Longshoring and Marine Terminals; Vertical Tandem Lifts, 75246-75290 [E8-28644]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 73, Number 238 (Wednesday, December 10, 2008)]
[Rules and Regulations]
[Pages 75246-75290]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28644]



[[Page 75245]]

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Part III





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Parts 1917 and 1918



Longshoring and Marine Terminals; Vertical Tandem Lifts; Final Rule

Federal Register / Vol. 73, No. 238 / Wednesday, December 10, 2008 / 
Rules and Regulations

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1917 and 1918

[Docket No. S-025A]
RIN 1218-AA56


Longshoring and Marine Terminals; Vertical Tandem Lifts

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

ACTION: Final rule.

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SUMMARY: OSHA is revising the Marine Terminals Standard and related 
sections of the Longshoring Standard to adopt new requirements related 
to the practice of lifting two intermodal containers together, one on 
top of the other, connected by semiautomatic twistlocks (SATLs). This 
practice is known as a vertical tandem lift (VTL). The final standard 
adopted today permits VTLs of no more than two empty containers 
provided certain safeguards are followed.

DATES: This final rule becomes effective on April 9, 2009.

ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), the Agency 
designates Joseph M. Woodward, Associate Solicitor of Labor for 
Occupational Safety and Health, Office of the Solicitor, Room S-4004, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210, to receive petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT: For technical inquiries, contact 
Joseph V. Daddura, Director, Office of Maritime, Directorate of 
Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3621, 
200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 
693-2222. For general information and press inquiries, contact Jennifer 
Ashley, Director, Office of Communications, OSHA, U.S. Department of 
Labor, Room N-3647, 200 Constitution Avenue, NW., Washington, DC 20210; 
telephone: (202) 693-1999. For additional copies of this Federal 
Register notice, contact OSHA, Office of Publications, U.S. Department 
of Labor, Room N-3101, 200 Constitution Avenue, NW., Washington, DC 
20210; telephone (202) 693-1888. Electronic copies of this Federal 
Register notice, as well as news releases and other relevant documents, 
are available at OSHA's Web page on the Internet at https://
www.osha.gov.

SUPPLEMENTARY INFORMATION: This preamble to the final rule for VTLs in 
the Longshoring and Marine Terminals Standards discusses the events 
leading to the adoption of the standard, the necessity for the 
standard, and the rationale behind the specific provisions set forth in 
the final rule. The preamble also includes the Final Economic and 
Regulatory Flexibility Analysis, a summary of the paperwork issues 
under the Paperwork Reduction Act of 1995, and sections on other 
requirements necessary for an OSHA standard. The discussion follows 
this outline:

I. Background
II. Pertinent Legal Authority
III. International Aspects.
IV. Significant Risk
V. Summary and Explanation of the Final Rule
VI. Final Economic Analysis and Regulatory Flexibility Analysis
VII. Environmental Impact
VIII. Federalism
IX. Unfunded Mandates
X. Office of Management and Budget Review Under the Paperwork 
Reduction Act of 1995
XI. State Plan Requirements
XII. Effective Date
XIII. Authority and Signature

I. Background

A. Acronyms and Abbreviations

    The following acronyms and abbreviations have been used in this 
document:

1998-Tr. Transcript page number from the public meeting on VTLs in 
January 1998
ACEP Approved Continuous Examination Program
DOL Department of Labor
Ex. Exhibit
FEA Final Economic Analysis
ICHCA International Cargo Handling and Coordination Association
ILA International Longshoremen's Association
ILO International Labor Organization
ISO International Organization for Standardization
ISO/TC 104 ISO Technical Committee Number 104 Freight Containers
ILWU International Longshore and Warehouse Union
NEPA National Environmental Policy Act
MACOSH Maritime Advisory Committee for Occupational Safety and 
Health
NIOSH National Institute for Occupational Safety and Health
NIST National Institute of Standards and Technology
NMSA National Maritime Safety Association
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PCMSC Pacific Coast Maritime Safety Code
PMA Pacific Maritime Association
RFA Regulatory Flexibility Act
SNTRI Swedish National Testing and Research Institute
Tr. Transcript page number from the public hearing held on July 29 
(Tr. 1-page) and July 30 (Tr. 2-page), 2004
SATL Semiautomatic twistlock
TEU 20-foot equivalent unit
UMRA Unfunded Mandates Reform Act of 1995
USMX United States Maritime Alliance
VTL Vertical tandem lift

B. Introduction

    Since the 1970s, intermodalism (the containerization of cargo) has 
become the dominant mode of cargo transport in the maritime industry, 
replacing centuries-old, break-bulk cargo handling. In the marine cargo 
handling industry, intermodalism typically involves three key 
components: standardized containers with uniform corner castings; 
interbox connectors (such as SATLs) to secure the containers (to each 
other at the four corners, to the deck of the ship, to a railroad car, 
or to a truck chassis); and a type of crane called a container gantry 
crane that has specialized features for the rapid loading and unloading 
of containers. Because intermodalism is highly dependent on 
standardized containers and connecting gear, several international 
organizations have developed standards for equipment and practices to 
facilitate intermodal freight operations. This helps ensure that 
containers and interbox connectors are sized and operate properly so 
that containers and connectors from different manufacturers will fit 
together.
    The International Organization for Standardization (ISO) is a 
worldwide federation of national standards bodies whose mission is to 
promote the development of international standards to reduce technical 
barriers to trade. There are several ISO standards addressing the 
design and operational handling of intermodal containers and interbox 
connectors. In particular, ISO 3874, Series 1 Freight Containers--
Handling and Securing, addresses the size and strength of containers 
and corner castings, the size and strength of the interbox connectors, 
and proper lifting techniques. During shipment, containers above deck 
are secured by interbox connectors to each other and to the deck of the 
ship. In the conventional loading and unloading process, the container 
gantry crane lifts one container (either 6.1 or 12.2 meters long) at a 
time, using the crane's specially developed spreader beam. ISO 3874 
also addresses the lifting of two 12.2-meter containers end to end but, 
until 2003, it had not addressed the practice of VTLs. A VTL is the 
practice of a container crane lifting two or more intermodal 
containers, one on top of the other, connected by a particular type of

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interbox connector known as a semi-automatic twistlock or SATL.
    The VTL issue has been evolving for many years. The following table 
shows the progression of events:

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1986..............................  Matson Terminals, Inc., requests
                                     permission to perform VTLs, and
                                     OSHA responds with letter allowing
                                     VTLs with two empty containers or
                                     with automobiles.
1993..............................  OSHA issues a letter to Sea-Land
                                     Service, Inc., allowing VTLs with
                                     two empty containers under certain
                                     conditions.
1994..............................  OSHA publishes a proposed rule to
                                     revise the Marine Terminals and
                                     Longshoring Standards.
1997..............................  OSHA publishes the final rule
                                     revising the Marine Terminal and
                                     Longshoring Standards, reserving
                                     the VTL issue for future
                                     consideration.
                                    OSHA reopens the VTL record and
                                     announces a public meeting on the
                                     safety, risk, and feasibility
                                     issues associated with VTLs.
1998..............................  OSHA holds the public meeting on the
                                     safety, risk, and feasibility
                                     issues associated with VTLs.
2003..............................  OSHA publishes a proposed rule
                                     permitting VTLs of no more than two
                                     containers with a maximum load of
                                     20 tons.
2004..............................  OSHA holds a public hearing on the
                                     proposed rule on VTLs.
------------------------------------------------------------------------

    The issue of vertical tandem lifting was first raised to OSHA by 
Matson Terminals, Inc. In 1986, through a series of meetings and 
correspondence with OSHA (Exs.\1\ 40-1, 40-2, 40-3, 40-4, 40-5, 40-6, 
40-6-1, 40-7), Matson asked to be permitted to lift two containers at a 
time, connected by SATLs, either empty or with one or both containers 
containing automobiles. At that time, OSHA regulations did not directly 
address or prohibit this practice. The container handling regulation 
formerly in Sec.  1918.85(c) stated, ``all hoisting of containers shall 
be by means which will safely do so without probable damage to the 
container, and using the lifting fittings provided.'' \2\ In November 
1986, OSHA, in a letter to Matson (Ex. 40-8), allowed the company to 
lift containers, either empty or with one or both containers containing 
automobiles, in VTLs. The letter to Matson stated:
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    \1\ Exhibits in Docket 025A on the proposed rule on vertical 
tandem lifts (68 FR 54298-54318).
    \2\ Existing Sec.  1918.85(f) addresses the safe lifting of 
containers.

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

    In 1993, OSHA received a letter from Sea-Land Service, Inc., 
requesting that OSHA interpret its existing longshoring standards to 
allow the lifting of two empty 12.2-meter (40-foot) ISO freight 
containers that were vertically coupled using SATLs (Ex. 1). OSHA's 
standards had not changed since OSHA's letter to Matson. In its 
response, OSHA allowed Sea-Land to handle two empty containers 
vertically connected, if eight requirements were met (Ex. 2, 
hereinafter called ``the Gurnham letter''). The requirements were 
developed by OSHA's Directorate of Compliance Programs (now called the 
Directorate of Enforcement), taking into account applicable OSHA 
standards and related industry practices associated with container 
cargo handling operations. These eight requirements were: inspecting 
containers for visible defects; verifying that both containers are 
empty; assuring that containers are properly marked; assuring that all 
the SATLs operate (lock-unlock) in the same manner and have positive, 
verifiable locking systems; assuring that the load does not exceed the 
capacity of the crane; assuring that the containers are lifted 
vertically; having available for inspection manufacturers' documents 
that verify the capacities of the SATLs and corner castings; and 
directing employees to stay clear of the lifting area.
    In 1994, OSHA addressed VTLs briefly in the preamble to the 
proposed revisions to the Marine Terminals and Longshoring Standards 
(29 CFR Parts 1917 and 1918, respectively; 59 FR 28594, June 2, 1994), 
stating: ``In those situations where one container is used to lift 
another container, using twistlocks, then the upper container and twist 
locks become, in effect, a lifting appliance and must be certified as 
such'' (59 FR 28602, June 2, 1994). OSHA received comments on this 
issue only from the International Longshore and Warehouse Union (Exs. 
4, 5, 6). Although these comments favored the proposed interpretation 
and requested that the Agency include it as a requirement in the 
regulatory text, they included no specific information regarding the 
hazards of VTLs of two containers using SATLs. Sea-Land submitted a 
detailed six-page comment (Ex. 7) addressing a number of the proposed 
changes to the Marine Terminals and Longshoring Standards, but did not 
address VTLs. OSHA received a late, posthearing submission from the 
International Longshoremen's Association, however, that alerted the 
Agency to what might be a serious problem with this type of lift, 
citing several incidents at U.S. ports where failures had occurred (Ex. 
8-A). While OSHA did not rely on this letter in issuing the final rule 
because it was not a timely submission to the record, the letter made 
OSHA aware of safety concerns that might need to be addressed through 
supplemental rulemaking. Because of a lack of information on the safety 
considerations, cost impacts, and productivity effects of VTLs, as well 
as on the capability of containers and SATLs to withstand such loading, 
OSHA reserved judgment on the appropriate regulatory approach to this 
practice, pending further study (62 FR 40142, 40152, July 25, 1997).
    Until the publication of the final Longshoring and Marine Terminals 
Standards in 1997, OSHA viewed the lifting of one container by another 
container using SATLs as similar to a container spreader picking up a 
single container using the spreader's twistlocks. Although the terms 
``semi-automatic twistlocks'' and ``spreader-bar twistlocks'' appear 
similar, they refer to two very distinct items. SATLs were designed to 
connect and secure intermodal containers that are stowed on the deck of 
a vessel. They are generally made of a cast metal with a surface that 
has not been finely honed. By contrast, a spreader-bar twistlock is an 
integral part of a gantry crane's container spreader. It has a similar 
appearance to a SATL, but is made of forged metal with a machined 
surface. These twistlocks are typically locked and unlocked with 
hydraulic power and are used as part of the gantry crane to lift and 
move containers.
    In lifting the bottom container in a VTL, the upper container 
serves the same role as a container spreader on a gantry crane, and the 
SATLs perform the same function of holding the bottom container, as do 
the twistlocks on the container spreader bars.
    A gantry crane's container spreader bars are considered a ``lifting 
appliance,'' according to the International Labor Organization (ILO) 
Convention 152 Dock Work, portions of which OSHA incorporated or 
adopted in the Longshoring Standards in 29 CFR Part 1918. The ILO is a 
specialized, independent agency of the United Nations with a unique 
tripartite structure of business, labor, and government 
representatives. Its mandate is to improve working conditions 
(including safety), create employment, and promote workplace human 
rights,

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globally. Under ILO Convention 152, a lifting appliance, including the 
twistlocks, must be proof-load tested and inspected before initial use 
and periodically retested and reinspected. However, applying that same 
requirement to the VTL situation would be much more difficult to 
accomplish. It would require a specific container (the one being used 
to lift another container) and four specific SATLs to be tested and 
inspected as a unit and to remain as a unit for retesting and 
reinspection. Given the millions of intermodal containers and millions 
more SATLs used in the maritime cargo handling industry, matching a 
specific container and four SATLs for VTL use over any length of time 
is nearly impossible. In view of this impracticality, OSHA sought an 
interpretation about the matter from the ILO, which is discussed later 
in this section of the preamble.
    On October 9, 1997, OSHA reopened the VTL record with a Federal 
Register notice that also announced a public meeting, which was held in 
Washington, DC, on January 27, 1998 (62 FR 52671). At that public 
meeting, OSHA heard testimony from 25 witnesses, representing the U.S. 
Coast Guard, the ISO, national and international maritime safety 
associations, container and twistlock manufacturers, ship operators, 
stevedoring companies, and longshore unions (Ex. 22x).
    Shortly after the January public meeting, OSHA decided on a 
multifaceted approach to resolve the questions raised during the public 
meeting:
    a. Contract with the National Institute of Standards and Technology 
(NIST) to conduct engineering studies about the strength and durability 
of container corner castings and SATLs;
    b. Meet with the International Cargo Handling and Coordination 
Association \3\ (ICHCA) about international safety aspects of VTLs;
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    \3\ ICHCA is an independent, nonpolitical international 
membership organization established in 1952, whose membership spans 
some 85 countries and includes corporations, individuals, academic 
institutions and other organizations involved in, or concerned with, 
the international transport and cargo handling industry.
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    c. Meet with the ILO to clarify the ambiguity in existing 
interpretations of ILO Convention 152;
    d. Monitor the ISO deliberations regarding VTLs; and
    e. Form a workgroup within the Maritime Advisory Committee for 
Occupational Safety and Health (MACOSH) to address issues relating to 
VTLs and report back to MACOSH.
    MACOSH was chartered by the Secretary of Labor to advise OSHA on 
matters relating to occupational safety and health standards in the 
maritime industries. MACOSH members include representatives of 
employers, employees, State safety and health agencies, a designee of 
the Secretary of Health and Human Services, and other groups affected 
by maritime standards. During a MACOSH meeting held in Hampton, 
Virginia, on September 22 and 23, 1998, a VTL workgroup was formed 
consisting of the MACOSH longshore employer and employee 
representatives, with participation by many other interested 
stakeholders. Over the next several years, the VTL workgroup discussed 
VTL issues at informal working group meetings and during MACOSH 
meetings.
    On September 28, 1998, members of MACOSH's VTL workgroup met with 
ICHCA in Malm[ouml], Sweden, to discuss the VTL issue. This was 
followed by a meeting with ILO in Geneva, Switzerland. The discussion 
with the ILO focused on the issue of determining whether the components 
of a VTL (the upper intermodal container and the SATLs) are either a 
``lifting appliance'' or ``loose gear'' within the meaning of the 
relevant international standards. On October 21, 1998, an ILO official 
indicated to OSHA that the ILO considers SATLs used for lifting to be 
loose gear, and that it considers the upper container to be merely part 
of the load, rather than loose gear or a lifting appliance (Exs. 31, 
32). The significance of this decision is that as loose gear, under ILO 
Convention 152, SATLs must be tested and inspected before initial use 
and reinspected on an annual basis, and the containers have no 
additional inspection requirements. Lifting appliances, on the other 
hand, must be retested at least once every 5 years. Retesting of a 
lifting appliance in a VTL would require that a specific container and 
four specific SATLs used for VTLs be proof-load tested before initial 
use and every 5 years thereafter. As mentioned previously, this would 
be almost impossible to do.
    During a MACOSH meeting held at the U.S. Merchant Marine Academy, 
Kings Point, New York, in July 1999, Dr. H.S. Lew of NIST presented a 
report on the strength of SATLs, latchlocks (a device similar in usage 
to a SATL, but of a different design), and container corner castings 
(Ex. 40-10). Dr. Lew's study indicated that the SATLs he tested were 
very substantial with load capacities ranging from 562 to 802 kN and 
that the container corner castings were more likely to deform and fail 
before the SATLs. However, he expressed reservations about the use of 
latchlocks as interbox connectors. This particular type of interbox 
connector has a smaller bearing surface in contact with the corner 
casting. In Dr. Lew's opinion, this makes it more likely that, if the 
spring-loaded latch does not extend fully inside the container corner 
casting, it could slip through the hole in the corner casting when 
under load, such as when lifting another container. Even when the lock 
of a latchlock was fully extended, the NIST study determined that its 
surface area was insufficient to safely perform VTLs. In regard to the 
strength of SATLs, the conclusions of the NIST study were similar to a 
Swedish study (Ex. 11-6 H) that was conducted in 1997 by the Swedish 
National Testing and Research Institute. (For an extended discussion of 
these studies see the discussion of the issue titled ``Strength of the 
container-connector system'' under section O, Summary and Explanation 
of the Final Rule, later in this preamble.)
    On September 8, 2000, the U.S. delegation to ISO Technical 
Committee Number 104 Freight Containers (ISO/TC 104) held a meeting in 
Washington, DC, primarily to discuss the U.S. position on VTLs for the 
ISO biennial meeting to be held in October. After this meeting, OSHA 
sent a letter to the Chairman of ISO/TC 104 addressing concerns such as 
safety factors, the use of latchlocks, and the lack of operational 
procedures (Ex. 40-11).
    At their biennial meeting in Cape Town, South Africa, in October 
2000, the ISO/TC 104 agreed that SATLs, which previously were only used 
for securing containers, could be used to lift containers. However, 
ISO/TC 104 did not address the question of how to use SATLs safely for 
such lifting, because ISO does not issue standards for operational 
procedures. In response to safety concerns in this area, ISO/TC 104 
passed a resolution requesting that ICHCA, a member of ISO/TC 104, 
develop operational guidelines for VTLs. ICHCA agreed to work on such 
guidelines.
    In May 2002, ISO formally adopted language allowing SATLs that meet 
certain conditions to be used for lifting:

    The vertical coupling of containers that are not specifically 
designed as in 6.2.4 [ISO 3874] for lifting purposes, using 
twistlocks or other loose gear, is acceptable if forces of not 
greater than 75 kN [Footnote 1]) act vertically through each corner 
fitting, and the twistlocks or other loose gear used are certified 
[Footnote 2]) for lifting. The twistlocks or other loose gear shall 
be periodically examined. [Ex. 40-9]

    Footnote 1 stated:


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    The value of 75 kN prescribes the minimum structural capability 
of the lock/corner fitting combination. The 75 kN value includes an 
arbitrary constant wind load of 26 kN (corresponding wind speed of 
100 km/h), regardless of the size of the containers. As an example, 
the balance of the 75 kN value equates to two 1 AAA containers with 
a combined tare of 22 kN and a maximum payload of 27 kN. A practical 
upper limit of three vertically-coupled containers is also 
envisaged.

    Footnote 2 stated:

    The certification process envisaged is to use a safety factor of 
at least four based on the ultimate strength of the material.

    Essentially, this meant that, based on the strength of the SATLs 
and the containers, the ISO standard would allow VTLs to consist of up 
to three containers with a total load weight of 20 tons.
    In January 2001, as agreed to at the Cape Town meeting, an ICHCA 
VTL workgroup met in London to begin drafting operational guidelines 
for VTLs. The ICHCA workgroup finalized their VTL guidelines (Ex. 41) 
in September 2002 and received final approval by ICHCA's Board of 
Directors in January 2003. OSHA gave careful consideration to the ICHCA 
guidelines in the drafting of the proposed and final standards for 
VTLs.

II. Pertinent Legal Authority

    The purpose of the OSH Act is to ``assure so far as possible every 
working man and woman in the nation safe and healthful working 
conditions and to preserve our human resources'' (29 U.S.C. 651(b)). To 
achieve this goal, Congress authorized the Secretary of Labor to issue 
and to enforce occupational safety and health standards. (See 29 U.S.C. 
655(a) (authorizing summary adoption of existing consensus and federal 
standards within two years of the OSH Act's enactment); 655(b) 
(authorizing promulgation of standards pursuant to notice and comment); 
and 654(d)(2) (requiring employers to comply with OSHA standards)). A 
safety or health standard is a standard ``which requires conditions, or 
the adoption or use of one or more practices, means, methods, 
operations, or processes, reasonably necessary or appropriate to 
provide safe or healthful employment or places of employment'' (29 
U.S.C. 652(8)).
    A standard is reasonably necessary or appropriate within the 
meaning of section 3(8) of the OSH Act if it substantially reduces or 
eliminates significant risk; is economically feasible; is 
technologically feasible; is cost effective; is consistent with prior 
Agency action or is a justified departure; is supported by substantial 
evidence; and is better able to effectuate the Act's purposes than any 
national consensus standard it supersedes (29 U.S.C. 652). (See 58 FR 
16612, 16616 (3/30/1993)).
    A standard is technologically feasible if the protective measures 
it requires already exist, can be brought into existence with available 
technology, or can be created with technology that can reasonably be 
expected to be developed. American Textile Mfrs. Institute v. OSHA 
(ATMI), 452 U.S. 490, 513 (1981); American Iron and Steel Institute v. 
OSHA (AISI), 939 F.2d 975, 980 (D.C. Cir 1991).
    A standard is economically feasible if industry can absorb or pass 
on the cost of compliance without threatening its long term 
profitability or competitive structure. See ATMI, 452 U.S. at 530 n. 
55; AISI, 939 F.2d at 980. A standard is cost effective if the 
protective measures it requires are the least costly of the available 
alternatives that achieve the same level of protection. ATMI, 453 U.S. 
at 514 n. 32; International Union, UAW v. OSHA (``LOTO II''), 37 F.3d 
665, 668 (D.C. Cir. 1994).
    Section 6(b)(7) of the OSH Act authorizes OSHA to include among a 
standard's requirements labeling, monitoring, medical testing and other 
information gathering and transmittal provisions (29 U.S.C. 655(b)(7)).
    All safety standards must be highly protective. (See, 58 FR 16614-
16615; LOTO II, 37 F.3d at 668.) Finally, whenever practical, standards 
shall ``be expressed in terms of objective criteria and of the 
performance desired'' (29 U.S.C. 655(b)(5)).

III. International Aspects

    OSHA has developed this final rule in light of international trade 
considerations. In the Trade Agreements Act of 1979 (``TAA,'' codified 
at 19 U.S.C. 2501 et seq.), the United States implemented the Agreement 
on Technical Barriers to Trade, negotiated under the General Agreement 
on Tariffs and Trade. In particular, Congress has indicated that 
federal agencies may not ``engage in any standards-related activity 
that creates unnecessary barriers of trade'' (19 U.S.C. 2532). A 
standard is ``necessary'' in this context:

    If the demonstrable purpose of the standards-related activity is 
to achieve a legitimate domestic objective including, but not 
limited to, the protection of legitimate health or safety, essential 
security, environmental, or consumer interests and if such activity 
does not operate to exclude imported products which fully meet the 
objectives of such activity.

(19 U.S.C. 2531(b).) The TAA also requires federal agencies to take 
international standards into account in standards-related activities 
and to base their standards on the international standards, ``if 
appropriate'' (19 U.S.C. 2532(2)(A)). However, international standards 
are not ``appropriate'' if they do not adequately protect ``human 
health or safety, animal or plant life or health or the environment'' 
(19 U.S.C. 2532(2)(B)).
    Mindful of these international aspects, OSHA has sought to 
formulate a protective but flexible approach to VTLs in the final rule. 
As discussed in further detail below, OSHA's requirements for VTLs are 
consistent with the relevant provisions of ILO Convention 152 and with 
many of the provisions of the ISO standard and ICHCA guidelines.
    Several commentators suggested that deviations from the ICHCA 
guidelines and ISO standards for VTLs would create unnecessary barriers 
of trade in violation of the above provisions (Exs. 47-5; 54-2). OSHA 
does not agree. First, these commenters' positions seem to be premised 
on the assumption that there is an international consensus about 
whether to perform VTLs and how they are to be performed. OSHA finds 
that the record does not support that assumption. While two 
international bodies have addressed VTLs (ICHCA and the ISO), the ILO 
refused to adopt provisions allowing VTLs in its Code of Practice (Exs. 
47-4, 50-7, 64). Further the record suggests that VTLs are not 
performed at many ports worldwide. Submissions indicate, without 
contradiction, that VTLs are not performed in Canada, Tokyo, Rotterdam, 
Antwerp, and Russia (Tr. 2-285, 2-295; Ex. 62). Maersk stated that it 
performs VTLs in only 8-10 of its 80 ports of call (Tr. 2-127 to 128). 
ICHCA's guidelines specifically note that national legislation may 
prohibit or limit VTLs (Exs. 41, 8.1.1.2 & 8.1.1.5).
    Regardless, OSHA does not believe that limiting VTLs to two empty 
containers creates a ``barrier to trade'' under the TAA. These 
requirements are applied to vessels regardless of origin and apply to 
ships arriving from U.S. ports as well as foreign ports. OSHA's 
regulation does not discriminate, either on its face or in effect, by 
country of origin or class of shipper. As indicated in the Final 
Economic Analysis below, the claim that the final rule ``constitutes a 
barrier of trade seems to be without merit in any economic sense.''
    Moreover, even if the regulation did constitute a barrier to trade, 
it still would not be ``unnecessary'' in the sense of the TAA. As 
discussed at length in the Summary and Explanation, OSHA has given 
extensive

[[Page 75250]]

consideration to the question of the safety of VTLs, and it has 
determined that the limitations in the final rule are necessary to 
protect workers from the significant risk of death or injury inherent 
in the procedure. Thus, in the terms of the TAA, ``the demonstrable 
purpose'' of the final rule is ``to achieve a legitimate domestic 
objective including, but not limited to, the protection of legitimate 
health or safety * * * interests'' (see 19 U.S.C. 2531(b)). Therefore, 
the final rule complies with the TAA.
    OSHA has also given consideration to the relevant international 
standards in the area, as required by the TAA (see 19 U.S.C. 2532(2)). 
Articles 21 through 27 of ILO Convention 152 contain international 
standards for vessel cargo handling gear, which are intended to protect 
dockworkers. The United States is not a signatory to either this 
convention or its predecessor, ILO Convention 32. However, it has 
nonetheless conformed to them through regulations promulgated by the 
U.S. Coast Guard, regarding inspected U.S. flag vessels, and by OSHA, 
regarding other vessels (62 FR 40152). In particular, in its latest 
revisions to its Longshoring Standard, OSHA updated its vessel cargo 
handling gear certification requirements to conform to Convention 152's 
requirements (62 FR 40151-54; 29 CFR 1918.11).
    VTLs were not used at the time that Convention 152 was drafted, 
(Tr. 1-207), and as noted above, there was substantial uncertainty 
about how it applied to this procedure at the time OSHA revised its 
Longshoring Standard in 1997 (see 62 FR 40152-53). This engendered 
substantial study of VTLs, both by OSHA and the international 
community, as detailed elsewhere in this preamble. The result of this 
study is that, although the ILO has since clarified that twistlocks 
used in VTLs are loose gear under Convention 152, VTLs represent a 
unique cargo operation. The rules and guidance developed by ICHCA and 
ISO TC 104 reflect an adaptation of Convention 152's loose gear rules 
for VTLs, given the particular safety issues they pose, rather than a 
direct application of its requirements. Thus, for example, where the 
convention at Article 23 requires that loose gear to be ``thoroughly 
examined and certified'' every twelve months, ISO 3874 Amend. 2 
requires only that twistlocks used in lifting be ``periodically 
examined'' (Ex. 40-9), and ICHCA would allow for a continuous 
inspection program of such twistlocks (Exs. 41, 8.1.3.3.3 & 8.1.3.3.4).
    The final rule takes the same approach towards the convention in 
formulating rules for VTLs. In most respects--such as keeping 
twistlocks in good repair and working order, testing and certification 
before initial use, marking, and inspection before each use--the final 
rule's requirements are consistent with the convention's. The only 
significant departure is in the area of the annual thorough examination 
required by Article 23. Rather than require an annual thorough 
examination, OSHA has determined that all the necessary elements of a 
thorough examination of a twistlock may be performed before each lift 
(see Summary and Explanation below). It has thus required that these 
examinations to be performed before each lift and this has rendered an 
annual thorough examination and certification unnecessary. If anything, 
OSHA's approach may be more protective than that required by the 
convention.
    Convention 152 itself allows variances if the change in question is 
not less protective (Art. 2.2; Ex. 41, 5.2.6), and as noted above, 
several international bodies have made their own departures from the 
annual thorough examination and certification requirement in this 
context. ICHCA has noted that under the convention: ``It is understood 
that some countries may impose a higher standard,'' (Ex. 41, 5.2.6), 
and some countries have already done exactly that (62 FR 40154). OSHA 
believes that the final rule is within the letter and spirit of ILO 
Convention 152, and it is therefore continuing its practice of 
maintaining consistency with the convention.
    OSHA also considered ISO 3874 and the ICHCA VTL guidelines in the 
formulation of this final rule. While consistent in some ways with 
these documents, the final rule differs from them in at least two 
significant aspects: It allows VTLs only of empty containers, and it 
allows VTLs of only two containers--three container VTLs are 
prohibited. Nonetheless, this result is consistent with the TAA. As 
comprehensively explained in the Summary and Explanation, the record 
shows that ICHCA and ISO TC 104 used assumptions (e.g., the number of 
twistlocks engaged in a VTL and the acceleration forces experienced at 
the beginning of the lift) that did not adequately represent the forces 
experienced by corner castings and twistlocks in use. OSHA has used 
more appropriate assumptions in formulating its final rule. Therefore, 
OSHA has determined that for the purposes of the TAA, ISO 3874 Amend. 2 
and the ICHCA guidelines (to the extent they may be considered an 
``international standard'' for purposes of the TAA) are not 
``appropriate'' standards upon which to base this final rule because 
they do not adequately protect ``human health or safety, animal or 
plant life or health or the environment'' (19 U.S.C. 2432(2)(B)).

IV. Significant Risk

    An issue in any OSHA rulemaking is significant risk. In its Notice 
of Proposed Rulemaking (NPRM), the Agency preliminarily concluded that 
the procedures required in the proposal would substantially reduce the 
risk to employees of performing VTLs (68 FR 54298, 54302, September 16, 
2003). Mr. Ronald Signorino, who testified at the July 29-30, 2004, 
hearing on the proposed rule on VTLs as a member of a panel 
representing the United States Maritime Alliance (USMX), remarked that, 
before OSHA promulgates a standard, it must find that a significant 
risk is present and can be eliminated or lessened by a change in 
practice (Ex. 54-2). He argued that the Agency had not made that 
threshold finding, as follows:

    There is no evidence in the record which establishes that VTL[s] 
are unsafe and that operational limitations over and above those 
appearing within international standards and guidelines are 
warranted. [Ex. 54-2]

    As Mr. Signorino noted, the Supreme Court has held that before OSHA 
can promulgate any permanent health or safety standard, it must make a 
threshold finding that significant risk is present and that such risk 
can be eliminated or lessened by a change in practices (Industrial 
Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 
641-42 (1980) (plurality opinion)). The Supreme Court ruled that, 
before OSHA can issue a new standard, the Agency must find that the 
hazard being regulated poses a significant risk to workers and that a 
new, more protective, standard is ``reasonably necessary and 
appropriate'' to reduce that risk. The requirement to find a 
significant risk does not mean, however, that OSHA must ``wait for 
deaths to occur before taking any action,'' Id. at 655, or ``support 
its findings with anything approaching scientific certainty.'' Id. at 
656. ``[T]he requirement that a `significant' risk be identified is not 
a mathematical straightjacket.'' Id. at 655.
    The Act allows OSHA considerable latitude to devise means to reduce 
or eliminate significant workplace hazards. Clearly, OSHA need not make 
individual quantitative or qualitative risk findings for every 
regulatory requirement in a standard. Once OSHA has determined that a 
significant risk of

[[Page 75251]]

material impairment of health or well being is present, and will be 
redressed by a standard, the Agency is free to develop specific 
requirements that are reasonably related to the Act's and standard's 
remedial purpose. OSHA standards are often designed to reduce risk 
through an integrated system of safety practices, engineering controls, 
employee training, and other ancillary requirements. Courts have upheld 
individual requirements based on evidence that they increase the 
standard's effectiveness in reducing the risk posed by significant 
workplace hazards. See Forging Indus. Ass'n., 773 F.2d at 1447-1452 
(finding ancillary provisions of hearing conservation standard, 
including requirements for audiometric testing, monitoring, and 
employer payment for hearing protectors, reasonably related to the 
standard's purpose of achieving a safe work environment); United 
Steelworkers, 647 F.2d at 1237-1238 (finding lead standard's medical 
removal protection provisions reasonable).
    While OSHA often uses fatality, injury, and illness reports and 
statistics to support its findings of significant risk, the finding of 
significant risk does not strictly require a history of injury. As Mr. 
Signorino noted, there is no evidence in the record of this rulemaking 
showing a worker injury due to VTL, despite the thousands of lifts that 
have occurred in the U.S. since 1986. However, evidence in the record 
does support a finding of significant risk for unregulated VTL 
operations. First, and foremost, as described in detail later in this 
preamble,\4\ numerous VTL accidents have occurred in which employees 
were not injured. There is substantial evidence, discussed in more 
detail later in this preamble, that not all interbox connectors 
properly engage in VTLs, creating the risk of partial or complete 
separations. And the record contains evidence of at least nine VTL 
separations in the United States and Canada over the past 15 years, 
which are detailed later in this preamble. Any one of these accidents 
could have resulted in injury to or death of one or more employees. It 
was simply good fortune that worker injury was avoided. As the Supreme 
Court noted, OSHA need not ``wait for deaths to occur before taking any 
action,'' American Petroleum Institute, 488 U.S. at 655.
---------------------------------------------------------------------------

    \4\ See the discussion of the issue titled ``Strength of the 
container-connector system'' under section V, Summary and 
Explanation of the Final Rule.
---------------------------------------------------------------------------

    Second, the industry has acknowledged that VTLs are riskier than 
single lifts. As discussed in the background section of the ICHCA 
guidelines, ISO Technical Committee 104 recognized that there were 
potential hazards associated with VTL operations, and the committee 
asked ICHCA to develop a comprehensive document to deal with all 
aspects of VTL operations (Ex. 41). This acknowledgment was reinforced 
by the comments of Jimmy Burgin on behalf of the National Maritime 
Safety Association (NMSA) and the Pacific Maritime Association (PMA), 
who stated, ``As an initial matter the TC [NMSA technical committee] 
recognized that VTL operations are different, and must be treated 
differently than, normal single container lifts'' (Ex. 50-9). In 
addition, several individual companies testified that they follow the 
ICHCA guidelines to help assure the safety of VTL operations (see for 
example, Tr. 2-103), and some companies supplement the ICHCA guidelines 
with additional procedures to assure safe VTL handling (see for 
example, Tr. 2-128).
    Third, the handling of individual containers has been determined in 
previous rulemakings to include risk (62 FR 40142-40144). The lifting 
of two or more containers cannot be less risky. VTLs introduce 
additional risk because more equipment can fail (twistlocks, corner 
castings, the container itself), the loads have a greater sail area 
that can be affected by wind, the loads have more sway, and VTLs are 
more difficult to transport on the ground. Also, compared to single 
lifts, the greater bulk of VTLs obscures more of the crane operator's 
view and thus potentially increases the likelihood of accidents. 
Finally, the safe transport of oversize loads and containers is 
recognized to require special procedures by other transportation 
interests, such as railroads and highway authorities (see, for example, 
43 Texas Administrative Code, Chapter 28, Subchapters A-G).
    Fourth, as discussed in detail in the next section of this 
preamble, OSHA's analysis of the strength of the components involved in 
VTLs demonstrates that lifting loaded containers in a VTL or lifting 
more than two containers in a VTL poses a significant risk of failure. 
It is widely a recognized engineering practice to impose sufficient 
factors of safety to ensure the safe lifting of cargo. An inadequate 
safety factor would result in significant risk. Without regulation, the 
Agency believes that employers would have an economic incentive to lift 
larger loads in VTLs, either by lifting loaded containers or by lifting 
more than two vertically coupled containers at the same time, thus 
reducing the safety factor to unacceptable values and causing a 
significant risk.
    Thus, OSHA finds that VTLs pose a significant risk of injury to 
workers. The Agency notes that this finding of significant risk is 
proactive rather than reactive. It anticipates the possibility of 
injury and death that could result from VTLs conducted without special 
safety precautions and will regulate those problems before a worker is 
injured or killed.
    OSHA also concludes that the final rule will substantially reduce 
that risk. Currently, employers are performing VTLs under the Gurnham 
letter (Ex. 2), which permits VTLs under conditions similar to those 
contained in the final rule. Several rulemaking participants, including 
Dennis Brueckner, representing the International Longshore and 
Warehouse Union (ILWU) Coast Safety Committee, testified that employers 
were not meeting the conditions set out in that letter when conducting 
VTLs (Tr. 2-369, 2-386, 2-407--2-408). By promulgating this final rule, 
the Agency anticipates that the percentage of employers complying with 
these conditions will increase.
    Furthermore, the final rule includes additional provisions ensuring 
that interbox connectors are sufficiently strong so that they 
withstand, without failure, the forces that may be imposed during a VTL 
and provisions ensuring that inspections of interbox connectors, corner 
castings, and containers are conducted immediately before the lift. By 
ensuring that this equipment is adequately strong and in good condition 
immediately before a VTL, the final rule will substantially reduce the 
probability of failure and resulting accidents and injuries.

V. Summary and Explanation of the Final Rule

    This section of the preamble discusses the important elements of 
the final standard and explains the purpose of the individual 
requirements. This section also discusses and resolves issues raised 
during the comment period, significant comments received as part of the 
rulemaking record, and any substantive changes that were made from the 
proposed rule. References in parentheses are to exhibits in the 
rulemaking record (Ex.) or to page numbers in the transcript of the 
public hearing held on July 29 and 30, 2004 (Tr.) or the Agency's 
public meeting on VTLs in January 1998 (1998-Tr.).\5\

[[Page 75252]]

 Except as noted, OSHA is carrying forward the language from the 
proposal into the final rule without substantive differences.
---------------------------------------------------------------------------

    \5\ Exhibits 100-X, 101-X, 102-X, and 103-X contain the 
transcripts for the 2-day hearing. Volume 1 (Tr. 1-page) is the 
transcript for July 29, 2004, and Volume 2 (Tr. 2-page) is the 
transcript for July 30, 2004.
---------------------------------------------------------------------------

A. Strength of the Container-Connector System

    OSHA originally proposed (68 FR 54298) to permit VTLs, that is, the 
lifting of two partially loaded intermodal containers, one on top of 
the other, connected by semi-automatic twistlocks or other interbox 
connectors under certain stated conditions. The proposal would have 
allowed VTLs with a maximum total weight of 20 tons (combined weight of 
the containers and cargo). The proposal also imposed a safe working 
load requirement for interbox connectors used in VTLs, based on ICHCA 
recommendations, of 10,000 kg.
    Several rulemaking participants strongly objected to OSHA's 
proposal to permit VTLs of two partially loaded containers (Exs. 8A, 
10-1, 11-1B, 11-1C, 11-1G). These rulemaking participants submitted 
considerable evidence on the safety of VTLs. In light of these 
objections and this evidence, OSHA has reconsidered the basis on which 
the Agency preliminarily concluded that lifting two partially loaded 
containers in tandem is safe.
    After considering all of the evidence in the record, OSHA has 
concluded that the safety of VTLs can only be ensured under ICHCA's 
safe working load requirements when a maximum of two empty containers 
are lifted. Evidence submitted to the record reveals that a sufficient 
margin of safety does not exist, in all situations, when a combined 
load of up to 20 tons is hoisted in a VTL. In particular, operational 
considerations and dynamic forces limit the maximum load that can be 
safely lifted, as discussed fully later in this section of the 
preamble.
    In a VTL, the uppermost container, its bottom corner castings, the 
interbox connectors, and the upper corner castings of the next lower 
container must be capable of supporting whatever loads are imposed by 
containers below the top one. Similarly, if more than two containers 
are lifted at a time, the intermediate containers, corner castings, and 
interbox connectors must be capable of supporting all loads below them. 
Thus, the strength of the container itself and the interbox connector-
corner casting assembly is a key issue in the determination of whether 
VTLs are safe and, if so, under what conditions.
    Drawings of a semi-automatic twistlock and the connection between 
twistlocks and corner castings are shown in Figure 1 and Figure 2. It 
should be noted that the load-bearing surface area is limited to the 
overlap between the flat surface of the cone of the twistlock and the 
inside surface of the corner casting at the top or bottom of the 
opening. The load-bearing surface area is shown in Figure 3.

BILLING CODE 4510-26-P

[[Page 75253]]

[GRAPHIC] [TIFF OMITTED] TR10DE08.000

BILLING CODE 4510-26-C
    An explanation of basic strength of materials theory will clarify 
the underlying principles on which OSHA is basing its determination in 
this rulemaking.\6\ These principles govern how materials react to 
external forces imposed on them. To simplify the discussion and avoid 
the need for the conversion of units between systems, the Agency is 
using the International

[[Page 75254]]

System of Units exclusively in this discussion and in the analysis of 
the record that follows.
---------------------------------------------------------------------------

    \6\ The explanation of strength of materials theory is 
consistent with the discussion of this topic in Ex. 65-2. The 
information in this discussion is widely recognized material 
science.
---------------------------------------------------------------------------

    Stress is a measure of force per unit area within an object. It is 
the object's internal distribution of force per unit area that reacts 
to external applied loads. In the following discussion, stress is 
measured in newtons per square meter (N/m\2\).
    Strain is an expression of the deformation caused by the action of 
stress on an object. It is a measure of the change in size or shape of 
the object. In the following discussion, strain is unitless, though the 
amount of strain is sometimes given as a percent.
    Stress may be applied to a material in a number of ways, including 
tension, compression, and shear. Compressive stress is stress applied 
so as to compress the material. Shear stress is stress applied parallel 
or tangential to the face of the material. Tensile stress, which is the 
primary concern in this rulemaking, is stress applied to pull a 
material apart. This is the predominant type of stress that a twistlock 
experiences during a VTL. The corner casting also experiences 
compressive and shear stress.
    When material is stressed by the application of a tensile force, it 
will stretch and, when the stress is removed, return to its original 
size and shape as long as the stress is below the yield strength of the 
material. When the applied stress exceeds the yield strength of the 
material, it permanently deforms. When the stress exceeds the ultimate 
strength of the material, it catastrophically fails, or ruptures. A 
typical stress-strain curve is depicted in Figure 4.
[GRAPHIC] [TIFF OMITTED] TR10DE08.001

    To limit the forces on a component to a safe level, engineers 
usually set a maximum stress limit on the material at a value much less 
than its yield strength. This is done using maximum rated loads and 
safety factors. A maximum rated load is the highest load permitted to 
be carried by the component. A safety factor is the ultimate 
strength\7\ of a material divided by its maximum rated load. A 
sufficient safety factor will ensure that forces on the component do 
not approach its yield strength. The appropriate size of the safety 
factor to be employed is established by engineering judgment and is 
typically based on such factors as: The accuracy of load estimates, the 
consequences of failure, the possible effects of wear, and the cost and 
technological feasibility of overdesigning the component. For interbox 
connectors, the cost and technological feasibility of overdesign is not 
a consideration because, as described in more detail later, the design 
of at least some SATLs currently on the market have sufficient strength 
to provide an adequate safety factor (Ex. 40-10). In general, the 
safety factor is adjusted upwards to account for increasing uncertainty 
about the loads and forces imposed by real-world conditions.
---------------------------------------------------------------------------

    \7\ As noted earlier, the ultimate strength is the maximum 
stress a material can withstand before failure, and stress is 
measured in N/m\2\. However, when dealing with components, the 
cross-sectional area is constant, and loads (in N) are usually 
substituted in the calculation of safety factors.
---------------------------------------------------------------------------

    ISO Technical Committee on Freight Containers, Technical Committee 
104, develops international standards for the design and testing of 
freight containers and for container handling and securing (Ex. 41). 
Standards under the purview of ISO/TC 104 deal with structural issues 
that relate to the ability of a freight container to be handled and 
safely transported (Ex. 41). Table 1 lists the relevant ISO/TC 104 
standards that relate to VTLs.

[[Page 75255]]



                 Table 1--ISO Standards Relevant to VTLs
------------------------------------------------------------------------
       ISO standard No.                          Title
------------------------------------------------------------------------
ISO 668:1995.................  Series 1 freight containers--
                                Classification, dimensions and ratings.
ISO 1161:1984 (Ex. 11-6B)....  Series 1 freight containers--Corner
                                fittings--Specification.
ISO 1161:1984/Cor. 1:1990      Technical corrigendum 1:1990 to ISO
 (Ex. 11-6B).                   1161:1984.
ISO 1496-1:1990 (Ex. 11-6D)..  Series 1 freight containers--
                                Specifications and testing--Part 1:
                                General cargo containers for general
                                purposes.
ISO 1496-1:1990/Amd. 1:1993..  Amendment 1:1993 to ISO 1496-1:1990, 1
                                AAA and 1 BBB containers.
ISO 1496-1:1990/Amd. 2:1998..  Amendment 2:1998 to ISO 1496-1:1990.
ISO 3874:1997 (Ex. 11-6C)....  Series 1 freight containers--Handling and
                                securing.
ISO 3874:1997/Amd. 1:2000....  Amendment 1:2000 to ISO 3874:1997,
                                Twistlocks, latchlocks, stacking
                                fittings and lashing rod systems for
                                securing of containers.
ISO 3874:1997/Amd. 2:2002      Amendment 2:2002 to ISO 3874:1997,
 (Ex. 40-9).                    Vertical tandem lifting.
------------------------------------------------------------------------
Source: Ex. 41.

    ISO 1161 sets detailed specifications for the dimensions, design, 
and strength of corner castings. The design requirements in this 
standard call for top corner castings to have design loads for lifting 
of 150 kN. Bottom corner castings are in most significant respects 
identical to top corner castings. Therefore, they can be expected to 
have the same strength.
    ISO 1496-1 sets specifications for Series 1 freight containers. The 
requirements in this standard ensure that such containers are 
adequately strong for the lifting and in-use conditions they are likely 
to experience.
    ISO 3874 sets requirements for the dimensions and strength of 
twistlocks. This standard requires twistlocks to have a minimum load-
bearing surface of 800 mm\2\ and, for those used for lifting, to be 
capable of withstanding a tensile force of 178 kN without any permanent 
deformation. The test used to determine compliance with the tensile 
strength requirement must be made using two corner castings or 
equivalent devices.
    OSHA had relied on two studies, a Swedish National Testing and 
Research Institute's (SNTRI) study, ``Container Lashing'' (Ex. 11-6H), 
and a NIST study, ``Strength Evaluation of Connectors for Intermodal 
Containers'' (Ex. 40-10), to support its proposal. The Swedish study 
focused primarily on the ability of containers, interbox connectors, 
and lashing equipment to withstand the forces likely to be imposed 
while being transported aboard a vessel. However, both studies 
evaluated the strength of interbox connectors and corner castings.
    The NIST study included site visits to port facilities and 
laboratory tests of interbox connectors. At the time of the NIST study, 
approximately 12 manufacturers produced most of the interbox connectors 
used by the shipping industry. NIST contacted U.S. representatives of 
eight manufacturers, and four provided interbox connectors for testing. 
For the failure load test of connector shafts loaded in tension, two 
new interbox connectors were used from each of the four manufacturers, 
and two used interbox connectors were used from two of the four 
manufacturers, for a total of 12 interbox connectors.
    Test specimens included semi-automatic twistlocks and latchlocks. 
The engineering study included the testing of twistlocks in tension, 
twistlock and latchlock assemblies with corner castings in tension and 
compression, and shafts of twistlocks in tension to obtain the stress-
strain relationship. In addition, NIST measured the bearing surface 
areas of the top and bottom cones of twistlocks and latchlocks on the 
inner surfaces of the corner castings.
    The NIST study revealed that the ultimate tensile loads \8\ of the 
twistlock shafts tested ranged from 562 to 802 kN. The SNTRI study 
reported similar test results in 1997, with ultimate tensile loads 
ranging from 477 to 797.1 kN.\9\ Although a limited number of used 
connectors were tested in the NIST study, the test results indicated 
that, when their respective shafts were loaded in tension, the used 
twistlocks withstood a greater test load than the new twistlocks (Ex. 
40-10). The study also indicated that the strength of a twistlock-
corner casting assembly was lower than that of a twistlock alone. The 
maximum test loads for twistlock-corner casting assemblies ranged from 
408 to 710 kN, or roughly 80 percent, on average, lower than the 
ultimate strength of the twistlock shaft alone. The report described 
the reason for this as follows:
---------------------------------------------------------------------------

    \8\ The ultimate tensile strength of a material is the maximum 
unit stress that a material can withstand when subjected to an 
applied load in a tension test. Because stress is force (the load) 
divided by the cross-sectional area, the ultimate tensile stress is 
proportional to the maximum tensile load applied to a test specimen 
during the test. This load is known as the ultimate tensile load.
    \9\ The Swedish study tested only three semi-automatic 
twistlocks. Furthermore, the tensile tests were limited to SATLs 
alone; they were not performed on SATL-corner casting combinations.

    [T]he capacity of the assembly is limited by failure of the 
corner fitting. Failure was brought about by large permanent 
deformations of the aperture of the corner fitting and/or shearing 
at the perimeter of the aperture * * * A relatively small bearing 
area of the cone on the corner fitting caused a concentration of 
force near the edge of the aperture, and as a result, the edge of 
the cone sheared through the top plate of the corner fitting.\10\ 
---------------------------------------------------------------------------
[Ex. 40-10]

    ISO 3874 requires that the load-bearing area between a twistlock 
and a corner casting be a minimum of 800 mm\2\. Because stress 
increases with decreasing cross-sectional area, the bearing area is 
critical to the ability of the interbox connector to withstand lifting 
loads. The NIST study showed that the measured bearing area of 
latchlocks tested on the corner casting was less than that given in ISO 
3874. Furthermore, the report stated that the maximum test load for a 
latchlock-corner casting assembly was as low as 90 kN when the latch 
was not fully extended. For these reasons, OSHA has concluded that 
latchlocks are not suitable connectors for VTLs. The report also noted 
that three of the six twistlocks also failed to meet the ISO provisions 
on minimum load-bearing area with the largest acceptable opening on a 
corner casting (these openings are a maximum of 65.0 mm wide). Because 
the strength of the twistlock-corner casting assembly depends on this 
load-bearing area, as described in the NIST report, the final rule 
requires twistlocks used in VTLs to be certified as having a minimum 
load-bearing surface area of 800 mm\2\ when connected to a corner 
casting with an opening of the maximum width permitted by the ISO 
standard (65.0 mm).
---------------------------------------------------------------------------

    \10\ It should be noted that the twist lock-corner casting 
combination failing with the smallest tensile load (408 kN) failed 
when the cop cone pried off the shaft of the twistlock.

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

[[Page 75256]]

    A number of rulemaking participants, including the Institute of 
International Container Lessors, the Carriers Container Council, Inc., 
and the USMX, argued that VTL operations were safe up to a total load 
of 20 tons and, in that sense, supported the proposal (Exs. 10-4, 10-5, 
10-6, 36, 37, 47-2-1, 50-12, 54-1-1, 54-2, 54-3, 65-3). In support of 
their position that VTLs are safe, two of these commenters stated that 
they were unaware of any reported injuries resulting from lifting 
vertically coupled containers (Exs. 10-5, 10-6). For example, the 
---------------------------------------------------------------------------
Carriers Container Council, Inc. (Ex. 10-6), said:

    The fact that there has not been one reported injury as a result 
of this practice is evidence that the precautions being applied by 
terminals performing these lifts are sufficiently protective.

    On the other hand, there have been documented VTL events and 
accidents in the Port of Charleston, South Carolina, in Honolulu, 
Hawaii, and in Houston, Texas (Exs. 8-A, 11-1-B, 11-1-H, 11-1-K, 11-1-
M, 11-3, 11-3-A, 11-3-B, 43-10, 45-1, 61, 62). The International 
Longshoreman's Association reported that at the Port of Charleston, two 
12.2-meter refrigerated containers became uncoupled while in midair 
(Exs. 8-A, 11-1-B, 11-1-K, 11-1-M, 11-3-A, 11-3-B, 43-10). The ILA also 
reported two incidents at this port in which the bottom 12.2-meter 
container of a three-container VTL released in midair (Exs. 11-1-K, 43-
10). The ILWU reported two midair separations of the bottom container 
of two-container lifts in Honolulu, resulting in the lower container 
crashing to the dock or the deck of the ship, respectively (Exs. 11-1-
B, 11-1-H, 43-10, 62). One of these VTLs comprised loaded containers; 
the other appears to have been empties (Exs. 11-1-H, 62). The ILWU also 
provided testimony about an event in Canada in which a two-container 
VTL carrying loaded twistlock bins separated when all four of the 
twistlocks connecting them broke (Tr. 2-285--2-286, 2-333--2-335).
    APM/Maersk reported a VTL separation occurring in Houston while 
employees were loading a barge with empty containers, in which two 
twistlocks broke during a lift, causing the bot