[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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