existence of a substantial number of incidents indicates the need to
regulate VTLs to ensure that they are performed safely. Furthermore,
existing experience in the U.S. is based on compliance with the Gurnham
letter, which requires containers to be empty. In addition, OSHA's
analysis of the strength of

containers, corner castings, and interbox containers shows that these
devices are not capable of performing VTLs weighing 20 tons with a
safety factor of five when only two interbox connectors are fully
engaged. In fact, the analysis demonstrates that, with the heaviest
containers, only an additional 1295 kg is available as load to ensure a
safety factor of five.
    OSHA also agrees with the ILWU and the ILA that errors in
determining the weights of loaded containers could lead to overweight
VTLs. Limiting VTLs to empty containers also protects against shifting
or uneven loads, which could overload one of the corner casting-
interbox connector assemblies.\25\ Furthermore, permitting VTLs
involving only empty containers helps ensure compliance, as it will be
relatively easy to ascertain that a container is empty by visual
observation. On the other hand, the weight of each loaded container
would have to be individually measured to ensure the safety of a VTL of
loaded containers.\26\ For these reasons, the Agency has decided to
limit VTLs to empty containers only.
---------------------------------------------------------------------------

    \25\ OSHA's analysis assumes a uniform weight distribution. If
the weight of the container and its contents are not uniform, more
of the force could be concentrated on one of the two corner casting-
interbox connector assemblies, perhaps overloading it.
    \26\ Since OSHA's strength analysis is based on the capability
of the corner casting-to-interbox connector-to-corner casting
assembly between the containers, the weight of the bottom container
determines whether the VTL is safe to lift. By this analysis, the
bottom container would be limited to a maximum of 98 kN, and the
employer would have to measure the weight of the bottom container by
itself to ensure that the VTL was safe to lift.
---------------------------------------------------------------------------

B. Training

    With respect to VTL operations, OSHA did not include specific
training requirements in the proposed rule. However, existing Marine
Terminals and Longshoring standards address crane operator training in
Sec. Sec.  1917.27(a)(1) and 1918.98(a)(1), respectively. Those
standards require that only an employee determined by the employer to
be competent by reason of training or experience, and who understands
the signs, notices, and operating instructions and is familiar with the
signal code in use, may operate or give signals to the operator of any
hoisting apparatus.
    As noted earlier in this section of the preamble, the International
Safety Panel of ICHCA has established comprehensive guidelines that
could potentially serve as a foundation for domestic and international
VTL operations (Ex. 41). The guidelines stipulate that ``all persons
connected with VTL operations, including planning, examining,
inspecting, stacking, transporting, hoisting, landing, securing and
dividing containers handled in VTL units, should be appropriately
trained.'' They require that ``the extent and content of such training
should be guided by the physical characteristics of the terminal and
the containers to be handled, the container movement flow, the
equipment to be used for lifting and transporting the containers and
the experience of the personnel involved.'' Many rulemaking
participants supported the ICHCA guidelines and recommended that OSHA's
standard be consistent with them (Exs. 43-6, 43-7, 50-10-2, 50-10-3;
Tr. 1-239).
    In the notice of proposed rulemaking, OSHA solicited comments on
training--taking into consideration international standards and current
domestic practices--that may be necessary for safe and efficient VTL
operations. Rulemaking participants largely supported mandatory
training for selected trades or positions affected by VTL operations
(Exs. 43-7, 43-10, 44-1, 54-16). In fact, most rulemaking participants
addressing the training issue reflected the need to train all persons
involved in VTL operations (Exs. 43-10, 44-1, 54-16).
    ``The ILA deems it essential for its members and others in ILA
ports to be trained in the techniques, risks and safety measures
involved in VTL lifts and in assembling/disassembling VTL-connected
containers,'' Herzl S. Eisenstadt stated (Ex. 44-1). ``This must
include simulated training in handling emergencies caused by near-
misses, sudden disengagements, etc., which are not identical for those
occurring while handling single-lift containers,'' he elaborated.
    Christine S. Hwang, appearing on behalf of the ILWU, agreed with
the majority view that specialized training needs to be conducted for
all job classifications, urging that ``specialized training on VTL
operations be mandatory for all port workers in all classifications,
including the casual labor pool'' (Ex. 43-10). Ms. Hwang went on to say
that ``port-wide training should be required irrespective of whether a
terminal employer in any given port chooses to perform VTLs in light of
the fact that workers may travel to ports where they are required to
perform VTL container operations.''
    Taking into consideration these comments from rulemaking
participants, OSHA agrees with the mainstream recommendation that some
VTL-specific training is not only appropriate--but indeed necessary--
for operation and employee safety in all U.S. marine terminals where
VTLs are performed. However, the Agency believes that the depth of this
training should be determined by employers based on individualized
terminal criteria, rather than on a defined directive that inhibits
customization. Therefore, OSHA has included a performance-based
requirement for the employer to provide training for each employee
involved in VTL operations. This provision requires the training to be
commensurate with the employee's duties.
    Beyond the consensus on widespread training, rulemaking
participants voiced their opinion on further training specifics, such
as to whom VTL operation training should apply and how extensive that
training should be. Broad areas of discussion included training for
preparation and performance, inspection and container integrity, ground
movement, and work zone safety. The following sections summarize
comments relevant to those topics.
1. Preparation and Performance
    One example of possible procedural differences in performing VTLs
is the operation of cranes to hoist the stacked and connected
containers. Historically, VTLs have been performed by crane operators
without off-site training specific to VTLs. Some rulemaking
participants expressed the view that crane operator training is
considered a crucial component to safe VTLs (Ex. 43-10).
    Commenting on behalf of the ILWU, Hwang concurred as follows,
``Supplementary training (other than on the job) on special VTL
handling should also be mandatory for crane operators.'' If a rule is
adopted, ``ILWU strongly urges that various terminals' plans be
standardized * * * and that crane operators be provided with additional
training on how to read them,'' she continued (Ex. 43-10).
    Mr. Joseph Curto, representing Maher Terminals, stated that VTL
handling is one component of Maher Terminals' general training program
(Tr. 2-117). Ron Hewitt of APM Terminals testified that his company
also provided training in VTL procedures (Ex. 61; Tr. 2-208--2-210). He
also recommended terminal-specific indoctrination (Tr. 2-208--2-209).
    The ILA considered training in VTL procedures to be essential, as
follows:

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

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

2. Inspection and Container Integrity
    Another aspect rulemaking participants considered was the
twistlocks themselves (Exs. 43-7, 54-30-2). The condition and proper
operation of interbox connectors are more important for safe VTL
operations than for connecting containers for transport aboard ship.
    For example, APM Terminals' training program covers the examination
of interbox connectors (Ex. 61; Tr. 2-153--2-154).
    Though not thoroughly supportive of a specific OSHA requirement for
training every worker involved in VTLs, Mr. Ronald Signorino, president
of The Blueoceana Company, Inc., stated that training specific to
interbox connectors would be advisable (Ex. 43-7). Mr. Signorino
advised that mandatory training for personnel carrying out inspection-
program-related functions was vital especially since he supported a
continuous inspection program rather than an annual one. ``In that
manner, all such liftlocks would be subject to more than just an annual
examination and an occasional perfunctory perusal,'' he stated.
    Mr. Le Monnier of ILWU Canada also provided testimony about the
scope of inspections he thought OSHA should require, stating: ``A true
inspection would require the dismantling of the SATL in order to view
the internal components. Then, the SATL would need to be properly
reassembled. Both the inspection and reassembly would require training
procedures'' (Ex. 54-30-2).
    The ILWU emphasized the point that adequate inspection of
containers would also require training (Ex. 43-10-3). ``Only the
obvious wrecks are likely to be identified by the average longshore
worker, whose business it is to move the container, not subject it to
rigorous inspection. Adequate inspection requires training, technology
and ample time to accomplish such an inspection,'' the ILWU
representative explained.
3. Ground Movement
    The ICHCA guidelines (Ex. 41) specifically address concern for
training of drivers of vehicles used to transport VTL units. The
language dictates that:

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

The guidelines take a direct approach by stating in paragraph 7.6,
``all persons expected to be involved in VTL operations should be
suitably trained.''
4. Safe Work Zone
    Again, the ILWU was among the strongest supporters of widespread
training to ensure a safe work zone for those directly and indirectly
involved in VTLs (Ex. 43-10). Specifically, Ms. Hwang suggested that
training topics should include, but not be limited to, ``safe handling
of VTLs, emergency handling, cone and SATL inspection and maintenance,
operation of all vehicles used to transport VTLs and particular
concerns unique to transporting VTLs, methods of verifying weights of
containers and reading vessel stowage plans.''
    As stated earlier, most rulemaking participants addressing the
training issue were firmly supportive of a practice that requires
workers performing or supporting the performance of VTL operations to
receive training applicable to their assigned duty. The opponents of
the VTL process suggested a wide, scattergun-type of training
requirement, presumably meant to train every worker (in any marine
terminal or longshore work category) regarding VTL aspects. (See Ex.
54-2.) OSHA considers such an approach to be ineffective and
inefficient.
    While an industry or port-wide approach to VTL training may be an
option, it would be overly burdensome as an OSHA requirement. In its
VTL Guidelines, the ICHCA Safety Panel formulated a training matrix
that could serve to fill the gap between training for essential
personnel and more widespread informational practices. In fact, Mr.
Signorino, testifying on behalf of USMX, recommended that OSHA use the
matrix (found in exhibit 41, Appendix 5) as a practical and useful
guide (Exhibit 54-2).
    OSHA is adopting a performance-based requirement for VTL training
but has decided not to specify the exact scope, scale, and details of
that training. OSHA will allow employers to determine how to best
satisfy these requirements for safe VTL operations in their specific
workplaces. The Agency strongly recommends, however, that employers
examine the ICHCA recommendations (found on the aforementioned matrix;
Ex. 41) as a foundation for training parameters. Based on criteria
unique to each terminal and employee, employers should supplement the
ICHCA guidelines as necessary to protect employees. Employers are
cautioned to consider the need for specific training in the areas
discussed above, as OSHA will judge compliance based on employee
knowledge and skill at performing the job safely.

C. Crane Type

    Within OSHA's final rule on VTL practices in Longshoring and Marine
Terminals, the type of crane that can be used to perform VTLs is
addressed in Sec.  1917.71(i)(4). The Agency's final rule requires VTLs
to be performed by shore-based container gantry cranes or other types
of cranes that have similar characteristics as described in more detail
in this section of the preamble.
    In the proposed rule, the Agency limited the practice of VTLs in
the Marine Terminals Standard \27\ exclusively to container gantry
cranes based on three premises:
---------------------------------------------------------------------------

    \27\ OSHA did not propose a corresponding requirement for the
Longshoring Standard.
---------------------------------------------------------------------------

    1. The container gantry crane is the only type of crane
specifically designed to handle intermodal containers;
    2. The container gantry crane is the only crane that has the
precision control needed for such lifts;
    3. The container gantry crane is the only crane capable of handling
the greater load volume and wind sail potentials.
    (68 FR 54303)
    However, because many rulemaking participants (Exs. 43-1, 43-11,
47-5, 50-10-1, 54-4, 54-5, 54-14) voiced significant opposition to a
requirement specifying the type of crane that may perform VTLs, OSHA
has amended the language in the final rule to permit other types of
cranes meeting the aforementioned mandatory criteria. The final rule
takes into consideration comments, testimony, and evidence submitted by
the participants, including Liebherr-Werk Nenzing Crane Company, which
offered evidence about the cranes the company manufactures that have
the capability to handle VTLs (Ex. 54-15; Tr. 1-314).
    The most extensive comments came from Mr. Ronald Signorino,
testifying for USMX (Ex. 50-10-1), who disagreed with the Agency's
position, reasoning that ``[its] sense is that OSHA has imposed a
totally unnecessary restriction in that the proposed rule would limit
VTL operations to those in which a container gantry cranes is

present, [when] other lifting appliances may, in fact, provide the same
attributes that, in their sum, lend themselves to a safe VTL
operation.'' Mr. Signorino testified at length about other types of
cranes that had the necessary capability for VTLs and submitted
documentation to the record showing the capabilities and certifications
of these cranes (Exs. 54-4, 54-14; Tr. 1-280--290). The following
discussion summarizes Mr. Signorino's further comments, as well as
those from other rulemaking participants, and explains the Agency's
final determination on the issue.
1. Design
    In the rulemaking process, crane manufacturers, terminal operators,
shipping concerns, and other companies maintained that the container
gantry crane was not the only crane that was specifically designed to
handle intermodal freight containers or that had the necessary
precision for VTLs (Exs. 43-1, 43-11, 50-10-1, 54-14, 54-5). USMX (Ex.
47-5) argued that ``there are other types of cranes * * * that perform
in a manner similar to shoreside container gantry cranes and provide
equivalent handling stability and safety.'' The association explained
that ``other types of marine cargo handling equipment, such as reach
stackers and straddle carriers, can [also] be utilized to conduct
VTLs.''
    These participants argued that cranes of different designs were
capable of performing VTLs. Commenting on behalf of Tropical Shipping
and Birdsall, Inc., Mr. Signorino (Ex. 54-14) used the Gottwald HMK 260
E as an example, stating, ``lateral stability is accomplished through
the means of solid state electronic drives and an operator controlled,
precision rotator ring.'' Mr. Signorino also cited the Manitowoc 4100 W
(Series 2), stating ``[With this crane], such lateral stability is
accomplished through a system of automatic lanyards that are attached
to outriggers on either side of the box spreader. * * * In this system,
undesired lateral movement is automatically compensated for in a unique
take-up system of lanyards, which ensures lateral stability throughout
the entire range of motion from ship to shore and vice-versa.''
    Representing USMX, Mr. Signorino (Ex. 50-10-1) further stated

    Some, such as rubber tired gantry cranes, straddle carriers, and
certain other high capacity industrial trucks, can in fact perform
all hoist and (when applicable) gantry and trolley functions in an
extremely stable vertical and horizontal plane. Others, such as
purpose-designed container handling harbor cranes, are fitted with
highly precise mechanical and hydraulic stabilizing equipment, which
ensures the lateral and rotational stability so necessary to safely
conduct VTL operations
* * * * *
    I know the agency did not intend to be that restrictive, and I
believe that language can be crafted to accommodate all container
handling devices that can safely qualify for use in VTL operations.
The goal, here, is to be cautious and deliberate not only in terms
of safe working load design capacities, but also in lateral and
rotational stability abilities, as well. [Ex. 50-10-1]

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

He also elaborated on how the Gottwald's ``[j]oystick controls permit
the operator to correct any unwanted lateral movement by a simple,
incremental activation of the rotator.'' Mr. Signorino noted that
container gantry cranes have sufficient precision to perform VTLs:
``[they] can offer that control, in part, by moving the load on a set,
level track (or trolley).''
3. Capability
    Finally, commenters discussed the overall capability of different
cranes. Mr. Signorino (Ex. 50-10-1) advised: ``The real concern that
OSHA should rightly consider is not a limitation in terms of actual
lifting appliances, but rather, how to ensure the stability of the load
(mass) notwithstanding the lifting appliance being used. * * * [T]he
remaining concerns all center upon lateral and rotational stability of
the mass.'' Mr. Signorino continued to explain that even though
container gantry cranes have a proven track record, there are other
cranes with the capability to safely perform VTLs. ``Container gantry
cranes achieve * * * stability (when operated correctly) by their
design characteristics, i.e., gantry, trolley, hoist functions, each
moving in a relatively straight plane.''
4. Other Concerns
    There were no specific comments from rulemaking participants
calling for the exclusive use of shore-based container gantry cranes.
In the same vein, there was no opposition to the container gantry crane
being the preferred delivery method for VTLs. Rulemaking participants
objected to the exclusivity and limitation to shore-based gantry cranes
in the proposed rule on the grounds that it would hinder efficient
operations (Exs. 43-1, 43-11, 47-5, 50-10-1, 54-4, 54-5, 54-14).
    Beyond this general consensus on the proposed rule, there was some
concern on other aspects of crane operation including aging
infrastructure and load stability. As offered by Virginia International
Terminals, Inc., represented by Anthony Simkus, Assistant Director of
Engineering and Maintenance, and Charles Thompson, Safety Officer (Ex.
54-16), ``by factoring in age and condition, most older cranes probably
could not stop an overload when the brake is applied at other than near
zero speed. This may even be true of newer cranes whose brake designs
have not been dynamically tested at the factory under rated
conditions.''
    Though in the context of testimony in overall opposition to the
proposed rule on a variety of points, the USMX (Ex. 47-5) similarly
agreed with infrastructure considerations, stating, ``VTL regulations
must be written to accommodate future enhancements in current equipment
as well as new equipment designs and technology.''
    OSHA agrees with USMX's position that there are other types of
cranes that perform in a manner similar to shoreside container gantry
cranes and provide adequate handling stability and safety. The Agency
has concluded that the criteria noted in Mr. Signorino's comments
accurately describe the characteristics of cranes that can safely
handle containers in VTL operations. Therefore, the language in the
final rule will broaden the parameters contained in the proposed rule,
stipulating the preference for shore-based container cranes, but
allowing other types of cranes that (1) are verified to be designed to
handle intermodal containers, (2) have the precision control needed for
VTLs, and (3) are capable of handling the greater load volume and wind
sail potentials associated with VTLs.\28\ While this language allows
for more discretion by employers, the Agency will judge compliance on
the design, capability, and precision parameters, and it expects
employers to evaluate cranes performing VTLs using these same criteria.
---------------------------------------------------------------------------

    \28\ As noted later in this section of the preamble, ship's
cranes, because they are not shore-based, must meet the alternative
criteria listed in final Sec.  1917.71(i)(4).

---------------------------------------------------------------------------

D. Platform Containers

    Proposed paragraph Sec.  1917.71(f)(3)(iv) addressed platform
containers, or ``flat racks,'' stating:

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

    Platform containers are open on the wider sides and top, but have
panels on the narrow sides, or ends. The end panels are either fixed in
an upright position or folded flat with the floor of the container,
depending on the design of the flat rack. The proposal would not have
permitted flat racks to be used in VTLs if the end panels were in the
upright position. The lack of sides and top lessen the strength and
stability of the container, making it a possible safety hazard to lift
them in tandem. However, if empty platform containers had the ends
folded down and built-in connectors that were designed for the purpose
of simultaneously lifting multiple units, the proposal would have
permitted the flat racks to be handled in accordance with
manufacturers' recommendations. Also in the proposed rule, two flat
rack containers with the ends folded down could be handled as a VTL if
they were connected by interbox connectors that were not built-in.
    In a letter dated October 31, 2003, the ILWU contacted OSHA with
flat rack concerns. Larry Hansen, ILWU Local 19 Union (Ex. 48), wrote
to the Seattle OSHA field office:

    We have a problem in Seattle of lifting empty flat rack
containers bundled four or five at a time for both inbound and
outbound loads. In some cases, the hoisting fits within the Gurnham
letter where twist locks are being used to fasten one container to
another. In other cases, the containers are fastened by internal
mechanisms securing one container to another, which is outside the
Gurnham provisions.
    In dealing with the Gurnham provisions, the employers are not
inspecting the containers for visible defects prior to hoisting,
ensuring that damaged containers will not be hoisted in tandem as
stated in Item 1 of his letter. Nor are we receiving documents from
the manufacturer which verifies the capacities of the twist locks
and corner castings, as stated in Item 7.

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

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

    Though the Agency received few comments on this issue during the
rulemaking process, the ILWU was present to voice some further concerns
regarding the lifting of flat racks vertically in tandem (Ex 43-10).
Overall, the ILWU opposed the lifting of multiply stacked platform
containers with end panels in the upright position; but the ILWU also
strongly opposed the complete discretion afforded to users and
manufacturers of platform containers with end panels folded down. The
ILWU argued: ``There is no record or analysis regarding new or already
existing connectors' strength, durability and/or capacity or of the
corner castings of [flat racks].'' The union suggested that ``[t]he
hoisting of multiply-stacked [flat racks] be prohibited in light of the
absence of evidence demonstrating that this type of lift can be
performed safely.'' The ILWU also argued that flat rack VTLs ``pose
even greater problems [than container VTLs] due to the inferior quality
of the corner castings.'' An ILWU representative (Ex. 43-10) explained
that ``corner castings on [flat racks] are made from thinner metal and
have larger openings through which SATLs and interbox connectors are
even more likely to fall through, irrespective of whether they are
adequately locked.'' The representative went on to say that flat racks
``endure even greater damage through wear and tear due to the fact that
they are used to carry bulk cargo, which is often made of steel and
hard materials.''
    During the rulemaking period, the ILWU went on to cite numerous
incidents when flat racks have proved hazardous (Ex. 43-10; Tr. 2-369-
2-370, 2-419-2-420). According to the ILWU (Ex. 43-10), ``on November
14, 1997 in Tacoma, Washington, four stacks of [flat racks] were
[bundled] together and connected by the cones that are built into the
[flat racks] and by Evergreen SATLs. The [flat racks] were also banded
together. When the bundle of [flat racks] was hoisted, the bands broke,
the cones failed and the bottom [flat racks] fell approximately sixty
to seventy feet.'' Mr. Ross Furoyama, an ILWU representative (Tr. 2-
419-2-420), pointed out that among the unspecified number of incidents
he had witnessed involving flat racks failing, there was one when the
bands around three stacked flat racks secured with 2-inch bands and
specialized nonstandard twist locks still broke. Following this
incident, the company instituted a ``prechecking'' policy. Employees
were then required to prelift the stacked flat rack bundles before
hoisting them, to make sure they were properly connected. After
implementing the precheck procedure, the bands continued to break, so
the company started using chains to secure the bundles. Mr. Furoyama
remained dubious about the safety of the procedure.
    Other rulemaking participants supported allowing platform
containers to be lifted in VTLs (Exs. 10-2, 52-3; Tr. 1-57). Mr.
Michael Arrow of USMX supported lifting flat racks in VTLs, stressing
that ``ISO Standard 1496.5, Section 7.3, clearly indicates that [flat
racks] not only may be lifted in a stacked pile, but are specifically
designed and tested to be able to do so'' (Tr. 1-57).
    Another proponent of flat racks, Domino Flatracks, attempted to
support its views with data on existing platform containers (Ex. 52-3).
Domino Flatracks stated that ``there are 80,000 Domino [flat racks] in
service and several thousand platforms using these twist locks, some of
which have been in service for more than 24 years.'' Domino's
representative went on to say that ``the assembly successfully held the
design loads of both 15 and 30 tons and is thus concluded to satisfy
the customer requirements.'' Nevertheless, the company was also quick
to point out that assembly failure did occur at 38 tons (Ex. 52-3). As
noted earlier in this section of the preamble, the Agency has concluded
that a safety factor of five is reasonably necessary to ensure the
safety of VTLs, and OSHA considers the margin of safety noted in the
Domino Flatrack comments to be insufficient.
    After carefully considering all the materials in the record on flat
racks, OSHA has determined that flat rack corner castings and
connectors are inferior to corner castings on standard containers and
interbox connectors required for use in VTLs in the final rule. The
Agency has therefore concluded that flat racks should not be considered
appropriate elements of safe VTLs in marine terminals. The anecdotal
evidence of flat rack VTL failures indicates that lifting bundles of
flat racks connected solely by interbox connectors is unsafe. The
comments of Domino Flatracks, a platform container manufacturer,
suggests a simple explanation of why these failures have occurred:
these devices simply do not offer a sufficient factor of safety to
ensure a safe VTL. Further, the evidence that the corner castings and
interbox connectors do not match the

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

E. Coordinated Transportation

    The safe transport of vertically connected containers in marine
terminals was largely addressed in the proposed rule in paragraphs
Sec.  1917.71(i) and Sec.  1917.71(j). These paragraphs address the
communication, equipment, and operational parameters required for safe
transportation practices during VTLs.
    OSHA believes that these two provisions, as they were introduced in
the proposed rule, could substantially reduce the risk of injuries
related to VTLs, and therefore has carried them forward into the final
rule largely unchanged as Sec.  1917.71(j)(1) and (j)(2). The
requirements expressly stipulate:
    1. Equipment used to transport vertically connected containers must
be either specifically designed for this application or evaluated by a
qualified engineer and determined to be capable of operating safely in
this mode of operation.
    2. The employer must develop, implement and maintain a written plan
for transporting vertically connected containers in a terminal. The
written plan must establish safe operational parameters, such as
optimal operating and turning speeds; as well as address any other
conditions in the terminal that could affect the safety of the movement
of vertically coupled containers.
    A safe, organized transport plan also involves communication and
coordination among all affected employees. To coordinate transportation
efforts in Marine Terminals, proposed paragraph Sec.  1917.71(b)(9)
would have required that a copy of the vessel cargo stowage plan be
given to the crane operator and that the vessel cargo stowage plan be
used to identify the location and characteristics (that is, weight and
content) of any containers being used in a VTL.
    As explained in detail later in this section of the preamble, the
Agency has decided that existing requirements in Sec.  1917.71(b)(1)
and (b)(2)(ii), which mandate that the gross weight of containers be
marked or a stowage plan be available, are not sufficient for safe VTL
operations; therefore, the final rule does not carry forward proposed
paragraph (b)(9). As the final rule only permits VTLs with empty
containers--and requires employers to verify that each container in a
VTL is empty before it is lifted--OSHA has concluded that requiring the
stowage plan to be provided to the crane operator and for the plan to
be used to identify containers lifted in VTLs is redundant, and
therefore unnecessary.
    The following is a summary of the rulemaking comments that prompted
OSHA to arrive at the final rule's provisions related to transport
safety.
1. Equipment
    Paragraph (i) of proposed Sec.  1917.71 would have prohibited the
movement of VTLs on flatbed trucks, chassis, bomb carts, or similar
types of equipment, unless the equipment was specifically designed to
handle VTLs or evaluated by a qualified person (defined in proposed
Sec.  1917.71(i) as ``one with a recognized degree or professional
certificate and extensive knowledge and experience in the
transportation of vertically connected containers; also one who is
capable of design, analysis, evaluation and specifications in that
subject'') and determined to be safe in this mode of operation.
    This section of the proposed rule met with support, as there was
general apprehension among rulemaking participants (Tr. 2-27) about
moving tandem stacked containers around the terminal using unmodified
chassis and bomb carts, due to a greater chance of vehicle tipover
because of a higher center of gravity. Transporting two containers on
such equipment can raise the center of gravity higher than the
equipment was designed for, increasing the possibility of the vehicle
tipping over (Ex. 41).
    Rulemaking participants discussed a study that was conducted at the
request of the ICHCA VTL workgroup, Vertical Tandem Lifting of Freight
Containers, which evaluated the safe turning radius and speed at which
VTLs may be moved in a terminal (Ex. 41). The study provided chassis
stability calculations for determining the speed at which a fifth wheel
and chassis carrying vertically coupled containers would tip over while
making a turn.
    Alternative examples, offered by Mr. Ronald Signorino of the
Blueoceana Company, Inc. (Tr. 1-160), could also reduce the risk of
vehicle tipovers to a safe level. Mr. Signorino stated that straddle-
carriers, top-loaders, MAFIs, low-beds, and bomb carts are used to move
containers around the terminal; but that personnel typically move
vertically connected containers only a very short distance away from
the crane and break them down using terminal industrial trucks.
    Rulemaking participants also offered comments that were not
specific to vehicles, rather more supportive of other equipment
requirements as part of an overall safety program. ``[W]e have
experienced tipover in Hawaii,'' said ILWU member Mr. Ross Furoyama
(Tr. 1-211). ``[W]e did transport tandems on chassis and we did flip
over.'' Though Mr. Furoyama did not offer a specific solution (except
to ban VTLs altogether), some rulemaking participants argued that
speedometers on transport equipment could further prevent tipovers and
other accidents. For example, Daniel Miranda of the ILWU (2-339)
testified that safety essentials, like speedometers, should be in place
when transporting containers around the terminal because of the
potential for accidents. ``Currently on the west coast, our employers
have refused to provide [utility tractors], hustlers, with
speedometers, a device that is so basic in controlling speeds within
the terminals for the movement and transport of these VTLs,'' he
explained (Tr. 2-339). ``Without this basic device and other necessary
controls, the safe movement of VTLs within a main terminal is not
possible. * * * Those controls must be mandated first before we even
take it off the ship, on or off,'' he continued.
    The lack of speedometers was important, Mr. Miranda (Tr. 2-358)
testified, because accidents that have occurred could be attributed to
excessive speed. These incidents prompted Mr. Miranda to stress that a
transport plan should be developed because of the speeds in the yard
(Tr. 2-358).
    The Agency has concluded that it is not necessary to require
speedometers in the final rule. Though OSHA agrees that speedometers
can be useful for equipment operators, it does not consider them the
only precautionary measure to be taken during ground transportation.
For instance, as Mr. Signorino pointed out, vertically connected
containers are typically moved very short distances away, and there are
other vehicles--vehicles that may not be equipped with speedometers--
capable of performing the transport (Tr. 1-174). In terminals such as
those Mr. Signorino referred to, speed would not be a prime safety
factor to prevent potential accidents. The Agency considers speed to be
of lesser consequence if transporting the vertically coupled containers
does not require turns or involve uneven ground surfaces. However, as
noted later in this section of the preamble, OSHA does not

believe it to be appropriate to impose speed limits in an employer's
transportation plan for vehicles that do not have speedometers. For
these vehicles, the transport plan must include other measures to
ensure the safe movement of vertically coupled containers.
2. Operational Parameters--Transport Plan
    Operations before, during, and after VTLs all create an environment
with potential for injury. Proposed paragraph (j) of Sec.  1917.71
would have required that a written transport plan be developed and
implemented to include safe operating speeds, safe turning speeds, and
any conditions unique to the terminal that have the potential to affect
VTL-related operations. In the notice of proposed rulemaking, OSHA
asked for comment on what information should be in the terminal VTL
handling plan and which safe practices would be necessary to ensure
safe transport of stacked containers via ground transport.
    Rulemaking participants supported the proposed requirement and gave
reasons to develop a written plan for transporting containers around
the terminal. Herzl Eisenstadt of the ILA (Ex. 47-3) described his
concern saying: ``It is quite possible that even the ground-handling
aspects have been susceptible to danger-laden incidents in preparing
for and transporting VTL-lifted containers. In any and all events, the
terminal plan must provide for carefully laid-out coordination of
ground and lift operations that emphasize safety first for all terminal
personnel in the vicinity of VTL operations.'' (Emphasis included in
original.)
    The support for a written transport plan notwithstanding,
participants did ask OSHA to remain cognizant of the unique
characteristics within each terminal as it moves forward with the VTL
standard. Mr. Michael Bohlman of Horizon Lines (Tr. 1-196-1-197)
testified that though turning radius, weight distribution, and speed
studies have been conducted, each terminal needs to be looked at within
its individual context before any safety requirements are set for that
terminal. James M. McDonald, Vice President for Accident Prevention of
the Pacific Maritime Association and Secretary to the Board of the
Directors of the National Maritime Safety Association, subscribed to
the same logic and called for rational and nonrestrictive regulations
that will safely cover transport of VTLs in general. Mr. McDonald
believed that ``[t]he rules as written now basically outline that
[employers] have to provide for safe movement of the containers on the
terminal'' and that everybody needs to have a plan with respect to
VTLs, so that everybody will know their roles and be trained for their
roles, and VTLs can be done with the utmost safety (Tr. 2-159).
    As stated earlier in this section, OSHA has decided not to change
the provisions proposed in paragraphs (i) and (j) substantively in the
final rule; however, the Agency reminds employers that they must
consider all aspects of transporting vertically coupled containers that
affect safety, including the relevant factors discussed in this
rulemaking.
    For instance, the ILWU and some other rulemaking participants (Exs.
43-10, 44-1, 47-3) recommended that the Agency supplement its proposed
rule with some of those rules implemented by Section 8.1.12 of ICHCA's
Vertical Tandem Lifting of Freight Containers and Section 16 of the
Pacific Coast Maritime Safety Code (PCMSC). These documents contain
mandates for transporting vertically coupled containers, such as
requiring workers to wear protective gear (high visibility vests) and
prohibiting truck drivers from cutting across designated driving lanes.
The ILWU argued that ``movement of VTLs throughout the terminal will be
equally, if not more precarious than [VTL hoisting],'' and urged OSHA
to consider supplementing the proposed rule to require additional terms
(Ex. 43-10).
    The union maintained that standardized transport plans for all
ports were preferable, but it also recommended a minimum of the
following provisions: regulated safe surface road conditions;
additional safety manning for VTLs throughout the terminal; posted
speed limits and stop signs for VTLs; speedometers, wind alarms and
LIDs for every vehicle used for moving VTLs; and additional and
designated special safety lanes for vehicles transporting VTLs (Ex. 43-
10).
    Though OSHA feels these suggestions could assist employers in
establishing individualized transport procedures that would enhance
port safety with specialized considerations, the Agency has decided not
to adopt the ICHCA or FCMSC provisions. OSHA considers the provisions
to be inappropriate for some workplaces and thus to be too restrictive.
The final rule, instead, requires employers to tailor their transport
plans based on performance and conditions specific to their workplaces.
For example, if transporting vehicles are equipped with speedometers,
speed limits could be set. On the other hand, if speedometers are not
present, employers must take other measures to ensure stability--such
as prohibiting turns or otherwise ensuring that tipovers are not
possible. Similarly, if roadway conditions present uneven areas or
large potholes, the employer must set slower speeds than would
otherwise be possible on uniformly level surfaces.
3. Operational Plan--Communication and Coordination
    As stated earlier in this section of the preamble, proposed Sec.
1917.71(b)(9) would also have required additional safe operational
parameters involving communication and coordination within the terminal
and among terminal employees. This provision was taken directly from
section <IP_ADDRESS> of the ICHCA guidelines.
    The ILA, ILWU, Virginia International Terminals, NMSA, PMA, and the
ICHCA guidelines stated that the potential hazards of VTL operations
require close cooperation between all parties involved in the
operations, including terminal operators, shipping companies, workers'
representatives, and competent authorities, to ensure the development
of safe procedures for the operations (Exs. 41, 43-10, 44-1; Tr. 2-24,
2-116--2-117). They also stated that such cooperation is necessary not
only within container terminals but also between ships and their
originating and destination terminals.
    OSHA agrees with these commenters and has concluded that safe
transport operations require communication and coordination among
transport teams, crane operators, and other key terminal staff. If the
lines of communication are not open to all involved parties, safe VTL
operations can be jeopardized. The testimony and public comment the
Agency received during the rulemaking process revealed that
communication during VTL operations is very important. So important, in
fact, that some participants felt the lack of communication could
possibly be the ``weak link in the chain'' regarding the success of
safely conducting VTLs (Tr. 2-61).
    Many rulemaking participants provided ideas as to how to
communicate to everyone that VTLs are going to be done on a particular
day. Communication within the terminal about VTLs before they are
conducted has aided some companies in ensuring a smooth series of VTLs.
One such situation is at APM Terminals. Ron Hewett, APM's Director of
Safety and Training, shared how this preparation has benefited them. He
explained:

    A pre-shift conference with APM Terminal supervisors and
International Longshoreman's Association members provides an
overview of VTL operations. This provides an opportunity for all
personnel to fully understand the planned operation. communications,
personnel involved, equipment to be used, procedures, and basic
safety concerns are discussed. [Ex. 50-13]

    Mr. Thompson, representing Virginia International Terminals,
pointed out that ``the people factor is a concern,'' particularly if a
terminal does not do a lot of VTLs (Tr. 2-61). ``If we consistently
handle one container at a time, we have a safety margin. Those
terminals [that] handle two and three consistently all the time are
used to it, and have the precautions in place,'' Mr. Thompson said.
``Terminals of our size, and I believe there are some others on the
east coast, but I can't speak for them, see it as a possible
intermittent, and that intermittent action is probably going to be a
source of miscommunications, injuries, and accidents'' (Tr. 2-20).
    Examples of different procedures offered by participants to ensure
adequate communication during VTL operations included:
     ``The vessel superintendent is the one that calls out
standby for the vertical tandem lifts'' (Tr. 2-217).
     ``Prior to commencement of work on each hatch, trained
crane operators are given direction on which containers and bays will
be handled in [VTL] fashion'' (Ex. 50-13).
     ``[M]ostly in vertical tandem lifts, the crane operator
knows that they cannot just go down and lower it full speed, and that
is just the basic part. They count on the signalman, who coordinates
this to give them the proper signals to prevent this from happening''
(Tr. 2-123--2-124).
     ``[B]efore the crane operator lifts, whether it is a semi-
automatic, or a fully automatic, there is a process, something has to
be done. Semi-automatic has to be unlocked, and fully automated,
somebody is working on the deck to maybe do some latching rods, or some
other cargo securing. Somebody will signal to him that it is okay now
to start taking containers off'' (Tr. 2-192).
     PCMSC, 2002. Rule 1613--``Top/Side Handlers and Reach
Stackers working together against that vessel shall also be assigned a
separate radio channel from those assigned to the working cranes'' (Ex.
43-10-11).
     ``Foremen and supervisors coordinate with lashers and
ground-men the identification and placement of Allset C5AM-DF Liftlocks
in corner castings. This process ensures that all locks operate in the
same manner and are placed correctly in corner castings'' (Ex. 50-13).
    As mentioned earlier in this section, communication can present a
weak link in an overall safe and coordinated VTL transport plan. OSHA
agrees that the commenters' suggestions listed above can be useful
tools for employers to use in developing their own tailored transport
plans.
4. Operational Parameters--VTL Picking (Organization)
    Preplanned and organized picking of VTLs minimizes much guesswork
for workers in the terminal and on ship. In the proposed rule, OSHA
aimed to minimize injuries by requiring, through the written plan,
prearranged movement of VTLs.
    The recommendations in PCMSC-2002 demonstrate that preparation at
the terminal before a VTL and planning the movement of VTLs can
significantly enhance safety (Ex. 43-10-11). ``Prior to commencement of
work on each hatch, trained crane operators are given direction on
which containers and bays will be handled in [VTL] fashion,'' said Mr.
Ron Hewett (Ex. 50-13), providing an example of this type of
preparation.
    From OSHA's point of view, many of those involved with VTLs have
used an organized approach to loading or unloading VTLs. This allows
all employees to be on the same page and any safety precautions that
need to take place are communicated to all working in the area. ``[Y]ou
have a pretty good idea when you get the [stowage] plan from the port
of departure and you know how the ship is configured, then you can plan
the number of vertical tandem lifts you do when it hits the United
States,'' said Maersk Captain Bill Williams (Tr. 2-127). Ron Hewett,
representing APM Terminals, noted that ``the actual sequence and the
team coordination will vary from gang to gang and terminal to terminal,
but it is available to the crane operator'' (Tr. 2-216).
    Planning ahead for VTLs aids in efficiency as well. As Captain
Williams described, ``I think that * * * every terminal is unique in
the way they operate and perform, and the way they're configured, and
the ships that come in.'' Captain Williams explained that ``[t]he same
ship may be different the next time it comes into the port, just based
on the economic conditions.'' Captain Williams advised that advance
notice is best, saying ``So there is really no hard and fast rule,
except you have a pretty good idea when you get the plan from the port
of departure and you know how the ship is configured, then you can plan
the number of vertical tandem lifts you do when it hits the United
States'' (Tr. 2-127--2-128).
    Some participants felt that terminal uniqueness complicates a
mandatory plan for the transportation of vertically coupled containers
(Tr. 1-196--1-197, 2-158). The National Maritime Association's Mr.
McDonald explained that ``each individual terminal operator working
with their company policies and their terminals, which are all unique,
have to build their VTL plans within the guidelines that OSHA will come
out with'' (Tr. 2-158).
    While OSHA agrees that each terminal's unique characteristics
contribute to the complexity of developing plans, the Agency still
feels a sound transport plan with all of the three discussed
components--coordination and communication among all affected
employees, appropriate equipment, and proper operational parameters--
will help ensure the safety of terminal employees. Additionally, such a
cohesive plan will ultimately enhance productivity. Therefore, OSHA has
carried the proposed requirement for a transport plan forward into the
final rule. Employers are advised to take all conditions unique to
their terminals into consideration, while adhering to the requirements
of final Sec.  1917.71(j)(2).

F. Safe Work Zones

    OSHA noted in its preamble to the proposal that employees working
around VTLs are exposed to the risk of falling containers should the
VTL fail (68 FR 54302). The current Marine Terminal and Longshoring
standards recognize hazards inherent in working under suspended
containers in existing Sec. Sec.  1917.71(d)(2) and 1918.85(e), which
prohibit employees from working beneath a suspended container. Evidence
in the rulemaking record addressed the risks faced by employees working
near VTL operations (Exs. 4, 10-5, 19, 43-5, 43-10-3; Tr. 1-319, 1-
337--1-338, 1-374, 2-227--2-229, 2-359--2-361, 2-386).
    Taking into consideration all participant comments, the Agency has
decided to include language regarding safe work zones and landing and
tipover footprints in its final rule. The final rule supplements the
existing requirements that prohibit employees from standing under an
elevated load by requiring, in Sec.  1917.71(k)(1), employers to create
a ``stand-clear zone'' from vertically connected containers in motion.
OSHA is not requiring a designated place in each terminal where all
employees are required to stand or a designated area where employees
are prohibited while the connected containers are being

handled by a crane or ground handling equipment. The final rule thus
allows employers flexibility in determining how best to comply with the
safe work zone requirement during VTL operations in their workplaces.
    During the rulemaking process, OSHA requested that participants
relate information about incidents involving vertically coupled
containers that had fallen. Rulemaking participants, such as ILWU
member Mike Freese, testified about current practices that put
employees at risk. Mr. Freese described one incident where two
containers were being lifted in an area that was supposed to be
cleared, but he said ``I clearly saw people standing around the bomb
carts. I saw another bomb cart pull up while people were standing there
in the area'' (Tr. 2-386).
    In addition to comments on the primary concern of employee
fatalities and injuries, the Agency heard testimony on near misses; as
well as many suggestions on how to combat specific contributing risks
during the movement of vertically connected containers, such as
tipovers, helicoptering, and disengagement or failure of the interbox
connectors to engage. These risks point to the need to address the
safety of employees working near VTL operations to protect these
employees in the event of failure or overturn of vertically connected
containers. The following is a summary of comments and testimony from
rulemaking participants that support the Agency's decision to include
the safe work zone parameters in the final rule:
1. Tipovers
    Whenever containers are stacked, there is increased potential for
tipovers--both of the containers themselves and the crane performing
the lift (for more information on cranes, see the discussion of the
issue entitled ``Crane type,'' earlier in this section of the
preamble). Though the containers are required to be empty, there is
still the risk that the containers themselves could be top-heavy (for
example, if the tare weight of the top container is greater than that
of the bottom), increasing the risk of tipover incidents. Ron Hewett of
APM Terminals summed up the issue in a single succinct sentence: ``The
shadow cast by a vertical tandem lift tipover would be greater than a
single container tipover'' (Tr. 2-228).
2. Disengagements
    As noted previously in this section of the preamble, there was
sufficient testimony to indicate that the failure of interbox
connectors to engage--which could cause the containers to separate and
drop--was of paramount concern. Several union members testified to
situations where this had occurred and industry representatives
acknowledged that such incidents had occurred, though they had not
resulted in injury (Exs. 11-1B, 11-1P; Tr. 1-104, 1-106). Some
participants, such as Mr. Matthew Lepore of the ILA, expressed concern
for those in the vicinity of a VTL when the interbox connectors fail.
He stated that: ``When you get to the dock, you're talking about
separation or you're talking about moving this double, or triple * * *
[Y]ou're going to have more people who have nothing to do with it, but
are working in the area'' (Tr. 1-344). He further explained:

    You have superintendents, you have checkers, you have [employees
designated to other areas, who have wandered over or are passing
through], you have tractor drivers, [and] you have the person that's
going to separate it if you're not going to use the crane. All of
these [people] come into play. [Tr. 1-344--1-345]

    Mr. Ross Furoyama, ILWU, talked about the additional danger to
workers within a certain distance of VTLs. He stated that as VTLs are
being brought from one place to another, there is a certain radius to
the swing of the unit as it moves through the air and ``if there's any
kind of separation, those [employees] are in a danger zone'' (Tr. 1-
311).
    Mr. Jerry Ylonen, also with the ILWU, added the perspective of a
crane operator. ``I have to drive from that crane, underneath five
other cranes working in a safe way, and then exit the forward end of
the ship, come back, and then go into the yard,'' he said. ``So that
footprint is what really we need to look at, you should consider,
because that is where the most danger is to people'' (Tr. 2-361). Mr.
Lepore supported Mr. Ylonen's concern about cranes, but offered a
solution that has worked at Maersk Sea-Land:

    Our dock is a lot safer place now than it was [before the Maersk
takeover of Sea-Land].
    The reason is this: When you have vertical tandem lifts,
especially in a company like ours where we get 14 to 17 ships a
week, and at the time we were getting in the area of 12 to 15 with
Sea-Land, you had more than one gang on a ship.
    So if the center gang is doing mostly discharge, * * * you're
going over people's heads, even if they're in another gang. If * * *
the double-pick breaks loose, it's going to swing over in the area
that's away from underneath the legs of the crane.
    All of the operation was performed underneath the legs of the
crane when Sea-Land did it that way. We never did anything away from
it, other than when we loaded. [Tr. 1-319--1-320]

    The solution presented by Mr. Lepore, performing ground operations
under the crane legs, not only improves safety of the VTL, but ensures
that the operation satisfies the requirement in existing Sec.
1917.71(d)(2), which requires employees to stay clear of the area
beneath suspended containers.
3. Vicinity
    Most rulemaking participants agreed that the employees most at risk
during VTL operations are those in the immediate vicinity of the
movement of vertically connected containers. Sea-Land representative
Phillip Murray stated that although some parties ``have suggested the
establishment of a 100[-foot] stand clear zone for multipick
operations[,] these parties provide no basis for this assertion.'' He
felt that existing stand clear zones have been adequate (Ex. 19).
    In a broader discussion, some participants testified that they just
do not allow anyone under a container during a VTL (Tr. 2-62), or they
do not consider the containers to be at a point of rest until they are
separated (Tr. 2-39). However, most participants suggested rough
estimates of a safety zone if a container became accidentally
separated. ILWU member Jerry Ylonen described the steps taken at his
terminal saying, ``what happens now, I would say everybody gets at
least 15 feet away, stands back out of the way 15 to 20 feet [for a
single container]'' (Tr. 2-359--2-360). Brian McWilliams, President of
the ILWU, submitted an excerpt from Rule 1513 of the Pacific Coast
Marine Safety Code to the record, which reads:

    Employees shall not walk or work in the aisle adjacent to a
container bay being loaded or discharged, except when the uppermost
tier is being worked. Employees lashing or unlashing when the
uppermost tier is being worked shall maintain a minimum athwartship
distance of five (5) container widths or half the width of the tier,
whichever is greater, offshore of the container being handled by the
crane. [Ex. 4]

Other policies suggested or implemented included ``stand clear'' areas
(Ex 10-5, Ex 43-5), a minimum 30.5-meter (100-foot) stand clear zone
(Ex 43-10-3, p. 13), having employees stand in front or in back of the
cranes (Tr. 2-227), clearing a section of deck or the dock (Tr. 2-388,
2-415), safety bulletins (Tr. 2-228--2-229), and employees standing in
front of the bomb cart or chassis and in back of the plane (Tr. 2-115).
    An idea offered by both Robert Anderson, Ph.D., P.E., on behalf of
ILWU, and Ron Hewett of APM

Terminals, was to use a worst-case analysis (Ex 54-30-1; Tr. 2-228).
They suggested that the largest area potentially affected by a tipover
or release of twistlocks be examined first, and then work to keep
employees away from that area. However, Mr. Hewett did say that he
believed it would be wise if OSHA explored setting standards for the
location of people on the ground during VTLs (Tr. 2-229).
    In regard to establishing safe work zones, there was some specific
disagreement about how to treat truck drivers. Rulemaking participants
disagreed about whether the risk to truck drivers is inside or outside
of the cab. Mr. Freese argued that his drivers are going to walk away
to a spot they feel safe (Tr. 2-381). Anthony Simkus, Virginia
International Terminals, agreed, saying that a truck driver would be in
trouble if there was a separation and containers fell onto a chassis.
(Tr. 2-64) Yet, Bill Williams, Maersk, argued that the practice of bomb
cart drivers staying in the cab during VTL loading is absolutely safe
and safer than being outside of the cab (Tr. 2-174).
4. Conclusion
    Taking into consideration the record as a whole, the Agency has
decided to regulate safe work zones and footprints in its final rule,
believing that ultimately safe work zones will protect employees from
being injured if a VTL does fail or vertically connected containers tip
over. The final rule supplements the existing prohibitions against
employees working under an elevated container, with a requirement for
employers to create a safe work zone that will protect employees in
case a container drops or overturns. The transport plan must include
the safe work zone and procedures to ensure that employees are clear of
this zone when vertically connected containers are in motion. OSHA
believes that this provision is important to protect the safety of
employees working near VTLs.
    Viewpoints varied as to optimum dimensions of a safe work zone, the
majority of rulemaking participants addressing this issue did agree
that the employees most at risk during VTL operations are those in the
immediate vicinity of the vertically connected containers. Most of
these participants provided rough estimates of a safe work zone if a
container became separated. For instance, according to Jerry Ylonen,
the ILWU recommends that employees stand at least 4.6 to 6.1 meters (15
to 20 feet) from a single container, a distance that equals at least
twice the height of a container. Brian McWilliams of the ILWU
reiterated the PCMSC rules that recommend a five-container width or
half the width of the tier--whichever is greater--as an acceptable safe
work zone.
    Vertically connected containers being transported over the ground
present a tipover hazard (Tr. 2-228). VTLs being moved by crane present
a disengagement hazard (Exs. 11-1B, 11-1P; Tr. 1-104, 1-106). A safe
work zone must protect employees against both of those hazards. In a
tipover, the vertically coupled containers would fall over, landing a
distance from the bottom corner of at least the height of the VTL.
Additionally, the momentum of the falling containers would carry them
some distance beyond that. In a worst-case disengagement, the bottom
container would pivot about one end before falling to the ground.\29\
If the falling container tipped over lengthwise on landing, it would
strike the ground a distance equal to the length of the container from
the area immediately below the VTL.
---------------------------------------------------------------------------

    \29\ Because the final rule requires both containers in a VTL to
be empty, the combined weight of the two containers will be well
within the rating of the crane and disengagement of the top
container from the spreader bar is extremely unlikely--certainly
less likely than in a lift of a single container loaded to its
maximum weight. As noted earlier, this can be 30 metric tons or
more.
---------------------------------------------------------------------------

    OSHA has decided not to set minimum dimensions of the safe work
zone because conditions vary from terminal to terminal. Vertically
connected containers being transported by ground transport equipment
pose an overturn hazard. The distance the containers will fall in a
tipover will depend, upon other things, on turn radius and vehicle
speed. VTLs moved by a container gantry crane will have little
rotational momentum, and this will affect where the containers land if
the containers become uncoupled.
    Although OSHA will allow employers to use discretion in setting
safe work zones, employers will need to consider where containers will
land in the event of tipover or VTL failure and set the zones
accordingly. Furthermore, even though the standard does not require a
designated place for employee to stand in each terminal, employers will
have to ensure that employees know where a safe retreat is available
before the crane or other equipment moves vertically connected
containers.

G. Reporting of VTL Accidents

    In its proposal, OSHA requested information on whether the final
rule should include a requirement for reporting VTL accidents and near
misses. Such a requirement would have provided the Agency with
additional information on which to base any future rulemaking on VTL
operations.
    The ILWU and the ILA recommended that the final rule include a
provision requiring the reporting of accidents and near misses (Exs.
43-10, 44-1). The ILWU stated:

    The ILWU strongly urges OSHA to include regulations establishing
a reporting mechanism for all VTL accidents, near-misses and any
incident related to VTLs, including defects in the components
comprising the VTL, e.g., the interbox connector and/or container(s)
(``VTL accidents and incidents'') in the event OSHA's final rule-
making sanctions VTLs. * * * Because this practice has gone on for
so long virtually unregulated and unmonitored, whereby maritime
industry employers have been allowed to circumvent even the minimal
and inadequate requirements set out in the Gurnham Letter, the
agency should establish a VTL-monitoring division to allow workers
as well as employers to supply information with respect to any and
all VTL accidents and incidents causing and/or potentially
threatening harm to marine terminal and longshore workers. [Ex. 43-
10]

    The ILWU further stated that these reports should be submitted to
Federal and State authorities, including the U.S. Coast Guard, and to
employee representatives (Ex. 43-10). They further recommended that VTL
operations cease until the accident or incident was investigated.
    The ILA also urged OSHA to require all VTL-related incidents to be
reported to the Agency on an as-occurring basis, but no less than
quarterly (Ex. 44-1). They argued that an incident is no less an
indication of an underlying problem than an accident involving
reportable injuries. The ILA additionally urged the Agency to defer the
final VTL standard until it implemented an effective VTL incident
reporting system and collected additional data to determine the safety
of VTLs compared to lifts of single containers.
    In a joint comment, USMX, NMSA, and PMA opposed a requirement for
accident and incident reporting (Ex. 47-5), stating:

    There is no need for a special reporting mechanism for VTL
accidents and near misses. With regard to near misses, how would
these instances be defined? We had considerable difficulty with the
term ``near miss'' after the promulgation of the final rules on
Powered Industrial Truck Operator Training. Instituting such a
procedure without any evidence that VTLs pose an enhanced risk to
workers over single lifts, is inappropriate and in excess of the
agency's authority. [Ex. 47-5]

    However, under questioning at the public hearing several industry
representatives acknowledged that

companies have internal reporting mechanisms for accidents and near
misses (Tr. 1-192, 1-229, 2-224).
    OSHA does not agree with these commenters that a reporting
requirement would be in excess of the Agency's authority. The
Occupational Safety and Health Act of 1970 (OSH Act) explicitly gives
the Agency authority to promulgate regulations that require reports
``[f]or developing information regarding the causes and prevention of
occupational accidents and illnesses'' (29 U.S.C. 657(c)(1)). Requiring
employers to report accidents and near misses would certainly fall
within this authority.
    While OSHA agrees with the ILWU and the ILA that fatality, injury,
and accident reporting is useful, the Agency has decided not to include
a reporting requirement in its final VTL standard. The comments by the
ILWU and ILA appear to support reporting mechanisms for three purposes.
First, longshore workers should be able to report safety problems to
OSHA. Second, reports of VTL incidents could be used to schedule OSHA
inspections to determine the cause of the incident, identify any
corrective measures that would have prevented the incident, and issue
citations for infractions of OSHA standards. Third, VTL incident
reports could be compiled and analyzed to look for accident trends and
causes. This information could then be used to determine the need for
additional requirements in the OSHA standards.
    The Agency has determined that mandatory VTL reports are not needed
to make sure that longshore workers are able to report safety problems
to OSHA, to schedule OSHA inspections, or to produce statistical
information. The OSH Act explicitly gives employees the right to report
unsafe conditions and request a workplace inspection (29 U.S.C.
657(f)(1)). OSHA's regulations and policies allow employees to contact
the Agency regarding unsafe working conditions and ask for a worksite
inspection (see, for example, 29 CFR 1903.11). A large proportion of
OSHA's annual inspections are conducted as a result of such employee
complaints.
    OSHA already has regulations at 29 CFR Part 1904 requiring
employers to report any work-related fatality and any work-related
accident resulting in the hospitalization of three or more employees.
OSHA also responds to employee complaints, media reports of unsafe
working conditions, and referrals from other parties who inform the
Agency of safety and health problems. These regulations and policies
are expected to give the Agency ample opportunity to investigate any
serious VTL incidents that may occur without the need for additional
reporting or other paperwork burdens.
    OSHA does not agree with the ILA that it should delay the
rulemaking until the Agency implements an incident-reporting system,
collects data (presumably for several years), and produces reports on
that information. OSHA has been monitoring marine terminals for VTL
incidents for more than 20 years. Given the small number of incidents
that have occurred during that time, this type of data collection is
not likely to produce enough data to be worthwhile. In addition, a
reporting system that would truly compare single-container lifts and
VTLs would require the reporting of all single-lift and VTL incidents,
and how many of each lifts is performed--a more burdensome requirement
than simply requiring the reporting of VTL incidents. Finally,
requiring a reporting system before adopting a VTL standard would
result in unreasonable delay of the final standard. Unnecessarily
delaying the safety provisions of this final rule could result in
preventable longshore accidents, injuries, and fatalities.

H. Summary and Explanation of Regulatory Text

    OSHA is issuing new provisions in the Longshoring and Marine
Terminals Standards (29 CFR Parts 1918 and 1917) to regulate the use of
VTLs. These new provisions are based on objective research, industry
experience with VTLs, ISO standards, the ICHCA VTL guidelines, and the
rulemaking record on VTLs contained in Docket S-025a. The provisions
provide safe work procedures (engineering, work-practice, and
administrative controls) for lifting two empty containers connected by
interbox connectors. Testing has demonstrated that the interbox
connectors required by the new provisions are substantially strong
enough to lift two empty containers with a safety factor of at least
five.
    The new requirements for VTLs are contained in the Marine Terminals
Standard (29 CFR 1917). The Longshoring Standard (29 CFR 1918)
incorporates those requirements by reference. OSHA is requiring that
VTLs only be performed by a shore-based container gantry crane or
another type of crane that has the precision control necessary to
restrain unintended rotation about any axis, that is capable of
handling the load volume and wind sail potential of VTLs, and that is
specifically designed to handle containers. 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 requirements that address the makeup of a
VTL, such as the number of containers, are in Part 1917. Requirements
that address the certification and testing of interbox connectors are
in both Parts 1917 and 1918. Interbox connectors are vessel's gear,
that is, gear owned and maintained by the vessel, and they would be
addressed in Part 1918. However, interbox connectors can also be used
in the marine terminal to assemble VTLs before they are loaded on the
vessel; therefore, the same certification and testing requirements for
interbox connectors that are contained in Part 1918 are also contained
in Part 1917. The VTL requirements for Part 1917 are discussed first.
1. Definitions
    OSHA had proposed to add definitions of the terms ``liftlocks'' and
``vertical tandem lift'' to Sec.  1917.2 in the Marine Terminals
standard and to Sec.  1918.2 in the Longshoring standard. The final
rule uses the term ``interbox connector,'' a term used in the proposed
definition of ``liftlock,'' in place of the word ``liftlock.''
Consequently, the Agency is not including the proposed definition of
``liftlock'' in the final rule.
    The final rule incorporates the definition of ``vertical tandem
lift'' into the scope of the VTL provisions. Therefore, a definition of
that term is unnecessary, and the final rule does not include the
proposed definition of that term either.
2. Incorporation by Reference
    OSHA had proposed to incorporate by reference into the Marine
Terminal and Longshoring standards ISO Standard 3874, Amendment 2,
Vertical tandem lifting (2002). This ISO standard limits forces during
VTLs to 75 kN and requires the load-bearing surface area of interbox
connectors used in VTL operations to be a minimum of 800 mm\2\ (Ex. 40-
9). The Agency has incorporated the necessary strength requirements
into the text of the final rule. In addition, the final rule limits
VTLs to two empty containers, making a weight limitation unnecessary.
Thus, OSHA has not included the proposed incorporation by reference of
the ISO standard in the final standard.
    In addition, in Sec.  1917.71(f)(3)(i), OSHA proposed to require
containers lifted in VTLs to be ISO series 1 containers. The final rule
does not contain an explicit requirement that VTLs be conducted only
with ISO series 1 containers. OSHA believes that, with the
standardization of intermodal containers, the only practical way to
lift containers in a VTL is with standard

containers having top and bottom corner castings that interconnect with
standardized interbox connectors. The final rule does contain
requirements for the certification of these connectors. The Agency
believes that it would be impractical, if not completely unworkable to
use anything other than a standard ISO series 1 containers in a VTL
operation. For example, the operation would encounter problems with the
interbox connectors engaging in nonstandardized corner castings. In
addition, the final rule explicitly prohibits lifting platform
containers in VTLs. The Agency would consider the lifting of vertically
coupled other types of non-ISO series 1 containers as being outside the
scope of the final rule and subject to the general duty clause of the
OSH Act.
3. Load Indicating Devices
    OSHA had proposed, in the Marine Terminal standard, to require
container gantry cranes used in VTL operations to have load indicating
devices. The load indicting device was intended to ensure that the
weight of a VTL did not exceed 20 tons as required by the proposal. As
explained earlier in this section of the preamble, the Agency has
decided to permit VTLs of empty containers only. The existing Marine
Terminal standard requires the employer to know whether a container is
empty or loaded before it is hoisted (29 CFR 1917.71(b)(1) and
(b)(2)(ii)). In addition, as explained later in this section of the
preamble, the final rule requires employers to verify that each
container in a VTL is empty before it is lifted. OSHA has concluded
that these provisions will ensure that only empty containers will be
lifted in VTLs, making a requirement for load indicating devices
unnecessary. Therefore, the final rule does not carry forward this
proposed requirement.
4. Stowage Plan
    OSHA proposed a requirement in the Marine Terminals Standard that a
copy of the vessel cargo stowage plan be given to the crane operator
and that the vessel cargo stowage plan be used to identify the location
and characteristics of any VTLs to be lifted (proposed Sec.
1917.71(b)(9)). This provision was intended to supplement existing
Sec.  1917.71(b)(1) and (b)(2)(ii), which require the gross weight of
containers to be marked or a stowage plan to be available.
    The final rule permits only empty containers to be lifted in a VTL.
In addition, as explained later in this section of the preamble, the
final rule requires employers to verify that each container in a VTL is
empty before it is lifted. OSHA has concluded that these provisions
will ensure that only empty containers will be lifted in VTLs, making
requirements for the stowage plan to be provided to the crane operator
and for the plan to be used to identify containers lifted in VTLs
unnecessary. Therefore, the final rule does not include these proposed
requirements.
5. VTLs
    New paragraph (i) of Sec.  1917.71 in the final rule adds
requirements for VTL operations to the Marine Terminals Standard. These
new requirements apply to operations involving the lifting of two or
more intermodal containers by the top container, or VTLs.
    Final Sec.  1917.71(i)(1) requires each employee involved in VTL
operations to be trained and competent in the safety-related work
practices, safety procedures, and other requirements in this section
that pertain to their respective job assignments. The rationale behind
this requirement is explained earlier in this section of the preamble
under the issue entitled ``Training.'' This provision in the final rule
ensures that employees who are involved in VTL operations have the
training needed to perform their tasks safely (safety-related work
practices), perform their VTL-associated tasks so as to comply with the
standard (safety procedures), and competently perform the inspections
and determinations required by the final rule.
    OSHA proposed to permit a maximum of two containers to be lifted in
a VTL (proposed Sec.  1917.71(f)(3)(i)). As explained earlier in this
section of the preamble, the Agency has determined that a maximum of
two containers may be safely lifted in a VTL. Therefore, OSHA has
included this requirement in the final rule as Sec.  1910.71(i)(2).
    OSHA proposed to permit a maximum of 20 tons to be lifted in a VTL
(proposed Sec.  1917.71(f)(3)(i)). As explained earlier in this section
of the preamble, the Agency has concluded that only empty containers
may be lifted in VTLs. This will ensure that the capabilities of the
corner castings and interbox connectors attaching the two containers
are not exceeded.
    In addition, the Agency believes that it is essential to ensure
that containers lifted in a VTL are empty. The existing Marine
Terminals standard requires that the employer know whether a container
is empty or loaded before it is hoisted (Sec.  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 stowage 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 stowage 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 interbox
connectors and corner castings joining the containers.
    Evidence in the record indicates that containers that were supposed
to be empty were, in fact, loaded. For example, at the 1998 meeting on
VTLs, a crane operator testified:

    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. [1998-Tr. 252].

    Another participant at the public meeting 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[ly] weighed. [1998-Tr. 161]

    This evidence was not disputed in the rulemaking record on the
proposal. In fact, at the public hearing on the proposal, Mr. Tyrone
Tahara testified that some containers in VTLs that were supposed to be
with empty containers seemed to have load in them (Tr. 2-421).
Therefore, the Agency has concluded that it is essential for the
employer to ensure that containers are empty before they are lifted in
a VTL, as required by final Sec.  1917.71(i)(3). Although the rule does
not prescribe a particular method for ensuring that a container is
empty, OSHA intends that employers make a positive determination, such
as through direct observation of the content of the container or by
weighing it to make sure that its weight matches the tare weight marked
on the container. For example, an employer could use a container
crane's load-indicating device \30\ to

measure the weight of the container individually as the containers are
positioned in a VTL or during the prelift. Although the stowage plan
can be used to help locate potentially empty containers, employers may
not rely solely on that plan in complying with new Sec.  1917.71(i)(3).
---------------------------------------------------------------------------

    \30\ It should be noted that only load-indicating devices
meeting Sec.  1917.46(a)(1)(i)(A) are acceptable. The alternative
devices permitted by Sec.  1917.46(a)(1)(i)(B) and (a)(1)(i)(C) do
not provide a direct indication of the weight of the load. Thus,
employers cannot rely on these alternative devices to ensure that
each container lifted in a VTL is empty.
---------------------------------------------------------------------------

    Paragraph (i)(4) of Sec.  1917.71 in the final rule addresses the
type of crane that can be used to perform VTLs. The final rule requires
VTLs to be performed only by shore-based container gantry cranes and
other types of cranes that (1) have the precision control necessary to
restrain unintended rotation of the containers about any axis, (2) are
capable of handling the load volume and wind sail potential of VTLs,
and (3) are specifically designed to handle containers. The rationale
for this requirement is addressed previously in this section of the
preamble under the issue entitled, ``Crane Type.''
    Paragraph (i)(5) of Sec.  1917.71 in the final rule requires that
the crane operator conduct a prelift before hoisting a VTL. A prelift
is a pause in the VTL as the initial strain is taken and the lifting
frame wires are tensioned. This physically tests the interbox
connectors to ensure that they are engaged. This is consistent with the
practice used by Sea-Land, as previously described. Testifying on
behalf of Sea-Land at the 1998 public meeting, Mr. Philip Murray stated
that prelifts are a necessary safety precaution for VTLs, arguing that
they helped detect interbox connectors that were not fully engaged
(1998-Tr. 202). At the public hearing, Michael Bohlman also recommended
that prelifts be conducted (Tr. 1-209). In addition, the ICHCA
guidelines, in section <IP_ADDRESS>.7, require prelifts.
    The ILWU argued that prelifts did not necessarily ensure the safety
of a VTL (Exs. 43-10, 47-4, 50-7), reasoning as follows:

    Contrary to OSHA's belief, requiring a crane operator to conduct
a pre-lift before hoisting a VTL * * * will not necessarily ensure
that the interbox connectors are properly engaged. The proposed rule
does not specify how long the lift should take place. Nor does it
establish that the locks and/or the containers' bottom corner
castings can withstand the duration of the lift, even if the
connectors are initially engaged. As explained above, severely
stressed and/or internally cracked SATLs and cones and corner
castings are not always viewable upon cursory inspection. In
addition, a pre-lift does not ensure that the VTLs can withstand the
sudden un-weighting effect that occurs when a crane's trolley goes
over a rail splice or cracks in the rail. Moreover, if a VTL is at
or near its 20-ton maximum weight limit, when the trolley hits a
rail splice, the weight of the containers increases significantly on
the rapid and jerking descent immediately following the splice. [Ex.
43-10]

    Although OSHA agrees that prelifts cannot, by themselves, ensure
the safety of VTLs, the Agency has concluded that VTLs can indeed be
performed safely under certain circumstances and that prelifts are an
essential component of ensuring employee safety. Prelifts will expose
conditions involving two disengaged interbox connectors on one side.
Limiting VTLs to empty containers ensures that the lift will be safe
even if only two interbox connectors are fully engaged on opposite
sides (that is, along the diagonal), a condition that the prelift may
not detect. Inspecting interbox connectors and corner castings
immediately before the lift ensures that the connectors are in proper
working order, thus, making partial engagement less likely. Therefore,
by requiring prelifts along with other necessary precautions, OSHA
believes that the rule will adequately protect employees.
    Proposed Sec.  1917.71(f)(3)(iii) would have prohibited VTLs of
containers with hazardous cargo, liquid or solid bulk cargoes, or
flexible tanks that were full or partially full. The final rule
requires containers lifted in VTLs to be empty. Thus, this proposed
requirement is unnecessary.
    Paragraph (i)(6) of Sec.  1917.71 in the final rule prohibits VTLs
of any containers that are in the hold of a vessel. Containers are
stacked in the hold in cell guides (steel beams constructed to secure
stacks of containers). There is not enough clearance for the handle of
an SATL to fit between the interbox connector and the cell guide--the
handles would break off in the cell guide as containers were lowered
into the guide. In such cases, it would be impossible to inspect the
interbox connectors immediately before the lift or to determine the
condition of the containers. No substantial objections were received to
this requirement, which was proposed as Sec.  1917.71(f)(3)(v).
    Paragraph (i)(7) of Sec.  1917.71 of the final rule prohibits the
handling of VTLs when the wind speed exceeds 55 km/h or the crane
manufacturer's recommendations, whichever is lower. This limits both
the loads imposed on the interbox connector-to-corner casting
connection and the ability of the crane operator to safely handle a VTL
and keep it under control. This provision is similar to proposed Sec.
1917.71(f)(3)(vi), which would have set a maximum wind speed of 55 km/h
without regard to the crane manufacturer's recommendation.
    Several rulemaking participants were concerned that the proposed
maximum wind speed for VTL operations was too high (Exs. 43-4, 43-10,
44-1, 47-3, 51-4, 54-28). Noting the role that wind conditions play in
VTLs, the ILA argued that the proposed 55-km/h limit was excessive (Ex.
44-1). Stating that common sense demands a lower maximum wind speed for
VTLs than for single lifts, the ILWU urged OSHA to conduct studies to
establish a safe wind speed (Ex. 43-10). Some rulemaking participants
maintained that factors such as the VTL configuration, weight,
forecasts, and equipment should be considered in setting a maximum wind
speed (Exs. 43-5, 44-1, 51-4, 54-28). For example, David Reda, an ILWU
member, stated:

    Performing [VTLs] at a maximum weight of 20 tons and/or empties.
You have twice the surface area which when wind speed is added can
push the tandem load in an uncontrollable twisting manner. This is
hard on the crane and the wire can be dislodged from the hoisting
pulleys. [Ex. 43-5]

    Michael Bohlman countered that the proposed 55-km/h limit was too
low for two-tier VTLs (Ex. 50-10-2):

    Under both the OSHA proposed rule and the Safety Panel's
guidelines, VTL operations should cease if the wind speed exceeds 34
mph. The Safety Panel's recommendation however, was based on a
three-tiered VTL configuration. Two tier VTL units can be operated
safely in much higher winds, winds that are 25 to 40% higher than
those established for safe 3-tier operation. [Ex. 50-10-2]

    He urged OSHA to permit higher wind speeds if the final rule
prohibited three-tier VTLs. Other rulemaking participants generally
supported the proposed 55-km/h wind speed limit (Exs. 50-10-3-1, 50-
12). Their support was based on the ICHCA guidelines.
    OSHA recognizes that the ICHCA guidelines (Ex. 41) limit the
maximum wind speed to 55 km/h based on loading considerations involved
in a three-tier VTL. However, as noted previously, other factors
besides maximum safe load come into play in the determination of a
maximum safe wind speed. For example, a higher wind speed can cause the
load to rotate more (Tr. 2-296-297). Michael Arrow stated that a
maximum wind speed of 55 km/h is based both on engineering analysis and
practical experience (Ex. 50-10-3-1). In addition, the Agency has used
48 to 64 km/h as a guideline for when to consider wind speeds as being
hazardous for work that may involve material handling or

working at heights. (See, for example, 55 FR 13360, 13379 (April 10,
1990), the Walking and Working Surfaces proposed rule, and 59 FR 4320,
4373 (January 31, 1994), the Electric Power Generation, Transmission,
and Distribution final rule.) Therefore, OSHA has concluded that the
55-km/h limit on wind speed for VTL operations is reasonably necessary
and appropriate.
    Some commenters raised concerns about wind velocity warning systems
and manufacturers' recommendations regarding maximum wind speed (Exs.
43-10, 44-1, 47-4, 57). The ILA claimed that wind detectors have been
problematic, but offered no evidence to support their assertion (Ex.
44-1). The ILWU noted that the proposed rule provided no guidance on
warning systems and recommended that the final rule require them (Exs.
43-10, 47-4). They were also concerned that manufacturers'
recommendations would override the standard's maximum wind speed as
follows:

    The proposed rule provides no guidance on wind warning devices--
apparatuses which sound an alarm to workers when the maximum wind
velocity has been reached during container operations. The current
practice for single-hoist (standard) container operations is to set
each crane's wind warning according to the manufacturer's
recommendation. The ILWU strongly urges that should OSHA establish a
standard for maximum wind speed for VTL operations, this standard
should be required for all VTLs operations irrespective of the crane
manufacturers' recommendation. [Ex. 47-4]

    Existing Sec.  1917.45(g)(3) requires cranes located outdoors to
have wind-indicating devices to provide warnings when the wind velocity
approaches the crane manufacturer's recommended maximum. The Virginia
International Terminals crane operations manual states that the warning
system installed on their cranes provides a warning at 55 km/h and that
crane operations begin shutting down at that speed (Ex. 57). It is
possible that some crane manufacturers set lower maximum wind
velocities than those for the Virginia International Terminal cranes.
Because of this, the final rule, in Sec.  1917.71(i)(7) requires the
maximum wind speed for VTL operations to be the lesser of (1) 55 km/h
or (2) the crane manufacturer's recommendations. This will ensure that
cranes are operated within their safe operating conditions and will
limit wind velocities to a recognized safe level for VTL operations.
The language in the final rule also clarifies that the absolute maximum
wind speed for VTL operations is 55 km/h even if the crane manufacturer
sets a higher maximum recommended wind speed.
    Paragraph (i)(8) of Sec.  1917.71 in the final rule sets
requirements for interbox connectors used in VTL operations. Paragraph
(i)(8)(i) requires interbox connectors to lock automatically and unlock
manually. This provision specifically prohibits the use of manual
twistlocks and latchlocks. This provision has been taken from the
definition of ``liftlock'' in the proposal and from proposed Sec.
1917.71(m).
    Manual twistlocks, which have largely been replaced by SATLs due to
OSHA's container top safety regulations and increased productivity (see
discussions in the Longshoring and Marine Terminals Final Rule, 62 FR
40174), 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,
making them unsuitable for lifting. The limits and weaknesses of
latchlocks for VTLs were more fully discussed earlier in this section
of the preamble. The ILA supported the proposal's prohibition against
the use of manual twistlocks (Exs. 44-1, 55-1). The ICHCA guidelines,
in section <IP_ADDRESS>, also prohibit manual twistlocks from being used in
VTL operations (Ex. 41).
    Paragraph (i)(8)(ii) of Sec.  1917.71 in the final rule requires
interbox connectors used in VTL operations to indicate whether they are
locked or unlocked. Paragraph (i)(8)(iii) of Sec.  1917.71 in the final
rule requires all interbox connectors in a VTL to lock and unlock in
the same manner. Some SATLs lock and unlock in a horizontal direction,
others in a vertical direction. What is important and required is that
all the twistlocks in a VTL work in the same manner to allow employees
involved in VTLs to determine readily whether or not the locks are
locked or unlocked before a lift is performed. For an observer to
determine whether the interbox connectors 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 an interbox connector is
locked or unlocked.
    These two paragraphs in the final rule are based on proposed Sec.
1917.41(l)(1)(vii). This provision in the proposal also required all
interbox connectors on a vessel to operate in the same direction and
required the telltale on twistlocks to be visible from deck level. OSHA
has not included these requirements in the final rule. As explained
earlier in this section of the preamble, OSHA has decided to require a
visual inspection of each interbox connector and corner casting
involved in a VTL immediately before the lift. In addition, in Sec.
1917.71(i)(5), the final rule requires a prelift. The inspection and
the prelift will help ensure that interbox connectors will be properly
engaged. The inspections will normally be conducted close to the
containers being lifted, so there is no need for employees to be able
to determine if the twistlocks are engaged when the containers are
stacked on a vessel. Thus, the requirements for the telltale to be
visible from deck level and for all twistlocks on a vessel to operate
the same way are unnecessary.
    Paragraph (i)(8)(iv) of final Sec.  1917.71 requires interbox
connectors used in VTLs to be certificated as loose gear under Sec.
1917.50. The marine terminal standards, in Sec.  1917.50, require
certain equipment to be certificated by a competent authority.
Currently, loose gear (which under the final rule would include
interbox connectors used in VTLs) 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.
    OSHA and the U.S. Coast Guard are the competent authorities 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 interbox connectors used
in VTLs, which is verified by certificates issued by agencies
authorized by a competent authority, is the primary way an employer
will determine that SATLs on a vessel or ashore can be used for
lifting. These certificates are found in the vessel's cargo gear
register.
    Some rulemaking participants supported the proposed requirements
for certificating interbox connectors used in VTLs (Exs. 43-10, 44-1,
47-3). For example, the ILWU argued that major shipping companies do
not operate entirely with their own equipment and that there are random
combinations of containers and connectors (Ex. 43-10). They urged OSHA
to require certification of containers as well as interbox connectors.
    Some comments opposed the proposed requirement for SATLs used in
VTLs to be certificated (Ex. 47-5). For example, USMX stated:

    The regulation the agency proposes requires certain markings on
SATLs and certain testing protocols that have absolutely nothing to
do with the strength or quality of the SATL. It is undisputed (and
substantiated by the NIST Report) that every single SATL in use
today was fabricated to conform to international standards that
would permit complete confidence in conducting VTL configurations as
outlined by ISO 3874. Thus * * * it should be clear that the
regulations concerning the certification of SATLs as liftlocks are
not necessary and present a significant impediment to the
utilization of VTLs. [Ex. 47-5]

    As explained in detail earlier in this section of the preamble,
OSHA has concluded that the NIST tests are not representative of all
SATLs currently in use. In addition, contrary to USMX's position, the
NIST testing indicates that some SATLs do not meet ISO requirements on
load-bearing area (Ex. 40-10). In addition, the ICHCA guidelines, in
sections <IP_ADDRESS>.2 and <IP_ADDRESS>.1, require twistlocks used in VTL
operations to be certificated (Ex. 41). Consequently, OSHA has
concluded that certification is necessary to ensure that interbox
connector-corner casting assemblies used in VTLs have adequate strength
to ensure the safety of the lift. This conclusion is also consistent
with the Agency's position that interbox connectors used in VTLs are
loose gear and must therefore meet the current marine terminal
standards requirements on loose gear, which requires certification
under Sec.  1917.50(c)(6).
    On the other hand, OSHA has concluded that containers are not loose
gear and thus do not need to be certificated. Containers are widely
lifted in single units without being certificated. The ISO standards
for containers and corner castings ensure that they are capable of
safely supporting at least two empty vertically coupled containers. In
addition, the prelift inspection required by Sec.  1917.71(i)(9)(iii)
will help ensure that the container is in good condition and that
neither the container nor the corner casting will fail during the lift.
    Paragraphs (i)(8)(iv)(A) and (i)(8)(iv)(B) of Sec.  1917.71 in the
final rule require interbox connectors used in VTLs to be certified as
having a minimum load-bearing surface area of 800 mm \2\ and as having
a safe working load of 98 kN (10,000 kg) with a safety factor of five
when the load is applied by means of two corner castings with openings
that are 65.0 mm wide or equivalent devices. As explained in detail
earlier in this section of the preamble, these requirements will ensure
that interbox connectors are strong enough to withstand the loads
imposed by VTL operations.
    Paragraph (i)(8)(v) of Sec.  1917.71 requires each interbox
connector used in a VTL to have a certificate that is available for
inspection and that attests that the connector meets the required
strength criteria listed in paragraph (i)(8)(iv).
    The ICHCA guidelines, in sections <IP_ADDRESS>.2 and <IP_ADDRESS>.1, require
twistlocks used in VTL operations to be certificated with a safe
working load of at least 10,000 kg on the basis of a safety factor of
at least five (Ex. 41). ISO 3874 requires interbox connectors used in
VTL operations to have a minimum load-bearing surface area of 800 mm2.
    Paragraph (i)(8)(vi) of Sec.  1917.71 requires that each interbox
connector used in a VTL to be clearly and durably marked with its safe
working load for lifting, together with a number or mark that
identifies it and connects it with its test certificate.
    This paragraph was taken from proposed Sec.  1917.71(l)(1)(vi). The
marking requirement was opposed by the International Chamber of
Shipping, which argued that such marking presented an insurmountable
challenge considering the vast numbers of SATLs in use (Ex. 47-1).
    The ICHCA guidelines has required the same markings as the final
rule since January 1, 2003 (Ex. 41). Thus, a substantial number of
existing SATLs intended for use in VTLs already have these markings in
place. In addition, employers, employees, and OSHA would have no way of
distinguishing between complying SATLs and those that are not
certificated without such markings. (The need for certification was
discussed previously in this section of the preamble.) Thus, OSHA has
carried the proposed requirement into the final rule without
substantial revision.
    Paragraphs (l)(1)(iii) and (l)(1)(iv) of proposed Sec.  1917.71
addressed inspection of interbox connectors used in VTLs. Paragraph (k)
of proposed Sec.  1917.71 would have required damaged or defective
connectors to be removed from service and prohibited their use for
lifting. This paragraph would also have required a means of keeping
damaged or defective interbox connectors separate from operating
interbox connectors. These provisions in the proposed rule were
intended to weed out damaged and defective interbox connectors in a
systematic way.
    The proposed rule would have required a thorough inspection by a
competent person at least once every 12 months. This proposed provision
garnered significant attention by rulemaking participants. Some
commenters objected to the proposed requirement for annual thorough
examination by a competent person (Exs. 43-7, 47-1, 47-5, 50-10-2, 50-
10-3, 50-12, 54-3). They recommended that OSHA allow adherence to an
approved continuous examination program (ACEP), as outlined in the
ICHCA guidelines, in lieu of annual inspections. Michael Bohlman
described ACEP as follows: ``Examinations under an [ACEP] are required
to be carried out in connection with major repair, refurbishment, or
on-hire/off-hire interchange at intervals of not more than 30 months''
(Ex. 50-10-2).
    Section <IP_ADDRESS> of the ICHCA guidelines (Ex. 41) addresses the
maintenance and examination of interbox connectors used in VTLs.
Section <IP_ADDRESS>.3 requires each such interbox connector to be inspected
by a competent person at least once every 12 months, in language
mirroring the first sentence of proposed Sec.  1917.71(l)(1)(iii).
However, the ICHCA guidelines also specifically recognize ACEPs in
section <IP_ADDRESS>.4 as one way of meeting the requirement for annual
inspection.
    Michael Arrow, representing USMX, argued that these programs make
marking interbox connectors with the inspection date unnecessary (Ex.
50-10-3). Some of the commenters supporting ACEPs maintained that such
programs ensured that interbox connectors were examined more frequently
that once a year (Exs. 43-7, 54-3). Michael Bohlman, speaking on behalf
of USMX, stated that ACEPs encourage a continuous heightened level of
scrutiny (Ex. 50-10-2). However, responding to questions at the public
hearing, Mr. Bohlman admitted that this type of program does not ensure
the inspection of all interbox connectors:

    We do about 10 percent a * * * voyage. There's probably
statistics that someone could dig out of a book someplace that tells
you over the course of a year you'll guarantee you're going to get
95 percent of the locks and over two years, 99.9 percent. [1998 Tr.
211-212]

    Other rulemaking participants recommended that the standard not
permit continuous examination programs (Exs. 43-10, 43-10-3, 43-10-7,
50-7, 54-30-2, 62, 64). Christine Hwang, commenting for the ILWU,
argued that under an ACEP interbox connectors would be inspected less
frequently than once per year (Ex. 43-10). Others argued that there was
no adequate way of tracing inspections performed on individual
connectors (Exs. 43-10-3, 64). For example, Douglas Getchell, speaking
on behalf of the ILWU, stated:

    Given the fact that twistlocks have no individual identification
numbers and also that batch numbers (which would be of limited
usefulness) soon become unreadable due to wear and tear, it would be
interesting to discover exactly how Sea-Land is able to know that
they have inspected 99.9% of their twistlocks. [Ex. 43-10-3]

    The ILWU also maintained that ACEP is not appropriate for
containers (where it has been used for many years) and would be even
more problematic for interbox connectors used in VTLs (Ex. 64). They
further argued that the ICHCA guidelines are problematic because they
rely on the acceptance of inspection procedures performed by entities
outside OSHA's jurisdiction (Ex. 54-30-2).
    OSHA has concluded that an ACEP does not ensure that interbox
connectors will be inspected more often than once every 12 months. In
fact, based on Michael Bohlman's testimony, it is clear that Sea-Land's
ACEP would capture only 95 percent of these devices in a 12-month
period (1998-Tr. 211-212). In addition, Mr. Bohlman's testimony
indicates that, in an ACEP, longshore workers would be the ones who do
the inspections as the interbox connectors are being used, and that
such inspections would not involve disassembly (Tr. 1-174--1-175). As
explained later in this section of the preamble, the final rule
requires inspections of the sort described by Mr. Bohlman immediately
before each VTL. Therefore, the final rule does not recognize ACEPs as
a means of compliance with the final rule's inspection requirements.
    Several labor representatives stated that the proposed annual
inspection is insufficient to ensure that interbox connectors are not
damaged or defective during use in VTLs (Exs. 43-10, 44-1, 43-10-6, 51-
4). For example, Herzl Eisenstadt, representing the ILA, stated:

    The relative risk of VTL lifts of more than two containers must
be correlated with the quality and dependability of the lift-locks
(``shoes'') that are to be used in such moves. OSHA is abundantly
aware that twistlocks * * * are connecting, rather than lifting,
devices. The pressures and forces upon lift-locks are no different
from those on [SATLs] during cross-ocean voyages. They can and do
create damages and weaknesses that are parlayed during subsequent
trips. The sooner that they are caught, the less likely that they
will set the stage for a serious accident. It is therefore all the
more imperative that properly noted and coded lift-locks be
inspected more often than annually and that the periods for their
inspection and, if need be, servicing, be readily ascertainable from
markings on the body of the device. [Ex. 44-1]

    Some commenters recommended that OSHA require inspection of these
devices immediately before use in a VTL (Exs. 43-10, 50-7, 64).
Christine Hwang, representing the ILWU, also recommended that interbox
connectors be cleaned, as follows:

    If OSHA ultimately permits SATLs or cones to be used for
purposes of hoisting containers, these locks should not only be
examined visually... but also tested for their structural integrity
and proper functioning prior to and after each and every use. In
addition to a pre-shift inspection of connectors and their
corresponding manufacturers' certification, the locks should be
thoroughly cleaned after each and every discharge. [Ex. 43-10]

    Interbox connectors and containers are subject to considerable
forces and abuse during shipping and handling (Exs. 43-8, 43-10-3, 50-
7). According to industry expert Michael Arrow, a voyage across the sea
exposes connectors and containers to greater forces than during VTLs
(Tr. 1-45, 1-150--1-151). In addition, SATLs and corner castings are
exposed to sea water, dirt, grime, snow, ice, and debris, which can
interfere with the operation of the interbox connectors and can prevent
them from fully engaging with corner castings (Exs. 43-10, 43-10-6, 47-
6, 54-28). The interbox connectors are frequently dropped (Ex. 50-7),
and containers land hard onto container truck chassis (Tr. 2-122--123).
Although Mr. Arrow insisted that SATLs have proven to be resistant to
dropping and shocks (Ex. 54-1), OSHA has concluded that the abuse and
severe stresses these devices get during shipping and handling could
damage them. OSHA has calculated the forces involved in lifting two
empty containers to be near the safe working load for interbox
connectors and corner castings. If the forces at sea are greater as the
industry witnesses claim, then it is quite likely that these devices
are commonly overloaded during transport. In addition, evidence that
interbox connectors and corner castings are subject to debris and other
contamination was uncontroverted. Thus, OSHA has determined that
interbox connectors and containers, including, in particular, their
corner castings, must be inspected immediately before being used in a
VTL.\31\ Accordingly, the final rule, in Sec.  1917.71(i)(9), requires
such an inspection. The requirement to inspect each interbox connector
to determine that it is fully functional will uncover any dirt or
debris that may hinder operation and eliminates the need for an
explicit requirement to clean these devices.
---------------------------------------------------------------------------

    \31\ As noted in section VI, ``Final Economic Analysis and
Regulatory Flexibility Analysis,'' later in this preamble, OSHA
realizes that requiring an inspection immediately before the VTL may
make ship-to-shore VTLs impractical.
---------------------------------------------------------------------------

    For the purpose of paragraph (i)(9), ``immediately before use in
the VTL'' means that the devices are inspected before the VTL takes
place but after any event that could reasonably be suspected of
damaging them. This means that the corner castings and interbox
connectors could be inspected before the VTL is assembled, and the VTL
stored in the terminal until it is ready to be loaded onto the ship.
However, if an event occurs that could have damaged a corner casting or
interbox connector (for example, a hustler colliding with an assembled
VTL), the affected corner castings and interbox connectors would need
to be reinspected. Additionally, the interbox connectors and corner
castings in vertically coupled containers that have been shipped
overseas would need to be inspected after shipment before the
containers could be used in a VTL.
    The proposal did not address inspection of containers or corner
castings. Two rulemaking participants argued that the existing ACEPs
for containers worked to ensure the quality of containers (Exs. 50-10-
3, 50-12). For example, Michael Arrow, representing USMX, stated that
``the goal of [ACEPs] is quality assurance of components on a sound
basis'' (Ex. 50-10-3). He noted that the ``ACEP option has been in
place over twenty years with safety combined with widespread acceptance
in the maritime industry'' (Ex. 50-10-3).
    Other rulemaking participants disagreed that ACEPs were adequate
and recommended that the final rule address the inspection of
containers and corner castings (Exs. 43-10, 43-10-2, 43-10-7, 44-1, 47-
4, 50-7, 54-30-2, 62). For example, Christine Hwang, representing the
ILWU, was concerned about the lack of inspection or testing
requirements for containers, stating:

    The testing and certification gap is not only devoid of common
sense, but also completely ignores the operational realities of
container operations on the waterfront. The bottoms of containers
and comer castings, which are critical to VTLs, are the most
vulnerable to structural damage and weakening due to extremely rough
handling and environmental conditions. [Ex. 43-10]

    There was testimony that, due to the way that container inspections
were performed under at least one ACEP, it was not possible to view the
bottom castings completely (Tr. 2-389--2-390). Several commenters noted
that, although the Coast Guard spot checks containers for safety, these
inspections cannot ensure the integrity of every container used in VTLs
(Exs. 43-10-2,

47-4). Other rulemaking participants argued that ACEPs are not adequate
to ensure the safety of containers and corner castings (Exs. 43-10, 43-
10-7, 62). For example, Christine Hwang, representing the ILWU, noted
that, under the ACEP, containers are only inspected 5 years after their
manufacture and every 30 months after that (Ex. 43-10).
    There is evidence in the rulemaking record that containers and
their corner castings may be damaged during use or clogged with debris
(Exs. 43-10, 43-10-4, 43-10-6, 54-28). For example, the ILWU submitted
photographs of damaged containers (Ex. 43-10-4). These containers would
be unsuitable for use in VTLs. Other commenters noted that debris, ice,
and snow could prevent interbox connectors from fully deploying,
resulting in a load-bearing surface area that was too small and
therefore potentially unsafe (Exs. 43-10, 43-10-6, 54-28). OSHA shares
the concerns of these rulemaking participants that containers and
corner castings could be used in VTLs when they are either damaged or
when the corner castings do not provide a suitable load-bearing surface
area. On the basis of the evidence that containers and corner castings
with such defects are currently in use, the Agency has concluded that
existing ACEPs are insufficient to ensure that containers and corner
castings are in a condition making them suitable for VTLs. Thus, in the
final rule, OSHA is requiring that containers and corner castings be
included in the mandatory prelift inspection.
    Some rulemaking participants argued that the standard should
require a detailed inspection, including disassembly of each interbox
connector (Exs. 50-7, 54-30-2, 64). For example, Albert Le Monnier,
commenting on behalf of the ILWU, stated that ``[a] true inspection
would require the dismantling of the SATL in order to view the internal
components'' (Ex. 50-7). Without this inspection, he maintained that
the most critical part of the interbox connector, the stem, which is
covered by a housing, would be left unexamined. He also stated that the
examination should include ultrasonic or radiographic testing as
described in the ILO Code of Practice on Security, Health and Safety in
Ports (Ex. 54-30-2).
    On the other hand, Michael Bohlman, representing USMX, testified
that a detailed inspection involving disassembly of the interbox
connector is unnecessary, stating:

    The typical lock breakage, which does happen, is the result not
of a tension load, but of a torsional load on the lock.
    For example, two containers are pried apart. When that happens,
when you start to get torsion, the bending in the shaft, the lock
will bind up. So typically, if you've got a lock that's partially
deformed, that will bind up and you won't be able to use it well
before you're going to hit a failure point in a subsequent lift
operation. Cracking, per se, in the shaft between the housing is not
an issue. [Tr. 1-175]

    Mr. Bohlman also rebutted the need for routine ultrasonic or
radiographic testing by noting that the ILO Code of Practice on
Security, Health and Safety in Ports demands such testing only ``where
appropriate'' (Ex. 54-3). He noted that the components that typically
fail are the spring and handle mechanisms.
    OSHA has concluded that, while a detailed inspection of interbox
connectors before use in a VTL is necessary, disassembly and testing of
these devices is unnecessary, as well as impractical. As Mr. Bohlman
noted, the components that fail can typically be inspected readily
without the need to disassemble an interbox connector or subject it to
laboratory testing. In addition, disassembly of the connector
introduces the possibility of improper reassembly, which could create
hazards. The Agency does not believe that the risk of introducing these
hazards is justified by the risk of cracking in areas not visible
without disassembly. Thus, the final rule requires the inspection to
ensure that interbox connectors are free from obvious structural
defects. The inspection must include a check of the physical operation
of each interbox connector to determine that the lock is fully
functional with adequate spring tension on each head and a check for
excessive corrosion and deterioration. These checks will ensure that
each interbox connector is safe for use in a VTL.
    Some commenters urged OSHA to require interbox connectors to be
marked with the date of the last inspection or the period for which it
was valid (Exs. 44-1, 51-4).
    The Agency has concluded that requiring the inspection to be
performed immediately before the VTL eliminates the need to mark
inspection periods or dates on interbox containers or containers. The
employees performing the operation will either see the inspection take
place or will be able to ask those responsible whether it has been
performed.
    The ILWU also touched on the need to train employees performing
inspections (Exs. 43-10, 43-10-3, 50-7, 64). Douglas Getchell, speaking
on behalf of the IWLU, stated that ``[o]nly the obvious wrecks are
likely to be identified by the average longshore worker'' (Ex. 43-10-
3).
    OSHA agrees that only employees trained in inspecting containers,
corner castings, and interbox connectors would be able to detect
anything other than the most obvious defects. The standard's
requirement for thorough examinations of these VTL components demands
that employees performing inspections be capable of detecting defects
or weaknesses and be able to assess their importance in relation to the
safety of VTL operations. Thus, the final rule requires this in Sec.
1917.71(i)(9)(i).
    Paragraphs (i)(9)(ii) and (i)(9)(iii)of Sec.  1917.71 in the final
rule sets the parameters that visual inspections must meet. Inspections
must include:
    1. A visual examination of each container, interbox connector, and
corner casting to be engaged with the interbox connector for obvious
structural defects. Obvious structural defects, such as those shown in
the photographs submitted by the ILWU (Ex. 43-10-4), would clearly
threaten the safety of a VTL.
    2. A check of the physical operation of each interbox connector to
determine that the lock is fully functional with adequate spring
tension on each head. Michael Bohlman stressed that this was one of the
key items an inspection should address (Tr. 1-113). If the interbox
connector is not functioning properly or if the spring tension is
inadequate, the lock may not fully engage, lowering the safe working
load of the corner casting-interbox connector assembly as noted
previously in this section of the preamble.
    3. A check for excessive corrosion and deterioration. Excessive
corrosion and deterioration can weaken containers, corner castings, and
interbox connectors (Ex. 41; Tr. 2-254).
    4. A visual examination of each corner casting to ensure that the
opening to which an interbox connector will be connected has not been
enlarged and that welds are in good condition. Defective welds can
weaken containers (Tr. 1-45, 1-266), and enlarged openings can lead to
load-bearing surface areas that are too small.
    Paragraph (i)(9)(iv) of Sec.  1917.71 in the final rule requires
the employer to establish a system to remove damaged and defective
interbox connectors from service. Paragraph (i)(9)(v) of Sec.  1917.71
in the final rule requires defective and damaged interbox connectors to
be removed from service and not used for VTLs until repaired. These
provisions were taken from the last sentence of proposed Sec.
1917.71(l)(1)(iii), which

would have required defective interbox connectors to be removed from
service. No comments were received on this provision in the proposal.
However, rulemaking participants discussed several ways of separating
damaged and defective twistlocks from good ones, including disposing of
bad ones (Tr. 2-363) or placing them in a separate bin (Tr. 1-156, 2-
125, 2-144). However, there was also evidence that longshore workers
place bad interbox connectors in bins reserved for good ones,
particularly if there was nowhere to place the defective ones (Tr. 2-
167, 2-287, 2-422). Thus, the Agency has concluded that employees need
a system in place that will enable them to separate damaged and
defective interbox connectors from good ones. Paragraph (i)(9)(iv) of
Sec.  1917.71 in the final rule adopts a requirement for employers to
establish such a system.
    Paragraph (i)(9)(vi) of Sec.  1917.71 in the final rule prohibits
lifting containers with a damaged or defective corner casting in a VTL.
The proposal had no counterpart to this requirement. OSHA has included
it in the final rule as a necessary complement to the final rule's
requirement to inspect containers and corner castings. Without such a
requirement, the inspection of containers and corner castings would not
be effective in preventing the lifting of unsafe containers. It should
be noted that existing Sec.  1917.71(g)(2) requires any intermodal
container found to be unsafe to be identified as such, promptly removed
from service, and repaired before being returned to service.
    As noted earlier, 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. The
final rule, in Sec.  1917.71(i)(10), prohibits lifting platform
containers as part of a VTL. The rationale behind this provision is
explained earlier in this section of the preamble under the issue
entitled ``Platform containers.''
6. Transporting Vertically Coupled Containers
    Paragraph (j)(j) of Sec.  1917.71 in the final rule addresses
transporting vertically coupled containers. Moving two containers on
marine terminal equipment, such as flatbed trucks and bomb carts, can
raise the center of gravity higher than the equipment was designed for,
increasing the possibility of overturning. To help prevent this,
paragraph (j)(1) requires equipment used to transport vertically
connected containers to be specifically designed to handle the
connected containers safely or evaluated by a qualified engineer and
determined to be capable of operating safely in this mode of operation.
    Proposed Sec.  1917.71(i) defined 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.'' OSHA has not included this provision in the final rule.
The intent of the proposed provision was to require a qualified
engineer (that is, one with a degree or license in a field of
engineering related to the safe design of mechanical equipment, such as
mechanical engineering) to perform the evaluation of equipment used to
transport vertically coupled containers if the equipment being used to
transport the vertically connected containers was not specifically
designed for this purpose. The final rule contains an equivalent
requirement in the text of Sec.  1917.71(j)(1).
    Safe transport of vertically connected containers and safe
operating speeds are part of the transport plan required in final Sec.
1917.71(j)(2). This paragraph requires that a written transport 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 the safety of the VTL operations. As noted