[Federal Register Volume 79, Number 76 (Monday, April 21, 2014)]
[Rules and Regulations]
[Pages 22018-22020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-08725]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1917

[Docket ID: OSHA-2012-0028]
RIN 1218-AC72


Vertical Tandem Lifts

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

ACTION: Final rule; remand.

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SUMMARY: OSHA is implementing a court-ordered remand of certain 
portions of the standard for vertical tandem lifts (VTLs). This final 
rule implements the remand by: Limiting the application of the corner-
casting and interbox-connector inspection requirements to shore-to-ship 
VTLs; and removing the tandem lifts of platform containers from the 
scope of the VTL standard.

DATES: The final rule becomes effective on July 21, 2014.

ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates 
Joseph Woodward, the Associate Solicitor of Labor for Occupational 
Safety and Health, Office of the Solicitor of Labor, Room S4004, U.S. 
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, 
to receive petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT: 
    General information and press inquiries: Frank Meilinger, Director, 
OSHA Office of Communications, U.S. Department of Labor, Room N-3647, 
200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 
693-1999; email: [email protected].
    Technical Information: Mrs. Amy Wangdahl, Director, Office of 
Maritime and Agriculture, OSHA, U.S. Department of Labor, Room N-3609, 
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
2086 or email [email protected].

SUPPLEMENTARY INFORMATION: 
    Copies of this Federal Register notice: Electronic copies of this 
Federal Register notice are available at http://www.regulations.gov. 
This notice, as well as news releases and other relevant information, 
are also available at OSHA's Web site at http://www.osha.gov.
    Since the 1970s, intermodalism (the containerization of cargo) has 
become the dominant mode of cargo transport in the maritime industry, 
replacing centuries-old, break-bulk cargo handling. In the marine cargo 
handling industry, intermodalism typically involves three key 
components: Standardized containers with uniform corner castings; 
interbox connectors (such as semiautomatic twistlocks) to secure the 
containers (to each other at the four corners, to the deck of the ship, 
to a railroad car, or to a truck chassis); and a type of crane called a 
container gantry crane that has specialized features for rapid loading 
and unloading of containers. Because intermodalism is highly dependent 
on standardized containers and connecting gear, several international 
organizations have developed standards for equipment and practices to 
facilitate intermodal freight operations. This helps ensure that 
containers and interbox connectors are sized and operate properly so 
that containers and connectors from different manufacturers will fit 
together.
    On a ship, containers above deck are secured, by interbox 
connectors, to each other and to the deck of the ship. In the 
conventional loading and unloading process, the container gantry crane 
lifts one container (either 6.1 or 12.2 meters long) at a time, using 
the crane's specially developed spreader beam. A VTL is the practice of 
a container crane lifting two or more intermodal containers, one on top 
of the other, connected by a particular type of interbox connector, 
known as a semiautomatic twistlock.
    On December 10, 2008, OSHA published a final rule [73 FR 75245] 
adopting new requirements relating to VTLs (73 FR 75246). The final 
standard permitted VTLs of no more than two empty containers provided 
that certain safeguards are followed. The final rule required, among 
other safeguards, inspections of each container, interbox connector, 
and corner casting immediately before use in a VTL (29

[[Page 22019]]

CFR 1917.71(i)(9)). The final rule also prohibited lifting platform 
containers as part of a VTL unit (29 CFR 1917.71(i)(10)).
    The National Maritime Safety Association (NMSA), a trade 
association representing marine terminal operators, petitioned the U.S. 
Court of Appeals for the District of Columbia Circuit for review of the 
VTL standard, arguing, in part, that two of the Standard's 
requirements--the interbox connector inspection requirement in Sec.  
1917.71(i)(9) and the ban on VTLs of platform containers in Sec.  
1917.71(i)(10)--were not technologically feasible.\1\ The Court found 
that there was insufficient evidence supporting OSHA's determination of 
technological feasibility with respect to those two provisions. 
Accordingly, the Court vacated and remanded the inspection requirement 
at Sec.  1917.71(i)(9), as applied to ship-to-shore VTLs, and the total 
ban on platform container VTLs at Sec.  1917.71(i)(10). National 
Maritime Safety Ass'n v. OSHA, 649 F.3d 743, 753-54 (DC. Cir. 2011).
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    \1\ NMSA also argued that (1) OSHA failed to demonstrate that 
VTLs pose a significant risk to worker safety; (2) the Standard was 
not reasonably necessary or appropriate in light of the safe work 
zone requirement; (3) OSHA's authority is limited to requiring, not 
prohibiting, workplace practices; and (4) if the standard is 
otherwise valid, in granting OSHA standard-setting authority under 
the Occupational Safety and Health Act (29 U.S.C. 651-678) Congress 
unconstitutionally delegated its legislative power to the executive 
branch. However, the Court denied those parts of NMSA's petition.
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    OSHA is revising Sec.  1917.71 to effectuate the Court's ruling. 
First, the Agency is removing paragraph (i)(10) of that section which 
prohibited the lifting of platform containers as part of a VTL. In 
addition, it is revising the scope of the VTL standard in the 
introductory text to paragraph (i) of that section to make clear that 
vertical tandem lifts of platform containers are not covered. Neither 
the proposed nor the final rule contemplated that platform containers 
would be covered under the requirements included in paragraph (i), and 
there is nothing in the Court's decision indicating that it intended 
such a result. Consequently, OSHA believes that the only reasonable way 
to implement the Court's decision vacating the provision banning VTLs 
of platform containers is to exempt VTLs of such containers from the 
scope of Sec.  1917.71(i) in addition to removing existing Sec.  
1917.71(i)(10).
    Second, OSHA is adding a new paragraph in Sec.  1917.71(i)(9) to 
make the inspection requirements in Sec.  1917.71(i)(9) inapplicable to 
ship-to-shore VTLs. The addition, which appears in paragraph 
(i)(9)(vii), states that the requirements of paragraph (i)(9) of Sec.  
1917.71 do not apply to ship-to-shore VTLs.
    For the hazards addressed by the portions of the VTL standard 
vacated by the DC Circuit, OSHA is reverting to its prior 
interpretative positions. For inspections of ship-to-shore VTLs, OSHA's 
position is set forth in the September 2, 1993 letter from Roy Gurnham 
to Michael Bohlman (the ``Gurnham letter''), which indicates that:


    The containers must be inspected for visible defects prior to 
hoisting and damaged containers shall not be hoisted in tandem. 
Ref.-29 C.F.R. 1918.85(d).

(R. Doc. OSHA-S025A-2006-0658-0003.) Any other requirements 
referenced in the Gurnham letter that are not required by an applicable 
standard are superceded by the VTL standard.
    For the hazards arising from lifts of multiple platform (flatrack) 
containers, the letter of January 16, 2004 from Richard E. Fairfax to 
Larry Hansen applies. That letter states that:

    When connected by semi-automatic twistlocks (i.e., liftlocks 
that are not built-in), only two empty flatrack containers with 
their end frames folded may be lifted as a vertical tandem lift 
(VTL). When connected with internal mechanisms (i.e., built-in 
connectors that are designed for lifting), the number of empty 
flatrack containers with their end frames folded that may be lifted 
cannot exceed the manufacturers' recommendations. Empty flatrack 
containers with their end frames in the upright position are not 
allowed to be lifted as a VTL because of strength and stability 
considerations. The provisions listed in the [Gurnham letter] apply 
to VTL lifts of two empty containers connected by semi-automatic 
twistlocks. Although the Gurnham letter does not specifically 
mention VTL lifts of flatrack containers, OSHA concluded that the 
provisions listed in the letter also apply to VTL lifts of two empty 
flatrack containers with their end frames folded and connected by 
semi-automatic twistlocks.

(R. Doc. OSHA-S025A-2006-0658-0183.)

Final Economic Analysis and Regulatory Flexibility Act Certification

    The Agency concludes that the revisions will not impose any 
additional costs on employers as it merely implements the order of the 
Court remanding two provisions of the VTL standard at Sec.  1917.71(i). 
As a result of the Court's action, employers have not needed to comply 
with the inspection requirements in Sec.  1917.71(i)(9), with respect 
to ship-to-shore VTLs, or with the ban on VTLs of platform containers 
in Sec.  1917.71(i)(10). By removing workplace requirements, the 
Court's decision reduces rather than increases compliance costs. This 
final rule simply codifies the Court's action. Therefore, the final 
rule does not impose significant additional costs on any private-sector 
or public-sector entity and does not meet any of the criteria for a 
significant rule specified by Executive Order 12866 or 13563. Because 
this final rule has no significant additional costs, OSHA certifies 
that it will not have a significant economic impact on a substantial 
number of small entities. Accordingly, the Agency is not preparing a 
regulatory flexibility analysis under the Regulatory Flexibility Act. 
See 5 U.S.C. 605. In addition, the requirements of the Regulatory 
Flexibility Act do not apply because a general notice of proposed 
rulemaking was not published for this final rule. See 5 U.S.C. 601(2). 
Likewise, the rule is not a ``major rule'' for purposes of the 
Congressional Review Act. See 5 U.S.C. 804.

Federalism

    OSHA reviewed this final rule in accordance with the Executive 
Order on Federalism (Executive Order 13132, 64 FR 43255, Aug. 10, 
1999), which requires that Federal agencies, to the extent possible, 
refrain from limiting State policy options, consult with States prior 
to taking any actions that would restrict State policy options, and 
take such actions only when clear constitutional authority exists and 
the problem is national in scope.
    Section 18 of the Occupational Safety and Health Act of 1970 (the 
OSH Act; U.S.C. 651 et seq.) allows States to adopt, with Federal 
approval, a plan for the development and enforcement of occupational 
safety and health standards; OSHA refers to States that obtain Federal 
approval for such a plan as ``State Plan States'' (29 U.S.C. 667). 
Occupational safety and health standards developed by State Plan States 
must be at least as effective in providing safe and healthful 
employment and places of employment as the Federal standards. Subject 
to these requirements, State Plan States are free to develop and 
enforce their own requirements for occupational safety and health 
standards. Section 18(c)(2) of the OSH Act permits State Plan States 
and Territories to develop and enforce their own standards for VTL 
operations provided they are at least as effective in providing safe 
and healthful employment and places of employment as the requirements 
specified in this final rule.
    In summary, this final rule complies with Executive Order 13132. In 
States without OSHA-approved State Plans, this final rule would limit 
State policy

[[Page 22020]]

options in the same manner as every standard promulgated by OSHA. In 
States with OSHA-approved State Plans, this rulemaking would not 
significantly limit State policy options.

State Plan States

    When Federal OSHA promulgates a new standard or a more stringent 
amendment to an existing standard, the 27 States or U.S. Territories 
with their own OSHA-approved occupational safety and health plans must 
amend their standards to reflect the new standard or amendment or show 
OSHA why such action is unnecessary (by showing, for example, that an 
existing State standard covering this area is already ``at least as 
effective'' as the new Federal standard or amendment). (See 29 CFR 
1953.5(a).) The State standard must be ``at least as effective'' as the 
final Federal rule and must be adopted within 6 months of the 
publication date of the final Federal rule (29 CFR 1953.5(a)). When 
OSHA promulgates a new standard or amendment that does not impose 
additional or more stringent requirements than the existing standard, 
as is the case in this final rule, State Plan States are not required 
to amend their standards, although OSHA may encourage them to do so.
    The 27 States and territories with OSHA-approved State Plans are: 
Alaska, Arizona, California, Connecticut, Hawaii, Illinois, Indiana, 
Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New 
Jersey, New York, North Carolina, Oregon, Puerto Rico, South Carolina, 
Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and 
Wyoming. Connecticut, Illinois, New Jersey, New York, and the Virgin 
Islands have OSHA-approved State Plans that apply to State and local 
government employees only.

Unfunded Mandates Reform Act of 1995

    OSHA reviewed this final rule in accordance with the Unfunded 
Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) and Executive Order 
12875 (58 FR 58093 (Oct. 28, 1993)). As discussed earlier in this 
notice, the Agency determined that this final rule will not impose 
additional costs on any private-sector or public-sector entity. 
Accordingly, this final rule requires no additional expenditures by 
either public or private employers.
    Further, as noted earlier in this notice, the Agency's standards do 
not apply to State and local governments except in States that have 
elected voluntarily to adopt a State Plan approved by the Agency. 
Consequently, this final rule does not meet the definition of a 
``Federal intergovernmental mandate'' (see Section 421(5) of the 
Unfunded Mandates Reform Act (2 U.S.C. 658(5)). Therefore, for the 
purposes of the Unfunded Mandates Reform Act, the Agency certifies that 
this final rule does not mandate that State, local, or tribal 
governments adopt new, unfunded regulatory obligations, or increase 
expenditures by the private sector of more than $100 million in any 
year. In addition, the requirements of UMRA do not apply because a 
general notice of proposed rulemaking was not published for this final 
rule. See 2 U.S.C. 1532(a).

List of Subjects in 29 CFR Part 1917

    Freight, Longshore and harbor workers, Occupational safety and 
health.

Authority and Signature

    This document was prepared under the direction of David Michaels, 
Ph.D., MPH Assistant Secretary of Labor for Occupational Safety and 
Health, 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, Public Law 91-596, 84 Stat. 1590 (29 U.S.C. 653, 655, 
657), section 41 of the Longshore and Harbor Workers' Compensation Act 
(33 U.S.C. 941), the judgment of the court in National Maritime Safety 
Association v. OSHA, 649 F.3d 743 (D.C. Cir. 2011), and Secretary of 
Labor's Order No. 1-2012 (77 FR 3912).

    Signed at Washington, DC on April 8, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

    Accordingly, 29 CFR part 1917 is amended as follows:

PART 1917--MARINE TERMINALS

0
1. The authority citation for part 1917 is revised to read as follows:

    Authority: 33 U.S.C. 941; 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), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 
50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 
55355), or 1-2012 (77 FR 3912), as applicable; and 29 CFR part 1911.
    Section 1917.28 also issued under 5 U.S.C. 553.
    Section 1917.29 also issued under 49 U.S.C. 1801-1819 and 5 
U.S.C. 553.

0
2. Section 1917.71 is amended by revising paragraph (i) introductory 
text, adding paragraph (i)(9)(vii), and removing paragraph (i)(10) to 
read as follows:


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

* * * * *
    (i) Vertical tandem lifts. The following requirements apply to 
operations involving the lifting of two or more intermodal containers 
by the top container (vertical tandem lifts or VTLs). These 
requirements do not apply to operations involving the lifting of two or 
more interconnected platform containers.
* * * * *
    (9) * * *
    (vii) The requirements of paragraph (i)(9) of this section do not 
apply to ship-to-shore VTLs.
* * * * *
[FR Doc. 2014-08725 Filed 4-18-14; 8:45 am]
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