2014-08725. Vertical Tandem Lifts

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Final rule; remand.

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: [phone]; email: [e-mail].

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 [phone] or email [e-mail].

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 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 § 1917.71(i)(9) and the ban on VTLs of platform containers in § 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 § 1917.71(i)(9), as applied to ship-to-shore VTLs, and the total ban on platform container VTLs at § 1917.71(i)(10). National Maritime Safety Ass'n v. OSHA, 649 F.3d 743, 753-54 (DC. Cir. 2011).

OSHA is revising § 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 § 1917.71(i) in addition to removing existing § 1917.71(i)(10).

Second, OSHA is adding a new paragraph in § 1917.71(i)(9) to make the inspection requirements in § 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 § 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 § 1917.71(i). As a result of the Court's action, employers have not needed to comply with the inspection requirements in § 1917.71(i)(9), with respect to ship-to-shore VTLs, or with the ban on VTLs of platform containers in § 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 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

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.

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:

§ 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.

* * * * *

Footnotes

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.