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V. Other Issues

1. OSHA raised as an issue the possible harmful effects of diesel exhaust on marine cargo handling employees, especially those employees who work Ro-Ro vessels where exposure to such exhaust is probably the greatest. In response to questions raised during the hearings, NIOSH provided the following data in a post hearing submission:

   Recent animal studies in rats and mice confirm an association between the induction of cancer and exposure to whole diesel exhaust. The lung is the primary site identified with carcinogenic or tumorigenic responses following inhalation exposures. Limited epidemiologic evidence suggests an association between occupational exposure to diesel engine emissions and lung cancer. The consistency of these toxicologic and epidemiologic findings suggests that a potential occupational carcinogenic hazard exists in human exposure to diesel exhaust. (Ex. 81.)

   Although studies have been conducted concerning the effects of diesel exhaust by the Mine Safety and Health Administration (MSHA) in the mining industry, no specific studies relating to the longshoring industry had been completed when OSHA published this final rule. Diesel exhaust particulates, which have been identified by OSHA as a priority for further study by the Priority Planning Process, may be the subject of a future rulemaking, during which OSHA anticipates the availability of more conclusive scientific data. Consequently, OSHA has decided to defer any regulatory action on this issue in this rulemaking.

2. Prior to the proposal, OSHA learned of accidents reported in West Coast ports that were associated with picking up the chassis and fifth wheel ⁽⁹⁾ along with the container (due to the failure of the container and chassis to separate during a loading operation). However, OSHA did not have information regarding: (1) the frequency of occurrence of such accidents, (2) the availability, effectiveness, and feasibility of devices which would shut the crane down once the device detects the fifth wheel being raised off the ground, and (3) the existence of other ways to eliminate the problem (such as better "monitoring" of the chassis twist locks under the hook through training and work practices, or requiring the driver to get out of the cab until the container is lifted clear of the chassis). Due to this lack of information, OSHA raised this issue in the proposal.

   In response, OSHA received one comment from a manufacturer of safety devices that prevent the inadvertent lifting of the fifth wheel with the container. These devices shut down the container gantry crane when they detect the uneven balance to the load that occurs when a fifth wheel is lifted. The experience of this commenter suggests that administrative work practices are not fully effective (Ex. 6-3).

   This issue received very little attention during the hearings and public comment period. However, OSHA believes that the wider use of SATLs will help to prevent accidents caused by the inadvertent lifting of the chassis and container together. When SATLs are being used, as explained earlier, the longshore workers remain on the quay to place the SATLs on the bottom of the container after it is lifted only a foot or two off the chassis. In contrast, when manual twist locks are in use, they are inserted on the ship; lifts of the container from the chassis in this situation are usually much quicker and much higher, since the crane operator does not have to stop after a foot or two to allow the SATLs to be inserted. Although a lift of this magnitude is enough to allow the fifth wheel to disengage and depart, the lift would not be a substantial lift of twenty to fifty feet, but a limited lift of only a few feet. With a two foot lift, even if the chassis does not disengage from the container, the injury potential would be greatly reduced. Because this rulemaking will increase the use of SATLs in this industry, OSHA has decided not to take any further regulatory action on the fifth wheel hoisting issue at this time. It is OSHA's intention to monitor the frequency of this operation further and engage in joint studies with the assistance of the Maritime Advisory Committee for Occupational Safety and Health (MACOSH) to assess the need to address such accidents in the future.

3. Specific questions were raised in the proposal to elicit information OSHA believed would be helpful in determining appropriate elements for comprehensive occupational safety and health (COSH) programs in the marine cargo handling industry. Although this is an industry that, historically, has been in the forefront in the development of safety and health programs (particularly safety training programs), several commenters argued that OSHA should not promulgate rules governing COSH programs (Ex. NMSA et al.). The employee participation element of such programs was also discussed at length at the Seattle hearing (SEA Tr. pp. 435-436). Several responders (Exs. 6-5, 6-20, 6-23, and 6-25) opted not to comment at this time but stated that they would reserve comment until a future rulemaking specifically on this subject. OSHA will continue to review all available information in determining the need for and contents of the proposed requirements for safety and health programs in this industry.

4. In the proposal, OSHA sought information on hazards related to the increased usage of newly developed Flexible Intermediate Bulk Containers (FIBC's) used to handle bulk chemicals. Although several commenters (Ex. NMSA et al.) acknowledged the increased use of FIBCs, their experience with this type of container did not uncover any unique hazards that had not already been addressed in the Longshoring Standard. In addition, Mr. Signorino of Universal Maritime Service Corporation, pointed out that the Department of Transportation, Research and Special Programs Administration (RSPA) already has regulations (59 FR 38040) that address the safe transport of hazardous materials in such containers (Ex. 6-35). OSHA has thus concluded that the Agency does not need to pursue regulatory action at this time.

5. OSHA issued a standard for the control of hazardous energy sources (lockout/tagout) that applies to general industry employment (29 CFR 1910.147 (54 FR 36645)). This standard addresses practices and procedures that are necessary to disable machinery or equipment and to prevent the release of potentially hazardous energy while maintenance and servicing activities are being done. The standard requires that lockout be used for equipment designed with a lockout capacity, and allows tags to be used to "tag out" equipment that was not designed to be locked out. Marine terminal activities involve work operations (e.g. container repair shops and warehouses) where lockout/tagout hazards are present and are similar in nature to those posed by General Industry repair shop and warehouse operations. Many commenters (Exs. 6-35, 6-16c) contended that the current Marine Terminals Standard contains requirements (most broadly applied in 1917.151(b)(7)) for lockout/tagout that are more protective than those in the General Industry Standard, and that these requirements should be applied to longshoring operations.

   For the most part, repairs to shipboard equipment are normally accomplished by the crew of the vessel and are only infrequently performed by longshore workers. However, to provide protection in those instances where longshore workers may do repairs that would require the locking out of equipment, and to assure regulatory consistency with marine cargo handling operations, OSHA is including the same lockout/ tagout provisions of 1917.151(b)(7) in the Longshoring Standards (codified at 1918.96(e)).

6. As indicated earlier, OSHA contracted with a safety expert, A.J. Scardino, to conduct a study of the fall hazards associated with the cargo handling of intermodal containers. In his study, he recommended:

   * * * that the location of the fixed anchorage point in relation to the working surface shall be located "above" the head of the employee. Every effort should be made to assure that the attachment point for the system is located no lower than the vertical height position of the harness "D" ring. According to "Humanscale 7a", for the 50th percentile male, this would be 1.4 meters (55.4 inches). (Ex. 1-139.)

   He further recommended that:

   The use of systems that are at foot level, thereby creating a tripping hazard, should be discouraged. If these systems are to be used, then, the components that make up the system should be of a high visibility color. (Ex. 1-139.)

   The final container top fall protection provisions are crafted in performance-oriented language to promote innovation and flexibility in providing fall protection. The key performance tests that a fall protection system must meet are that it (1) be rigged to reduce free-fall distance so that the employee will not contact any lower level stowage or vessel structure; and (2) be designed so that the fall will not produce an arresting force on an employee that exceeds 1800 pounds (8kN) ( See 1918.85(k)(3) and (4)).

   Although elevated anchorage points are important considerations in the design of fall protection systems, these provisions of the final rule focus on the performance criteria for such systems rather than their specific design aspects. Consequently, OSHA has determined that it would not be appropriate to include this single design consideration in the final rule.