proposed collection of 
information:
    (1) Ensures that the collection of information is necessary for the 
proper performance of the functions of the agency, including whether 
the information will have practical utility;
    (2) Estimates the projected burden accurately, including the 
validity of the methodology and assumptions used;
    (3) Enhances the quality, utility, and clarity of the information 
to be collected; and
    (4) Minimizes the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submissions of responses.
    Title: Vertical Tandem Lifts, 29 CFR Parts 1917 and 1918.
    Description: The proposed standard is based on three primary 
sources: results of OSHA-sponsored research and comments from public 
meetings; the International Standards Organization's revised ISO 3874, 
Freight Containers, which permits VTLs with a total weight of up to 20 
tons (20,000 kgs); and the VTL guidelines developed by the 
International Cargo Handling and Coordination Association (ICHCA). The 
standard's information collection requirements are essential components 
that will help employers and employees verify that containers and their 
contents in a VTL weigh 20 tons or less and assure that the vertically 
connected containers are handled safely in the terminal.
    Summary of the Collections of Information: The proposed rule 
contains two collections of information (paperwork) requirements. 
Proposed section 1917.71, paragraph (b)(9) would require that the crane 
operator receive a copy of the ship's cargo stowage plan. Paragraph (j) 
of this section would require employers to create a written terminal 
plan. The plan must include the following information for vehicles 
carrying vertically connected containers:
    (1) safe operating speeds;
    (2) safe turning speeds; and
    (3) any conditions unique to the terminal that could affect the 
safety of VTL operations.
    Respondents: Marine terminal and longshoring employers that perform 
VTLs.
     Frequency of Response: The development of the written terminal 
plan is a first-year burden for those establishments that will use 
VTLs. The frequency of providing a copy of the ship's cargo stowage 
plan to the crane operator is determined by the number of ships using 
VTLs to unload cargo.
    Average Time Per Response: OSHA estimates that establishments will 
spend 10 minutes to provide a copy of the cargo stowage plan to the 
crane operator, and 4 hours for establishments to develop, implement, 
and maintain the written terminal plan for transporting VTLs. OSHA 
estimates establishments will spend 1 hour to review and update the 
written plan for transporting VTLs in subsequent years.
    Total Burden Hours:
    Total Estimated Burden Hours in First Year: 59.
    Total Estimated Cost in First Year: $3,594.
    Total Estimated Burden Hours in Second and Subsequent Years: 39.
    Total Estimated Costs in Second and Subsequent Years: $2,376.
    The Agency has submitted a copy of the information collection 
request to OMB for its review and approval. Interested parties are 
requested to send comments regarding this information collection to the 
Office of Information and Regulatory Affairs, Attn: OSHA Desk Officer, 
OMB, New Executive Office Building, 725 17th Street, NW., Room 10235, 
Washington, DC 20503.
    Costs (purchase of capital/start up costs): 0.
    Comments submitted in response to this notice will be summarized 
and/or included in the request for OMB approval of the final 
information collection request, and they will also become a matter of 
public record.
    Copies of the referenced information collection request are 
available for inspection and copying in the OSHA Docket Office and will 
be provided to persons who request copies by telephoning Todd Owen at 
(202) 693-1941 or Theda Kenney at (202) 693-2444. For electronic copies 
of the Vertical Tandem Lifts in Longshoring and Marine Terminals 
information collection request, contact the OSHA Web page on the 
Internet at http://www.osha.gov/. Copies of the information collection 
request are also available at the OMB docket office.

VII. Public Participation

    Interested persons are requested to submit written data, views, and 
arguments concerning this proposal. These comments must be received by 
December 15, 2003. Comments may be submitted in hard copy or 
electronically. For more information and requirements on how to submit 
comments, see the DATES and ADDRESSES sections at the beginning of this 
notice.
    All written comments received within the specified comment period 
will be made a part of the record and will be available for public 
inspection and copying at the above Docket Office address.
    Additionally, under section 6(b)(3) of the OSH Act and 29 CFR 
1911.11, interested persons may file objections to the proposal and 
request an informal hearing. Objections and hearing requests must be 
submitted in triplicate to the Docket Office (see ADDRESSES section) 
and must comply with the following conditions:
    1. The objection must include the name and address of the objector;
    2. The objections must be received by December 15, 2003;
    3. The objections must specify with particularity grounds upon 
which the objection is based;
    4. Each objection must be separately numbered; and
    5. The objections must be accompanied by a detailed summary of the 
evidence proposed to be adduced at the requested hearing.
    Interested persons who have objections to various provisions or 
have changes to recommend may, of course, make those objections and 
their recommendations in their written comments and OSHA will fully 
consider them. There is only a need to file formal ``objections'' 
separately if the interested person requests a public hearing.
    OSHA recognizes that there may be interested persons who, through 
their knowledge of safety or their experience in the operations 
involved, would wish to endorse or support certain provisions in the 
standard. OSHA welcomes such supportive comments, including any 
pertinent accident data or cost information that may be available, in 
order that the record of this rulemaking may present a complete picture 
of the public response on the issues involved.

VIII. State Plan Requirements

    This Federal Register document issues a proposal for new and 
revised

[[Page 54316]]

rules addressing the handling of VTLs in marine cargo handling 
regulated in 29 CFR parts 1917 and 1918. The rules when final will be 
codified into the applicable section of the Code of Federal 
Regulations.
    The 26 States or U.S. Territories with their own OSHA approved 
occupational safety and health plans must develop comparative standards 
applicable to both the private and public (State and local government 
employees) sectors within six months of the publication date of a 
permanent final Federal rule or show OSHA why there is no need for 
action, e.g., because an existing state standard covering this area is 
already ``at least as effective as'' the new Federal standard. Three 
States and territories cover only the public sector (Connecticut, New 
York, and New Jersey).
    Currently five States (California, Minnesota, Oregon, Vermont, and 
Washington) with their own State plans cover private sector onshore 
maritime activities. Federal OSHA enforces maritime standards offshore 
in all States and provides onshore coverage of maritime activities in 
Federal OSHA States and in the following State Plan States: Alaska, 
Arizona, Connecticut (plan covers only State and local government 
employees), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, 
Minnesota, Nevada, New Jersey (plan covers only State and local 
government employees), New Mexico, New York (plan covers only State and 
local government employees), North Carolina, Oregon, Puerto Rico, South 
Carolina, Tennessee, Utah, Virginia, Virgin Islands, Washington, and 
Wyoming. Until such time as a State standard is promulgated, Federal 
OSHA will provide interim enforcement assistance, as appropriate, in 
those States.

IX. Federalism

    The standard has been reviewed in accordance with Executive Order 
13132 (64 FR 43255; August 10, 1999) regarding federalism. This Order 
requires that agencies, to the extent possible, refrain from limiting 
State policy options, consult with States before taking any actions 
that would restrict State policy options, and take such actions only 
when there is clear constitutional authority and the presence of a 
problem of national scope. The Order provides for preemption of State 
law only if there is a clear Congressional intent for the agency to do 
so. Any such preemption is to be limited to the extent possible.
    Section 18 of the OSH Act expresses Congress' clear intent to 
preempt State laws relating to issues with respect to which Federal 
OSHA has promulgated occupational safety or health standards. Under the 
OSH Act, a State can avoid preemption only if it submits, and obtains 
Federal approval of, a plan for the development of such standards and 
their enforcement. Occupational safety and health standards developed 
by such Plan-States must, among other things, be at least as effective 
in providing safe and healthful employment and places of employment as 
the Federal standards.
    The Federal standards on longshoring and marine terminals 
operations address hazards which are not unique to any one state or 
region of the country. Nonetheless, those States that have elected to 
participate under section 18 of the OSH Act would not be preempted by 
this final regulation and would be able to deal with special, local 
conditions within the framework provided by this performance-oriented 
standard while ensuring that their standards are at least as effective 
as the Federal standard.

X. Unfunded Mandates

    For the purposes of the Unfunded Mandates Reform Act of 1995, as 
well as Executive Order 12875, this rule does not include any federal 
mandate that may result in increased expenditures by State, local, and 
tribal governments, or increased expenditures by the private sector of 
more than $100 million.

List of Subjects

29 CFR Part 1917

    Freight, Incorporation by reference, Longshore and harbor workers, 
Occupational safety and health, Reporting and recordkeeping 
requirements.

29 CFR Part 1918

    Freight, Incorporation by reference, Longshore and harbor workers, 
Occupational safety and health, Reporting and recordkeeping 
requirements, Vessels.

XI. Authority and Signature

    This document was prepared under the direction of John L. Henshaw, 
Assistant Secretary of Labor for Occupational Safety and Health, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210. It is issued pursuant to sections 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), 
section 41 of the Longshore and Harbor Workers' Compensation Act (33 
U.S.C. 941), Secretary's Order 5-2002 (67 FR 65008), and 29 CFR part 
1911.

    Signed at Washington, DC, this 10th day of September, 2003.
John L. Henshaw,
Assistant Secretary of Labor.
    For the reasons stated in the preamble, the Agency proposes to 
amend 29 CFR parts 1917 and 1918 as follows:

PART 1917--MARINE TERMINALS

    1. The authority citation for part 1917 is revised to read as 
follows:

    Authority: Section 41, Longshore and Harbor Workers' 
Compensation Act (33 U.S.C. 941); secs. 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 
25059), 9-83 (48 FR 35736), 6-96 (62 FR 111), or 5-2002 (67 FR 
65008), as applicable; and 29 CFR part 1911.
    Section 1917.28, also issued under 5 U.S.C. 553.
    Section 1917.29, also issued under Sec. 29, Hazardous Materials 
Transportation Uniform Safety Act of 1990 (49 U.S.C. 1801-1819 and 5 
U.S.C. 553).

    2. In Sec.  1917.2, add the definitions of Liftlock and Vertical 
tandem lift (VTL) in alphabetical order to read as follows:


Sec.  1917.2  Definitions.

* * * * *
    Liftlock means a semi-automatic twistlock or other inter-box 
connector that is used to couple intermodal containers vertically 
together so that they may be handled as one unit.
* * * * *
    Vertical tandem lift (VTL) means the operation of lifting two 
intermodal containers that are coupled together vertically (one on top 
of the other).
    3. In Sec.  1917.3, revise the first sentence of paragraph (a)(3) 
and the second sentence of paragraph (a)(4), and add new paragraph (c) 
to read as follows:


Sec.  1917.3  Incorporation by reference.

    (a) * * *
    (3) The materials listed in paragraphs (b) and (c) of this section 
are incorporated by reference in the corresponding sections noted as 
they exist on the date of approval, and a notice of any change in these 
materials will be published in the Federal Register. * * *
    (4) * * * The materials are available for purchase at the 
corresponding addresses of the private standards organizations noted in 
paragraphs (b) and (c) of this section. * * *
* * * * *
    (c) The following material is available for purchase from the ISO 
Central Secretariat, International Organization for Standardization 
(ISO),1, rue de Varemb[eacute][eacute], Case postale 56 CH-1211 Geneva 
20, Switzerland:

[[Page 54317]]

    (1) ISO 3874, Freight Containers, Amendment 2, Vertical tandem 
lifting (2002); IBR approved for Sec.  1917.71(l)(1)(i).
    (2) [Reserved]
    4. In Sec.  1917.46, add a sentence to the end of paragraph 
(a)(1)(viii)(A) to read as follows:


Sec.  1917.46  Load indicating devices.

    (a) * * *
    (1) * * *
    (viii) * * *
    (A) * * * Exception: When this type of crane performs a VTL, a load 
indicating device in proper working condition is required.
* * * * *
    5. Section 1917.71 is amended by:
    a. Adding new paragraphs (b)(9) and (b)(10);
    b. Redesignating paragraphs (f)(3) through (5) as paragraphs (f)(4) 
through (6) respectively;
    c. Adding a new paragraph (f)(3); and
    d. Adding new paragraphs (i), (j), (k), (l), and (m).
    The additions read as follows:


Sec.  1917.71  Terminals handling intermodal containers or roll-on 
roll-off operations.

* * * * *
    (b) * * *
    (b)(9) Vertical tandem lifts. If VTLs will be performed, the 
employer shall use the vessel's cargo stowage plan required in 
paragraphs (b)(1) and (b)(2)(ii) of this section to determine the 
location and characteristics of all VTL units being handled and shall 
provide a copy to the crane operator.
    (10) The employer shall ensure that the crane operator conducts a 
pre-lift before hoisting a VTL. A pre-lift means that the crane 
operator pauses the lift when the initial strain has been taken and the 
lifting frame wires tensioned in order to assure that all liftlocks are 
properly engaged.
* * * * *
    (f) * * *
    (3) Vertical tandem lifts. The employer shall ensure that each VTL 
is conducted in accordance with the following criteria:
    (i) A VTL shall consist of no more than two ISO approved series 1 
containers, with a total weight of cargo and containers not to exceed 
20 tons;
    (ii) Only shore-based container gantry cranes are used;
    (iii) Containers containing the following may not be lifted as a 
VTL:
    (A) Liquid or solid bulk cargoes;
    (B) Hazardous cargo; or
    (C) A flexible tank inside that is fully or partially loaded with a 
fluid cargo;
    (iv) 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;
    (v) Containers below deck may not be handled as a VTL; and
    (vi) VTLs may not be conducted when wind speeds exceed 34 mph (55 
kph) (30 knots).
* * * * *
    (i) The employer shall not use flat bed trucks, chassis, bomb 
carts, or similar type equipment to transport containers that are 
vertically connected, unless such equipment is specifically designed to 
safely transport vertically connected containers or has been evaluated 
by a qualified person and determined to be a safe mode of operation. 
For the purposes of this paragraph, a qualified person means one with a 
recognized degree or professional certificate and extensive knowledge 
and experience in the transportation of vertically connected containers 
who is capable of design, analysis, evaluation and specifications in 
that subject.
    (j) The employer shall develop and implement a written plan for 
transporting vertically connected containers in a terminal. The written 
plan shall establish safe operating speeds; safe turning speeds; and 
address any conditions unique to the terminal that could affect the 
safety of VTL-related operations. The employer shall review and update 
the plan as necessary.
    (k) Damaged or defective liftlocks shall be removed from service 
and not used for lifting. A means of keeping damaged or defective 
liftlocks separate from operating liftlocks shall be established.
    (l)(1) The employer shall ensure that each liftlock used in a 
marine terminal to connect VTLs:
    (i) Is in compliance with the applicable standards of ISO 3874;
    (ii) Is inspected by a competent person, certificated, and 
individually tested in accordance with requirements for loose gear in 
ILO Convention 152 before being used for the first time and after any 
substantial alteration or repair (``certificated'' means that the 
liftlock is accompanied by a certificate, issued by a recognized body 
that is approved by the competent authority, to conduct appropriate 
testing and thorough examination of liftlocks);
    (iii) Is subjected to a thorough examination by a competent person 
at least once in every 12 months. A thorough examination shall include: 
a visual exam for obvious structural defects; physical operation to 
determine that the lock is fully functional with adequate spring 
tension on each head or latch; a check for excessive corrosion and 
deterioration; and immediate removal from service when found to be 
defective or damaged;
    (iv) Is regularly examined, including visual inspection, before 
each use;
    (v) Is certificated with a Safe Working Load (SWL) for lifting of 
at least 10,000 kg;
    (vi) Is clearly and durably marked with its SWL for lifting and an 
identifying number or mark that will enable it to be associated with 
its test certificate;
    (vii) Locks and releases in an identical direction and manner as 
all other liftlocks on the vessel onto which the VTLs will be loaded. 
They shall have a ``telltale'' incorporated in the design that 
indicates whether the liftlock is locked or unlocked in the corner 
fittings. This ``telltale'' shall be visible from deck level; and
    (viii) Is the same type as the other liftlocks that are on the 
vessel onto which the connected containers will be loaded.
    (2) For the purpose of this paragraph (l), a competent person means 
a person familiar with the proper maintenance and use of liftlocks by 
training or experience. Such a person will be able to detect defects or 
weaknesses and be able to assess their importance in relation to the 
safe and continued use of the liftlocks.
    (m) Manual twistlocks or latchlocks shall not be used as liftlocks.

PART 1918--SAFETY AND HEALTH REGULATIONS FOR LONGSHORING

    1. The authority citation for part 1918 is revised to read as 
follows:

    Authority: Sections 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970, 29 U.S.C. 653, 655, 657; Sec. 41, Longshore and 
Harbor Workers' Compensation Act, 33 U.S.C. 941; Secretary of 
Labor's Order No. 6-96 (62 FR 111) or 5-2002 (67 FR 65008), as 
applicable.
    Section 1918.90 also issued under 5 U.S.C. 553.
    Section 1918.100 also issued under Sec. 29, Hazardous Materials 
Transportation Uniform Safety Act of 1990 (49 U.S.C. 1801-1819 and 5 
U.S.C. 553).

    2. In Sec.  1918.2, add the definitions for Competent authority, 
Liftlock, and Vertical tandem lift (VTL), in alphabetical order, to 
read as follows:


1918.2  Definitions

* * * * *

[[Page 54318]]

    Competent authority, for the purpose of VTLs, means the appropriate 
government agency having jurisdiction over VTL operations in each port 
of call where such operations are proposed.
* * * * *
    Liftlock means a semi-automatic twistlock or other inter-box 
connector that is used to couple intermodal containers vertically 
together so that they may be handled as one unit.
* * * * *
    Vertical tandem lift (VTL) means the operation of lifting two 
intermodal containers that are coupled together vertically (one on top 
of the other).
* * * * *
    3. In Sec.  1918.3, revise the first sentence of paragraph (a)(3), 
revise the second sentence of paragraph (a)(4), and add new paragraph 
(c) to read as follows:


Sec.  1918.3  Incorporation by reference.

    (a) * * *
    (3) The materials listed in paragraphs (b) and (c) of this section 
are incorporated by reference in the corresponding sections noted as 
they exist on the date of approval, and a notice of any change in these 
materials will be published in the Federal Register. * * *
    (4) * * * The materials are available for purchase at the 
corresponding addresses of the private standards organizations noted in 
paragraphs (b) and (c) of this section. * * *
* * * * *
    (c) The following material is available for purchase from the ISO 
Central Secretariat, International Organization for Standardization 
(ISO),1, rue de Varemb[eacute][eacute], Case postale 56 CH-1211 Geneva 
20, Switzerland:
    (1) ISO 3874, Freight Containers, Amendment 2, Vertical tandem 
lifting (2002); IBR approved for Sec.  1918.85(f)(3)(i).
    (2) [Reserved]
    4. In Sec.  1918.85, add paragraphs (f)(3), (f)(4), and (f)(5) to 
read as follows:


Sec.  1918.85  Containerized cargo operations.

* * * * *
    (f) * * *
    (3) Vertical tandem lifting. Prior to a vertical tandem lift, the 
employer shall assure, using the vessel's liftlock certificate(s), that 
the liftlocks used in a VTL:
    (i) Are in compliance with the applicable standards of ISO 3874;
    (ii) Have been inspected by a competent person, certificated, and 
individually tested in accordance with requirements for loose gear in 
ILO Convention 152 before being used for the first time and after any 
substantial alteration or repair (``certificated'' means that the 
liftlock is accompanied by a certificate, issued by a recognized body 
that is approved by the competent authority, to conduct appropriate 
testing and thorough examination of liftlocks);
    (iii) Have been subjected to a thorough examination by a competent 
person at least once in every 12 months. A thorough examination shall 
include: a visual exam for obvious structural defects; physical 
operation to determine that the lock is fully functional with adequate 
spring tension on each head or latch; a check for excessive corrosion 
and deterioration; and immediate removal from service when found to be 
defective or damaged;
    (iv) Are regularly examined, including visual inspection, before 
each use;
    (v) Have been certificated with a Safe Working Load (SWL) for 
lifting of at least 10,000 kg;
    (vi) Have been clearly and durably marked with its SWL for lifting 
and an identifying number or mark that will enable it to be associated 
with its test certificate; and
    (vii) Locks and releases in an identical direction and manner as 
all other liftlocks on the vessel. They shall have a ``telltale'' 
incorporated in the design that indicates whether the liftlock is 
locked or unlocked in the corner fittings. This ``telltale'' shall be 
visible from deck level.
    (4) For the purpose of paragraph (f)(3) of this section, a 
competent person means a person familiar with the proper maintenance 
and use of liftlocks by training or experience. Such a person will be 
able to detect defects or weaknesses and be able to assess their 
importance in relation to the safe and continued use of the liftlocks.
    (5) Manual twistlocks or latchlocks shall not be used as liftlocks.
* * * * *

[FR Doc. 03-23533 Filed 9-15-03; 8:45 am]
BILLING CODE 4510-26-P