Regulations (Preambles to Final Rules) - Table of Contents Regulations (Preambles to Final Rules) - Table of Contents
• Record Type: Longshoring and Marine Terminals
• Section: 4
• Title: Section 4 - IV. Summary and Explanation of the Final Rule

.1:

(b)(1) Access to employee exposure and medical records. Subpart Z, 1910.1020;

(b)(2) Commercial diving operations. Subpart T;

(b)(3) Electrical. Subpart S when shore-based electrical installations provide power for use aboard vessels;

(b)(4) Hazard communication. Subpart Z, 1910.1200;

(b)(5) Ionizing radiation. Subpart Z, 1910.1096;

(b)(6) Noise. Subpart G, 1910.95;

(b)(7) Nonionizing radiation. Subpart G, 1910.97; and

Note: Exposures to nonionizing radiation emissions from commercial vessel radar transmitters are considered hazardous under the following situations: (a) where the radar is transmitting, the scanner is stationary, and the exposure distance is 19 feet (6 m) or less; or (b) where the radar is transmitting, the scanner is rotating, and the exposure distance is 5 feet (1.8 m.) or less.

(b)(8) Respiratory protection. Subpart I, 1910.134.

(b)(9) Toxic and hazardous substances. Subpart Z applies to marine cargo handling activities except for the following:

(A) when a substance or cargo is contained within a sealed, intact means of packaging or containment complying with Department of Transportation or International Maritime Organization requirements;(5)
(B) Bloodborne pathogens, 1910.1030;
(C) Carbon monoxide, 1910.1000 (See 1918.94(a)); and
(D) Hydrogen sulfide, 1910.1000 (See 1918.94(f)).

These subparts and sections of OSHA's General Industry Standards are also incorporated into the Marine Terminals Standard (1917.1(a)(2)) by reference along with several other part 1910 sections that have application only in a marine terminal. Incorporating the same General Industry Standards into the Longshoring and Marine Terminals Standards will make both of OSHA's marine cargo handling rules similar with respect to these issues, an approach that has long been advocated by the marine cargo handling industry and is supported by this record.

OSHA's Bloodborne Pathogens Standard (29 CFR 1910.1030) does not apply to marine cargo handling operations. OSHA will continue its past policy of applying the first aid requirements of 1917.26 and 1918.97. In a letter dated July 31, 1992, to the National Maritime Safety Association, OSHA addressed the coverage of the Bloodborne Pathogen Standard to the marine cargo handling industry. It states, in pertinent part, as follows:

* * * the bloodborne pathogen standard primarily applies to general industry establishments and not the cargo handling industry that N.M.S.A. represents. (Ex. 6-158).

Bloodborne pathogens are most commonly encountered in the cargo-handling environment during a first aid response when an injured employee is bleeding. Under these circumstances, first aid, which encompasses universal precautions (procedures for handling human blood and certain human body fluids in a manner that prevents the transmission of infection), must be followed by first aid responders. For further guidance, particularly for small employers, OSHA has included a non-mandatory appendix, Appendix V, titled Basic Elements of a First Aid Training Program.

In addition, as was proposed, OSHA is exempting from subpart Z all sealed, intact packages or containers that meet the Department of Transportation (DOT) or International Maritime Organization (IMO) requirements. OSHA's existing Longshoring Standard contains no such exemption, although the existing Marine Terminals Standard (1917.1(a)(2)(ii)) does. Packages and containers that are sealed present no exposure hazards to marine cargo handling employees, provided that such containment remains intact. In order for packages and containers to qualify for the exemption in 1918.1(b)(9)(B), they must meet DOT or IMO requirements. This will ensure that exempted packages are properly packaged, and thus highly unlikely to expose workers to toxic or hazardous substances. Including the exemption for intact packages and containers in the final Longshoring Standard will thus make that standard consistent with the Marine Terminals Standard.

OSHA also proposed to incorporate various other provisions of the General Industry Standards into the Longshoring and Marine Terminals Standards. These included subpart P of 29 CFR part 1910, which covers hand and portable tools, 29 CFR 1910.120(q), which addresses emergency response to hazardous substance releases, and subpart O of 29 CFR part 1910, which covers machine guarding. At the time of the proposal, OSHA had made an initial determination that these general industry provisions provided more comprehensive coverage than the corresponding provisions of the Longshoring and Marine Terminals Standards. However, commenters did not support the incorporation of these general industry provisions, as discussed in detail below.

To ensure safe practices in the use of hand tools, in 1918.1(b)(5), OSHA proposed deleting the current longshoring requirements for hand tools, 1918.72, titled "Tools," and replacing this section with the more comprehensive requirements of subpart P of 29 CFR part 1910, titled Hand and Portable Powered Tools and Other Hand Held Equipment. OSHA also proposed to incorporate the same general industry section into the Marine Terminals Standard (proposed 1917.1(a)(2)(vii)). This approach was not supported by rulemaking participants, however. For example, the Pacific Maritime Association in their comments asserted that:

About the only hand tools used by longshoremen aboard vessels are hammer-hatchets, chain saws, hand saws, hydraulic wire cutters and manual wrenches. There is no need for OSHA to require the adoption of 1910 Subpart P that includes hand tools never used aboard vessels (Ex. 8-8).

This position was also voiced by several respondents (Ex. NMSA et al.). In addition, OSHA has re-examined its compliance history for marine cargo handling found in its Integrated Management Information System (which contains computerized data on all OSHA compliance inspection data, dating back to 1972). While citations were found for the provisions addressing the hazards associated with hand and portable power tools found in Parts 1917 and 1918, no such citations were found for Part 1910. After considering these comments and in light of the Agency's own enforcement data, OSHA has determined that the hand tool provisions in the Agency's existing Marine Terminals and Longshoring Standards do address the hand tool hazards present in marine cargo handling operations more effectively than would be the case if subpart P of the General Industry Standards were incorporated by reference. Accordingly, the final rule does not incorporate these general industry requirements.

OSHA proposed to include from the General Industry Standards a paragraph from Subpart H, Hazardous waste operations and emergency response, 1910.120(q), to address the issue of appropriate coverage of emergency response to hazardous incidents. This paragraph, essentially, requires employers to develop and implement an emergency response plan to handle anticipated toxic substance emergencies prior to the commencement of emergency response operations. If employers decide to evacuate their employees from the danger area when an emergency occurs and do not permit their employees to assist in handling the emergency, they are exempt from the requirements of this paragraph if they have provided an emergency action plan and met other requirements in accordance with 1910.38(a).

The existing longshore and marine terminals regulations address the issue of responding to hazardous cargo spills in 1917.22 (marine terminals) and 1918.86 (longshoring). In general, these sections require the employer to remove employees from the area that the cargo has been spilled in, to determine the hazard involved, and to instruct employees in proper clean-up procedures.

Many commenters felt that adding this general industry provision duplicated the existing marine terminal and longshoring regulations discussed in the last paragraph (Exs. 6-29a, 6-39, NMSA et al.).

Mr. Richard Buonocore, Director of Safety for Matson Terminals, Incorporated and Matson Navigation Company, Incorporated, and Shore Side Operations, stated at the Seattle hearings:

I also direct the Committee's attention to proposed 1918.89(a) and (c). These sections would repeat in the marine terminals rules existing sections 1917.22(a) and (c) from the longshoring rules. We're still with preparation for receiving hazard cargo and for responding to hazard cargo spills.

We believe these proposals, both of which deal with hazard materials, awareness, and responses to hazard material incidents, are unnecessary because these subjects are adequately and appropriately addressed by other existing provisions.

Emergency response plans were addressed in 1910.38(a), preparing for receipt of hazard cargos and dealing with spills are addressed in 1918.86(a) and (c).

Hazard communications issues are addressed in 1918.90, particularly subpart (h), as well as in the general OSHA hazard communication standard of 29 CFR 1910.1200.

Ventilation risks for particular hazard commodities are addressed by 1918.93.

Perhaps most importantly in this regard is DOT's HAZMAT employee training rules, 49 CFR 172.204, which was alluded to by John Pavelko but not by citation number, requiring training on hazard material, risk, and emergency response.

Under the DOT rules, all employees, including longshore personnel working with hazardous materials and transportation must be given awareness and safety training and must know how to recognize potential dangers and how to take appropriate actions to protect their personal safety in the event of a hazardous release (SEA Tr. pp. 218-219).

Mr. John Pavelko, the Pacific Maritime Association Coast Director for Training and Accident Prevention testified to the issue that the marine cargo handling industry does not do hazardous material clean-up:

Again, the PMA members on the West Coast have an agreement that if there is an emergency, the emergency will be responded to by a professional vendor. Longshoremen will not be called to respond to any emergency.

Under the HAZWOPER, the HAZWOPER, as you know, was designed for hazardous waste generators. It was for big time corporations that generate a lot of hazardous waste. The maritime industry just kind of got sucked into this thing by that one little sentence in there that says if there's going to be an emergency, then you've got to have a plan.

Then if you don't respond to an emergency, then you've got to refer to, what was it, 1910.38. So all of our members fall under 1910.38 and not under the HAZWOPER, but yet when a compliance officer, on several--I shouldn't say several--on at least two or three occasions when compliance officers have come to the waterfront, they try to cite our employers under the HAZWOPER.

We're saying, it's not us, it doesn't apply, and there's back and forth, back and forth, and this is another issue that causes a lot of problems for employers. (SEA Tr. pp. 189-190)

Mr. Ron Signorino, Director of Regulatory Affairs, Universal Maritime Service Corporation, testified in the New Orleans hearings:

The HAZWOPER rule was written by OSHA in response to a mandate by Congress to have rules in place, whereby employees responding to an emergency situation could be protected from the hazards that are associated with that response.

Now, the position of the National Maritime Safety Association has been traditionally that when employees employed by members of NMSA are aware of the spill that those employees be directed to evacuate any area in a spill, so that a professional team can come in and respond to that emergency, the professional teams are outside contractors who have no affiliation with the work.

Typically, they're specialists in performing these clean-ups of these hazard emergency responses.

Then, as a consequence, the provisions of HAZWOPER, rightly should not apply to employees who have, in fact, no exposure (NO Tr. p. 202).

OSHA agrees with the commenters that the HAZWOPER regulations are for those employers and employees that are in the business of cleaning up spills of hazardous chemicals and hazardous waste generators. However, if a marine cargo handling employer decides to respond to an emergency that is beyond the scope of the Emergency Action Plan developed by the employer in accordance with the final rule (1917.30 and 1918.100), that employer ceases to be acting in a "marine cargo handling" capacity and the appropriate sections of OSHA's General Industry Standards (e.g., 29 CFR 1910.120(q), HAZWOPER) would apply. This is reflective of the application of 1910.120(q)(1) which reads in relevant part:

Employers who will evacuate their employees from the danger area when an emergency occurs, and who do not permit any of their employees to assist in handling the emergency, are exempt from the requirements of this paragraph if they provide an emergency action plan in accordance with 1910.38(a) of this part.

In the final rule, OSHA has decided to address these hazards by adding a new section to each of the Longshoring and Marine Terminals Standards. These new sections, which are identical, will alleviate the duplication and confusion that would be caused by the proposed cross-referencing of paragraphs from the Hazardous Waste Operations and Emergency Response Standard, 1910.120(q), and from the Emergency Action Plans Standard 1910.38(a). These new sections, which are codified in subpart B, Marine Terminal Operations (1917.30), and subpart I, General Working Conditions (1918.100), require marine terminal and longshoring employers, respectively, to develop a written (if there are 10 or fewer employees, oral communication of the emergency action plan is acceptable) emergency action plan to handle anticipated emergencies of all types, including those involving fires and toxic substances, before the commencement of emergency response operations. These sections identify the basic elements of an emergency action plan (escape route planning, accountability, employer contacts); an alarm system; evacuation procedures; and training requirements. OSHA believes that, as a practical matter, the emergency action plan can be adequately communicated to a small group of employees of 10 or fewer when the requirements of the plan are orally explained; a written plan is therefore unnecessary in this circumstance.

OSHA proposed to protect marine cargo handling employees from the hazards of fixed machines by referencing the comprehensive list of machine guarding provisions contained in OSHA's General Industry Machine Guarding Standards (29 CFR 1910 subpart O) into the scope of both the Marine Terminals and Longshoring Standards.

The existing regulations address machine guarding in different ways. In the Longshoring Standard, machine guarding is addressed in several areas such as cargo winches ("When moving parts of winches or other deck machinery present a hazard, they shall be guarded," 1918.53(a)(1)) and in powered conveyors ("All conveyor and trimmer drives which create a hazard shall be adequately guarded," 1918.69(c)). In the Marine Terminals Standard, the existing regulations on machine guarding center around the "danger zone" concept. A "danger zone" is defined in the Marine Terminals Standard as any place in or about a machine or piece of equipment where an employee may be struck by or caught between moving parts, caught between moving and stationary objects or parts of the machine, caught between the material and a moving part of the machine, burned by hot surfaces or exposed to electric shock. The danger zone performance approach to machine guarding provides coverage of all hazards within the danger zone without the need to address each hazard separately. This approach also requires employers to use their judgment about which machine parts or areas at or near a machine do in fact expose employees to workplace hazards.

Several commenters noted that the existing danger zone concept used in the Marine Terminals Standard provided the necessary employee protection and that the proposed machine guarding provisions were unnecessary (Exs. 6-29a, 6-31a, 6-35). Other commenters favored the danger zone approach and stated that the machine guarding provisions in the General Industry Standards were voluminous and addressed several types of machinery that were not found in marine cargo handling operations (Ex. NMSA et al.).

Mr. Signorino addressed this issue during the hearings in New Orleans, testifying as part of a panel representing the National Maritime Safety Association:

We adopt the approach that was originated by OSHA, implemented by that agency in the promulgation of the 1917 standards; and, in the space of time since the promulgation of those standards, has borne significance in terms of lack of accident experience, in terms of moving parts of machinery. That concept is, of course, the dangers [zone] (NO Tr. p. 413).

OSHA agrees with the above comments and testimony and in the final rule has decided that the same danger zone approach to machine guarding hazards pioneered in the Marine Terminals Standard (917.2(g) and 1917.151) will provide appropriate protection from machine guarding hazards in marine cargo handling operations regardless of location, i.e., in both marine terminal and longshoring operations. In addition, using the danger zone concept will allow employers some compliance flexibility. For example, although an unguarded nip point near an employee's work station will usually present a significant caught-in hazard, a nip point located 10 feet above the working surface is far less likely to present such a hazard.

Accordingly, the final rule does not incorporate subpart O of the General Industry Standards into the scope of the Marine Terminals and Longshoring Standards as proposed. Instead the final rule retains the existing machine guarding protections provided by 1917.151 of the Marine Terminals Standard and brings these provisions into the final Longshoring Standard as 1918.96(e). (Guidance on a wide range of machine guarding techniques and background information may be found in the OSHA pamphlet "Concepts and Techniques of Machine Guarding" (OSHA 3067-1992) or the American National Standards Institute (ANSI) publication "American National Standard for Machine Tools" (ANSI Bll.l9-1990).)

In keeping with the Agency's efforts to develop regulatory language that is easier to follow, the references to part 1910, OSHA's General Industry Standards in 1918.1(b) have been renumbered and placed in alphabetical order.

Section 1918.2 Definitions

Final rule 1918.2 carries over many definitions from the proposed and existing Longshoring Standards because those definitions are still relevant and are used in the final rule. However, some new definitions and modifications to existing definitions were proposed and have been added or made to reflect changes in current custom and practice in the longshore industry.

The existing rule's references to "Federal maritime jurisdiction" and "navigable waters" in the definitions of "employee" in 1918.2 paragraph (e) and "employer" in paragraph (f) were not included in the proposal. The existing rules were originally promulgated under the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941), whose jurisdiction was limited to navigable waters. The promulgation of the OSH Act, which applies to private sector employment in covered workplaces, no longer uses navigable waters to establish jurisdiction. The final rule does not include these references.

New definitions or definitions that OSHA has revised substantially in the proposal or final are described below.

The definition of "danger zone" in the final rule is taken from OSHA's existing Marine Terminals Standard, as discussed above. This definition exists in the existing Marine Terminals Standard and is being added to the final Longshore Standard. OSHA finds it appropriate to include identical definitions of this term in the Marine Terminals and Longshoring Standards because various kinds of equipment that pose similar hazards to employees are present in both marine cargo handling environments.

OSHA proposed a new definition for "designated person," which received considerable support (Ex. NMSA et al., Ex. 6-22). This term has been incorporated in the final rule, and is defined to mean a person who has a special skill in a particular area and has been assigned by the employer to do a specific task in that area. Examples of the use of this term in the final Longshoring Standard are: 1918.51(b) which requires that a designated person inspect a vessel's cargo gear before use and at intervals during use; and 1918.55(c)(7) which requires that a designated person supervise tandem lifting operations.

The definitions for "enclosed space" and "fumigant" in the final are essentially unchanged from those proposed in the Longshore Standard. In addition, these definitions are essentially identical to those found in the Marine Terminals Standard.

A definition for "fall hazard" has been added to the final rule in 1918.2. According to the final rule, a fall hazard exists when employees are working within 3 feet of the unprotected edge of a work surface that is 8 or more feet above the adjoining surface and 12 inches or more horizontally from the adjacent surface, or when weather conditions are such as to impair the vision or footing of employees working on top of containers. This definition was proposed as a footnote to the container top fall protection section; however, because it has application in several other sections of the Longshoring Standard (1918.32, 1918.85, and 1918.87), it has been placed in the definitions section. The definition makes it clear that it is the unprotected edge that poses a fall hazard and not necessarily the entire work surface (except in bad weather or when ice, grease etc. is present so the entire surface may be slippery). Additionally, any gap of 12 inches (.31 m) or more on a horizontal surface formed by containers is considered an unprotected edge and would constitute a fall hazard under this definition. OSHA believes that any work within 3 feet (.92 m) of an unprotected edge constitutes a hazard (Ex. 1-139), providing that the second essential element of this definition exists, i.e. that the vertical distance is such as to constitute a fall hazard. In proposed 1918.85(j), the Agency defined the fall height trigger at 10 or more feet above the adjoining surface. The final rule, however, sets the vertical height for fall hazards at 8 or more feet above the adjoining surface; this fall height is consistent with the fall height established in the final rule for non-containerized cargo (see 1918.32(b)). The final trigger height of 8 feet is identical to the existing requirement for fall protection found in 1918.32(b). OSHA believes that this height was originally adapted from an industry practice that pre-dated containerization. At that time, cargo was usually palletized into a standard 4 foot high pallet. It became an industry practice that whenever pallets were stacked two or more, the top working surface would be considered a fall hazard, thus requiring nets or other equivalent protection.

The definition of "Hazardous cargo, materials, substance or atmosphere" in the final longshore rule has been expanded to reflect the Marine Terminal Standard's definition of hazardous cargo. This definition goes beyond the existing part 1918 definition by including references to subpart Z of part 1910 and oxygen-deficient atmospheres.

The definition for "intermodal container," which remains unchanged from the definition in the proposal, reflects a combination of definitions found both in the International Labor Organization (ILO) Code of Practice for Safety and Health in Dock Work (Ex.1-135) and the definition found in the International Standards Organization (ISO) Standard 830, Freight Containers-Terminology (Ex.1-134). The definition in the final rule more accurately describes an intermodal container than the definition that is in the existing rule. This updated definition is also in the Marine Terminals Standard at 1917.2.

The definitions of "dockboards" and "ramps," found in the existing Marine Terminals Standard, have been brought into the Longshoring Standard with minor editorial modifications.

The extensive list of definitions that were included in 1918.3(r) of the existing Longshoring Standard that specifically refers to existing 1918.13, "Certification of shore-based material handling devices," has been deleted in the final rule. These definitions are no longer needed in the Longshoring Standard because part 1917, the Marine Terminals Standard, now contains OSHA's regulations for the certification of shore-based material handling devices.

The proposed definition for "vessel's cargo handling gear" had been modified by adding language to reflect cargo gear included under the ILO Convention 152. The final definition gives examples of the kinds of cargo handling gear that are included in this newer definition to reflect comments received that requested a more descriptive definition (Ex. 6-22).

For the sake of clarity and consistency, the word "required" (which is used extensively in parts 1917 and 1918) and the word "ensure" shall be synonymous for compliance purposes.

Subpart B--Gear Certification

Section 1918.11 Gear Certification

In OSHA's current Longshoring Standard, subpart B includes requirements for vessels' cargo gear certification, the certification of shore-based material handling equipment, and some provisions for gangways. The final rule's requirements for the certification of shore-based material handling equipment and for gangways are essentially unchanged from those in the current Longshoring Standard, although they have been moved from this subpart to the Marine Terminals Standard and to subpart C of the Longshoring Standard, respectively, as explained below. The final rule's requirements relating specifically to vessels' cargo gear certification, entitled "Gear Certification," have been streamlined and are now consolidated in subpart B of the Longshoring Standard. The gangway requirements in subparts B and C of OSHA's existing Longshoring Standard have, in the final rule, been moved to subpart C "Gangways and Other Means of Access" (1918.21). Furthermore, existing 1918.13 through 1918.15, which covered shore-based material handling devices and container cranes, have been removed from part 1918 because shore-based handling devices are currently covered exclusively under part 1917, the Marine Terminals Standard. In the existing definitions section, 1918.3(r)(5)(i) to (vi) listed material handling devices that were exempted from the certification requirements of existing 1918.13. Section 1918.13 required that shore-based material handling devices be certified in accordance with part 1919, OSHA's gear certification regulations. As mentioned above, these requirements are now found in part 1917, the Marine Terminals Standard. Material handling devices are now exempted from certification only if they are listed in 1917.50(h). Huletts, bridge cranes, ore and taconite loading facilities, and bulk coal loading facilities, which were exempted from certification under existing 1918.3, are not exempted under existing and final 1917.50.

Some commenters (Exs. 6-16a and NMSA et al.) urged OSHA to move the remaining regulations from subpart B of the Longshoring Standard to subpart F of that standard, "Vessels's Cargo Handling Gear," on the grounds that doing so would consolidate all vessel cargo handling gear requirements into one section (Ex. 8-20). OSHA disagrees with this position because subpart B's vessel cargo gear certification requirements are procedural in nature, have international significance, and apply to all lifting appliances aboard the vessel, such as elevators and material handling equipment. In contrast, subpart F primarily addresses the specific operational requirements for cranes and derricks. Accordingly, the final rule continues to address vessel cargo gear certification in subpart B.

Section 1918.11 of the final rule, entitled "Gear certification," requires employers to ensure that the vessel has a current and valid cargo gear register and certificates that are in accord with the recommendations of the International Labor Organization (ILO) Convention No. 152 as these pertain to the testing and examination of cargo gear (paragraph (a)). Vessels holding a valid Certificate of Inspection from the U.S. Coast Guard (USCG) or public vessels are deemed to meet the requirements of paragraph (a). Paragraphs (c) and (d) of 1918.11 specify the competencies that persons and organizations making entries and issuing the certificates required by paragraph (a) of this section must have, both with regard to U.S. vessels not holding a valid USCG Certificate of Inspection and vessels under foreign registry.

These requirements of the final rule are essentially unchanged from the corresponding provisions of the proposal. However, by requiring that vessel cargo gear be certificated in accordance with ILO 152 rather than ILO 32, OSHA is effecting a change from the Agency's existing Longshoring Standard.

Since 1960, safety and health regulations designed to protect U.S. dockworkers (with particular regard to vessels' cargo handling gear) have relied upon the documentary proofs of tests and examinations mandated by ILO 32 (Ex. 1-34). In Article 9 of that Convention, units and articles comprising ships' cargo handling gear are specified and assigned an annual/quadrennial schedule of tests/examinations that must be attended and attested to by individuals judged to be "competent" by the national authorities of the vessel's registry. Although not a signatory to that Convention, the United States has conformed to this Convention via regulations promulgated by: (1) the U.S. Coast Guard, regarding inspected U.S. flag vessels; and (2) OSHA, regarding foreign flag vessels (existing 1918.12). The Coast Guard has promulgated cargo gear regulations that exceed those found in ILO 32, namely those codified at 46 CFR part 91, that promote safe and unencumbered operations for U.S. flag vessels trading at foreign ports. On foreign flag vessels trading at U.S. ports, however, OSHA has sole responsibility for regulating and enforcing rules that address the cargo gear U.S. longshore workers use.

Under ILO 32, proof load testing (6) was only required initially before gear was put into service. After that initial test, such gear received various degrees of visual scrutiny, supplemented occasionally by nondestructive testing, e.g., a hammer test. Components such as derricks, goosenecks, mast bands, derrick bands and any other difficult to disassemble fixed gear, were to be "thoroughly examined" every 4 years and "inspected" every 12 months. Other hoisting machinery, such as cranes, winches, blocks, shackles, and any other accessory gear, was to be "thoroughly examined" every 12 months.

ILO 152, adopted June 25, 1979, requires that proof load testing be conducted at least every 5 years, and applies to all ships' lifting appliances. Within Article 3 of ILO 152, the term "lifting appliance" means:

Lifting appliance covers all stationary or mobile cargo-handling appliances used on shore or on board ship for suspending, raising or lowering loads or moving from one position to another while suspended or supported (Ex. 1-5, p. 2).

Thus, because the final rule requires compliance with ILO 152 instead of ILO 32, it expands testing and certification requirements for cargo handling equipment on board vessels. Such testing and certification, which was formerly restricted to specific assemblies and components (i.e., derricks, cranes, winches, etc.) will now include all "lifting appliances" as defined by the newer ILO Convention. This includes forklifts and other powered equipment used to handle cargo that might be carried by a Ro-Ro vessel, and elevators found on Ro-Ro vessels used to move cargo (including vehicles) from one deck level to another, in addition to the vessel's cranes and derricks. Under final rule 1918.11, all of this equipment is required to be: tested and thoroughly examined initially before being put into use; retested and thoroughly examined every 5 years; and thoroughly examined every 12 months.

In 1993, OSHA received a letter from Sea-Land Service, Inc. requesting that OSHA interpret the current regulations to allow the lifting of two empty 40 foot ISO freight containers that are vertically coupled using semi-automatic twist locks (Ex. 1-161). OSHA's response allowed the practice under the existing regulations, provided that certain additional requirements were met (Ex. 1-160). However, the existing regulations, which reference Convention 32, did not require the certification of the "lifting appliance," i.e., the top container and the semi-automatic twist locks.

In the preamble to the proposed rule, the Agency discussed differences between Convention 32 and Convention 152, including the requirement in the latter convention to certify lifting appliances. OSHA stated that, under Convention 152, when a container was used to lift another container, the top container would fall within the definition of "lifting appliance":

In those situations where one container is used to lift another container, using twist locks, then the upper container and twist locks become, in effect, a lifting appliance and must be certified as such. Page 28602.

In response to this proposed interpretation of Article 3, paragraph (e) of ILO Convention 152, OSHA received comments only from the International Longshoremen's and Warehousemen's Union (ILWU) (Exs. 19, 6-19, and 78). Although these comments favored the proposed interpretation and requested the Agency to include it as a requirement in the regulatory text, they included no specific information regarding lifting containers vertically coupled. Furthermore, while Sea-Land Services, Inc. submitted a detailed six page comment (Ex. 1-6) addressing a number of the proposed changes to the Marine Terminals and Longshoring Standards, it did not address this issue. In addition, OSHA received a late, post-hearing submission from the International Longshoremen's Association (ILA) that indicated a serious problem with this type of lift, citing several incidents at U.S. ports where failures occurred (L-90a). While this letter cannot be the basis of rulemaking at this time since it is not part of the record, it has made OSHA aware of safety concerns that may need to be addressed by the Agency. The record contains a dearth of information regarding safety considerations associated with double container lifts, as well as feasibility information regarding certificating containers and twist locks as "lifting appliances". In light of this lack of information, OSHA has decided to reserve judgment on this issue, pending further study.

In the near future, OSHA will reopen the record on this narrow issue and publish a notice requesting specific information regarding whether or not OSHA should allow the practice of lifting vertically coupled containers, and, if so, under what circumstances. The notice will request information regarding the lifting of one container by another container using twist locks, including data on the following issues:

Have the bottoms of intermodal containers been designed and tested for the purposes of "lifting"?

Have the twist locks been designed and tested for "lifting"of containers?

What information do the manufacturers of containers and twist locks have regarding the use of their products as lifting appliances?

Do any international bodies currently certify containers and twist locks as "lifting appliances"?

Is there any scientific data that addresses maintenance testing and "life" of the components used for lifting purposes?

Has the impact of adverse weather conditions been evaluated in both design and operational concerns with regard to double container lifts?

What precautions can be taken to assure that the containers being lifted are empty?

What precautions can be taken to assure that the twist locks are all locked properly when the lifting occurs?

What precautions can be taken to assure that employees are not exposed to the hazard of a falling container?

What precautions can be taken to assure that defective or damaged containers should not be used to hoist other containers?

To what extent are lifts of vertically coupled containers currently being conducted and by whom?

How many containers and twist locks would have to be certificated for use as lifting appliances?

What would it cost to certificate the upper containers and twist locks for use as lifting appliances?

In vessel sharing agreements, is it feasible for upper containers and twist locks to be used as lifting appliances to be certificated?

What are the productivity gains, if any, associated with the lifting of vertically coupled containers?

What information, including anecdotal information is available on incidents involving vertically coupled containers that have fallen and hurt or killed employees or caused "near-misses"?

Several commenters (Exs. NMSA et al., NO Tr. pp. 388-393, 638-644) asked that OSHA continue to recognize and allow vessel's cargo gear on vessels whose cargo gear registers are in accordance with ILO 32 but not ILO 152:

* * * Refusal by stevedores to work vessels of nations that have not ratified ILO 152 will result in loss of business for the stevedore and terminal operator and can possible [sic] damage U.S. and foreign trade agreements. Until such nations of the world have ratified ILO 152, those still a signatory to ILO 32 should be recognized and accepted (Ex. 8-20, p. 4).

During the three public hearings held for this rulemaking, OSHA questioned witnesses about the difficulty posed by provisions requiring vessel's cargo gear to comply with the pertinent parts of ILO 152 ( SEA Tr. pp. 276-278 and 333; NO Tr. pp. 388-394, 454-455, 638-642, and 712). Several commenters (NO Tr. pp. 638-642, 1391, and 1158) expressed concern that if OSHA requires vessel's cargo gear to meet ILO 152, vessels with cargo gear that does not comply will go to other countries to load and unload cargo that will then be brought into the United States by truck and rail, thereby having an adverse economic impact on the U.S. marine cargo handling industry. The two other countries that were of primary concern were Mexico and Canada. However, during the public hearings, it was pointed out by one witness that Mexico has ratified ILO 152 and Canada is expected to adopt the basics of ILO 152 in the near future (NO Tr. p. 627). (Also see the discussion in the section that follows, "International Aspects.")

OSHA recognizes that some vessels may need a longer phase-in period to comply with the ILO 152 cargo gear requirements. In addition, OSHA recognizes that the stevedore, who is the employer, does not own or have control of the vessels' cargo gear and thus must depend on the owner to accomplish the change before the stevedore can determine that the register is current and valid. Testimony by Mr. Mike Compton, Chair of the Safety Panel of the International Cargo Handling and Coordination Association (ICHCA), addressed the phase-in periods granted by the United Kingdom, for the ILO 152 cargo gear requirements. Mr. Compton stated:

* * * there were two lead-in periods given. For the change from a quadrennial to an annual thorough examination on derricks, there was one year given as a lead-in period.

The way in which this worked was that all of our member ports told their shipping company customers that this was going to happen in a year's time, and that in a year's time they would legally not be able to handle their derricks unless there was a thorough examination and record of it in the register within the last 12 months, and there was no problem with that. That ship owner had a year to see that was done.

With regard to the testing, which is now a new requirement of testing every five years, we gave a four-year lead-in time to that, which is more than enough time for a shipowner to ensure that the testing required was carried out.

Again, the member ports told their shipping company customers, who also heard about it in the course of their own trade associations, made appropriate requirements, arrangements, and there was no problem with that either (NO Tr. pp. 630-640).

OSHA finds Mr. Compton's recommendations persuasive and consistent with the goals of current International Trade Agreements.

Therefore, effective a year from the publication date of the final rule (1918.11(a)(1)), all lifting appliances and all loose gear are required to have had a thorough examination that is duly recorded in a cargo gear register in accordance with ILO 152. Effective four years from the publication date of the final rule (1918.11(a)(2)), all lifting appliances and all loose gear must have been tested (or retested) with the results duly recorded in a cargo gear register in accordance with ILO 152. At that time, vessels that do not have a cargo gear register that is properly filled out and up to date will be violating this regulation if the vessel's lifting appliances are used. However, in such cases, properly certified shore-based equipment may be used to load and unload the vessel.

A new paragraph, (a)(3), has been added to address these interim periods (up to one year for thorough examinations and up to four years for testing), vessels with cargo gear registers that are in accordance with ILO 32 will continue to be acceptable during these interim periods.

Several witnesses during the public hearings expressed concern that the cargo gear register forms required by ILO 152 were not readily available and that even if such forms were available, employers would have difficulty in reading and understanding them (SEA Tr. 277-278, NO Tr. pp. 651-655). In Appendix I of the proposed rule, OSHA provided a sample cargo gear register that came from the International Labor Organization's maritime office and conforms with ILO 152 requirements (See also Ex. 58). The sample register is in English and includes definitions and instructions on how to conduct the required inspections and/or tests and how to fill out the forms. Non-mandatory Appendix I, as proposed, is included in this final rule.

The International Cargo Gear Bureau, Inc. (Ex. 6-22), pointed out that although ILO 152 requires that proof load testing be done "at least every five years," proof testing is often done and is required by some countries to be done every four years or even more frequently. The same commenter went on to say that this discrepancy should be clarified because four-year proof load testing is required in current 1917.50(c) and current 1918.61(h). In addition, this commenter wrote:

If it is the intention of USDL/OSHA to adopt the five (5) year proof load testing cycle for shipboard cargo handling gear within the jurisdiction of USDL/OSHA, the justification for such relaxation of proof load testing requirements should be explained by USDL/OSHA considering the "lost workdays" statistics and statements on page 28595 of the June 2 Federal Register * * * (Ex. 6-22, p.4).

In the final rule, OSHA is not changing either the requirement at current 1917.50(c), which mandates a quadrennial proof load testing requirement for shore based material handling devices, or the requirement at current 1918.61(h), which requires such testing for special stevedore gear. Instead, by requiring foreign vessels using ship's gear while working in the United States to comply with ILO 152, OSHA is providing greater protection to employees than is currently required, because compliance with ILO 152 requires inspection and testing of all lifting appliances, not just cranes and derricks, and requires retesting at least every five years. Thus, the final rule's vessel cargo gear certification requirements substantially increase employee protections.

One commenter wrote that OSHA should clarify in the rule what is meant by "vessel's cargo handling gear" because of the expanded requirements under ILO 152 (Ex. 6-22). OSHA modified the definition of "vessel's cargo handling gear" in the proposal to "include all stationary or mobile cargo handling appliances * * *. " and the final rule includes the same definition. OSHA has included a cross-reference to that definition in 1918.11.

It should be noted that 29 CFR part 1919, provides procedures and standards governing accreditation of persons by OSHA for the purpose of certificating vessel's cargo gear and shore-based material handling devices, and the manner in which such certification shall be performed. Categories of competency have been established based on the equipment that they have been accredited to inspect. For example, a "full function vessel" accreditation would mean that the person or agency has been recognized as competent to inspect and certify all of a vessel's cargo handling equipment. Similarly, a "loose gear and wire rope" accreditation requires the showing of a different inspection competency. The inspection requirements of this subpart involve both of these categories.

With regard to these inspection requirements, several commenters wrote that paragraph 1918.11(c) should be clarified by adding the term "full function vessels" to identify the type of accreditation that persons competent to make entries in the registers and issue certificates must have. (Exs. NMSA et al., 6-16a). OSHA agrees with these commenters and has made the change in the final rule in both paragraphs 1918.11(c) and (d). The words "or loose gear and wire rope testing" have also been added to identify those accredited agencies that can issue certificates for loose gear and wire rope that are part of the cargo gear register.

One commenter (Ex. 6-5) noted that OSHA's "proposed rules are significantly more stringent than the existing Coast Guard regulations." The U.S. Coast Guard has rules covering marine terminals that handle bulk flammable liquids and gases. However, all employees engaged in longshoring operations, whether on U.S. flag or foreign flag vessels, are covered by OSHA's part 1918 regulations. These regulations cover forklifts and other powered industrial equipment. During this rulemaking, OSHA coordinated with, and received support from the Commandant of the U.S. Coast Guard (Ex. 6-44). OSHA believes that its final rule will provide longshoring and marine terminal employees with effective protection from the hazards of marine cargo handling.

The preamble section titled "International Aspects," which was in the proposal, is repeated in this preamble to the final rule to explain why OSHA is retaining the provision (at 1918.11(a)) that allows foreign flag vessels to comply with ILO gear provisions instead of requiring them to comply with U.S. standards. This issue was brought out in written comments and during the hearings (Ex. 6-22, NO Tr. pp. 454-455, pp. 650-651).

International Aspects:

As with all Federal agencies whose regulations influence international trade, OSHA has developed this final rule in light of international considerations. Through both law and policy, the United States has decided that standards-related activities should not, if possible, be a barrier to trade. The Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.) addresses technical barriers to trade regarding federal regulation. Section 2532 of this Act states the following:

Section 2532. Federal standards-related activities.

No Federal Agency may engage in any standards related activity that creates unnecessary obstacles to the foreign commerce of the United States, * * *.

(1) Nondiscriminatory treatment. * * *

(2) Use of international standards. (A) In general, * * * each Federal agency, in developing standards, shall take into consideration International standards and shall, if appropriate, base the standards on International standards.

Additionally, and consonant with this country's position on barriers to international trade, the United States is a signatory to the Multilateral Convention on the Facilitation of International Maritime Traffic (1965) (Ex. 1-3). As a contracting government, the United States has agreed to:

* * * Undertake to cooperate in securing the highest practicable degree of uniformity in formalities, documentary requirements and procedures in all matters in which such uniformity will facilitate and improve international maritime traffic and keep to a minimum any alteration's informalities, documentary requirements and procedures necessary to meet special requirements of a domestic nature. (Article 3)

Mindful of these international aspects, OSHA sought to formulate an acceptable approach to the vessel's cargo handling gear issue, and to other issues. The Agency requested the Department of State (Ex. 1-7) to present OSHA's approach to all foreign nations whose vessels may enter U.S. ports. This exercise was conducted in the hope of identifying acceptance. Reports back from responding foreign nations (Ex. 1-6) indicated overwhelming support for the Agency's approach to these issues. Most of the nations responding, although stipulating that they had not yet ratified the more recent ILO Convention, suggested that their national laws recently ratified were at least as strong, and sometimes more stringent, than ILO 152. Thus, OSHA is confident that the cargo gear certification requirements of the final rule are consistent with those of ILO Convention 152 and national laws and practices of most other countries.

Subpart C--Gangways and Other Means of Access

In final rule subpart C, OSHA has organized requirements by subject matter and enhanced the uniformity of shoreside and shipboard requirements.

Subpart C is titled "Means of Access" in the existing and proposed Longshoring Standard. It contains requirements that employers must meet before allowing employees to board a vessel. Several commenters suggested that the title be changed to "Gangways and Other Means of Access" to better describe the contents of this subpart (Ex. 6-16a, NMSA et al.). These same commenters also recommended that this subpart be rearranged so that each section, such as Gangways, Jacob's ladders, etc., contains only the specific requirements that apply to the subject matter of that section. OSHA agrees with the recommended changes to the title and grouping of subjects in this subpart and has generally rearranged it accordingly.

The provisions of final 1918.21 "General requirements," are taken from the existing and proposed Longshoring Standards, with editorial changes made for clarity. In final 1918.21(a), which requires that the means of access to the vessel not be located under suspended loads to the extent possible, the words "or others" have been added after the word "employees". OSHA believes that suspended loads should not pass over a vessel's means of access, regardless of whose employees would be exposed to the hazards of overhead loads. While OSHA recognizes that the stevedoring employer may not have control over all employees (or users of the gangway), employers do have control over the movement of suspended loads and thus have the means to comply with this provision.

Final rule 1918.21(b) stipulates that substantial steps and a minimum of one handrail be provided between the bulwark and deck when the upper end of the means of access rests or is flush with the top of the bulwark. This provision is unchanged from the corresponding provision of the proposal.

To eliminate the ambiguity of the current rule, which required that means of access be "adequately" illuminated, final paragraph 1918.21(c) references 1918.92 which requires specific illumination levels. In addition, the final rule has a footnote that gives the candlepower requirement found in 1918.92, to make it readily available in this section.

The title of 1918.22, currently "Gangways and other means of access," is being changed to "Gangways" in the final rule. The word "gangways," as defined in 1918.2, includes accommodation ladders, brows, etc. This section also joins two similar sections of OSHA's current Longshoring rules (1918.11--titled "Gangways" and 1918.21--titled "Gangways and other means of access"). The final rule's 1918.22, therefore, eliminates the need for employers and employees to look in different subparts for information on gangways.

Following the format of the current Longshoring Standard, gangway dimensions and characteristics are set out in paragraphs (a) and (b). Using a combination of specification language with performance-based alternatives, the final rule provides the flexibility needed in adapting to vessels built according to international guidelines. The final rule allows rails to be made of materials other than those specified in the current rule, if the material is at least equivalent in strength to those listed. Paragraphs 1918.22(a) and (b) are essentially unchanged from the proposal.

Paragraph (c), which requires that the gangway be trimmed at all times, carries over language from the current rule, plus the term "trimmed," a word that is also found in the Joint Maritime Safety Code of the New York Shipping Association/International Longshoremen's Association (NYSA/ILA Safety Code) (Ex. 1-2). This paragraph is designed to ensure, despite changing conditions caused by tides, cargo operations, etc., that the gangway and its components are fully useable at all times.

Final rule paragraphs (d), (f), (h), and (j) are essentially identical to the corresponding provisions of the current and proposed rules. They address fixed flat-tread accommodation ladders, handrails on walkways, and prohibitions against obstructions (paragraphs (d), (f), and (h), respectively), while paragraph (j) states that vessels inspected and certified by the USCG are deemed to meet the requirements of this section. Paragraphs (e), (g), and (i) have been editorially modified for clarity to address problems of interpretation associated with these provisions of the existing standard. Proposed paragraph (e) of the final rule has been revised to require a safety net or suitable protection when the gangway overhangs the water in a way that poses a danger of employees falling between the ship and the dock. The purpose of the net is to prevent an employee from falling to a lower level. This is consistent with ILO's "Safety and Health in Dock Work" (Ex. 1-138). Final rule paragraph (g) requires gangways to be kept clear of supporting bridles and other obstructions but allows that, in situations where gangway supporting bridles cannot be moved because of the design, the employer is to mark the hazard to alert employees using such a gangway. Paragraph 1918.21(i) has been added to the final rule to address the hazard associated with slippery handrails and walking surfaces on gangways. Several commenters suggested the use of more performance-oriented language (Exs. 6-31, 8-20, NMSA et al.) than the proposal. OSHA agrees and has included the language suggested by the commenters in the final rule, which has been renumbered as 1918.22(i).

Final rule 1918.23, titled "Jacob's ladders," carries over language from the current rule. Paragraphs (a) and (b) of this section contain criteria for rope ladders, also known as "Jacob's ladders". In keeping with the previously mentioned public comments regarding rearranging this subpart, two paragraphs, proposed as 1918.23(e) and (f), that address Jacob's ladders have been moved to become final rule 1918.23(c) and (d). Final paragraph (c) addresses the potential for the lower rungs of a Jacob's ladder to be crushed between the barge and another structure by requiring that a spacer or equivalent means be used to prevent this from occurring. Final rule paragraph 1918.23(d) requires that a net or equivalent protection be provided if there is a space between the vessel, barge, or other structure when using a Jacob's ladder; this provision is designed to prevent an employee from falling into the water or from being crushed between the barge and other structure. Such rope ladders are often provided by the vessel when more traditional means of access cannot be used. Nevertheless, the employer (who is often a contractor rendering a service to the vessel) must comply with the provisions of this section before employees are permitted to use Jacob's ladders.

Final rule 1918.24 is a new section titled "Fixed and portable ladders." This section was moved from proposed 1918.25 "Ladders," which included requirements for both fixed and portable ladders. For streamlining purposes, the final rule combines the requirements for portable ladders contained in the current Longshoring Standard with similar requirements contained in 1917.119 "Portable ladders."

Generally, final 1918.24 includes much of the current Longshoring Standard's language for ladders. Paragraph 1918.24(a) requires that a minimum of one ladder be provided for each gang working in a hatch and that an effective means of gaining a handhold be provided at or near the head of vertical fixed ladders. Paragraph (b) requires employers to identify ladders that are visibly unsafe and prohibit their use. Paragraph 1918.24(c) requires that portable straight ladders be sufficiently long to extend a minimum of 3 feet above the upper landing surface and be secured against slipping.

For fixed ladders, OSHA proposed to change the clearance required behind the ladder rungs from four inches (.11 m) to six inches (.16 m) on vessels built after December 5, 1981,(7) in order to be consistent with the recommendations of the ILO's Guide to Safety and Health in Dock Work (Ex. 1-129). In addition, OSHA's existing Longshoring Standard allows that where a fixed ladder has inadequate clearance, a suitable portable ladder could be used in its place, and the final rule continues to allow this practice. Two commenters addressed the issue of clearance. One commenter suggested that OSHA did not give adequate compliance time to vessel owners on this issue and stated that the six-inch (.16 m) requirement should apply to vessels only after a phase-in period or should apply only to vessels contracted for after the effective date of the final regulations (Ex. 6-5). The New York Shipping Association (NYSA) commented that using a permanent ladder with a four-inch (.11 m) clearance would be safer than using portable ladders (Ex. 6-16a). Although OSHA agrees with the NYSA comments overall, the Agency believes that a six-inch (.16 m) clearance is important to employee safety and OSHA also seeks to encourage conformance with the international guidelines. To address these commenters' concerns, however, OSHA is providing for a phase-in period before the six inch (.16 m) clearance requirement becomes effective. OSHA believes that this phase-in period will provide adequate time for the international shipbuilding community to include this requirement in its shipbuilding design criteria. On those vessels built on or after four years after the date of the publication of the final rule, fixed ladders must have six inches (.16 m) of clearance or more, or another means of access must be used. In the interim period, four inches (.11 m) of clearance is acceptable.

Provisions have been added to the final rule at paragraph (g) that reference ANSI standards for manufactured portable ladders. New provisions for ladder maintenance and usage similar to those found in the current Marine Terminals Standard have been added to the final Longshoring Standard in paragraph (i).

Final paragraphs (c) and (e) of 1918.24 recognize that, as an alternative to securing the ladder, an employee(s) may hold a portable ladder in place while another employee is climbing. The final phrase reads "positively secured or held against shifting or slipping while in use" and is consistent with the PMA-ILWU Safety Code, Rule 1506 (Ex. 1-145).

In addition, to clarify final paragraph (e), where the employer can show that employees can safely use the cargo itself to climb in and out of the hold (often called "safe cargo steps"), a straight ladder is not necessary.

Paragraph (f) of the final rule sets out the requirements for rung strength, spacing, and positioning, and establishes the widths between side rails required for ladders of various heights.

As mentioned above, paragraph (g) establishes standards for manufactured portable ladders by cross-referencing the appropriate ANSI requirements for portable wood ladders, portable metal ladders, and portable reinforced plastic ladders.

In paragraph (h) of the final rule, minimum requirements are set forth for job-made portable ladders. These requirements address between-rung distances, strength requirements, and width between side rail requirements.

The requirements in final rule paragraph (i) cover maintenance and inspection requirements for portable ladders. They identify the kinds of defects that require employers to take ladders out of service, either by tagging the ladder or removing it from the vessel. In addition, paragraph (i)(2) states that ladders must be inspected for defects before each day's use and after any event that could damage the ladder.

Paragraph (j), which includes provisions addressing ladder usage, acknowledges that while some ladders may not have slip-resistant bases, they can be positively secured against shifting or slipping while in use (paragraph (j)(2)). The language of this paragraph allows "holding" as an alternative to "lashing" to be consistent with paragraphs (c) and (e) of this section. Other provisions of paragraph (j) prohibit the use of single-rail ladders, the use of ladders as guys, braces, or skids, or as platforms, runways, or scaffolds. Other safety procedures and prohibitions are also included in this paragraph.

Final 1918.25, which addresses bridge plates and ramps used to span the gap between the vessel and another vessel or the dock, combines the current language of the Longshoring Standard's provisions with the terms that apply to similar shoreside equipment (see 1917.124). In the proposal, OSHA would have required sideboards that are at least six inches (.16 m) high. OSHA also proposed to require the same six inch (.16 m) sideboards for dockboards and ramps in the Marine Terminals Standard, 1917.124(c)(5) and (d)(1). The six-inch height is the same as that for "bull rails" that were in place on the effective date of the Marine Terminals Standard (1917.112). Bull rails, frequently railroad ties, are placed around the edge of the dock of a marine terminal and are used to prevent equipment from falling into the water. Based on the height requirement for bull rails in the Marine Terminals Standard, OSHA believed that six inch sideboards would prevent vehicles and equipment from accidentally falling off the edge of a bridge plate or ramp.

Several commenters expressed reservations about the six-inch sideboard requirement on the grounds that it was too high or was unnecessary (Exs. 6-16a, 6-29a, 6-31a, 6-36, 80, SEA Tr. pp. 171-172, 242-243, 385-389, 422-423, NO Tr. pp. 158-160, 164, 384-386). These commenters felt that six-inch sideboards on dockboards would create a tripping hazard, would interfere with forklift operations, or would fail to provide additional safety benefit. Other commenters (Exs. 6-29a, 6-36) suggested OSHA use ANSI Standard MH14.1 as a guide; that ANSI standard recommends a sideboard height of two and three-quarters of an inch. Others stated their preference that performance language and grandfathering of existing ramps would be appropriate (NO Tr. pp. 386, 432).

John Faulk of NMSA, at the public hearings in New Orleans, stated that bridged distances rarely exceed several inches in the industry (NO Tr. p.158). In addition, he said that there are thousands of ramps and bridge plates in the industry that would not meet the 6-inch height requirement and would thus require retrofitting with sideboards and noted further that there are no accident data to justify such a modification. In its post hearing comment, NMSA estimated that there were 35,000 ramps and bridge plates that would require modification under the proposal (Ex.80). NMSA estimated that it would cost $36 million to retrofit each of these ramps and bridge plates with sideboards.

After a thorough review of the record, OSHA concludes that six inches is an appropriate height for "bull rails," but not for sideboards. As commenters noted, sideboards of that height could cause a tripping hazard and interfere with safe operations.

OSHA has reviewed the ANSI standard (MH14.1) and OSHA's proposed standard on Walking/Working Surfaces and Protective Equipment (Fall Protection Systems) (29 CFR 1910 subpart C) (55 FR 13360). In accordance with the ANSI standard and OSHA's proposal, when the space to be spanned is less than three feet (.91 m), no sideboard is necessary, because the space is not large enough to allow machinery such as a powered industrial truck to fall through. However, OSHA believes that sideboards, or some alternative, are necessary on dockboards and bridge plates spanning a gap greater than three feet. OSHA believes that three feet (.91 m) is a large enough opening to allow equipment to fall to a lower level, injuring the driver. In the final rule, OSHA has decided to use performance language similar to that in the proposed rule for Walking and Working Surfaces and Protective Equipment (Fall Protection Systems) (29 CFR 1910 subpart C) (55 FR 13360); thus, the final rule stipulates only that bridge and car plates be designed to prevent vehicles from running off the edge (paragraph 1918.25(a)(4)) and that portable ramps be similarly designed (paragraph 1918.25(b)(5)). In addition, footnotes provide specification and compliance guidance on sideboard heights when the gap to be bridged is greater than 36 inches.

Paragraph (b) addresses portable ramps used afloat. Except for the requirement for sideboards, the final language remains the same as that proposed.

Final rule 1918.26, Access to barges and river towboats, was numbered 1918.23 in the proposal. This section has been treated separately in the final regulation because some barge operations, particularly those conducted in the Mississippi River system (see definition at 1918.2), are unique.

Final rule paragraph (a) sets out criteria for ramps used to gain vehicular access to or between barges. Of primary importance is that such ramps be of sufficient strength for the intended load. Although the railings required by 1918.25(b)(2) are not required on these vehicular ramps, as stated in paragraph (a), the ramps must be equipped with sideboards that will prevent vehicles from falling off the edge. Except for the railing requirement, ramps used for vehicle access to or between barges must meet all of the requirements of 1918.25.

Final rule paragraph 1918.26(b) remains the same as proposed; it addresses employee passage to and from certain floating craft. Under favorable conditions, it is sometimes possible to pass to and from such vessels without the aid of any additional means of access. In unfavorable conditions, however, this paragraph sets forth the provisions required for safe passage. These range from a straight ladder to a Jacob's ladder or other safe means of access. Of significance is the exception that recognizes the practical difficulties that may be encountered on the Mississippi River system in providing traditional access. Historically (Ex. 1-98), this exception is based on tidal and current conditions on the Mississippi system.

Final rule paragraph (c) addresses the situation where a barge or raft is being worked alongside a larger vessel. Unless other safe means of access is provided, paragraph (c) requires a maximum of two Jacob's ladders for any single barge or raft being worked. This is consistent with the requirement in 1918.24(a) that requires no more than two access ladders in a hatch. In final paragraph (c), the term "gang" is used to refer to a group of longshore workers assigned to a particular hold, deck, etc. on a ship to load or discharge cargo. The use of this term is consistent with its use elsewhere in this final rule.

Final rule paragraph (d) mandates that barges on which longshoring operations are taking place must be secured to the vessel, wharf, or dolphins. The purpose of this provision is to prevent workers from falling into the water while handling cargo.

Subpart D--Working Surfaces

Subpart D, Working Surfaces, addresses the hazards associated with slips, trips, and falls that are common causes of injuries in the marine cargo handling industry.

OSHA clearly understands that many hazards addressed by this and other subparts represent working environments and physical characteristics that are encountered much less frequently now than when the Longshoring Standards were last revised. This primarily is a result of the evolution of handling cargo in intermodal containers rather than as break bulk. However, OSHA believes those conventional break-bulk cargo handling methods, together with the more traditional vessel characteristics, such as a yard and stay cargo handling gear and hatches covered by hatch boards, are still encountered at U.S. ports. In the proposal, OSHA requested comment from the public on the issue of obsolete regulations, primarily those that addressed methods of cargo handling that are no longer used. OSHA also received testimony on this issue (SEA Tr. pp. 133-134).

It has been pointed out to OSHA, particularly at the West Coast public hearing, that ex-Soviet bloc vessels that were once not allowed to enter some United States ports, due to security reasons, are now allowed to enter. Some of these vessels have cargo handling gear and hatch coverings that had virtually disappeared from ports in the United States. In the final rule, OSHA is retaining many provisions that might otherwise have been considered obsolete because they still have application to these vessels. To illustrate, 1918.31(d) prohibits the placing of poorly fitting hatch covers and hatch beams that would constitute a work surface. As a practical matter, seeing vessels at U.S. ports fitted out with hatch beams is rare. However, such situations do still arise.

Section 1918.31, "Hatch coverings," (paragraphs (a), (b), (c), (d), and (e)) retains the same requirements as the current and proposed regulation, except that some editorial changes have been made for clarity.

Paragraph 1918.32, "Stowed cargo and temporary landing surfaces," addresses surfaces used temporarily to load cargo, fall hazards posed by the edges of hatch sections or by stowed cargo, and fall hazards posed by gangs working on different levels of the hatch (paragraphs (a), (b), and (c), respectively). Paragraph (a) specifies that temporary surfaces used to land a load be of sufficient size and strength to allow employees to work safely, that edges of hatch sections or of stowed cargo be guarded by a safety net or equivalently protective means, and that employees working in the same hatch but at different levels be protected from falling by safety nets. The requirements in this paragraph are essentially identical to those in the existing rule and have only been modified minimally for clarity.

Final rule paragraph 1918.32(b) has been revised to address changes that have occurred in technology and work practices since OSHA's original Longshoring Standard was adopted. This paragraph does not apply to employees working on top of intermodal containers, whether above or below deck, because such work is now covered by Section 1918.85(j), "Fall protection" (for a more detailed discussion of this issue, see the preamble to 1918.85(j), below). Instead, section 1918.32 applies when employees are working non-containerized cargo in the hold and are exposed to falls of more than eight feet (2.4 m); it requires that the edge of the working surface be guarded by a safety net or that other means of fall protection (such as guardrails or fall arrest systems) be used to prevent employee injury. This fall distance of 8 feet comes from the original Longshoring safety rules promulgated under the Longshoremen and Harborworker's Compensation Act (33 U.S.C. 901) in 1960 and is reflected in the existing rule. Rule 1016 of the Pacific Coast Marine Safety Code (PCMSC) (Ex. 1-145) is very similar to this paragraph, although the OSHA provision has been written to reflect a more performance-oriented approach. In addition, instead of specifying the precise fall distance, distance to the edge, and so forth that triggers fall protection in individual provisions, OSHA has defined the term "fall hazard" in the Definitions section (1918.2). A discussion of the definition of "fall hazard" can be found in subpart A.

It is essential that employees satisfy the intent of this provision and do not merely appear to comply with it. Many times, particularly when safety nets have been rigged, they have been allowed to become very slack, and have even in some cases been secured only at their top ends. The improper rigging of safety nets compromises or even removes the protection provided to falling employees.

This paragraph has also been revised to distinguish between the purpose and use of vertical safety nets, which rise at right angles at the perimeter of a work surface to prevent employees from falling, and trapeze nets, which are designed to be placed horizontally below a raised work surface to prevent falling employees from striking the surface below.

OSHA proposed to require that the safety nets specified in this section meet the requirements of ANSI A10.11, "Personnel and Debris Nets." One commenter wrote:

Rigging and testing nets under ANSI regs in maritime conditions may not be possible such as providing outriggers for horizontal distance. This regulation was written for long-term construction projects where nets can be rigged, tested and left in place. (Ex 6-36).

Commenters also pointed out that ships often supply the safety nets and that requiring a foreign vessel to provide a net that meets ANSI specifications may be difficult. Other commenters also opposed including the reference to the ANSI standard (Exs. 6-16a, 6-29a, 6-36, 8-8, 8-20). After considering the international implications of this provision as proposed, OSHA agrees with these commenters and has deleted the reference to ANSI A10.11 in the final rule. In its place, OSHA has added performance language suggested by the National Maritime Safety Association--"Safety nets shall be maintained in good condition and be of adequate strength for the purpose intended" (Ex. 8-20).

The language in 1918.32(c), which requires that gangs working at different levels of the same hatch be protected by nets from falling themselves or from being crushed by falling cargo, is unchanged from the proposed provision. However, because this paragraph, like paragraph (b), requires the use of safety nets, OSHA has included identical performance language in this paragraph, i.e. that "Safety nets shall be maintained in good condition and be of adequate strength for the purpose intended."

Final 1918.33, titled "Deck loads," addresses the safe performance of work on or around deck loads; it has been carried over from the current rule and the proposal and is unchanged in the final rule. It requires that employees be prohibited from passing over or around deck loads except where safe passage exists (paragraph (a)). This requirement is designed to protect employees from falling or being crushed by falling cargo. Paragraph (b) of the final rule requires employees giving signals to crane operators to have safe passage if they walk over deck loads from rail to coaming; absent such safe passage, this provision prohibits these employees from walking over deck loads. In situations where it is necessary for the employees giving signals to stand or walk at the outboard or inboard edge of a deck load having less than 24 inches (.61 m) of bulwark, rail, coaming, or other protection, those employees must be provided with fall protection equivalent to that provided by a safe passageway, i.e. with a guardrail, personal fall protection system, or other equally effective means.

Some commenters (Ex. NMSA et al.) recommended that OSHA not include this section in the final rule because, in their opinion, it is redundant with provisions in 1918.32 and 1918.91. However, OSHA does not agree with these commenters, because 1918.32 addresses working below deck and section 1918.91 addresses housekeeping. Mr. Douglas Getchell, a member of the Pacific Coast Marine Safety Code Committee, International Longshoremen's and Warehousemen's Union, agrees with OSHA on this point; at the hearing, he testified that 1918.32 and 1918.91 only "peripherally apply" to conditions found when working deck loads. He stated that, since 1918.33 is more specific to the subject, it should not be deleted (NO Tr. pp.246-250).

Final rule 1918.34, "Other decks," includes requirements to protect longshore workers from being injured while working on other decks, e.g. skeleton decks, mechano decks. Paragraph (a) prohibits the working of cargo on any deck that was not designed to support a load of the weight being worked, and paragraph (b) requires that grated decks be properly placed, supported, maintained, and designed to support employees; grated decks that do not meet this requirement may not be used to work cargo. OSHA proposed to change the title of this section of the existing rule, which is "Skeleton decks," to "Other decks" and received support from commenters to make this change (Ex. 8-20, NMSA et al.). Accordingly, the final rule section is titled "Other decks."

Final rule 1918.35 and 1918.36 address hazards longshore workers face when conducting operations around open weather deck hatchways or when weather deck rails are removed to conduct cargo operations. Vessels calling at U.S. ports are of varied designs and capabilities. Some vessels have coamings, which are the vertical structures that surround the hatch opening on a ship, that are much higher than the section 1918.35's minimum acceptable range (36 to 42 inches (.91 to 1.07 meters)), while other vessels may have no hatch coamings but have flush decks or decks with a short sill. Decks of the latter two types pose substantial fall hazards to longshore workers. Sections 1918.35 and 1918.36 require that, when employees work around the perimeter of open hatchways that are not protected to a height of 24 inches (.61 m) on vessels with low or no hatch coamings, appropriate guarding, such as that provided by taut lines or barricades, must be provided to a height of 36 to 42 inches (.91 to 1.07 m) on all but the working side of the hatch (1918.35). Weather deck rails must be kept in place except when cargo is being worked, and they must be replaced after cargo operations are finished (1918.36). These provisions were widely supported (Ex. NMSA et al.), and these sections are unchanged from the proposal.

Final 1918.37, "Barges," addresses the fall hazards associated with working on the decks of lighters and barges. Final paragraph (a) prohibits the use of marginal (less than three feet (.91 m) wide) deck space along the sides of covered lighters or barges on all such vessels having coamings more than five feet (1.5 m) high but allows an employer to provide, instead, a taut handline or a serviceable grab rail. Two commenters (Exs. 6-18, 6-42) asked OSHA to allow existing barges to be "grandfathered" from compliance with 1918.37(a) on the grounds that "Many barges currently in service do not meet the three-foot standard [the width for walkways]. Rather the walkways on these barges are only 18-24 inches in width" (Ex. 6-18). OSHA is not providing such an exemption in the final rule because this requirement has been in place since the 1960's, and it allows considerable compliance flexibility, e.g. the use of a taut handline or a serviceable grab rail in lieu of a 3-foot wide walkway. This requirement is essentially identical to that proposed.

Final rule paragraph (b) prohibits working or walking on barge decks that have not been visually inspected to ensure that they are structurally sound and have been maintained properly. The visual check of such decks must be done before loading operations begin. If during discharge operations an unsafe surface is discovered, work must be stopped until protective measures are taken (such as bridging the unsafe surface with steel plate or barricading a deck section deemed unsafe). This provision is essentially unchanged from the corresponding provision in the proposal.

Proposed 1918.38, titled "Log rafts," which was a new section in the proposal, has been moved to subpart H, "Handling Cargo" in the final rule. It has been combined with 1918.88, "Log operations," so that all requirements dealing with handling logs from the water are in the same section, as suggested by several commenters (Exs. 78, PMA et al., SEA Tr. p. 397, pp. 410-411). A discussion of log rafts is found below in subpart H.

Subpart E--Opening and Closing Hatches

Final subpart E, titled "Opening and Closing Hatches," remains very similar to the corresponding subpart of OSHA's current Longshoring Standard. This subpart addresses the hazards presented to employees by the opening and closing of covers designed to protect cargo from the elements. The principal hazards include employees falling into the hold while removing or replacing hatch covers and hatch beams and employees being struck by covers and beams as these articles are moved. The proposed language received widespread support from commenters (Exs. NMSA et al., PMA et al) and are thus essentially unchanged in the final rule. OSHA is retaining sections in subpart E that address methods of covering hatches, such as with hatch boards, even though these methods have largely been replaced by more modern or automated methods or equipment. In both written comments and testimony, participants stated that vessels that require these older methods of covering hatches are still worked in U.S. ports and thus that OSHA should retain these requirements in the final rule (Ex. 8-20; SEA Tr. pp. 134-135).

Final rule 1918.41, "Coaming clearances," addresses the fall hazards associated with such clearances. Paragraph (a) addresses weather deck clearances and requires that when a smooth-sided deck load more than 5 feet high is stowed within three feet (.91 m) of the hatch coaming, and the coaming height is less than 24 inches (.61 m), a taut handline must be provided along the side of the deckload so that employees are able safely to remove or replace hatch beams and covers. This provision is essentially identical both to the corresponding provision of the existing standard and the proposed rule; it is also similar to requirements in the NYSA/ILA Joint Maritime Safety Code--part C/Rule 38 (Ex. 1-2) and the PCMSC--Rule 1007 (Ex. 1-145).

Final rule paragraph (b) is titled "Intermediate decks." Paragraph (b)(1) requires that a three-foot (.91 m) clear work area be provided for intermediate deck hatchways before employees remove or replace these hatch beams or covers when a fall hazard exists. Paragraph (b)(1) also states an exception where the 3-foot clearance is not required when no fall hazard exists; for example, such a clearance is not necessary on the covered portion of a partially open hatch or when the lower deck has been filled to hatch beam height with cargo that itself provides a safe working surface. Paragraph (b)(2) specifically recognizes that a fitted grating can be considered part of the actual deck or working space if it is in good condition and is properly spaced within the 3-foot area. In addition, OSHA has dropped the reference to "banana" gratings found in the Agency's current longshoring regulation because it is an obsolete term.

Final rule paragraph (c) addresses the hazard of falling where, because of wing-space structures or spare parts storage, coaming clearance is reduced below the required 3-foot clearance. It requires employers to provide grab rails or taut hand lines in such cases.

Final paragraph (d) states that this section (1918.41) does not apply where the opening and closing of hatches is accomplished by mechanical means that eliminate the need for employees to place or remove individual sections manually. However, whenever a three-foot clearance does not exist, means shall be taken to adequately secure cargo that is stowed within three feet (.91 m) of the edge of the hatch to prevent cargo from falling into the hold.

Final rule 1918.42, "Hatch beam and pontoon bridles," is carried over in its entirety from OSHA's current longshore rules, although some editorial changes have been made for clarity. Provisions in this section address the hazards of handling hatch beams and pontoons, such as falling into the hatch or being struck by these removable items. Equivalent rules can be found in section two of the PCMSC (Ex. 1-145) and parts C and O of the NYSA/ILA Joint Maritime Safety Code (Ex. 1-2).

Paragraph (a) of final rule 1918.42 requires that hatch beams and pontoon bridles be long enough to fit their attachment points easily, be strong enough to lift the load safely, and be properly maintained. Paragraph (b) requires that bridles for lifting hatch beams be equipped with attachment devices, such as toggles, that cannot become accidentally dislodged. It also prohibits the use of hooks other than those specified in paragraph (b) unless such hooks are hooked into the standing part of the bridle.

Paragraph (c) requires that bridles used for lifting pontoons and plugs have the number of legs required by the design of the pontoon or plug and that all legs be used. Any legs that are not used must be hung on the hook or ring to prevent them from swinging free.

Paragraph (d) requires that at least two legs be fitted with a fiber rope lanyard that is a minimum of 8 feet long, is in good condition, and has a bridle end that is made of chain or wire. The purpose of all of the requirements in 1918.42 is to ensure proper manual guidance of the lift.

Final 1918.43, "Handling hatch beams and covers," has also generally been carried over from OSHA's existing longshore rules, with some editorial changes made for clarity. Provisions in this section address the hazards associated with the handling and stowing of hatch boards, hatch beams, and pontoons; examples include employees or hatch covers falling into the hatch or employees being struck by improperly stowed items. Similar requirements are found in Section X of the PCMSC (Ex. 1-145), part O of the NYSA/ILA code (Ex. 1-2), and ILO Convention 152.

Paragraph (a)(1) requires that hatch covers or pontoons stowed on the weather deck adjacent to hatches must be positioned in stable piles that are a minimum of 3 feet from hatch coamings. An exception to this requirement is permitted in the situation where hatch covers or pontoons are spread one high between the coaming and bulwark on the working side of the hatch and there is no space between them (providing that the coaming is at least 24 inches high). Paragraph (a)(1) also prohibits hatch covers and pontoons from being stacked higher than the coaming or bulwark on the working side of the hatch.

Paragraph (a)(2) prohibits hatch boards or other covers that have been removed from the hatch beams in a section of the hatch that has been partially opened for the purpose of being worked, cleaned, or used for other operations from being stowed on those covers or boards in the hatch that have been left in place. This provision applies to seagoing vessels only.

Final rule paragraph (b) stipulates that hatch beams be laid on their sides or be stood on their edges and be lashed together except in cases where the hatch beams have flanges: (1) Whose width is at least 50 percent of the height of the web and (2) that rest flat on the deck when the hatch beam is stood upright.

Paragraph (c) addresses the potential dislodgement of strongbacks, hatch covers, or pontoons. It requires that, when such items are placed on the weather deck, they be placed so as not to obstruct clear fore- and-aft and coaming-to-bulwark passage and be lashed or otherwise secured. In addition, this paragraph requires that dunnage or other suitable material be positioned under each tier of strongbacks or hatch covers to prevent them from slipping; this provision applies only when such items are stowed on steel decks.

In paragraph (d), the final rule requires employers to take precautions designed to protect workers from falling hatch covers and strongbacks. It stipulates that hatch covers and strongbacks unshipped in an intermediate deck be placed a minimum of 3 feet from the coaming or be removed to another deck altogether, except that strongbacks may be placed a minimum of 6 inches from the coaming if they have been secured so that they cannot tip over or be dragged into the lower compartment.

To prevent accidental displacement, paragraph (e) requires that any hatch beam or pontoon left next to an open hatch section being worked must be locked or otherwise secured. In addition, unless portable, manually handled hatch covers (including those that have been bound together to form a single larger cover) have been securely lashed, they must be removed from sections being worked and adjacent sections.

Paragraph (f)(1) of the final rule mandates that the roller hatch beam at the edge of the open section of the hatch be lashed or pinned back to prevent it from being dislodged and falling through the open hatch. Similarly, paragraph (f)(2) requires that rolling, sectional, or telescoping hatch covers on barges that open in the fore and aft direction be secured against movement when they are in the open position, and paragraph (g) requires similar precautions for hinged or folding hatch covers when in the upright position (except in cases where the design of the system precludes unintentional movement).

Paragraph (h) prohibits the opening or closing of hatches while workers are in the square of the hatch below. This prohibition is necessary to prevent hatch beams or covers from dislodging and falling on the employees working on the lower level.

In the final rule, paragraph (i), which was a newly proposed provision, addresses the hazards of unsecured materials. Lashing wires, rods, and twist locks are often left on top of a hatch cover after the cargo has been discharged. These items can fall from the covers when the covers are being moved and injure employees, and this provision thus requires that all such materials be removed from the hatch cover or be secured before the hatch cover is removed. The words "or secured to prevent them from falling off the cover" has been added to the proposed language to recognize that, in addition to removing such materials, employers can achieve the required protection by securing these items to the hatch cover.

Final rule 1918.43(j) requires that hatch covers or night tents be used to cover hatches, and that any covering that only partially covers a hatch, such as alternating hatch covers or dunnage strips, may not be covered by a tarpaulin. The reason for this prohibition is that employees could fall through the tarpaulin and partial covering. However, paragraph (i) allows an exception: tarpaulins may be used to cover an open or only partially covered hatch if they are used to reduce dust during bulk cargo loading and if positive means, such as barricades with placards, have been taken to ensure that employees do not walk on the tarpaulin. Verbal warnings, instructions or placards alone will not satisfy this provision. The exception has been added to the final rule, although the rest of this provision is similar to a paragraph in OSHA's existing Longshore Standard.

Subpart F--Vessel's Cargo Handling Gear

Subpart F applies to all gear and equipment used in cargo handling that is the property of the vessel. Examples of such equipment include cranes, derricks, specialized bridles, winches, wire rope, and shackles. This subpart addresses the hazards associated with that gear, such as using faulty gear, overloading or improperly rigging cargo gear, or the improper operation of cargo gear, which can result in serious injury or death (Ex. 1-103.).

Mr. Ronald Signorino, the Director of Health, Safety and Regulatory Affairs for Universal Maritime Services, described the diminishing amount of break-bulk cargo being handled with conventional cargo gear since the advent of containerized cargo (Ex. 6-35). He stated that traditional cargo handling expertise had become a "lost art" and therefore recommended that language be included in the final rule addressing the proper rigging and operating of conventional cargo gear. He reasoned that, since some cargo is still handled by conventional methods, including recommendations addressing the correct spotting of cargo handling gear would provide employees unfamiliar with such gear with guidance on its safe operation. Mr. Signorino noted that improperly spotted conventional cargo handling gear can fail, which causes the gear and cargo to fall and can lead to serious injury. OSHA agrees and has added this information in non-mandatory Appendix III.

Section 1918.51 contains general requirements that apply to all cargo handling equipment that is permanently attached to a vessel. Final rule paragraph (a) remains essentially the same as proposed and stipulates that the safe working load of the gear, whether marked on the lifting appliance itself or specified in the required certificates/gear register, may not be exceeded. It also specifies that any limitations imposed by the authority responsible for certificating the gear be followed.

Final rule paragraph (b) requires that each component of ship's cargo handling gear be inspected by the employer (or his or her designee) before every use and at appropriate intervals during use. This paragraph clarifies the corresponding requirement in OSHA's existing Longshore Standard by making clear that the employer has an obligation to do a visual inspection. One commenter, the International Cargo Gear Bureau, Inc. (ICGB), pointed out that the proposed paragraph would have limited the designees to "representatives of the employer," which was not OSHA's intent (Ex. 6-22). OSHA has revised the language of the final rule to say, "designated person."

Referring to the same paragraph, 1918.51(b), another commenter, the National Maritime Safety Association (NMSA), suggested that OSHA add the words "and when necessary" before the words "at intervals during use" (Ex. NMSA et al.). However, OSHA disagrees with this comment because the Agency believes that, during use, events could occur or conditions arise that would suggest to a prudent operator that an unscheduled visual inspection may be necessary. OSHA agrees with NMSA that the inspection intervals required by the final rule should be qualified but believes that the word "appropriate" captures the desired meaning better than the suggested word "necessary." The final rule reflects this determination.

In final paragraph (c), employers are required to determine the load ratings of all wire ropes and rope slings presented in the vessel's wire rope certificate and to observe these ratings when using this gear.

Final rule paragraph (d) provides criteria for splicing wire rope and for wire rope configuration characteristics and is essentially unchanged from the corresponding paragraph of the proposal. It addresses eye splices, requirements for wire rope used in lifting, natural and synthetic fiber rope slings, and chains. Additionally, this paragraph brings the Longshore regulations for wire rope into conformity with the same criteria as those in OSHA's rules for shoreside marine cargo handling equipment (1917.42) and thus reflects OSHA's effort to maintain consistency between parts 1917 and 1918 and to enhance employee safety.

Final rule 1918.52, 1918.53, and 1918.54 all address the subject of rigging and operating vessel's cargo handling gear. The requirements of these sections are essentially the same as those parallel provisions found in the existing and proposed rules, although some language modifications have been made to enhance clarity.

Final rule 1918.52, "Specific requirements," contains provisions addressing preventers, stoppers, falls, heel blocks, coaming rollers, and cargo hooks. Paragraphs (a)(1) and (a)(2) mandate that preventers have sufficient strength to achieve their purpose and be properly secured to the head of the boom (unless, for cast fittings, the strength of the fitting exceeds the strength of all lines secured to it (paragraph (a)(1)) and that wire rope clips and knots not be used to form eyes in or join preventer guys (paragraph (a)(2)).

Paragraphs (b)(1), (2), and (3) contain requirements for the condition, configuration, strength, and securing of chain topping lift stoppers. These requirements are essentially unchanged from the parallel provisions of the proposal. OSHA solicited comment in the proposal regarding whether or not to delete 1918.52(b) as obsolete. This paragraph addresses the use of chain topping lift stoppers and clamp type stoppers that are used manually to lower and raise the boom. This method of topping the boom is a potentially dangerous operation and has been largely replaced by the use of electric topping lift winches that do not require the use of stoppers. As noted earlier, however, vessels continue to call on U.S. ports equipped with this older equipment. Such vessels will need to be addressed by 1918.52(b), as noted in the comments (Ex. NMSA et al.). OSHA agrees and has accordingly left this requirement in the final rule.

Paragraph (c) specifies requirements for the securing, conditions of use, formation of, and winding of the fall on the drum. Again, no comments were received on these provisions, which are essentially unchanged from those proposed. These provisions are designed to ensure that winch falls do not slip, break, or release while cargo is being lifted.

Heel blocks are covered by the requirements of paragraph (d). Paragraph (d)(1) requires that a preventer or equally effective means be used to hold the block in the event of heel block attachment failure. In paragraph (d)(2), OSHA requires that, in cases where the heel block is not so rigged as to prevent its falling when not under strain, the heel block must be secured, except where the heel block is at least 10 feet above the deck at its lowest point.

Paragraph (e) of the final rule requires portable coaming rollers to be secured by wire preventers, while paragraph (f) specifies that cargo hooks be as close to the junctions of falls as the assembly permits, but in all cases within 2 feet of the assembly. Paragraph (f) applies only to vessels and operations where fall angles greater than 120 degrees occur.

Cargo winches are covered in 1918.53 of the final rule. Paragraph (a) stipulates that the moving parts of winches or other deck machinery be guarded to prevent employees from being caught in or between moving parts. According to paragraph (b), winches may not be used if control levers operate either with excessive play or friction; paragraph (c) prohibits the use of double gear winches or other winches equipped with a clutch unless a positive locking mechanism to lock the gear shift is provided. When the gears on a two-gear winch are being changed, paragraph (d) prohibits any load on the winch other than the fall and cargo hook assembly.

Paragraph (e) requires that any defect or malfunction that has the potential to affect safety be reported immediately to the officer in charge and that the winch in question not be used until the defect or malfunction has been corrected. The proposal added the following language to this paragraph: "* * * and the winch shall not be used until the defect or malfunction is corrected." This addition was supported by the International Longshoremen's and Warehousemen's Union (Ex. 19). In addition, several comments were received regarding the phrase "Any defect or malfunction of winches that affects safety * * *." These commenters stated that the language was too broad and that the less specific language in OSHA's existing standard should be retained instead (Exs. NMSA et al., PMA et al.). Other commenters agreed with the proposed language, however (Ex. 19, NO Tr. pp. 250-251). OSHA finds NMSA's and PMA's arguments unconvincing because the Agency believes that employers will benefit from the more specific requirement. However, the final language has been modified for clarity to say "Any defect or malfunction of winches that could endanger employees * * *".

Paragraph (f) requires that temporary seats or shelters for winch drivers not be used if they create a hazard to the operator or other employees (e.g. a "plywood roof" that obstructs the view of the operator). In addition, paragraph (g) prohibits winch drivers from using control extension levers that have not been provided by the employer or the ship (except for short handles on wheel-type controls). If used, such levers must be of adequate strength and be securely fastened. Any extension lever that tends to fall under its own weight must be counterbalanced, according to paragraph (h).

In paragraph (i) of the final rule, OSHA requires that winch brakes be monitored during use, and that those that are not able to hold the load be removed from service. As proposed, this requirement mandates that winches be monitored during operation. One commenter suggested that the phrase "monitored for performance" be more fully explained in the final rule (Ex. 6-46). In response, OSHA notes that the requirements in 1918.53 are directed to the employer of the employees who operate the winches to load and unload cargo. If, during operation, it is observed that the winch brakes do not prevent the cargo gear from lowering or slipping while under a load, the winch must be removed from service. To provide the specifics requested by this commenter, the language of paragraph (i) now reads as follows: "(i) Winch brakes shall be monitored during use. If winch brakes are unable to hold the load, the winch shall be removed from service."

The requirement at paragraph (j) states that winches may not be used if one or more control points are not operating properly, and further specifies that employees are not permitted to tamper with or adjust the winch controls. Both of these requirements are designed to ensure the safety of hoisting and lowering operations performed with a winch.

To ensure that unattended winch controls are not tampered with or adjusted, paragraph (k) requires that the control levers of unattended winches be placed in the neutral position and that the power be shut off or the control lever be locked. As proposed, a feasibility exception that is included in OSHA's existing Longshore Standard has been deleted because it was based on a winch design feature that is no longer in use today because of technological improvements.

Section 1918.54, entitled "Rigging gear," addresses the hazards associated with the unsafe practice of rigging guys or preventers so that they chafe against other guys, preventers, or stays. Such chafing can cause the vessel's cargo gear to fail because the chafing can cause the wires to separate, leading to possible serious injury or death as the gear and cargo fall down on the deck or into the hold. Several commenters supported the inclusion of this paragraph in the final rule (Ex. NMSA et al.).

Paragraph (a) requires each guy or preventer to be placed in a manner that prevents it from contacting any other guy, preventer, or stay, and paragraph (b) requires that guys be placed to produce the least amount of stress without allowing the boom to jackknife. Boom placement is addressed in paragraph (c), which states that the head of the midship boom must be spotted no further outboard of the coaming than is required to control the load. Preventers are covered in paragraph (d). Paragraph (d)(1) requires that these devices be secured to suitable fittings (other than those to which the guys are secured) and be as nearly parallel to the guys as the fittings permit. Except when the cleat is also a chock and the hauling part is led through the chock opening, the lead of preventers must be designed so that the direction of the line pull of the preventer is as parallel as possible to the surface on which the cleat is mounted (paragraph (d)(2)). Paragraph (d)(3) requires that guys and associated preventers be adjusted so that the load is shared as equally as possible when burtoning operations are underway. An exception is allowed where guys are designed and intended only for trimming purposes and the preventer is used in lieu of the guy; in such cases, the guy may be left slack.

Cargo falls are covered by paragraph (e), which stipulates that cargo falls under load are not permitted to chafe against any standing or other running rigging. A Note to this requirement stresses that, for the purposes of this paragraph, rigging is not to be construed to mean hatch coamings or other parts of the vessel.

In paragraph (f)(1) of the final rule, employers are required to secure the bull wire to the gypsy head by shackle or equivalent method where the bull wire is taken to the gypsy head for lowering or topping the boom. Fiber rope may not be used to comply with this provision. Paragraph (f)(2) states that, when it is not possible to secure the bull wire to the gypsy head or when the topping lift is taken to the gypsy head, at least five turns of the wire must be used.

When deck loads are higher than the rail and the clearance between the edge of the load and the inside of the bulwark or rail is less than 12 inches, paragraph (g) requires employers to provide a pendant or other alternate device to permit trimming of the gear without its going over the side. The provisions in section 1918.54 are essentially unchanged from the parallel requirements in the proposal.

Final 1918.55, titled "Cranes," covers deck cranes permanently attached to a vessel. OSHA's existing rule only addresses the hazards associated with the swing radius of the crane. The final rule's requirements, on the other hand, provide more comprehensive coverage of the hazards encountered in the use of ship's cranes. In addition, these requirements closely parallel similar shoreside requirements in part 1917 and in other OSHA crane standards.

In 1918.55(a), OSHA prohibits the use of cranes that develop a visible or known defect affecting safe operation. In addition, proposed paragraph (b)(1) required that the operator's station be well maintained, with good visibility provided through the cab's glass. Comments were received (Ex. NMSA et al., PMA et al.) recommending that OSHA reword the language of this provision of the existing Longshore Standard for the sake of clarity. Other commenters pointed out that the proposed wording of this provision was similar to language found in the Pacific Coast Marine Safety Code (although the code requires replacement of cracked or broken glass) (Ex. 19). In response to the comments received, OSHA has revised the language in this paragraph to read as follows: "Cranes with missing, broken, cracked, scratched, or dirty glass (or equivalent) that impairs operator visibility shall not be used." The same language has been used in 1917.45(f)(5), addressing the same issue in relation to cranes used in marine terminals.

Paragraph (b)(2) mandates that clothing, tools and equipment be stored in a manner that does not restrict access to or operation of the crane or interfere with the operator's view.

According to paragraph (c), areas that are within the swing radius of the body of revolving cranes and are accessible to employees must be guarded during cargo operations to prevent an employee from being caught between the body of the crane and any fixed structure, or between parts of the crane. In proposed paragraph 1918.55(c)(1), OSHA addressed the danger of employees being caught between shipboard gantry cranes and fixed structures on deck along the travel path of the crane, such as would occur on a LASH (Lighter Aboard Ship) vessel or a self-contained container ship. (Ex. 1-103, cases 26 and 27). OSHA received both comment and testimony on this proposed language. The commenters pointed out that there are means other than physical guarding to protect employees in this situation, such as using a proximity device to shut down crane travel if an employee is in danger of being caught between the crane and a structure on the vessel (Ex. NMSA et al., NO Tr. p. 396). OSHA agrees with these commenters and has added the words "or other effective means shall be taken" to paragraph (c)(1) of the final rule. Also, a note has been added for clarification that says; "Verbal warnings to employees to avoid the dangerous area do not meet this requirement."

An issue discussed at length during the public hearings was the bypassing of limit switches during cargo operations. Most cranes, both shore-based and shipboard, are equipped with limit switches. Limit switches are designed to prevent the crane and boom from damage by deactivating the crane when certain limits are exceeded. Limit switches can prevent the crane from the following hazards: boom collapse, unwanted contact with the vessel or other structure, exceeding the safe working load, or dropping a container. Another example of a limit switch is the anti-two-blocking device. The calibration of limit switches always incorporates a specific margin of safety.

In the proposal, OSHA did not allow the bypassing of limit switches during cargo operations. The National Maritime Safety Association, in their written comments, asked that OSHA allow limit switches to be bypassed, but only after an officer of the vessel has been notified, and only where a designated person directs the operation (Ex. NMSA et al.). During the public hearings in Seattle, members of the International Longshoremen's and Warehousemen's Union (ILWU) Longshore Coast Safety Committee testified that limit switches should not be bypassed except in certain situations, such as an emergency. They expressed concern that bypassing limit switches could put stresses on cranes for which they were not designed, resulting in a dangerous situation. The ILWU also stated that this issue had been considered by the Joint Co-Safety Committee, which consists of members from labor and management, and that Committee had determined that cranes with a load should never be put in a bypass mode (SEA Tr. pp. 106-113).

Further, a member of the Pacific Maritime Association (PMA) testified at the Seattle hearings that because of the discussions between the PMA and the ILWU, Rule 277 of the Pacific Coast Marine Safety Code had been adopted:

Bypass keys where ships' cranes equipped with limit switches, shall not be left in the override locks. That * * * [is], the keys were not to be maintained in the override locking position.

That was the result of the discussion. There was never unanimous agreement on if bypass switches could be turned on for special moves or special types of operations (SEA Tr. p. 158).

During the Seattle hearings, further testimony on the issue of bypassing limit switches was given by Don Lawson, principal surveyor with Marine Surveyors and Consultants, Inc., a company accredited by the Department of Labor under part 1919 to inspect and certify vessel and shore-based cargo handling gear. Mr. Lawson stated:

The purpose of the limit switch is:

[First] to prevent stresses on the structure, particularly the boom, when the maximum radius is reached, and if the safe working load was on the hook at the time, to go below the safety switch, the lower limit safety switch, would be an overstressed situation.

The second reason for a limit switch is preventing physical damage, physical contact with structures around the crane, and this is where there's been a lot of problems over the years.

A limit switch should never be bypassed for cargo operations. I agree with the scenario of a life and limb situation or an emergency situation where there might be property damage and that there should be somebody technically-oriented to carry that out.

In the hundred or so incidents we've been involved with, most the times the jib, when the limit switch is bypassed, is set down on the crutch or the foundation for another crane on the vessel, which is on the same platform, or it's the rail of the platform.

The operator's view of these areas is limited because the structure of the jib is quite large and does obstruct the side view * * *.

In all cases, if there's been contact with ship structure, the limit switch had been bypassed.

Another statement that came out yesterday is there's a lack of design or a problem with design of vessels and that you must bypass the limit switch in order to get to certain reaches of a hatch. That's not true.

The newer generation loggers have long midships hatches. Usually the middle hatches, and the two and three or three and four hatches are long, but they're served by cranes on both sides of the hatch.

If you look at a shadow plan of the radius of the cranes, you'll see that they're concentric circles in the center of the hatch, but in the trunks the forward crane will not reach the after trunk and vice versa (SEA Tr. pp. 278-289).

Further testimony given by an ILWU container crane operator addressed bypassing the limit switches on the container spreader bar. These switches are designed to prevent the corner twist locks from unlocking when handling a container. Citing snow as an example, he stated:

* * * I don't believe that we should use a bypass because we have snow jamming the sensors and the corners of the spreader. What we should be doing, of course, and what we normally do is lower the spreader and have somebody clean out the snow (SEA Tr. p. 111).

Another dock worker testified that the spreader corner locks can be bypassed to speed up an operation. Instead of having to wait for the limit switches to activate and release the locks, bypassing them allows for a faster operation. However, this same witness testified that this practice can also lead to a spreader releasing a container inadvertently while in the air (SEA Tr. pp. 306-307).

One employer, Captain John McNeil, Vice-President of Operations, Marine Terminals Corporation, testified that there are occasions where the limit switches on a container crane can be an operations problem.

* * * The upper limit on container cranes is usually set by a limit switch, to six feet under the boom to permit normal, safe operations.

When we have an especially high vessel that comes into that threshold one or two feet, it is a common practice, is it not, to shut off the bypass or to raise the bypass limits to be able to work that extra tier of containers? (SEA Tr. p. 285).

Additionally, Captain McNeil noted that limit switches are sometimes bypassed, prior to cargo handling operations, when a vessel has two cranes at the same hatch that can be operated together (married) or separately (SEA Tr. pp. 286-288).

Post hearing comments submitted by the ILWU repeated their position against bypassing limit switches and included suggested language for the final rule. They also stated that similar language should be included in the Marine Terminals Standard, as part of 1917.45, Cranes and derricks (Ex. 78).

After a thorough review of all the comments and testimony, OSHA remains unconvinced that limit switches can be safely bypassed during cargo operations and continues this prohibition in the final rule. However, OSHA recognizes that, in addition to emergencies, there are certain non-cargo handling operations that occur that necessitate the bypassing of limit switches but have no adverse impact on worker safety. OSHA has identified three specific situations where such bypass systems may be activated: during an emergency, while performing repairs or when stowing cranes or derricks. To provide additional safeguards, any time a bypass system is used, it must be done under the direction of an officer of the vessel. Paragraph (c)(2) of the final rule has been revised accordingly.

The provisions of paragraph (c)(2) are also being carried over to shore-based cranes in the final rule on marine terminals. However, OSHA recognizes, in one unique, shore-based situation, where the limit switches of cranes can be readjusted without an adverse impact on worker safety. Specifically, when a container ship with an unusually high deck load causes the upper limit switches to activate before the top tier of containers can be worked, then the limit switches can be safely readjusted if the margin of safety provides enough extra height to allow readjustment. While readjustment may be allowable under these narrow circumstances, bypassing the limit switch is not. To provide additional safeguards, readjusting limit switches may only be done under the direction of a crane mechanic. Therefore, OSHA has also included language regarding adjustments of limit switches in 1917.45(g)(11).

Final rule 1918.55(c)(3) requires a minimum of three full turns of wire rope to remain on ungrooved drums and at least two turns on grooved drums under all operating conditions; this is a precaution against slippage of the rope.

Paragraph (c)(4) requires that crane brakes must be monitored during use. This requirement is essentially unchanged since the proposal. (See discussion about brakes in 1918.53(i), above.)

Paragraphs (c)(5) and (c)(6) address crane control levers and cranes with power down capability. Both of these provisions, which are standard safe operating procedures for cranes, are unchanged since the proposal.

Under paragraph (c)(7), when two or more cranes are used together to hoist a load, a designated person must direct the operation and instruct personnel in safe positioning and rigging. The designated person must also direct the movement of the crane. No changes have been made to this requirement since the proposal, and no comments on this provision were received.

Paragraph (d), which applies to cranes that are unattended between work periods, states that 1918.66(b)(4)(i) through (v) applies to such cranes.

Subpart G--Cargo Handling Gear and Equipment Other Than Ship's Gear

Subpart G, Cargo Handling Gear and Equipment Other than Ship's Gear, applies to all cargo handling gear used in cargo operations that is not part of the vessel (i.e. ship's gear). Some examples of the type of gear addressed in this subpart include: container handling lifting frames and certain multi-point engagement bridles, gear room constructed spreader bars for heavy lift cargo, special lifting devices for unique pieces of cargo, and bar pallet bridles. Except as noted below, commenters generally supported these provisions as proposed (Exs. NMSA et al., PMA et al.).

Final rule 1918.61 covers a wide range of subjects relating to gear inspection (examples: safe working loads, weight markings, certification, special gear). Paragraph (a) requires that all gear and equipment provided by the employer and brought aboard a vessel must be inspected before and, when appropriate, during its use by a designated person to assess its condition. If found to be unsafe, such gear cannot be used until it has been made safe. This paragraph is similar to the corresponding provision of the existing regulation, except that the term "designated person" has replaced the term "authorized representative" in the final rule. This change is consistent with the decision discussed in subpart A, Scope and definitions, regarding the use of the term "designated person."

Final rule paragraph (b)(1) is the same as the parallel requirement in the current and proposed longshore rules and requires that the Safe Working Load (SWL) of gear not be exceeded. Final rule paragraph (b)(2) was a new provision in the proposal. This paragraph requires the marking of the safe working load (SWL) on all cargo handling gear with a SWL of more than five short tons (4.5 metric tons). This practice is consistent with current recognized industry practice (Ex. 1-151). In the proposal, OSHA stated that most gear in use is already marked with the SWL, and no comments to the contrary were received.

Final rule paragraph (c) requires that any article of stevedoring gear weighing more than 2,000 pounds (.91 metric tons) must have its weight marked plainly on the article before being hoisted by the ship's gear. It is important to consider the weight of such articles when evaluating safe working loads of the vessel's cargo gear because the weight of the gear must be added to the weight of the load being lifted to figure out the actual load, which together cannot exceed the SWL of the vessel's cargo gear.

Final paragraphs (d) and (e) address certification and certification procedures. These provisions parallel those found in the shoreside Marine Terminal rules (1917.50(a) and (b)(1)). Paragraph (d) requires certification of any special gear listed in paragraphs (f)(1) or (g) of this section. Paragraph (e) requires that this certification be done by a party accredited by OSHA under 29 CFR 1919. Final rule paragraph (d) has been corrected to include a reference to paragraph 1918.61(g), which addresses the initial proof-load testing of intermodal container spreaders. The reference to paragraph 1918.61(g) was mistakenly omitted in the proposal.

Paragraph (f), entitled "Special gear," addresses special stevedoring gear, which is material handling gear fabricated of components that are not common, off-the-shelf items. Common, off-the-shelf gear would include hooks, shackles, and other items that have already been tested by the manufacturer. Examples of special stevedoring gear include gear room-constructed spreader bars for heavy lift cargo, special lifting devices for unique pieces of cargo, or bar pallet bridles that have some components that are not marketed or purchased with a specific cargo handling use in mind.

OSHA's existing Longshoring Standard requires initial testing for new special stevedoring gear, but does not require the tests to be conducted by an OSHA accredited agency (see 1918.61(b) of that rule). The existing Marine Terminals Standard also requires initial testing for new special stevedoring gear. These tests, however, must be conducted by an OSHA accredited agency (see 1917.50(c)(5)).

In the proposal, OSHA distinguished between heavy lifting gear (gear with a SWL over five short tons) and lighter gear. Heavy gear tends to be more complex in design and fabrication, more difficult to inspect and test, and presents a greater employee exposure hazard upon failure. Lighter gear, which is far more extensive and commonly associated with palletized/break bulk operations, is less complex in design and fabrication, less difficult to inspect and test, and presents a reduced employee exposure hazard upon failure. Based on these distinctions, OSHA proposed testing by an accredited agency for the heavy gear with proof load testing specifications ranging from 25% to 10% in excess of the SWL. For the lighter gear, OSHA proposed that testing be conducted by a qualified employee (in lieu of third party certification) to a specification of 25% in excess of the SWL.

Final paragraph (f)(1) requires special gear provided by the employer, the strength of which depends on special gear components and that additionally has a Safe Working Load of more than five short tons (4.5 metric tons) to be tested and inspected prior to initial use as a unit. Paragraph (f)(2), which is a provision similar to the corresponding provision of OSHA's existing Longshoring Standard, requires that special stevedoring gear with a SWL of five short tons or less continue to be inspected and tested prior to initial use as a unit by either an accredited agency or by a designated person. All tests required by this paragraph must be in accordance with Table A shown in paragraph (f).

Paragraph 1918.61(g) of the final rule requires that all intermodal container spreaders provided by the stevedore for hoisting afloat (aboard a vessel) shall be similarly inspected, tested, and certified. This provision also requires any spreader that is damaged in a way that requires structural repair to be inspected and retested after the repair is performed and before the spreader is returned to service. It should be noted that intermodal container spreaders that are part of ship's gear are required to be inspected and tested as part of the vessel's cargo gear under ILO Convention 152 (see subpart B, Gear certification).

Paragraph (h) requires that all cargo handling gear covered by this section having a SWL greater than five short tons be proof-load tested every four years according to Table A found in paragraph (f) or paragraph (g) of this section, as applicable. This proof-load test may be conducted by an agency accredited by the U.S. Department of Labor under 29 CFR part 1919 or by a designated person.

Final paragraph (i) requires that certificates and inspection records generated by the tests required by this section be made available for inspection. These include the certificates issued by accredited agencies as well as inspection and test records produced by designated persons while testing the equipment. Additionally included is any initial test records required by the existing standard for the purposes of the periodic testing provisions of paragraph (h) of this section.

Several issues related to 1918.61 arose during rulemaking; these can be categorized as follows:

(1) There are no OSHA-accredited agencies in or near some ports, some commenters said, especially small ports, which would increase costs and burden, perhaps especially for some small employers;
(2) Several commenters contended that requiring OSHA accredited agencies to provide certification for fabricated equipment repeats the current function of steel fabricators;
(3) Some break-bulk stevedores noted that a great deal of equipment would have to be certified or inspected every four years.

In their view, the Agency has underestimated the costs of certification and four-year equipment testing. In addition, they argued that the Agency did not demonstrate how the proposed testing provisions will significantly reduce the risk of using special gear and spreaders and that the Agency has not shown that these requirements are reasonable and necessary. Each of these points is addressed in turn.

In response to a comment questioning the availability of the OSHA accredited agencies required to conduct the tests specified in this section (SEA Tr. p. 484), OSHA notes that there are currently 130 OSHA accredited agencies in the United States and that they are located in all of the major port areas, including the Great Lakes and the Inland Waterways. Mr. Donald Lawson, with Marine Surveyors and Consultants, also testified that there were 5 to 10 companies that could do the required testing in the Seattle and Portland, Oregon area alone (SEA Tr. p. 278).

Several commenters questioned whether OSHA had provided information or data that showed that the proposed revisions to these requirements would reduce employee risk in this industry. The record clearly demonstrates, on a national level, that gear failures frequently occur. Data in the IMIS database indicate a record of injuries and fatalities due to gear failures (Ex. 1-103, cases 108, 116, 124). OSHA thus concludes that these requirements, which are designed to prevent gear failure, are necessary to employee protection.

In addition, OSHA received several comments and testimony suggesting that only a prototype or sample of special stevedoring gear needed to be proof load tested, instead of testing every single piece of gear, as proposed (Exs. 8-8, 8-20, SEA Tr. pp. 164-169, NO Tr. pp. 209-211). For example, Mr. Don Lawson, principal surveyor with Marine Surveyors and Consultants, testified:

I agree with the fact that a prototype can be developed with sufficient engineering and tested, but once production starts there need to be controls in workmanship and quality control and quality assurance and in the material * * * . They'll look for things, such as traceability and materials, for production controls, and for quality assurance * * *. Beyond that, the next step would be to make periodic visits to spot check workmanship, and then to carry out testing on 10 out of 100 or one out of 200 units (SEA Tr. pp 282- 283).

After careful consideration, OSHA agrees with Mr. Lawson's concern for quality assurance and reproducibility of specifications in unique shop-built stevedoring gear. Unlike the quality control mechanisms built into a manufacturing process that mass-produces items, OSHA believes that shop built items are more subject to variations in fabrication. These items, therefore, shall be individually tested according to this section.

Several commenters criticized the Agency's estimate of the costs that employers must incur to meet the revised standards for gear testing (SEA Tr. pp. 154, 236-250, 399, and 570). Some of these commenters are representatives of stevedores who perform specialized longshoring operations, such as logging and wood pulp, almost entirely on vessels. Since these employers primarily use special gear located aboard vessels, their gear has not previously been required to be tested, as marine terminal equipment has. Those employers who are involved primarily in container transport are not as affected by the final standard as stevedores engaged in break-bulk operations. Although some commenters expressed concern over the potential costs of these provisions, others agreed with OSHA that they were economically feasible for affected firms, as demonstrated by the comments of Mr. John Faulk, testifying on behalf of NMSA:

NMSA agrees with the approach by OSHA for 1917.50(c) and 1918.61(d) concerning certification of special stevedoring gear is practical, economically feasible and will provide adequate safeguards* * *. Except for the recommendations submitted by NMSA in their written comments * * * NMSA fully endorses OSHA's proposed language on the other provisions found in this subpart (NO Tr. p. 153).

The Agency has revised its cost estimates and its estimation of the impact on particular employers for this final rule (see SectionVI, Summary of the Final Economic Analysis and Regulatory Flexibility Analysis).

OSHA has included a table entitled "Cargo Gear Testing Requirements" in a non-mandatory appendix (Appendix IV). A form of this table was originally recommended by the National Maritime Safety Association and the Pacific Maritime Association (Exs. 8-8, 8-20) for inclusion in the standard as a compliance tool. Besides the performance and frequency requirements, OSHA has added the proof load testing specifications from Table A of 1918.61(f) to the table in Appendix IV so that it summarizes all of the testing gear requirements of this section. OSHA believes that this tabular information will enhance the clarity of the provisions and thus promote compliance.

For consistency, these same changes are being made to the parallel provisions of the Marine Terminals Standard (1917.50(c)).

Final rule 1918.62, titled "Miscellaneous auxiliary gear," covers all miscellaneous gear provided by the stevedore that is not part of ship's gear. The hazards addressed by this section are those generally associated with an employee being struck by falling objects, e.g. dunnage, gear or cargo, when the gear fails. These provisions of the final rule parallel the same requirements for miscellaneous gear found in the shoreside cargo handling standards at 1917.42.

Several modifications have been made to the existing rule to reflect the changes that have occurred in modern marine cargo handling methods. For example, the replacement criteria for wire rope are more stringent than those in the current regulation (see 1918.62(a)(4) of the final rule), and the prohibition against using new parts made of wrought iron now accords with the prohibition in ILO Convention 152 (see 1918.62(a)(5)(ii) of the final rule). Additionally, the final rule consolidates a number of closely related provisions formerly scattered throughout the rules into this one section; again, this is consistent with the format of the corresponding section in part 1917. Several commenters supported these provisions as proposed (Ex. NMSA et al.).

Paragraph (a)(1) mandates that, after the completion of each use, loose gear be placed in a manner that will avoid damage to the gear. In addition, this provision states that loose gear must be inspected after each use and be repaired before reuse if found to be defective.

Section 1918.62(a)(2) prohibits the use of defective gear and requires that distorted hooks, shackles or other similar gear be discarded to prevent its reuse. Several commenters suggested that OSHA clarify the meaning of the word "defective" (Exs. 19, 6-31a, 8-8, and 8-20), and the final rule now explains that those defects falling within the definition of "defective" as used by the manufacturer of the particular gear are addressed by this provision of the final rule. In addition, when manufacturers' specifications are not available to determine whether gear is defective, the employer must use the appropriate paragraphs of this section to make these determinations.

Paragraph (b) covers wire rope and slings that are not part of ship's gear. Employers are required by paragraph (b)(1) to follow the manufacturer's recommended ratings for wire rope and wire rope slings and to have such ratings available for inspection. In cases where the manufacturer is not able to supply the rating, employers must use the wire rope and wire rope sling tables found in Appendix II of this rule.

OSHA, in the proposal and the final rule, has included a comprehensive collection of tables, in Appendix II, that are to be used when manufacturers' specifications or gear certificates are not immediately available at the worksite for safe working load assessment. These tables are primarily based on American Society of Mechanical Engineers Standard (ASME) B30.9-1990 (Slings) (Ex. 1-148) and on requirements applying to wire rope clips and shackles currently contained in the Agency's rules for marine terminals.

Several commenters urged OSHA to make the use of these tables non- mandatory (Exs. 8-8, 8-20); these commenters noted that the proposed appendix containing these tables was non-mandatory and argued that the terminology used in the provision of the regulatory text referring to these tables should also be nonmandatory. In response, OSHA notes that the corresponding tables in OSHA's existing Longshore rule are referred to in mandatory language, and after careful consideration, has concluded that reliance on these tables is mandatory when certificates or manufacturers' use recommendations are not available. Consequently, OSHA has decided to change the status of Appendix II from non-mandatory to mandatory. This position was supported by several commenters (Exs. 19, 78, 6-49, 6-50, 6-51, 6-52, 6-53, 6-54, and 6-55 ). According to final rule paragraph (b)(2), wire rope having a safety factor of less than 5 may be used only in accordance with the limitations specified in paragraphs (b)(2)(i) through (iii). Wire rope or wire rope slings having any of the defects specified in paragraph (b)(3)(i) through (vi) may not be used for fear of failure.

Paragraphs (b)(4) through (b)(9) address covering or blunting of the ends of strands in splices, the use of wire rope clips to form eyes, the securing of wire rope, and eye splices. These provisions are essentially unchanged from the parallel provisions in the existing rule and in the proposal and are considered standard industry practice.

Paragraph (c) of the final rule contains similar provisions that apply to natural fiber rope and natural fiber rope slings used aboard ship, and paragraph (d) addresses the same hazards as they apply to synthetic rope and synthetic rope slings. The load ratings found in the various tables in Appendix II are to be used for ropes and slings of all types, as identified on the appropriate table.

In 1918.62(e), those defects that are sufficient to require the removal from service of natural or synthetic ropes are identified; these defects include abnormal or excessive wear, cut or broken fibers, rotting, and other structural defects that could cause the rope to fail under load. Paragraph (f) requires, where practicable, that properly fitted thimbles be used in cases where the rope is secured permanently to a ring, shackle, or other attachment. These provisions are also essentially unchanged both from the corresponding provisions of the existing rule and the proposed rule.

Paragraph (g) of the final rule, titled "Synthetic web slings," prescribes the conditions of use, causes for removal from service, and other requirements governing synthetic sling use. Paragraph (g)(1) prohibits the use of slings and nets composed of more than one piece of synthetic webbing and used as a single unit to hoist loads greater than the loaded capacity of the sling itself. In paragraph (g)(2), those defects that require the sling to be removed from service are specified; examples of such defects are acid or caustic burns, snags or punctures, and signs of excessive wear or damage. Paragraph (g)(3) prohibits the return to service of defective synthetic slings unless they have been repaired by a sling manufacturer or an entity with equivalent competence and additionally pass two proof tests. Manufacturers' use recommendations are required to be followed by paragraph (g)(4), and paragraph (g)(5) of the final rule mandates that fittings have a breaking strength that is at least equal to that of the sling to which the fittings are attached. These requirements, which were not specifically addressed by commenters, are essentially unchanged from the parallel requirements of the proposed rule and the Agency's Marine Terminals Standard. Their inclusion in the final rule thus achieves consistency in synthetic sling requirements in OSHA's marine cargo handling rules.

Paragraph (h) is titled "Chains and chain slings used for hoisting." Employers are required by paragraph (h)(1) to observe manufacturers' ratings for safe working loads when wrought iron or alloy steel chains and slings are used and additionally must have such ratings available. When such ratings are not available, Table 4A of Appendix II must be relied on for this information (for alloy steel chains and chain slings only). Paragraph (h)(2) specifically prohibits the use of coil steel chain or of other types of chain not recommended for slinging or hoisting by the manufacturer. The provisions of paragraph (h)(3) address the inspection of sling chains, specify the conditions that require removal of the chain from service, and stipulate that the inspection of chains used for slinging and hoisting may be performed only by designated persons.

Stringent requirements governing the repair of chains used for hoisting are included in paragraph (h)(4), and paragraph (h)(5) requires any wrought iron chains continually used for hoisting to be annealed or normalized at intervals not to exceed every 6 months. Following ILO recommendation 160 (Ex. 1-8), OSHA proposed to add language to this section to prohibit the use of wrought iron (which is considerably less elastic than steel and thus is more prone to fail) in new parts of lifting appliances or loose gear (1918.62(h)(5)(ii)). Although wrought iron is rarely seen on vessels that are trading today, such gear may still be in use on some vessels, and OSHA has therefore included this provision in the final rule.

Paragraphs (h)(6), (7), and (8) prohibit the use of kinked or knotted chains, require hooks, rings, links, and other attachments to have rated capacities at least equal to those of the chains to which they are affixed, and mandate that chain slings be marked with their size, grade, and rated capacity, respectively. Shackles are covered in paragraph (i)(1), which requires that the manufacturers' safe working load, if known, not be exceeded; where this information is not available, employers are required to follow Table 5 of Appendix II. Paragraph (i)(2) mandates that all screw pin shackles provided by the employer and used aloft (except in cargo hook assemblies) have pins that are positively secured.

Hooks other than hand hooks are required by paragraph (j)(1) to be used in conformance with the manufacturers' safe working load and to be tested in accordance with paragraphs (a), (c), and (d) of 1919.31 unless manufacturers' test certificates are available for such hooks. Paragraphs (j)(2), (3), (4) and (5) specify the conditions of use pertaining to hooks (other than hand hooks). These requirements are essentially unchanged from those proposed.

Pallets are covered by the requirements of paragraph (k). Paragraph (k)(1) specifies that pallets be made and maintained so that they will support the loads being handled and requires that the fastenings of reusable pallets that are used to hoist loads consist of bolts and nuts, drive screws, threaded nails, or equivalently strong fastenings. Provisions addressing the hoisting of reusable pallets, bridles for handling flush end or box-type pallets, and the stacking of pallets, as well as a prohibition against the reuse of single-use pallets, are found in paragraphs (k)(2), (3), (4), (5), and (6).

Section 1918.63, titled "Chutes, gravity conveyors, and rollers," and 1918.64, titled "Powered conveyors," contain requirements for the safe use of chutes, rollers and both gravity and mechanically powered conveyors. These sections are unchanged from the corresponding provisions of the proposal; in addition, these rules parallel the requirements covering similar equipment in the Marine Terminals Standard (see 1917.48 and 1917.49). After this final rule is effective, there will thus be no regulatory inconsistencies with such equipment, which often physically originates on shore and extends onto the ship.

The principal hazards associated with the use of chutes, rollers, and gravity and mechanically powered conveyors are caught in, struck by, and crushing injuries and engulfment (e.g. by moving grain). Accordingly, the provisions in 1918.63 and 1918.64 require, among other things, that this equipment be strong enough to handle the loads imposed, be equipped when necessary with sideboards, be free of splinters and sharp edges, have emergency stop controls (powered conveyors), have their pinch points guarded, be equipped with mechanisms to warn of conveyor startup, and be equipped with overload devices, guards, and other safety devices when necessary. For clarity, the lockout/tagout language has been amended to limit the conditions when power may be restored during the servicing of equipment.

Final rule 1918.65 covers the use of all mechanically powered vehicles brought aboard vessels. Included in this category of equipment are all industrial trucks and all bulk cargo moving vehicles. These vehicles are also used in the shoreside aspect of marine cargo handling, and the hazards are essentially the same in both "sides" of cargo handling operations. The changes to this section of the final Longshoring Standard parallel those requirements found in 1917.43, the corresponding section of the Marine Terminals Standard.

The requirements in final rule 1918.65, "Mechanically powered vehicles aboard vessels," are essentially unchanged from those proposed. Paragraph (a) states that this section applies to all types of powered vehicles used aboard ship to hand equipment or material. Paragraph (b)(1) requires any modification that could affect the capacity or safe operation of a vehicle to be done only with the manufacturers' prior written approval and/or that of a registered professional engineer experienced with the equipment. This requirement is necessary to ensure that operators of these vehicles, and other workers in the vicinity, are not injured in an accident involving an overloaded, poorly balanced, or otherwise unsafe vehicle.

Paragraphs (b)(2) and (3) require that vehicles be used within their rated capacities, and that the total weight of the lift made by two or more trucks working in unison not exceed the combined safe lifting capacity of the trucks used, respectively.

Final rule paragraph (c) addresses guards for fork lift trucks. The first provision requires all such trucks to be fitted with securely attached overhead guards that are designed to protect the operator from falling loads. Paragraph (c)(2) prohibits the use of overhead guards that obstruct the operator's view and stipulates that any opening in the top of the guard not exceed 6 inches in width or length (or be sized to prevent the smallest unit of cargo being handled from falling through the guard). Paragraphs (c)(3), (4), and (5) require overhead guards to be built so that: failure of the mast tilt mechanism will not displace the guard; the guard is large enough to extend over the operator during all operations; and that guards not be removed except when the presence of the guard would prevent entry into the work space (and then only if the operator is not exposed to overhead obstructions in the space). Paragraph (c)(6) requires fork lifts to be fitted with vertical backrest extensions if necessary to prevent the load from hitting the mast; the extension must provide such protection even if the mast is at maximum backward tilt.

Guards applicable to crawler-type, rider-operated cargo moving vehicles are covered by paragraph (d); at paragraph (d)(1), the final rule requires such vehicles to be equipped with an operator's guard that is built to protect the seated operator from contact with an overhead projection. Paragraph (d)(2) mandates that guards and their attachment points be sufficiently strong to withstand a load that is equal to the drawbar pull of the machine and that is applied horizontally at the operator's shoulder level; and paragraph (d)(3) states that guards are not required when the vehicle is used in situations that pose no threat to the seated operator of being hit by an overhead projection.

Final rule 1918.65(d)(4) contains a requirement for rollover protection on bulk cargo moving vehicles (such as the type used to trim and position bulk cargo in underdeck spaces). Such protection is required on similar pieces of equipment used in construction industry settings, where the hazard posed by turnover also exists. Comments received supported this requirement for both shoreside and shipside equipment; however, these same commenters requested a phase-in period of two years because of the large number of machines that would need to be retrofitted (Exs. 19, 6-29, 6-31a, 8-8, NMSA et al.). In addition, testimony indicated that OSHA provided a similar phase-in period to the construction industry for rollover protection. (SEA Tr. p. 175) To provide sufficient time to retrofit the large number of vehicles in the industry and to be consistent with past OSHA policy, the final rule provides for a two-year phase-in period in this paragraph.

In addition, OSHA sought comment in the proposal on the need for rollover protection on bulk cargo moving vehicles used shoreside, i.e. in the marine terminal environment. As noted above, several commenters supported the addition of this protective measure to the Marine Terminals Standard (Exs. NMSA et al., 19). To achieve consistency between the rollover protection requirements in the Marine Terminals and Longshoring rules, OSHA has provided for a similar two year phase-in period in 1917.43(f).

Paragraph (e) of the final rule covers approved trucks. Several commenters pointed out that parts 1917 and 1918 use different terminology to refer to the same type of equipment (Ex. 8-8, NMSA et al.). In part 1917, the term "approved power-operated industrial truck" is used, while the longshoring rules uses the term "approved power-operated vehicle" (see 1918.65(e)). Accordingly, OSHA has changed the term used in the final Longshoring Standard to "approved power-operated industrial truck" to be consistent with the language in part 1917 as well as OSHA's proposed "Powered Industrial Truck Operator Training" (61 FR 3092). As defined in paragraph (e)(1) of the final rule, an approved power-operated industrial truck is one listed as approved by a nationally recognized testing laboratory. Paragraph (e)(2) requires such trucks to bear a label or other indication that the truck is so approved. Paragraph (e)(3) states that, in hazardous atmospheres, only approved trucks may be used.

Maintenance requirements for mechanically powered vehicles are addressed in paragraph (f), which requires, at paragraph (f)(1), that such vehicles be maintained in safe working order, not have their safety devices removed, and not be operated with any defect, e.g. a fuel system leak, that could affect safe operation. Requirements pertaining to braking systems, replacement parts, and repairs to the fuel and ignition system are covered in paragraphs (f)(2), (3), and (4). Batteries must be disconnected and/or stored energy discharged before repairs can be made to the primary electrical system of mechanically powered vehicles (see paragraph (f)(5)). Paragraph (f)(6) stipulates that only designated persons may perform maintenance and repair on these vehicles.

Final rule 1918.65(g) remains as proposed. This paragraph requires that vehicles purchased after the effective date of the final rule be equipped with parking brakes. This provision received support, since nearly all pieces of newly manufactured equipment today have parking brakes and the value of such brakes in preventing accidents is widely recognized (NMSA et al.).

Paragraph (h) covers the operation of mechanically powered vehicles. Paragraph (h)(1) states that only stable and properly positioned loads that are within the rated capacity of the vehicle may be handled, and paragraphs (h)(2) and (3) require the drivers of these vehicles to ascend and descend grades slowly and to travel with the load trailing in those cases where the load obstructs the operator's forward view. Steering knobs are prohibited by paragraph (h)(4) except where the vehicle has power steering, and paragraph (h)(5) requires that a mechanism to alert the operator that the load has been engaged be provided if the vehicle is one that has a cargo lifting device with a means of engagement that is hidden from the operator's view. Paragraph (h)(6) prohibits any load on a mechanically powered vehicle from being suspended or swung over any employee; this provision is necessary to ensure that employees are protected from cargo falling from overhead loads. Paragraphs (h)(7), (8), (9), and (10) cover safe working surfaces, load engaging means, guarding of the edges of open deck barges and covered lighters, and precautions to be taken when employees ride on mechanically powered vehicles. Paragraph (h)(11) sets out the conditions under which employees may be elevated by fork lift trucks and includes specifications that must be met by platforms used for this purpose.

With the few exceptions noted above, OSHA received no comments on the proposed requirements in 1918.65. These requirements, which pertain to mechanically powered vehicles used aboard ship, are essentially unchanged since the proposal.

Section 1918.66 of the final rule covers all cranes and derricks that are not part of a vessel's permanent cargo handling gear but are placed aboard a vessel temporarily to conduct cargo operations, as stipulated in paragraph (a). Examples of such equipment are mobile and crawler type cranes that are positioned on barges and used to load and discharge cargo. In developing this section of the final Longshoring Standard, OSHA relied on the corresponding provisions for cranes and derricks found in 1917.45 of the Marine Terminals Standard. Once this final rule is effective, these provisions will thus be consistent for both aspects of the marine cargo handling industry.

Paragraph (a)(1) requires all such cranes and derricks to be certificated in accordance with OSHA's gear certification requirements (29 CFR part 1919), and paragraph (a)(2) requires the weight of any crane hoisted aboard a vessel to be posted on the crane. Requirements for rating charts, rated loads, exceptions to designated working loads, radius indicators, and operators' stations for cranes and derricks brought aboard vessels are shown in paragraphs (a)(3) through (7) of the final rule. Paragraphs (a)(8) through (12) contain provisions addressing counterweights or ballast, outriggers, exhaust gases, electrical equipment, and fire extinguishers associated with these cranes and derricks. Requirements specifying the amount of rope that must remain on the drum, how wire rope must be secured, and a prohibition against the use of fiber rope fastenings in hoisting operations involving these cranes and derricks are contained in paragraph (a)(13), while paragraph (a)(14) addresses brakes. Crane and derrick operating controls are required to be clearly marked by paragraph (a)(15), and paragraphs (a)(16) through (18) cover boom stops, foot pedals, and access to footwalks, cab platforms, the cab, and any portion of the superstructure of cranes and derricks brought on board for cargo handling purposes.

Operating precautions and requirements for cranes and derricks of this type are detailed in paragraph (b) of the final rule, entitled, "Operations." The provisions in this paragraph cover the use of two or more cranes together, the guarding of the crane's swing radius, prohibitions against the use of equipment that could exert side loading stresses on the crane or derrick boom or the use of a crane or derrick that has a visible or known defect that could affect safety, and steps to be taken if a crane or derrick is to be left unattended (see paragraphs (b)(1) through (4)).

Paragraph (c) sets out a number of protections for employees being hoisted (including the use of anti-two-blocking devices on all cranes and derricks used to hoist personnel). For example, paragraph (c)(1) states that no employee may be hoisted by the load hoisting apparatus of a crane or derrick unless a platform having the characteristics specified in paragraphs (c)(1)(i) through (vii) is used. Final rule paragraph (c)(2) requires that the hoisting mechanism of cranes and derricks being used to hoist personnel operate in the power up and power down mode. This requirement is being brought into the Longshoring Standard from the Marine Terminals Standard (1917.45(j)(2)) to provide parallel safeguards in both aspects of marine cargo handling operations.

Proposed paragraph (c)(3) required that cranes used to lift personnel be equipped with an anti-two-blocking device, a device which prevents the hoist block from coming into contact with the head block of the boom. Such "two-blocking"' can occur when the operator is not paying attention to how high the hoist block is in relation to the head of the boom. After contact, continued hoisting of the block can cause the block to separate or break from the load line, causing the hoist block and load to fall. OSHA has determined that this requirement is necessary to prevent serious injury or death to employees being lifted by a crane; in 1988, the Agency adopted such a requirement for cranes used to hoist personnel in the construction industry (1926.550(g)(3)(ii)(C), 53 FR 29139). Although OSHA's 1983 Marine Terminals Standard did not contain such a requirement, and inadvertently omitted this requirement in the proposal, the Agency has rectified this oversight in the final rule (see 1917.45(j)(9)).

There were many issues related to anti-two-blocking devices that were raised by participants in the rulemaking, including whether OSHA has any data on risk or accidents relating to these devices; whether it is technologically feasible to retrofit all maritime cranes with anti-two-blocking devices; and whether this requirement is truly necessary for safety in the marine cargo handling operations.

In response, OSHA notes the following. First, this issue primarily concerns mobile cranes, because most, if not all, container gantry cranes and portal gantry cranes are already equipped with anti-two-blocking devices. Mobile cranes are common on the Gulf Coast, but some are used at smaller ports on the East and West Coasts as well. In Gulf ports, very few ships that have containers that are stacked more than one or two high visit non-gantry crane facilities. Containers stacked only to this height are easily accessed with ladders, and this is the usual method of working them instead of using cranes to hoist the employees.

Several commenters noted that employees are rarely hoisted in this industry by non-container gantry cranes (e.g. mobile and crawler cranes) and that cranes used in longshoring have very long booms, unlike those in the construction industry, which greatly reduces the potential for two-block accidents in longshoring (NO Tr. pp. 165, 171, 172). The hoisting of employees by container gantry cranes is allowed when the spreader platform meets the requirements of 1917.45(j) and the crane is not hoisting a load. Commenters also said that some stevedores employ rented cranes that may not have anti-two-blocking devices on them and that it may be impossible to retrofit some existing cranes with anti-two-blocking devices (NO Tr. pp. 17, 398). Also, ship's gear is often relied on for some specialized longshoring operations, and in this situation the stevedore has no control over whether or not the ship's gear has this safety device. One commenter stated that very few ships had anti-two-blocking devices on their cranes (NO Tr. p. 399).

Industry commenters who opposed the requirement for anti-two-blocking devices did not do so primarily on economic grounds, although they noted that installing an anti-two-blocking device was a significant expense. Anti-two-blocking devices were estimated to cost from $3,000 to $13,000 each (NO Tr. pp. 368, 708).

One commenter, who had purchased a new crane with an anti-two-blocking device, reported that it was necessary to disconnect the safety device because it was not possible to perform "duty-cycle" work of transporting lengths of steel. The company reported that it virtually never lifted personnel by crane (NO Tr. p. 708). Another commenter also testified that ANSI requires all cranes purchased after January 1, 1991, to be equipped with anti-two-blocking devices (NO Tr. p. 710). Several commenters questioned whether the anti-two-blocking requirement was necessary because there was a lack of accident data and its intended use would be so infrequent (Ex. 6-29a, NO Tr. pp. 164, 171).

Mr. James Pritchett, owner of Crane Inspection Services, an OSHA accredited agency, testified in New Orleans:

One of the main reasons I came to the meeting that deals with regulations on cranes, I was delighted to read into the regulations that OSHA was considering anti-two-blocking on maritime cranes. Generally speaking, that is the rule for general . . . industry.

I think a man is a man regardless of what location he's working in. I think he's important in construction, general industry, longshoring, or maritime the anti-two-blocking device is a safety device; it's not intended for an operational device.

Also, it can be deactivated for duty cycle work. Its real intent is to be used for, or I should say, it really comes into play very importantly in a man lift situation (NO Tr. pp. 733-735).

As noted by several commenters, the purchase and installation of anti-two-blocking devices can be avoided through work practices and administrative approaches--cranes other than container gantry cranes are presently rarely used for lifting personnel (NO Tr. p. 171). On the other hand, where the need or frequency for lifting personnel is great, anti-two-blocking devices will offer greater protection for employees. In addition, OSHA is aware that mobile cranes equipped with anti-two-blocking devices are frequently rented to stevedore companies at East Coast marine terminals. The Agency concludes that the use of anti-two-blocking devices is necessary and feasible in marine cargo handling operations and requires their use in final 1917.45(j)(9) and 1918.66(c)(3).

In consideration of the above and consistent with past OSHA policies, the Agency believes the hoisting of employees by a crane to be an inherently dangerous practice that should only be conducted under very controlled circumstances. The common use of personnel platforms to transport employees by container gantry cranes, however, effectively controls these hazards. Nonetheless, in the case of cranes other than container gantry cranes, this practice should be avoided when other methods are feasible and present less of a hazard. OSHA therefore requires that all the provisions of 1918.66(c) be met before employees may be hoisted by the load or hoisting apparatus of a crane or derrick, including the use of an anti-two-blocking device.

Final rule 1918.66(d) addresses routine inspections of cranes and derricks that are not part of vessel's gear. Paragraphs (d)(1) and (d)(2) require that designated persons inspect each crane and derrick before each day of use and that such persons thoroughly inspect all functional components and accessible features of each crane or derrick at monthly intervals. Paragraph (d)(3) stipulates that defects found during such inspections that could potentially pose a safety hazard to employees be corrected before the equipment is used. In addition, this provision states that such repairs may only be performed by designated persons. Employees are required by paragraph (d)(4) to maintain records of monthly inspections for 6 months, either in or on the crane or derrick or at the terminal.

Protective devices are addressed by paragraph 1918.66(e). Paragraph (e)(1) states that moving parts, such as chains, gears, and sprockets, that could pose a hazard to employees during operations must be guarded, and paragraph (e)(2) requires that crane hooks be secured to prevent inadvertent disengagement of the load.

Paragraph 1918.66(f) addresses load indicating devices (LID's). To help prevent the overloading of cranes, LID's are currently required in both 1918.74(a)(9) and 1917.46. OSHA, however, had proposed not to carry over the requirements for LID's for vessel mounted cranes. Usually such devices rely upon boom radiuses (outreach) as an important factor in arriving at a load indication. When a crane is used aboard a ship, however, the LID's do not produce the same level of accuracy as for land-based cranes due to the motion of the vessel when a load is imposed. OSHA sought comment on alternative means to prevent the overloading of cranes used afloat. No comment was received. However, OSHA did receive comment supporting the continued requirement for LID's on cranes aboard a barge or vessel (Ex.6-2). OSHA is aware of the current practice of derating the capacity of the crane to account for waterborne conditions. This practice remains an acceptable method of preventing the overloading of waterborne cranes. Considering this and since the record supports the existing requirements, OSHA has decided to retain the language (as corrected) found in the current 1918.74(a)(9) and has codified this at 1918.66(f). Parallel language has been included in final 1917.46(a)(1)(ii).

Final 1918.67 remains as proposed and carries over the requirements found in the current 1918.75. These provisions require communication between the stevedore (i.e. the employer) and the officer in charge of the vessel whenever internal combustion or electrically powered tools, equipment or vehicles are brought aboard, and whenever the ship's power is needed for operating the employer's electrical tools or equipment.

Final 1918.68 remains as proposed and provides for the effective grounding of all portable electrical equipment, such as saws, drills, grinders, etc., through a separate equipment conductor that either runs with or encloses both circuit conductors. This represents a clarification of the current rule. Double-insulated tools and battery-operated tools are excluded from the requirements.

OSHA proposed to delete the regulations under the current section titled "Tools," (1918.72), in the belief that the current OSHA General Industry Standards, subpart P, titled "Hand and Portable Powered Tools and Other Hand-Held Equipment" comprehensively addressed the subject of portable tools. Comments and testimony were received that supported the existing requirements for tools and in the final, OSHA has kept the existing Longshoring Standard's requirements. (See discussion regarding tools in the preamble of subpart A.)

Subpart H--Handling Cargo

Subpart H of the final rule is titled "Handling cargo." This subpart specifically covers the actual shipboard cargo handling process. The sections that comprise this subpart (1918.81-89) address the hazards encountered by longshore workers while loading and unloading cargo. The primary hazard is being struck by the cargo, whether it is palletized, containerized, roll-on/roll-off (Ro-Ro), or otherwise packed or packaged. OSHA is retaining in this final rule those provisions found within subpart H of the Agency's current Longshoring Standard; carrying over applicable regulatory language from the Agency's rules for the shoreside segment of marine cargo handling (part 1917, the Marine Terminals Standard); and adding new requirements to address the hazards associated with the newer methods of handling cargo. For the most part, OSHA received widespread support for the changes that have been made to this subpart of the final rule (Exs. NMSA et al., PMA et al.).

Final 1918.81 through 1918.84 address those hazards common to the handling of break bulk (or general) cargo. Paragraph (a) of section 1918.81, "Slinging," requires drafts to be safely slung before hoisting and any loose dunnage or debris to be removed to protect employees handling the draft. Other provisions in this section address cargo handling bridles, methods of slinging to prevent sliders, the safe use of case hooks, the hoisting of bales, the safe handling of unitized loads, manual guidance of loads, observation of the draft during hoisting, and provisions prohibiting the lifting of loads over employees or employees riding the hook or load. Proper slinging, building, bulling and stowing of drafts of cargo are essential to prevent cargo from coming loose from the draft and falling on or tipping over onto employees. These requirements are essentially unchanged since the proposal, and OSHA received no comments specifically addressing these provisions.

Section 1918.82, "Building drafts," contains a requirement (in paragraph (a)) that drafts be built in a manner that prevents cargo from falling from the draft, or that means be taken to ensure the same result. In addition, paragraph (b) stipulates that buckets and tubs used to handle bulk or frozen cargo not be loaded above the height of their rims; this provision is necessary to ensure that pieces do not fall on employees below.

The tiering and breaking down of stowed cargo is covered in 1918.83. Paragraph (a) requires the securing of cargo in ship's hold if such cargo could present a hazard to employees working in the hold. Precautions must be taken, as required by paragraph (b), in breaking stowed cargo; this provision is intended to prevent such cargo from falling on employees. Paragraph (c) of the final rule requires employers to check employees trimming bulk cargo into and out of the hold. This provision also requires employees working alone in a tank or compartment to be checked at frequent intervals to ensure that the employee is safe.

The bulling (dragging) of cargo is addressed in 1918.84 of the final rule. Provisions in this section cover precautions to be taken during bulling, the safe use of snatch blocks, the securing of beam frame clamps, and a prohibition against the use of falls led from cargo booms of vessels to move scows, lighters, or railcars.

The final regulatory text of 1918.81 through 1918.84 remains the same as the proposed text of these sections. In addition, OSHA received no comments specifically related to these requirements.

Section 1918.85, titled "Containerized cargo operations," contains requirements addressing this modern method of cargo handling. This section applies to containerized cargo operations of any form (see definition of "intermodal container" at 1918.2). These paragraphs track OSHA's current Longshoring Standard (part 1918), and the shoreside requirements found in OSHA's current Marine Terminals Standard (part 1917).

Section 1918.85(a) requires that each intermodal container must be marked with its gross, net, and tare (empty) weights. This paragraph of the final rule remains the same as the corresponding proposed paragraph.

Final rule 1918.85(b)(1) through (5) address the determination of the weight of intermodal containers to be hoisted. The proposed provisions largely reflect the current rules in both the Longshoring and Marine Terminals Standards.

Paragraph 1918.85(b)(6), allows closed dry van containers loaded with vehicles to be brought aboard vessels under certain conditions without first being weighed on a scale. The proposal added paragraph (b)(6) to this section to be consistent with OSHA Instruction STD 2.2, dated July 3, 1989 (Ex. 1-114). Those employers who choose not to comply with these conditions must weigh the container before loading. The same language is found in the Marine Terminals Standard at 29 CFR 1917.71(b)(6).

Paragraph (c) provides that no container(s) shall be hoisted if their gross weight exceeds either the weight marked in accordance with paragraph (a)(3) of this section or the capacity of the crane or other lifting appliance being used. Paragraphs (d) and (e) cover container inspection and precautions to be followed when containers are suspended. The requirements in paragraphs (a) through (e) are essentially unchanged from those in the proposal.

Paragraph 1918.85(f) addresses the lifting of intermodal containers. It requires that containers be handled using lifting fittings or other arrangements specified in paragraphs (f)(1) through (3) of this section unless the container is so damaged as to make special handling necessary. Paragraph (f)(1)(i) specifies that the hoisting of loaded containers 20 or more feet in length be done as follows: When hoisted by the top fittings, the lifting forces are applied vertically from a minimum of four fittings. Lifts that are less than vertical are permitted only when the container is an International Standards Organization (ISO) (8) "closed box container," the condition of the box is sound, the speed of hoisting and lowering is moderated, the lift angle is 80 to 90 degrees, the distance between lifting beam and load is at least 8 feet 2.4 inches (2.5 meters), and the length of the spreader beam is at least 16.3 feet (5 meters) for a 20-ft container and 36.4 feet (11 meters) for a 40-ft container. If these specifications are met, the final rule thus allows non-vertical lifts in limited situations. In contrast, proposed paragraph (f)(1)(i) would have required that loaded containers, when lifted from the container's top corner fittings, only be performed with a purely vertical force. The proposed language is identical to the practice spelled out in the ISO guidelines for handling containers as well as with several other standards or recommendations (Exs. 1-13, 1-115, 1-116, 1-117).

Currently, OSHA's Marine Terminals Standard's requirement for lifting containers allows non-vertical lifts under specified circumstances, i.e. it states that "when hoisting by the top fittings, the lifting forces shall be applied vertically from at least four (4) such fittings or by means which will safely do so without damage to the container, and using the lifting fittings provided" (1917.71(f)(1)(i)). The Agency's current Longshoring Standard also allows non-vertical lifts, i.e. it states: "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" (1917.71(f)(1)(i)). A commenter noted that a decision of an Administrative Law Judge of the Occupational Safety and Health Review Commission (OSHRC) has held that these current OSHA rules allow any lift that has an angle greater than 60 degrees. (Continental Stevedoring and Terminals, Inc., 15 BNA OSHC 1966 (ALJ, No. 91-475, 1992) at CH Tr. p.157).

Ports or facilities that rely mainly on container gantry cranes generally do not perform non-vertical lifting of containers. Non-vertical lifting of containers is generally performed by mobile cranes, portal gantry cranes or by vessel's gear. A non-vertical lift is made by connecting four wires (or chain legs) either directly to the crane's hook or to a spreader bar hung from the crane. A spreader bar is a simple steel beam with two lengths of chain or cable on either end and a hook or other fitting on the chain legs to attach to the corner fittings of a container. Spreader bars are made shorter than the container, both for ease of maneuvering in tight lifts and to avoid snagging containers and ship parts or rigging. The longer the spreader bar, the more nearly vertical the lift on the container.

A box spreader can also be used to lift a container vertically using a single wire crane. A box spreader is essentially the same device that a container gantry crane uses to lift containers. However, a box spreader is both heavier and costlier than a simple spreader bar. In addition, box spreaders may introduce additional safety risks for longshoremen working on container tops. For example, the use of box spreaders requires additional maneuvering to position and secure the spreader to the container thus increasing employee exposure to falls (See, for example Montz at NO Tr. p. 101).

Mr. Vincent Grey appeared as an expert witness for OSHA in this proceeding. Mr. Grey has served as chair of the ISO Technical Committee 3874, Freight Containers, and is a recognized international expert on this mode of cargo handling. In addition to testifying on container lifting at the public hearings he also submitted written comments to the docket (Exs. 1-31, 6-28, 49, and 50). Mr. Grey supported the Agency's proposed requirement permitting only vertical lifting of containers (NO Tr. p. 70). According to Grey, containers are designed and have been tested only for purely vertical lifts. In addition, he explained that no one, including the ISO technical standards committee, has ever conducted a study or evaluation on the impact that non-vertical lifting would have on the containers (NO Tr. p. 70). He noted that any deviation from verticality adds compressive forces along the top rail and tension across the bottom of the container and that such forces could cause a container to fail, either crumpling across the top or ripping open along the bottom, with contents and container possibly falling on employees underneath (NO Tr. p. 74). Mr. Grey concluded that since containers were designed only for vertical lifts, non-vertical lifts reach beyond the margin of safety built into the containers (NO Tr. p. 72).

At the hearings during questioning, however, Grey admitted that he had never witnessed a container failure due to non-vertical lifting (Id. p. 79). He also admitted that non-vertical lifts are common around the world in smaller ports and less advanced countries that do not use container gantry cranes and that spreader bars of less than container length have been used for lifting containers around the world for more than 30 years (Id. pp. 83-84). When lifting is done without gantry cranes, Grey said, it is quicker and more efficient to employ spreader beams and perform non-vertical lifts.

A number of commenters opposed the proposed requirement. For example, John Faulk, representing NMSA, stated that there are no data on container failures caused by non-vertical lifts (NO Tr. p. 157). Instead, container failures are caused by overloading, improper packing, shifting loads, and defects in container construction, according to Mr. Faulk's testimony.

Hal Draper of the West Gulf Maritime Association agreed with Mr. Faulk's comments and noted that OSHA had not produced data indicating that accidents were occurring as a result of non-vertical lifts (NO Tr. p. 223). He also pointed out that the stevedore has no control over stowage, and that containers are frequently stowed in such a way that a non-vertical lift is required to unload a container or move it to gain access to other break bulk cargo. Mr. Draper also listed several situations in which it is not feasible to move a container with a vertical lift, such as: In midstream cargo operations; when inexperienced crane operators cannot handle the gear well; when the weight of a box spreader beam for a vertical lift is 7,500 pounds and may make the lift exceed the crane's capacity; when a container on a box spreader beam with cones would damage other cargo or containers when lowered; and when the gear necessary for a vertical lift increases the fall hazard for longshore employees because of the additional exposure to falls by employees needed to position the spreader. He also stated that simple bar spreaders work well for non-vertical lifts because they are light--a 36-foot long bar for lifting a 40-foot container weighs 3,000 pounds and provides 8 to 10 feet of head clearance for employees atop the container. Mr. Draper recommended that OSHA allow non-vertical lifts to be made between 80 and 90 degrees to the horizontal.

Other members of industry supported these comments. For example, Jim Heikkinen of Transocean Terminal Operators, Inc. stated that his firm had used spreader bars for many years without incident and that changing to a box spreader bar would increase both the weight of the gear and the risk posed to employees working containers (NO Tr. p. 679). Leo Naekel of Jore Marine Services reported that there were some lifts on barges that could not feasibly be made with a purely vertical lift (SEA Tr. pp. 273-276), and Doug Stearns of Jones Washington Stevedoring Company stated that his firm sometimes had to use the ship's gear to move break bulk cargo (SEA Tr. p. 390). He also noted that the stevedore cannot require ships to carry a box spreader bar to make a pure vertical lift and that the weight of a box spreader beam can also be a problem. In addition, Mr. Stearns reported that he had never seen a container fail with a spreader beam but had seen many drop from box spreader beams. Mr. Stearn also questioned the Agency's estimates of the cost involved in changing to gear capable of vertical lifting.

Two commenters, however, supported the proposed prohibition of non-vertical lifts. For example, Douglas Getchell of the ILWU stated that non-vertical lifts should only be allowed when vertical lifts are technically infeasible; in his opinion, the alleged economic infeasibility of making vertical lifts in some situations should not be sufficient reason to allow such lifts (SEA Tr. p. 90). Arguing along the same lines, Albert Cernadas of the International Longshoremen's Association urged OSHA only to permit vertical lifts, with non-vertical lifts allowed only when there is no alternative (NO Tr. pp. 470-472). These same unions in the post hearing comment period, however, supported studying the risk consequences of a limited non-vertical lift. They agreed that there was a need to examine and scientifically to identify any conditions where a less than vertical lift could be permitted that would not place excessive stress on the containers and therefore not place workers at increased risk.

Several commenters pointed out that there are times when containers are stowed in the wings of the hold of a break bulk vessel, which makes a true vertical lift impossible (Exs. NMSA et al., PMA et al., 6-10, 6- 16a, 6-28a, 6-29a). In such cases, the container must first be moved below the hatch and must sometimes be dragged by attaching cables or chains to the corners of one end of the container to pull it along the deck. The cumulative effect of these "dragging" movements is to increase the potential for container failure, and the increased wear and tear on the container presents a greater hazard of container failure than would a non-vertical lift.

After the public hearings, NMSA asked Mr. Grey to conduct an engineering study to determine whether OSHA should permit a minor departure from the 90 degree lift or prohibit non-vertical lifts in all circumstances. NMSA was joined in supporting the need for this study, in order to help resolve this controversy, by the ILA and ILWU. The study was designed to determine, through the use of mathematical models, the transverse and longitudinal stresses placed upon a container being hoisted from the four corner castings at the extreme of a minus 10 deg. tolerance to verticality. The analysis of these compressive forces on these "containers" were then compared to the safe limits found in the ISO specifications.

In the introduction to the study, Grey explains the 1961 origin of the ISO vertical lift specification from his perspective as an active member of the technical committee. He indicated that the committee "ordained that containers over 10 feet be lifted vertically when being picked up by their top corner fittings" for several reasons (Ex. 80, p.2). The world was about to experience the explosion of the growth of containerization on the major trade routes. There was no industrial experience in handling containers, which were modified trailers from the highway trailer manufacturing industry. Partially out of concern for the uncertainties of the durability of the containers over their life cycles and partially as a matter of engineering convenience, the committee never considered the impact of the absolute verticality requirement on those facilities that only occasionally had to handle containers. Grey expressed ISO's main concern as follows:

The ISO was essentially aimed at instituting an efficient way to move the world's international foreign trade tonnage and at the same time minimize labor cost and freight claims. Hence, the ISO committee's highest priority was to concentrate on handling the boxes in a fully automated system. (Id.)

As indicated above, no study has ever been conducted by the ISO or anyone else to establish criteria for acceptable tolerances to absolute verticality until Grey's study.

Based on the results of his study, Mr. Grey recommended that, under certain controlled conditions, lifts that were nearly but not totally vertical would be a practical and acceptable safety practice (Ex. 80, p.12). His analysis indicated that lifts that were no more than a ten degree deflection from vertical would not subject a container to undue stress that could compromise the structural integrity of the container (Id.). The ILA, ILWU, and NMSA, who collectively represent the principal interested parties in this rulemaking, supported Mr. Grey's findings, and this group stated its support in a joint post-hearing submission (Ex. 85). Mr. Grey's study thus corroborated earlier testimony presented by Hal Draper of the West Gulf Maritime Association that showed that 80-degree lifts added little additional force across either the top or bottom of containers (Ex. 6-29).

A prohibition on non-vertical lifts would primarily affect smaller ports, smaller employers, and ports that handle a mixture of break bulk cargo and containers, such as the Gulf Coast. Simple spreader bars have been widely used for 30 years to lift containers. Spreader bars are relatively light, simply constructed, and allow faster (less costly) container lifting than would box spreader beams. Box spreader beams, which would be required to provide a true vertical lift at each corner fitting, are heavier, costlier, and are infeasible to use in some situations.

After careful consideration of the Grey study and the relevant record evidence, and in light of the unanimous support of the major cargo handling stakeholders, the Agency has concluded that worker safety is not compromised, indeed, is not even affected, by accepting any lift that is 10 degrees within vertical to be a vertical lift for the purposes of paragraph (f). In addition, OSHA believes that this revision will also enhance enforcement efforts as well as voluntary compliance by eliminating the confusion and ambiguity that currently exists. The final standard thus allows containers to be lifted at an angle of 80 to 90 degrees providing the following conditions are also met: the container being lifted is an ISO "closed box container" (other types of containers such as flat racks and open top containers must be picked up vertically); the condition of the box is sound, and the speed of hoisting and lowering is moderated when heavily laden containers are involved. OSHA considers a heavily laden container to be one that is loaded to within 20 percent of its rated capacity. To lift at an 80 degree angle, the distance between the lifting beam and the load must be at least 8 feet and 2.4 inches (2.5 m), the length of the spreader beam must be at least 16.3 feet (5 m) for a 20-foot container and at least 36.4 feet (11 m) for a 40-foot container. This final language has been codified at 1918.85(f)(1)(i) and is also being included in 1917.71(f).

Paragraphs (f)(1)(ii), (iii), and (iv) contain requirements for hoisting from the bottom fittings, lifting containers by fork lift truck, and using other means of hoisting. Paragraphs (f)(2)(i) and (ii) establish requirements for intermodal container spreaders that employ lanyards and for the design and use of spreader twist lock systems.

In final rule paragraph (g), the Agency requires that a safe means of access and egress be provided to each employee who, due to the nature of the work, must work on the top of stowed containers--both above and below the deck. In practice, most employees gain such access by riding aboard safety platforms installed on container crane lifting frames. Such means are permissible when the lift is conducted in a manner consistent with design requirements found in the shoreside rules (1917.45(j)). This provision remains unchanged from the proposal.

Paragraph (h) applies on vessels using any loaded intermodal container spreader. It prohibits employees from riding a spreader with a load attached. This provision is also unchanged from the proposal. A similar prohibition for the shoreside aspect of marine cargo handling (marine terminals) is included in this rulemaking (see 1917.45(j)(9)).

When safer methods are available, such as safety platforms installed on the container crane lifting frame, OSHA requires in paragraph (i) that portable ladders not be used to gain access to the tops of containers that are stowed more than two high. This paragraph of the final rule is unchanged from the corresponding provision of the proposal.

Final rule 1918.85(j) covers the hazard of falls from the tops of intermodal containers. In the proposed standard, the Agency would have required, to the extent feasible, the use of "positive container securing devices" after June 2, 1997, to eliminate work on top of containers. Employees who worked at facilities without container gantry cranes would have been required to wear personal fall protection equipment when working on top of containers except where this was not feasible. When fall protection systems were not feasible, employers would have had to alert employees to the hazard and instruct employees in minimizing the hazard. In a footnote to this provision in the proposed standard, a fall hazard was defined to exist when employees worked within three feet of the edge of a container that was 10 feet or more above the adjoining (lower) or next lower surface. In addition, an opening of 12 or more inches between containers constituted a fall hazard when there was a drop of 10 feet or more.

OSHA's current Longshoring and Marine Terminals Standards do not contain a specific container-top safety provision. However, the Agency has been concerned about falls from the tops of containers for many years and has cited employers for such hazards under the General Duty Clause (Section 5(a)(1)) of the Act and under 1918.32(b) of OSHA's Longshoring rules (Ex. 1-139). This provision states, in the context of stowed cargo and temporary landing platforms:

When the edge of a hatch section or stowed cargo more than 8 feet high is so exposed that it presents a danger of an employee falling, the edge shall be guarded by a safety net of adequate strength to prevent injury to a falling employee, or by other equal means of protection under the existing circumstances.

Although some employers questioned the applicability of 1918.32(b) to container operations, a ruling by an administrative law judge established that that provision did indeed have application to container top on-deck exposures. The Agency's policy on this issue was spelled out in an instruction to its field staff (C.P.L. 2-1.17), issued in 1982 (Ex. 1-49). In that instruction, OSHA determined that 1918.32(b) applied to containers but stated that there were situations where it would not be feasible to abate the container fall hazard. The directive instructed OSHA compliance officers to address the infeasibility issues in the following manner:

A violation [of 1918.32(b)] shall not be issued; however, OSHA should recommend and encourage the employer to work toward a solution and assist the employer in every way possible to effect a means of protection by advice, consultation and dissemination of information obtained during other inspections.

The Agency has issued few citations for the lack of fall protection on container tops. The marine cargo handling industry has sought a specific fall protection standard in this rulemaking, one that will be uniformly enforced to provide employees with needed protection against falls.

Falls from the tops of containers have resulted in a number of serious occupational injuries and fatalities (Exs. 1-18, 1-19, 1-20, 1-21, 1-22, 1-23, 1-24, 1-43, 1-67, 1-68, 1-100, and 1-108). Before the Longshoring and Marine Terminals proposal was published, the Agency contracted for and received a report on container top safety from Dr. A. J. Scardino (Ex. 139). Dr. Scardino is a registered professional engineer who is a nationally recognized expert in risk management and hazard identification. He has prepared several technical documents for OSHA, and has served as an expert witness in OSHA rulemaking and enforcement proceedings.

OSHA hired Dr. Scardino to conduct a representative study of the conditions, practices, procedures and hazards associated with containerized cargo handling. In his study, Dr. Scardino concluded, "Work which requires employees to go aloft on container tops should be eliminated (to the extent feasible) through the use of engineering controls and work practices." (Id. p. 7). The proposed requirements for container top fall protection reflected many of Mr. Scardino's recommendations.

Fall Protection

Background. Fall hazards from containers have long been recognized by the stevedoring industry as both extremely dangerous and difficult to prevent. As early as 1968, U.S. terminal operators recognized the need to improve container top safety. That year Matson Terminals, Inc. developed the first system of container top fall protection (Ex. 1-53). In that system, Matson provided a D-ring fixture to be installed in the roof of its containers. Employees working aloft were provided with a safety belt and lanyard to secure to the D-ring. For a number of reasons, use of the system proved difficult, and it is not used today. Since then, numerous systems of fall protection have been developed, usually employing an anchorage point located either on a basket lowered by a crane, or on cables anchored to containers. In 1970, the Coast Labor Relations Committee of the ILWU raised the issue of working on containers with OSHA's predecessor agency, the Bureau of Labor Standards. In their letter of August 24, 1970 (Ex. 1-50), the Coast Committee asserted:

Consider if you will the dangers attendant to working atop containers. They are not equipped with skidproof surfaces, there are no protective railings, and there are no requirements that safety belts be provided. In dry warm weather such work is dangerous enough, but the dangers are critically compounded when workers must labor atop these during windy and wet weather. At the very least, BLS regulations ought to provide that * * * safety belts be [required] for men working aloft.

As the containerized transport revolution progressed during the 1970's and into the 1980's, exposure to fall hazards on containers increased proportionately. Container use multiplied rapidly and ships were designed and built exclusively for the transport of containers. These ships eventually would carry several thousand containers, stacking them below decks and higher and higher on top of the deck. It became necessary to secure containers to each other to prevent unintentional movement during transit. To achieve this stability, stacking cones were developed that workers placed in the corner castings of the container (an operation called "coning") while the containers were being loaded on the ship. This often required employees to work on top of the containers. The containers were further secured by installing bridging connectors across the corners of the top row of containers and lashing them diagonally to the deck with wire cables. Bridging and lashing operations also required working on top of containers. When the containers were unloaded from the ship, workers removed stacking cones from the corner castings of the container (called "deconing") while working on top of containers.

Virtually all of the original stacking cones were replaced in the early 1970's by twist locks, which eliminated the need for some lashing but still required workers to climb on top of the containers to place or remove the twist locks. Today twist locks are the most commonly used fitting for securing freight containers onboard vessels (Ex. 1-140). Newer semi-automatic twist locks (SATLs) were developed in the mid 1980's. The use of SATLs is now currently employed by most of the large shipping lines throughout the world and the United States. In fact, OSHA estimates that over 50 percent of ships calling in U.S. ports are already utilizing SATLs. (Ex. 2).

The use of SATLs avoids accidents and saves money. Unlike conventional twist locks, which must be inserted by workers on top of the container and manually locked, semi-automatic twist locks are inserted into the bottom of the container by workers standing on the dock; these devices lock automatically when placed on another container. Both SATLs and conventional twist locks can be unlocked by workers standing on the deck of the ship using an actuator pole, although on some container ships the stacks are so high that the pole is unable to reach the top container's corner from the deck.

When unloading using conventional twist locks, the upper container is first removed, leaving the twist locks on the top of the lower container. Workers must remove conventional twist locks from the top of that container before the spreader can attach to the corner castings. In contrast to conventional twist locks, SATLs are designed to remain attached to the bottom of the container being unloaded. SATLs are then removed by workers standing on the dock. Because workers do not need to be on top of the containers, the use of SATLs, therefore, eliminates worker exposure to fall hazards during this operation.

The use of SATLs also enhances productivity and reduces lashing costs (Ex. 1-140, p. 76; Ex. 1-141). A time-and-motion study that compares the performance of conventional twist locks to that of SATLs indicates an increase in productivity in the range of 25 to 29 percent. This translates to a 11.1 percent overall reduction in stevedoring costs (Ex. 1-141, pp. 4, 5; Ex. 2).

Another advance in securing containers in transit that eliminates the need for workers to go on top of containers is the development of above deck cell guides aboard vessels. Cell guides are rigid, structural members that form cells where containers are stowed. These cell guides allow for the ready placement of containers in a manner that prevents movement in transit. Although cell guides in the hold are common in container ships, above deck cell guides are far less common, constituting only 2 percent (Ex. 2, pp. 2-19) of container ships calling at U.S. ports.

In addition, OSHA is aware of the existence of positive container securing devices other than those discussed above, such as the SeaLand framing system (Ex. 1-57). The final rule uses the term "positive container securing devices" in the regulatory text. OSHA believes that this term is broad enough to allow for the SeaLand framing system and other innovative technological improvement.

While the use of SATLs is the most widespread method of positively securing containers that eliminates the fall hazard, OSHA is aware of certain problems, such as removing jammed SATLs and non-standardized locking systems on SATLs, that have been encountered with their application, use and design (Exs. 1-140, 1-142, 1-143, 1-144).

While container securing devices were undergoing rapid development, ports and shippers on the East and West Coasts were replacing older derricks and cranes that lifted cargo with a single wire with container gantry cranes that vertically lift from four points--one at each corner. In a container gantry crane, the crane operator is positioned directly above the load and moves with it--offering a much better view of the work. Today's container gantry cranes move along the pier on rails and employ automated box spreaders that automatically grip the container's four top corner fittings to lift it. The container is then raised vertically, carried horizontally to the dock (if unloading), and then set on a flat-bed truck trailer or similar vehicle. SATLs can then be removed before the container is finally lowered onto the truck's bed. The entire cycle for a container may take as little as a minute. In the container industry, cycle time for loading and unloading containers is critical.

For smaller ports, and especially ports on the Gulf Coast, that still must handle cargo in the more traditional "break bulk" mode, SATLs have not eliminated the need to go aloft (i.e. for employees to work on top of the containers). When containers are raised and lowered with a traditional single-wire crane typical of this part of the industry, the cargo sways and, in addition, the operator is in a cab on the dock and has a poor view of the loading process on deck. Without workers on the top of containers to steady and guide a container with cones in its bottom corners, the cones may damage lower containers, and such damage was reported by many commenters to the record. Having workers on the top of containers to guide the container also speeds the moving operations when using these types of cranes. Typically, when single-wire cranes are used to move containers, the crane will have a spreader bar almost as long as the container with two cables with hooks at either end that are manually inserted into containers' corner fittings. This typically brings a worker near the edge of the container. In this part of the industry, SATLs cannot eliminate the need for workers to go on the top of containers.

Negotiations between marine cargo employers and unions have in some instances resulted in added safety practices for container top work. For example, the Longshore Division members of the International Longshoremen's and Warehousemen's Union (ILWU) and the Pacific Maritime Association (PMA), agreed upon a package of 25 work rules that were specifically designed to enhance safety at container terminals, including container top safety.

Internationally, a number of national and multi-national organizations have acted on the problem of container top safety. The International Labor Organization, in its Code of Practice for Safety and Health in Dockwork (Ex. 1-130), specifically requires that:

A person gaining access to the top of a container should be adequately protected against the danger of falling where appropriate by wearing a suitable safety harness properly tethered, or by other effective means, whilst on the container.

In its Directions for Safety in Dockwork, the National Swedish Board of Occupational Safety and Health (Ex. 1-131) provides, in part, that "Work on top of a container is only permissible if measures have been taken to prevent falling down." In the port of Hamburg, Germany, a "lash basket" designed by a dockworker (Ex. 1-45) rides underneath the container spreader and moves between container stows. Here, the dockworker remains in this one person basket while performing his work, thus minimizing container top exposures. In the port of Bremerhaven, a specially designed "rigger box," which is similar in configuration to some U.S. container cage designs, provides an anchorage for fall protection systems for dockworkers who work on top of containers (Ex. 1-52).

Several significant issues on container top fall protection arose during the rulemaking:

  1. At what height, when working on top of containers, was there significant risk to employees? At or below 8 feet? At 10 feet? And what accident or injury data were available that supported a determination of a fall hazard?
  2. When was fall protection technologically or economically feasible, whether from container gantry cranes or single-wire cranes?
  3. Was fall protection economically feasible on containers? Was fall protection only economically feasible above 10 feet (for two-high stacks and higher)?

Determining the appropriate fall height was the most important issue in the rulemaking and received the most attention from stakeholders.

Comments by the National Maritime Safety Association (NMSA) and the Pacific Maritime Association (PMA) were representative of employer positions. Both PMA and NMSA supported the Agency's proposed requirement to engineer out employees' work on top of containers whenever feasible. Industry also supported the proposed requirement for fall protection only above the first level of containers (PMA et al. and NMSA et al.). Several smaller longshoring employers who use non-gantry cranes for lifting--where the proposed standard would have required personal fall protection--noted that in some cases the fall protection systems would themselves introduce additional tripping or snagging hazards for employees atop containers (CH Tr. pp. 22, 84, SEA Tr. p. 71, NO Tr. p. 223).

Although industry commenters asserted that relatively few fatalities had been caused by falls from containers, OSHA presented numerous instances of fatalities and injuries resulting from such falls over the past 20 years (Exs. 1-18, 1-19, 1-20, 1-21, 1-22, 1-23, 1-24, 1-43, 1-67, 1-68, 1-100, and 1-108). Labor unions consistently advocated the necessity of fall protection while working atop any container (Exs. 19, 78, 1-150, NO Tr. pp. 467-470).

In its comments and public testimony NIOSH (Ex 81, NO Tr. pp. 499-503) concluded that falls from a one-high container (8 feet or more) posed a significant risk of injury or death to an employee. NIOSH introduced a study of falls that showed injuries and deaths occurring from heights as low as 6 or even 4 feet, although none of these incidents were caused by falls from containers. NIOSH representatives recommended that fall protection be provided on one-high containers (Ex. 81, NO Tr. p. 500).

Subsequent to the hearing, the major marine cargo handling stakeholders (NMSA, ILA and ILWU) participated in joint discussions in an attempt to resolve their divergent positions as articulated during the hearings. These exercises proved successful as evidenced by a post-hearing submission (Ex. 85). The stakeholders resolved a number of issues, particularly with regard to container top safety. They agreed that fall protection is necessary when employees work on any container top of 8 feet or higher. In addition, they recognized the existence of situations when the use of fall protection presents a greater hazard than not using fall protection; they concurred on the definition of "Fall hazard"; and they pointed out the need for flexibility in twist lock design.

In the final rule, OSHA is requiring that workers who must work atop containers be protected by fall protection in accordance with paragraph (k) when they are exposed to a fall hazard. NIOSH data demonstrating the risk of death or serious injury from falls as low as six feet are convincing and consistent with the injury and fatality reports from the Agency's IMIS data and concern for employee risk voiced by union presentations. Accordingly, the Agency has concluded that working even on the first level of containers poses a significant risk to employees.

Proposed paragraph (j)(1) contained a definition for "fall hazard" in a footnote. However, because "fall hazard" has application in other sections of the final longshore rule (1918.32(b) and 1918.85 (j), (k), and (l)), the definition of fall hazard is now included in 1918.2, the "Definitions" section of the final rule. According to this definition, fall hazards (absent weather considerations) exist only within 3 feet (.92 m) of the container's edge (i.e., whenever the container top constitutes the employees work surface). As described in Dr. Scardino's findings, under no circumstances should the employee's center of gravity (the hips) be within 3 feet (.92m) of the unprotected edge of the container without fall protection (Ex. 1-139, p.3). This definition makes it clear that it is the unprotected edge where the hazard exists, and not necessarily the entire work surface. Additionally, any gap of 12 inches (.31 m) or more on a horizontal surface formed by containers is considered an unprotected edge, and a fall hazard would thus exist under this definition. (For further discussion of the gap issue see 51 FR 42685 and 53 FR 48186).

With regard to the feasibility of fall protection in cargo handling operations, many commenters supported the Agency's preference for engineering controls, such as SATLs, that would eliminate fall hazards, over the use of fall protection systems. Engineering controls cannot, however, completely remove the need to work on top of containers; operations such as lashing and installing bridging still require personnel to work on top of containers. However, for routine loading and unloading, SATLs remove employees from working on top of containers when gantry cranes are in use. Although SATLs and cell guides have imposed significant costs on the shipping and/or longshoring industry, the record clearly indicates that productivity gains have considerably offset the cost (see Section VI, Summary of the Final Economic Analysis and Regulatory Flexibility Analysis).

Where containers are lifted with cranes other than gantry cranes, SATLs have not eliminated the need for employees to routinely work on top of containers. The industry presented examples of container top loading and unloading operations from non-gantry crane ports for which fall protection was not possible or potentially more hazardous. In New Orleans, Mr. John Faulk, representing NMSA testified,

This leads to the * * * issue of container top fall protection feasibility. On page 28614 of the Preamble, OSHA recognizes the fact that there may be particular instances when fall protection may not be feasible. Examples of situations where the use of fall protection systems may prove infeasible are found in Appendix 3 of the 1918 proposal, but only two examples are listed.

NMSA recommends that the words "stair step stows" and "valley stows", as well as "barges," as a type of vessel, be added to Example 2. A third example stating: "When hoisting containers with single point suspension container handling gear"; and, a fourth example, stating: "While attaching and detaching fall protection systems" should also be added (No Tr. p. 167).

Dr. Scardino, in response to a question about providing fall protection during break bulk operations said:

* * * there are some circumstances, again, in order to have fall protection, you have to have some place to tie off * * * . When they have a single attachment for a boom crane, a truck crane, working shore side, the top of the container, all four corner castings, are occupied with the pendant lines, and they have to be physically removed. There is no place for the individual to tie off. And for the system to be effective * * * [it must] be attached to something.

So in some break bulk situations, unfortunately, there's no place to tie the individual off to, other than not to do the operation at all (SEA Tr. p. 81).

The Agency agrees with these findings and the final rule recognizes that fall protection may not be feasible in all cases where work atop containers is performed.

The phase-in period. In view of the recent technological improvements in positive container securing devices indicated above, OSHA finds that many work operations, notably coning and deconing, that expose workers to container top fall hazards can now be eliminated. As noted above, SATLs have proven to be particularly effective when container gantry cranes are utilized (Ex. 1-140). In fact, the use of these devices (e.g., SATLs) in these circumstances can, in most instances, eliminate the need for workers to go on top of containers. In light of this, two years after the date of publication of this rule, 1918.85(j)(1) will prohibit the performance of coning and deconing on top of containers being worked by a container gantry crane. OSHA has estimated that more than 50 percent of ships calling at U.S. ports already utilize SATLs (Ex. 2). Since it is OSHA's policy to allow a reasonable time to come into compliance with engineering controls in the final standard, the Agency is allowing two years for the implementation of positive container securing devices.

OSHA recognizes that positive container securing devices will not entirely eliminate the need for workers to go on the top of containers. Certain container placement or securing tasks, in addition to coning or deconing, must still be performed. In these situations (e.g., securing bridge clamps or releasing jammed twist locks), a comprehensive fall protection program must be implemented.

Where cranes other than container gantry cranes are used to handle containers, OSHA recognizes that the use of SATLs may not be feasible. The precise placement capabilities of a container gantry crane are far superior to other lifting devices, thus facilitating the use of SATLs. This enhanced capability is due to the four point suspension system of the container gantry crane, which provides greater stability and control of the container being handled, enabling the crane operator to place the container without assistance. Container operations where the spreader is suspended from a single point, on the other hand, have far less stability and control and typically require the assistance of other employees in the placement of containers. Such employees may be exposed to fall hazards. Further, as discussed above, even if SATLs are feasible when other than gantry cranes are being utilized, their use may not substantially reduce the need for employees to work on container tops in the handling of containers. (This is unlike the situation with container gantry cranes, where the use of positive container securing devices, e.g., SATLs, virtually eliminates the need to work on top of the containers.) Therefore, OSHA is not requiring the use of positive container securing devices when containers are being handled by other than container gantry cranes.

With regard to the feasibility of fall protection, OSHA recognizes that, in this industry, there may be particular instances when fall protection may not be feasible. An example of a circumstance where fall protection may not be feasible is the placement of an overheight container on a chimney stow using gear that requires the manual release of hooks. In these types of situations, the standard requires the employer to:

  1. Make a determination that an employee will be exposed to a fall hazard but that the use of fall protection is not feasible or would create a greater hazard;
  2. Alert the exposed employee about the hazards involved; and
  3. Instruct the exposed employee how to best minimize the hazard.

OSHA emphasizes that such situations are not common and that when they do occur, the burden is on the employer to fully comply with these requirements before the employee performs the work. In fact, the Scardino study indicated that a "specific set of circumstances could not be framed" where fall protection might not be feasible (Ex. 1-139, p. 1). Claims of infeasibility of fall protection will be closely scrutinized by the Agency in its enforcement of the final rule.

As was proposed, the final standard in 1918.85(k) establishes the technical requirements for container top fall protection systems (See 1918.2). Most of the requirements in this paragraph are basic to any occupationally related fall protection system. They address the design, selection, care and proper use of personal fall protection equipment. These elements include an anchorage, connectors, a body harness, lanyards, and deceleration devices. For further information regarding fall protection systems see 1910.66 and 1926.502.

In addition, 1918.85(k)(7) and (10) have been specially crafted for the container top situation. Paragraph (k)(7) addresses the situation where a container gantry crane, or its extension, is being used as the anchorage point for the fall protection system in use. Under these circumstances, the crane must be placed in the slow speed mode and equipped with a remote shut-off switch that is in the control of the tied off employee. In addition, an indicator must be within sight to inform the employee when the remote shut-off switch is operational (CH Tr. p. 28, SEA Tr. pp. 289-290). As proposed, this paragraph included language requiring that all crane functions be stopped by a remote shut-off switch. It was pointed out during the hearings that this could lead to an unsafe condition (e.g. rendering the crane inoperable when it was needed for an emergency rescue) (SEA Tr. p. 113). OSHA agrees with this position and the final language has been amended to limit the operation of the remote shut-off switch effects to the trolley, gantry, and hoist functions (i.e. those functions that directly affect the employee on top of the container) of the crane.

OSHA has used the term "designated person" throughout this rulemaking (see definitions--1918.2) to identify a person who has a special skill in a particular area to do safety-related functions. Regarding container top fall protection systems, a "designated person" could do the daily inspections required in 1918.85(k)(2) and (11). In the proposed rule, however, OSHA believed that the complexity of systems design decisions as required by 1918.85(k)(6) and (8) should be made by a registered professional engineer. While one commenter contended that, based on his experience, engineering certification in this area was not readily available (NO Tr. p. 574), the record also contains a post hearing submission that includes a list of such engineers (Ex. 84). OSHA now recognizes that these specialized engineering skills may not be readily available in some locations. Consistent with other OSHA standards, the final rule provides flexibility by allowing the certification of equipment by a "qualified person." A footnote in paragraph (k)(6) defines what is meant by the term "qualified person" for the purpose of this paragraph. To be considered qualified, a person must have a recognized degree or professional certificate and extensive knowledge and experience in the subject field, and must be capable of design, analysis, evaluation and specifications in the subject work, project, or product.

OSHA also recognizes that manufactured fall protection components are extensively tested and certified by qualified persons working for the manufacturer (probably registered professional engineers). In complying with paragraph (k)(8), the employer may rely on these manufacturers' certifications with respect to unmodified equipment that is being used according to manufacturers' recommendations. Job-made components, on the other hand, must be tested and certified by a qualified person.

As noted above, the other fall protection requirement unique to longshoring operations in the final rule is paragraph (k)(10). This paragraph addresses the situation where the employee is transported by a device, such as a safety cage, attached to a container gantry crane spreader. Such a device is required to have a secondary means of attachment to the spreader besides the primary attachment mechanism (usually a hydraulic twist lock mechanism) to prevent accidental disengagement (See NMSA et al.). However, OSHA is aware of a system used by the Massachusetts Port Authority which employs a mechanical device that does not allow the automated box spreader to release the safety cage unless deliberate action is taken by employees using the cage. The device mechanically prevents two of the spreader's twist locks that are on opposite corners from disengaging the cage. In order for the crane operator to release the cage from the spreader, the personnel in the cage must first lift a lever that allows the two twist locks to disengage. The crane operator can not override this back-up system, and the spreader's hydraulic system also can not override it. The only way to override the system would be to disassemble it. This device, although not technically a secondary means of attachment, meets the intent of the proposed regulation. Therefore, the final regulation has been modified to allow this device by changing the wording from the proposed "secondary means of attachment engaged" to read a "secondary means to prevent accidental disengagement and the secondary means shall be engaged".

Final 1918.85(k)(13), which requires the employer to establish a procedure that addresses the safe retrieval of an employee in the event of a fall, is carried over from the proposal. This provision received wide support from commenters (Ex. NMSA et al).

Final 1918.85(l) provides for fall protection in container operations that require employees to work along unguarded edges (other than on container tops). In these situations, fall protection meeting the requirements of paragraph (k) of this section must be provided where the fall distance is greater than eight feet (2.4 m). This primarily addresses work operations such as lashing, locking and unlocking twist locks from surfaces other than container tops, or signaling to direct the placement of containers. This is consistent with OSHA's approach in this rulemaking to fall distances in 1918.32(b), 1918.85(j), (k), and (l). (See definition of "fall hazard" at 1918.2.)

Final 1918.86, titled "Roll-on roll-off (Ro-Ro) operations," which was a new section in the proposal, addresses operations aboard Ro-Ro vessels. The emergence of Ro-Ro vessels is a recent development and is not addressed in the current rules. Along with container operations, this new section has provisions that address advances in modern technology in the marine cargo handling industry. The cargo generally can be driven on or off the vessel by way of ramps and moved within the vessel by way of ramps and/or elevators. Traffic patterns can vary greatly in these vessels. Some Ro-Ro vessels carry intermodal containers both on deck and below. Examples of such vessels are car carriers, which simplify the import and export automobile trades, and stern or side port combination carriers, which provide water carriage for wheel mounted and containerized cargo. Commonly such vessels are fitted with ramps that extend to the dock or wharf, and are fitted with internal ramps and/or cargo elevators (lifts). In this manner, cargo is either driven through the vessel from deck to deck until reaching its final stowage location, or hoisted by cargo elevator to its proper deck and then driven to its final stowage location. Once positioned in its stowage location, the wheeled cargo is lashed to securing fittings provided on the deck. In such operations, lashing personnel are exposed to being struck by vehicular traffic. In addition, other employees involved with loading or unloading wheeled cargo, both drivers and pedestrians, are exposed to traffic hazards. This section addresses the hazards attributable to this process, in which employees and vehicles are in closely confined and marginally illuminated space.

In 1918.86(a), OSHA proposed that an organized system of traffic control be established and maintained at each entrance and exit ramp. The highest concentration of vehicular and pedestrian traffic in Ro-Ro operations, and thus the area where substantial accident potential is most pronounced, is the area on and around ship-to-shore access ramps. Ramps inside the vessel, although generally not as congested as ship-to-shore access lanes, must also be addressed by the traffic control system if they experience a periodic traffic flow that warrants such control. These provisions, as proposed, received wide support and remain identical in the final (Exs. 6-19, NMSA et al., PMA et al., SEA Tr. pp. 455-458).

Final paragraph (b), which remains as proposed, addresses the hazard of exceeding the capacity of the ramp used to transfer cargo. Ramps must be plainly marked with their load capacity and these capacities must not be exceeded (Ex. 1-5).

Paragraph (c) provides protection for employees that use the ship's ramp for access. OSHA proposed that a physical separation be provided to separate the lanes of travel for pedestrians and vehicles. When the design of the ramp prevents physical separation of pedestrians from vehicles, OSHA proposed that a signaler direct traffic and not allow concurrent use. Much of the comment and testimony on this paragraph addressed the issue of the requirement of a signaler and the prohibition of concurrent use (Exs. 6-16a, 71, NMSA et al., PMA et al., SEA Tr. pp. 207, 244). One view presented at the hearings asserted that, if there were no physical separation on the ramp, simultaneous use of the ramp by vehicles and pedestrians (longshore workers returning to the ship to unload vehicles) can only be achieved by posting a signaler at each stern and side port ramp (Ex. 19). Others maintained that this end can be achieved in many different ways and suggested that performance language would be more appropriate (NMSA et al., PMA et al.). OSHA, in the final regulation, requires a physical separation when pedestrians and vehicles are using the ramps simultaneously. Examples of physical separation are railings, stanchions with wire, rope, or other material separating vehicle and pedestrian traffic. Lines painted on the ramp or plastic cones do not meet the intent of the regulation. When physical separation is not possible, a positive means shall be established to prevent simultaneous use of the ramp by vehicles and pedestrians. Examples of positive means include a person controlling the use of the ramp or a signal system. Verbal instructions and training alone are not sufficient. The proposed regulation has been modified in the final rule to reflect these changes.

Final paragraphs (d), (e), and (f), addressing ramp maintenance, hazardous routes and air brake connections, respectively, received support and remain the same as the proposal (Exs. NMSA et al., PMA et al.). These provisions recognize the unique features of modern Ro-Ro vessel ramp design that allow for multiple access destinations.

Final paragraph (g) requires that flat bed and low boy trailers be marked with their cargo capacity and not be overloaded. Comment and testimony was received that addressed the problems with marking the cargo capacity on equipment that may be old, retrofitted, or modified:

The point being that there's a lot of old equipment out there that has been patched up. Various features of the chassis has [sic] been changed so that there's no manufacturer out there that would come in and say yes, that's my vehicle or my chassis and I sold it to you 10 years ago and it was rated at this capacity, and yes, it's this capacity now.

So you're not going to get a manufacturer to do it because they have no idea what you've done to that chassis, so it's kind of left up to the employer by the owner of that chassis. (SEA Tr. p. 414.)

Similar arguments were received in both testimony and comment recommending that OSHA exempt existing equipment from this requirement, having it only apply to new equipment purchased after the effective date of the final rule (Exs. 78, NMSA et al.). On the other hand, Doug Getchell of the ILWU recommended that OSHA require these markings on existing equipment as well.

There's some very durable equipment out there you're talking about that could be in play for a long, long time to come.
I believe that our position is that all of the equipment should be adequately proof-load tested before it's put back into use again. (SEA Tr. p. 105.)

After careful consideration, OSHA believes that "grandfathering" of this requirement is inappropriate. In the absence of such a marking, the capacity of the flat bed or low boy trailer would not be known. These trailers are used to transport break-bulk cargo into the holds of RO-RO ships, often down steep ramps. Overloaded trailers would constitute a serious hazard to employees. However, since the record indicates that much unmarked equipment is presently in use, the final rule allows the period of one year from the publication date of this standard for compliance with this provision. The similar provision in 1917.71(f)(4) will also have a delayed effective date.

Paragraphs (h), (i), (j), (k) and (l), addressing cargo weights, tractors, safe speeds, ventilation, and securing cargo, respectively, received general support and remain in the final as proposed (Exs. NMSA et al., PMA et al.). In addition, ventilation issues regarding Carbon Monoxide (CO) are discussed at length in subpart I, below.

Proposed paragraph (m) required high visibility vests or equivalent protection for authorized personnel working in Roll-on roll-off operations. This is similar to an existing requirement in the Marine Terminals Standard, 1917.71(e), which specifies that employees working in the immediate area of container handling equipment or in the terminal's traffic lanes must wear high visibility vests, decals, reflectors or equivalent protection.

Several issues arose in the rulemaking in regard to the requirement for wearing high visibility vests: (1) Whether the Agency had any data or analysis that indicated that there was significant risk in wearing only reflective decals on hard hats; (2) whether replacing hard hat decals with high visibility vests will substantially reduce that risk; and (3) whether the Agency had largely underestimated the cost of providing high visibility vests. They argued that since the true cost was much higher than Agency estimates, and the attendant risk reduction had not been demonstrated, the Agency had failed to show that the vests are reasonably necessary for worker protection.

Regarding the lack of data issue, OSHA believes that the record clearly indicates several fatalities that may have been prevented if the employee had been wearing high visibility vests (Ex. 1-78, 1-89, and 1-103).

Regarding the second issue, some commenters argued that a reflective decal or decals placed on the employee's hard hat would be equivalent to the protection afforded by a vest (Exs. 6-29a, NMSA et al., NO Tr. pp. 154-156, 459.) Several other industry representatives reported difficulty in getting workers to wear vests without discarding them each day (NO Tr. p. 211). Employers from the Gulf and West Coasts reported that for much of the year vests added to the discomfort of working in the heat which was an additional reason why employees did not wear them (NO Tr. pp. 155, 212). Other commenters noted that vests in cold climes often disappeared under coats. For example, a representative from NMSA gave this testimony:

If the vest was visible, of course. The more visibility the better it is * * * but in some cases the vest is covered up by an outer garment, in cold weather conditions or foul weather, and it's not visible anyway. The hard hats are still being worn by the man with the reflective devices. The more high visibility you could provide, of course, the better it is for everybody. We don't want to be limited to just the vest (NO Tr. P. 356).

In addition, commenters reported that for some operations, such as lashing containers, the vests themselves had snagged on ladders or gear thus causing accidents (NO Tr. pp. 683 and 690). As a consequence, several stevedores who currently supply vests do not require employees to wear them while performing container lashing work. OSHA notes that these paragraphs do not require the wearing of high visibility vests during the lashing of containers.

NIOSH supported a requirement that employees wear reflective material on both their vests and hard hats:

The portion of the body that's covered by a hard hat that is visible from a distance is considerably smaller than the portion of the body covered by some sort of an outer garment, be it a vest or a coat or what not * * *. I would strongly encourage that reflective material on hard hats be in addition to some of the material on the trunk of the body. (NO Tr. p. 500.)

Further testimony on the issue came from a representative from the ILWU:

We've submitted comments, or support the notion, that particularly during daylight hours, the vest is far more visible than the hard hat. In terms of the amount of square inches, if you will, [the vest] is significantly greater than that provided by a hard hat * * *. Would you agree that the visibility of an individual with a vest and a hard hat during daylight hours is greater than with an individual with just a hard hat? (NO Tr. p. 355.)

In addition, although there are no existing U.S. Government or national consensus standards specific to longshoring on the amount of high visibility material required on safety clothing, international standards do exist. The British/European standard (BS EN 471:1994) prescribes minimum amounts of fluorescent and retro reflective material for high-visibility clothing (Ex. 71).

With regard to the equivalent protection issue, OSHA's current position was discussed in the preamble to the proposed standard. The Agency indicated that the reflective area of a decal on a hard hat is substantially smaller than that of a vest, and has no protective value if the worker is not wearing the hard hat. In fact, hard hats are not required for all work areas in marine terminals and vessels unless there is an overhead hazard (NO Tr. pp. 353-354). Furthermore, the reflective value of decals on hard hats is lost when the employee bends over which occurs during the lashing or unlashing of automobiles. In contrast, the reflective value of a high visibility vest is not only far greater but is not lost even during lashing or unlashing operations. Based on its enforcement experience, the Agency is aware that high visibility vests are available in various sizes (and many types are adjustable) including ones that are large enough to wear over cold weather apparel. OSHA's position regarding decals remains unchanged from the proposal.

With regard to the final issue, numerous employers and their representatives said that the Agency had grossly underestimated the costs of supplying vests in the preliminary regulatory impact analysis. They argued that reflective vests would have to be replaced every time they were required and that the costs would be excessive (Exs. NMSA et al., 80, NO Tr. p. 557). For example, Paul Robinson of Crowley American Transport said that his company, which requires all employees to wear vests, had spent $57,000 in the past year for vests. OSHA acknowledges that some employers have a significant problem controlling the issuance of vests. However, the Agency sees little difference between this equipment and other personal protective equipment, such as hard hats, which the industry has been able to control. In the preamble to the proposed standard the Agency had estimated that 75 percent of the employees in the industry would require a new vest only once a year. The Agency has revised its estimate for supplying high visibility vests to the industry (see Section VI, Summary of the Final Economic Analysis and Regulatory Flexibility Analysis later in this preamble).

The Agency has concluded that wearing high visibility vests significantly reduces the probability of injury when working on RO/RO vessels or container handling ashore because it makes the worker much more visible in a busy, congested operation that involves working around fast-moving vehicles. Final paragraph (m), therefore, requires that only authorized persons be permitted on any deck while loading or discharging operations are being conducted and such persons shall be equipped with high visibility vests or equivalent protection. In addition, a footnote has been added indicating that decals on hard hats will not be considered equivalent protection for the purposes of this paragraph. However, OSHA will accept high visibility equipment meeting the European standards as providing protection that is equivalent to that required by paragraph (m). A note has been added with the minimum requirements of high visibility and retroreflective material in square inches and square meters. The parallel provision in the Marine Terminals Standard will be revised accordingly in final 1917.71(e).

Proposed paragraph (n) provided signaling requirements when vehicles were being maneuvered into stowage positions when other personnel are in the adjacent vicinity. OSHA received several comments on this issue suggesting that a performance-based requirement, one stating the goals to be achieved, would be more appropriate than the specifications contained in the proposed provision (NMSA et al. and PMA et al.). Since the objective of this provision is to prevent vehicles being driven into stowage positions from striking employees who are lashing these vehicles into place, and since the proposed requirement allowed employees only one way to achieve this goal, i.e. under the direction of a signaller, OSHA has developed a more performance oriented requirement for the final rule to provide both protection and enhanced flexibility. In the final standard, this provision reads as follows:

Vehicle stowage positioning. Drivers shall not drive vehicles, either forward or backward, while any personnel are in positions where they could be struck.

Section 1918.87, "Ship's cargo elevators," sets out requirements for the use of shipboard elevators (lifts) that are most common on many different Ro-Ro and combination carrier vessel designs. In approaching the issue of elevator usage, OSHA remained mindful of foreign vessel prerogatives. The provisions of the final rule are protective of U.S. longshore workers, but are not expected to have an impact on any other nation's vessel designs.

Final paragraphs (a), (b) and (d), addressing safe working load, load distribution, and open deck barricades respectively, received support and they remain essentially the same as the proposal (NMSA et al., PMA et al.).

Proposed paragraph (c), however, would have allowed the vehicle driver to ride the cargo elevator when that driver's vehicle was being lifted on the elevator. Several commenters wanted the language to be changed to allow persons other than the driver to ride the elevator with the load (NMSA et al., PMA et al.). The driver is allowed on the elevator to make sure the brakes are applied to prevent the cargo from rolling. However, allowing other personnel to ride the elevator presents an unnecessary danger if a fall hazard, as defined in 1918.2, is present. If riding the elevator does not present a fall hazard, however, the record does not support the proposed restriction. Therefore, OSHA has modified this paragraph to prohibit personnel from traveling on the elevator if fall hazards are present.

Section 1918.88, "Log operations," is also an entirely new section addressing the hazards associated with loading logs from the water into a vessel. This is a particularly hazardous operation both because of the location where it occurs (on the water) and the nature of the cargo. Logs loaded from the water have usually been in the water for a long time, causing them to absorb water. The extra water adds to their weight and loosens the bark, making the log surface very unsure and slippery. In response to comments, the provisions in proposed 1918.38, "Log rafts," which was proposed in subpart D (Walking/ Working Surfaces), are being moved to this subpart and renumbered 1918.88(h) (Exs. NMSA et al., PMA et al.).

Commenters argued that proposed paragraph (a), "Working in holds," could be incorrectly interpreted to mean that employees would be required to leave the hold of the vessel whenever and wherever logs are being loaded. This language has been clarified to require that employees need to remain clear of areas where they may be struck by logs. This suggested language received widespread support (Exs. 35, 78, NMSA et al., PMA et al.).

Final paragraph (b) requires that employees working on log booms wear personal flotation devices in accordance with 1918.105(b)(2). This requirement is in the current regulation, but was not in the proposal. During the hearings, testimony was given supporting the retention of language of the current standard which requires the wearing of personal flotation devices when working on log booms and such language is in the final regulation (NO Tr. pp. 447-449).

Final paragraph (c) requires the employer to ensure that each employee wears appropriate footwear to climb or walk on logs. Such footwear typically is spiked, also known as "caulked" shoes. Such specialized footwear may be styled like a sandal that attaches to existing footwear, and is specifically designed for working logs. Comment was received suggesting that OSHA should not determine who would provide this item of personal protective equipment (PPE) (Exs. NMSA et al.). OSHA has a standing policy regarding the provision of PPE. See subpart J for a discussion on this issue. OSHA has interpreted its general PPE standards to require employers to provide and to pay for specialized PPE required by the company for the worker to do his or her job safely and in compliance with OSHA standards. OSHA considers special footwear needed for walking on logs to be such equipment. The final remains essentially the same as the proposal, with the term "caulked sandals" added as an example of such special footwear.

Paragraphs (d), (e), and (f), addressing lifelines, Jacob's ladders and life-rings, received support and remain the same in the final as proposed.

Final paragraph (g) requires that a rescue boat be available when employees are working on log rafts or booms. Commenters presented two positions on this issue. One commenter urged OSHA to require that the rescue boat be powered, citing the hazard of employees falling into the water while loading logs from the water and being carried away by the river current. Requiring that the rescue boat be powered would allow an employee who falls into the water to be rescued quickly, in the opinion of this commenter (Ex. 19). An opposing view was expressed by other commenters, who argued that the fact that other lifesaving equipment, such as the life-ring required to be available by paragraph (f), was already required and the fact that a non-powered boat was often all that was necessary, made any requirement for a powered rescue boat to stand by while employees were loading logs excessive (Ex. 37, SEA Tr. pp. 412-413).

The final rule adopts a performance approach and requires that rescue boats that are "capable of effecting immediate rescue" be available during logging operations. The employer must thus decide, based on local conditions, what type of rescue boat is appropriate to the immediate circumstances. For example, when currents are fast enough to carry an employee away, the final rule would require employers to make a powered rescue boat available. It should be noted that OSHA's enforcement policy regarding drowning hazards incorporates guidelines developed by the U.S. Army Corps of Engineers (Exs. 1-159 and 1-160). These guidelines require a powered rescue boat to be available whenever the waters are rough or swift or where manually-operated boats are not practicable. In addition, OSHA requires that anti-drowning measures be taken in scuba diving at a trigger current of one knot (1910.424(b)(3)). In light of these discussions and to assist employers in complying with these rescue provisions, the final rule specifies in a note that powered rescue boats are required when the current exceeds one knot.

As discussed in the beginning of this section, proposed 1918.38 has been moved to this subpart and has been renumbered 1918.88(h)(1), (2) and (3). Although paragraph (2) in the proposal required walking sticks on the "off-shore side of the vessel," commenters pointed out that logs can be worked on both sides of the vessel. (Exs. 36, 78). OSHA has amended the proposal accordingly, requiring in the final that walking sticks "* * * extend along the entire length of all rafts on the sides of the vessel being worked * * *"

Proposed 1918.89, addressing the handling of hazardous cargo, was carried over from the existing Longshore Standard (1918.86). OSHA requested comment from the public asking if the requirements in proposed paragraphs (a) and (c) were unduly repetitious. Commenters indicated that these requirements were, indeed, redundant and, were therefore unnecessary (Exs. NMSA et al., PMA et al.). OSHA agrees that these requirements are already addressed in the Hazard Communication and the Emergency Response requirements found in subpart A and subpart I, respectively, and has removed these provisions from 1918.89 in the final rule. The text of proposed paragraph (b), which required that hazardous cargo be secured to prevent spillage, now becomes the entirety of the text of final 1918.89. For consistency, these changes are reflected in part 1917 (1917.22).

Subpart I--General Working Conditions

Subpart I, General Working Conditions, contains provisions that address: dangerous atmospheres; lifesaving equipment such as first aid kits and life rings; hazard communication; sanitation; qualifications of machinery operators and training of supervisors; illumination; and housekeeping. These provisions, as proposed, received widespread support from commenters (Exs. NMSA et al., PMA et al.) and are essentially unchanged in the final rule, except as discussed below.

Section 1918.90 "Hazard communication" is a cross reference to the Scope and Application section of the final rule. It requires, by reference, compliance with OSHA's general industry hazard communication standard, 1910.1200. Consistent with the President's Initiative to reduce the size of the Code of Federal Regulations (CFR), OSHA has decided simply to cross-reference the Hazard Communication Standard in the Scope section as one of the part 1910 provisions applicable to longshoring, instead of incorporating that entire standard into this rule. OSHA is using this same incorporation by reference approach in the Marine Terminals Standard (part 1917). This strategy results in a net savings of approximately 50 pages in the CFR.

Final rule 1918.91 addresses housekeeping requirements, e.g. slippery surfaces, protruding nails, and so on, and remains essentially the same as the proposed section, with one exception. As stated in the proposal, OSHA considers lashing gear used with containers, roll-on/ roll-off cargo, and, in particular, automobiles, to be "equipment," and, in the final rule, lashing gear is specifically referred to in paragraph (a). These housekeeping provisions are necessary to maintain a safe work area and reduce accidents to employees handling cargo.

Final rule 1918.92 provides illumination requirements for cargo handling work aboard vessels and remains the same as the corresponding section of the proposal. These illumination requirements are consistent with those in the current Marine Terminals rule (see 1917.123). They specify illumination levels in walking, working, and climbing areas; methods of measurement; arrangement of light sources; requirements for portable lights; and prohibition of the use of matches of open flame lights. Both part 1917 and part 1918 require a minimum of five foot-candles (54 lux) of illumination during cargo operations.

Final 1918.93 requires protection from atmospheric hazards that are not addressed specifically in other sections of part 1918. A list of those sections is included in paragraph (a) for ease of reference. This section establishes requirements for the determination of the hazard, testing for the hazard when ventilation is being applied, and procedures for entry into hazardous atmospheres. In addition, the hazards associated with emergency entry and asbestos spills are also addressed. This section remains essentially the same as the parallel section of the proposal. The types of atmospheric hazards likely to be encountered by shipboard employees are much the same as those found in shoreside operations. Consequently, this section of the final rule contains provisions that are essentially identical to those found in the Marine Terminals Standard (see 1917.23). This approach will provide consistent requirements that appropriately address both aspects of marine cargo transport operations.

Section 1918.94 of the final rule, "Ventilation and atmospheric conditions," provides ventilation and other requirements for specific atmospheric workplace conditions that are found in longshoring operations, such as excessive concentrations of carbon monoxide (CO), atmospheric contamination by fumigated grains, tobacco, and other fumigated cargoes, and toxic atmospheres generated by menhaden and similar species of fish.

Paragraph (a) addresses the hazards associated with shipboard exposures to carbon monoxide. The buildup of unhealthy levels of carbon monoxide is of particular concern in breakbulk and Ro-Ro vessel operations. In the former, forklifts are used in the hold; in the latter, almost any type of vehicle can be operated either to perform material handling or because the vehicle itself is the cargo (i.e. vehicles being transported on Ro-Ro ships).

Carbon monoxide is a flammable, colorless, practically odorless gas. Most occupational exposures to this ubiquitous substance are the result of the incomplete combustion of organic material (HSDB 1990; Gosselin, Smith, and Hodge 1984, p. III-94).

OSHA's current limits for carbon monoxide in marine terminals and longshoring are 50 ppm as an 8-hour TWA and, in enclosed spaces, a 100 ppm ceiling, i.e. the maximum allowable exposure at any given point in time. The ACGIH has a TLV®-TWA (8-hour) of 25 ppm for carbon monoxide, and NIOSH (1973d/Ex. 1-237) recommends an 8-hour TWA limit of 35 ppm and a 200-ppm ceiling for CO. OSHA proposed to establish permissible exposure limits (PELs) of 35 ppm (8-hour TWA) and 200 ppm (5 min STEL) in outdoor, non-enclosed spaces in the marine cargo handling environment, and to retain the 100 ppm ceiling for CO in enclosed spaces in marine terminals and longshoring operations.

In addition to the 50 ppm TWA in Subpart Z of part 1910, OSHA's Longshoring and Marine Terminals Standards have long had a 100 ppm ceiling for CO in enclosed spaces. OSHA received several comments and considerable testimony concerning the proposed 100 ppm ceiling (Exs. PMA et al., 71, 77, 80). The Pacific Maritime Association also recommended a short-term exposure limit of 200 ppm measured during a five minute period for Ro-Ro and automobile-carrying ships (enclosed spaces). This recommended STEL paralleled OSHA's proposed requirement for a CO limit for outdoor, non-enclosed spaces (SEA Tr. pp. 189-190.)

Mr. Rob Dieda, Safety Director for Stevedoring Services of America's California operations, supported the PMA position and added that:

Preliminary inquiries indicate that drivers will not exceed the 8-hour time weight average, however, foremen, superintendents and clerks may be overexposed, depending on the ventilation of the ship being worked.

SSA's other jobs rarely last more than one shift, with 6-hour shifts being normal. Most operations utilize unit breaks for approximately 20 minutes, once or twice a shift, depending on the shift length, where all employees exit the vessel.

We average 12 vessels per month, so employees are not exposed daily. (SEA Tr. p. 300.)

Mr. John Fling, Safety Specialist for Red Shield Service Company testified:

During our testing, the measurements were taken in the breathing zone of the individuals and in the proximity of the foremen and clerks. We received periodically what I call spikes because of their duration. We would get spikes well over 100. I got one spike even over 200.

Now I call these spikes, because * * * of the duration * * * they would quickly go up, peak out, and then immediately start falling off. Things influencing these spikes was [sic] the ventilation on the ship, the type of car being discharged, the number of cars being discharged.

Each time that meter went over 100 parts per million we were technically in violation; we were supposed to evacuate the ship at that point, according to the rule. However, because of the way the level falls off, before we could even start the evacuation, we were back below 100.

The time weighted averages on all of these vessels has never exceeded 50 parts per million over the eight hour period. As a matter of fact, we're still well within the 35 parts per million within an eight hour period.

So our recommendation, from a standpoint of compliance, would be to adopt the 35 parts per million TWA and use the 200 parts per million either as an STEL or even as a ceiling. (SEA Tr. pp. 508-509.)

Mr. Fling also submitted written testimony that included actual carbon monoxide readings from several Ro-Ro vessels that showed a few readings above 200 ppm. It also showed that the reading taken immediately (within one minute) after these high peak readings was below 100 ppm and that subsequent readings well below 100 ppm. Eight-hour exposure levels were all well below 35 ppm (Ex. 72).

The National Institute for Occupational Safety and Health (NIOSH) testified at the hearings in New Orleans on the health effects of carbon monoxide. Mr. Larry Reed, Assistant Director for Policy Development, Division of Standards Development and Technology Transfer, said that, although NIOSH supported a 100 ppm ceiling as being more protective, the NIOSH recommended exposure limit (REL) for carbon monoxide is 35 ppm as an eight-hour time weighted average, with a ceiling limit of 200 ppm. The OSHA panel asked if NIOSH had data on CO's health effects that could support a five-minute short-term exposure limit (STEL) of 100 ppm for carbon monoxide (NO Tr. p. 619). NIOSH replied in post hearing comments that it could not support a five-minute STEL of 100 ppm because such a limit would allow peak concentrations of CO to exceed the ceiling of 200 ppm and that the adverse health effects of exposure at that ceiling have clearly been demonstrated in research. NIOSH reiterated its support for a ceiling of 200 ppm (Ex. 81).

Occupational fatalities and disabling illnesses still appear on the waterfront due to high levels of (CO) accumulating in cargo spaces. In 1980, 11 longshoremen working a vessel in Miami, Florida, were hospitalized after being overcome by carbon monoxide fumes (Ex. 1-76). Another incident involving carbon monoxide occurred in 1985, in Puerto Rico, where 12 longshoremen were overcome while working in the hold of a vessel where a propane-powered fork lift was being used (Ex. 1-77). In another incident in Miami, which occurred in 1988, 2 crewmembers were killed and 14 others hospitalized due to carbon monoxide poisoning that was caused by a gas-powered water pump that was being used to remove water from the hold of a vessel (Ex.1-81).

In 1989, OSHA promulgated a new air contaminant standard for general industry, updating the permissible exposure limits (PELs) found in subpart Z of part 1910. (OSHA later proposed a similar air contaminants standard for maritime and construction employment, but withdrew it after the court decision on the part 1910 PELs.) Included in the list of updated exposure limits in subpart Z were carbon monoxide (CO) and hydrogen sulfide (H(2)S). When the general industry standard was vacated and remanded by the U. S. Court of Appeals in the PELs decision (AFL-CIO v. OSHA, 965 F.2d 962 (11th Cir. 1992), the previous PELs continued in effect, and they still apply to general industry and maritime, including longshoring and marine terminals. The current PEL for CO is 50 ppm as an 8-hour time-weighted average (50 ppm TWA), and the ceiling for H(2)S is 20 ppm TWA. (On H(2)S, see discussion of 1917.94(f) below.)

In issuing this final rule on cargo-handling operations, OSHA has reviewed the record and has decided to retain the current 50 ppm TWA for CO for both marine terminals and longshoring, which is consistent with the TWA for general industry in subpart Z of part 1910. The Agency believes that it is unnecessary at this time to lower the TWA below the general industry level because the unique aspects of exposure to CO in marine cargo handling operations are addressed by the ceiling for CO exposure in enclosed spaces, as is discussed more fully below. In future rulemakings, OSHA intends to review many of the PELs in subpart Z and determine whether there is a need to lower them. Any rulemaking action to reduce the TWA for CO or H(2)S will address exposures to those substances in all workplaces covered by subpart Z, including longshoring and marine terminal operations.

In addition to continuing the 50 ppm TWA, the record of this rulemaking strongly supports the continued need for a 100 ppm ceiling for CO in enclosed spaces, with the limited exception of a 200 ppm ceiling for Ro/Ro operations. In longshoring and marine terminals, employees regularly enter and work in enclosed spaces. Exposure can rise much more quickly to IDLH levels in enclosed spaces, and escape from these spaces can be difficult. In these sectors, there is thus a higher potential for concentrations to rise to IDLH levels of CO. The 100 ppm ceiling for enclosed spaces in the final rule is intended to serve as a trigger level, to enable employees to exit the enclosed spaces before CO concentrations reach hazardous levels. This is particularly important because of two factors that are closely interrelated: First, employees working in enclosed spaces may need more time to exit those spaces because of their location and configuration aboard a vessel; and second, CO generated into an enclosed space can rapidly accumulate to unsafe levels. Thus, by requiring employees to exit enclosed spaces when the CO level reaches 100 ppm, the standard takes these factors into account to assure that the employees will not be exposed to hazardous concentrations of CO in the spaces.

With regard to the 200 ppm exception, uncontroverted testimony in the record indicated that a 100-ppm ceiling level was not feasible for Ro-Ro operations even though Ro-Ro vessels are designed with extensive ventilation capabilities. As indicated above, these commenters pointed out that, although levels of CO do spike to 100 ppm, they almost immediately fall below this level, with subsequent levels well below. In addition, from an operational standpoint spikes may occur upon starting the vehicles for unloading. Typically, employees are within the vehicles and are in the process of exiting the vessel. If a CO alarm were to go off under these circumstances, it appears unreasonable to require the employees to stop the vehicles and evacuate the vessel on foot, thereby increasing their exposure (See also PMA et al.). This type of exposure contrasts sharply with non-Ro-Ro operations, such as working in the hold of a vessel using gasoline powered industrial trucks. Here the CO build up is gradual, does not dissipate rapidly and the evacuation is usually by vertical ladder and more physically demanding. Based on this evidence, OSHA is setting a 200 ppm ceiling limit for occupational exposure during work on those vessels. The Agency notes that although this exception is based on feasibility considerations, it does meet the NIOSH recommendations for a ceiling based on health considerations.

In the near future, OSHA intends to review and revise many of the permissible exposure limits currently in subpart Z of Part 1910, most of which are applicable to both general industry and longshoring employment. If the health evidence supports lower limits for CO than are contained in either the current General Industry Standard or the Longshoring Standard, the Agency will propose the necessary changes for both standards.

Traditionally, in the marine cargo handling industry, carbon monoxide (CO) is the most common hazardous atmosphere that is tested for because of the use of cargo handling equipment that is powered by gasoline, diesel fuel, and propane, in spaces on a vessel that have a tendency to accumulate CO (tween decks, holds, lockers). Testing for carbon monoxide is generally done by a foreman, superintendent, or safety person. Most testing is done using hand-held instruments that give an almost immediate reading of CO in parts per million (ppm). Several persons testified at the hearings in Seattle about current industry practice with regard to carbon monoxide testing. Mr. John Fling, Safety Specialist, Red Shield Service Company, said:

Jones Oregon Stevedoring Company does a large number of auto ships each year. We use a carbon monoxide dosey [dosimeter] tube to measure the amount of carbon monoxide that the foremen are exposed to. This gives us an average reading for the shift.

To get a better picture of what was happening on a time period, we ran concurrently tests using a digital readout carbon monoxide meter. The meter was calibrated both before and after the tests.

During our testing, the measurements were taken in the breathing zone of the individuals and in the proximity of the foremen and clerks * * * (SEA Tr. pp. 508-509.)

The current OSHA regulation uses the term TWA, time weighted average, and requires that the TWA for CO not exceed 50 ppm averaged over an eight hour period. In marine cargo handling, however, a TWA usually will not accurately reflect an employee's exposure to air contaminants such as CO. Marine cargo handling exposes employees to workplace conditions that can change dramatically from minute to minute. Longshore workers work on many different vessels from day to day. The vessels are often under a foreign flag and not under the control of the employer, and the employee's work locations and weather conditions are always changing. For example, work can take place in a hold, which is an enclosed space, and then change to a frozen cargo locker, which is a confined space, within a short time. Changing weather conditions can cause carbon monoxide either to dissipate quickly (in windy conditions) or settle and build up (during the summer when the air is stagnant). These work conditions contrast sharply with those in manufacturing, for example, where the workplace is in the same location day after day, the employer has control over the physical worksite, and weather is not a factor. For these reasons, the cargo handling industry uses direct reading instruments, which provide immediate feedback on CO levels. The measurements are area rather than personal measurements. When the peak level is reached, workers must be removed from the work area. To ensure that CO levels remain safe over the course of the work shift, the rule requires "that tests of the carbon monoxide content of the atmosphere are made with such frequency as to ensure that concentrations do not exceed allowable limits." Since the requirement for the retention of logs is addressed in subpart Z (Access to employee exposure and medical records, 1910.1020), the proposed requirement for maintaining the logs under 1918.94(a)(2) has been deleted from the final rule to avoid duplication (See 1918.1). In final 1917.24(a) and 1918.94(a)(ii), OSHA uses the term "eight hour average area level."

The remainder of the paragraph on carbon monoxide addresses the vessel's mechanical ventilation and the use of portable blowers. These requirements are essentially unchanged from the proposal, except that the formula for calculating an eight hour time weighted average has been removed from the final regulation because it is appropriate for personal monitoring and not for area monitoring (1918.94(a)(1)(i)(B)).

In final 1918.94(b), OSHA addresses the hazards associated with handling grain treated with fumigants. This section requires, before handling bulk grain in any vessel compartment in which employees are or may be present, that the employer determine whether grain to be loaded or discharged aboard a vessel has been fumigated. If such treatment has been carried out, the employer must determine, by means of tests, that the atmosphere in the compartment is not hazardous to the health or safety of employees. These tests must be conducted by a designated person with the knowledge and experience to measure such atmospheres and prescribe the appropriate protective equipment, if necessary. In many cases, such a person will be a certified industrial hygienist or a Marine Chemist (certified by the National Fire Protection Association). This section also requires that, if the atmosphere in a compartment reaches the level specified as hazardous either by the fumigant manufacturer (as indicated by the Material Safety Data Sheet (MSDS) required by 29 CFR 1910.1200) or by Subpart Z of 29 CFR 1910.1000, all employees must be removed from the compartment and may not re-enter until tests demonstrate that it is safe to do so. The requirements in final 1918.94(b) remain essentially unchanged from the parallel requirements of the proposal.

Final 1918.94(c) includes OSHA's requirements for handling cargoes of fumigated tobacco. Tobacco cargoes, both imported and exported, are shipped most typically in bales, in hogsheads, and in intermodal containers. The requirements in 1918.94(c) apply when cargoes are break-bulk, i.e. are being transported in piece lots of bales or in hogsheads. When such cargoes are containerized, employee exposure is addressed in the Marine Terminals Standard, 1917.25(g). Comment was received requesting that OSHA clarify whether this section applied exclusively to break-bulk cargo (Ex. NMSA et al.). In response to this comment, OSHA has added the word "break-bulk" to this provision of the final rule. Paragraph (c) prohibits the employer from loading tobacco until the carrier has provided a written certification stating whether or not the tobacco has been fumigated. This requirement is necessary because tobacco is often fumigated with toxic substances, in which case the cargo must be aerated for a specified number of hours before it is safe to handle.

Final 1918.94(d) addresses other fumigated cargoes. It requires employers to determine that the concentration of fumigants are below those specified either by the fumigant manufacturer (as indicated by the Material Safety Data Sheet (MSDS) required by 29 CFR 1910.1200) or by subpart Z of 29 CFR 1910.1000 as hazardous before such cargo was either loaded or discharged. The proposed provision would only have applied to the loading of such cargo. OSHA received the following comment on this provision:

In recent years the ILWU has been receiving and discharging cargo that has been fumigated in foreign ports (e.g. the discharge of logs from New Zealand and Chile that have been fumigated with methyl bromide). (Ex. 78.)

This commenter requested that the word "discharge" be added to 1918.94(d) to address the fact that some cargo continues to be hazardous even at the time of discharge from the vessel. Testimony provided during the public hearings (NO Tr. p. 381) supported this change. OSHA agrees that the added language will provide additional protection and has accordingly amended the language of this provision in the final rule.

Final paragraph 1918.94(e) addresses the use of personal protective equipment (PPE) to protect against exposures to concentrations of grain dust. It requires the use of such PPE when employees are exposed to grain dust concentrations that are above those allowed by subpart Z of 29 CFR 1910.1000. This provision is essentially unchanged from that proposed.

Final 1918.94(f) addresses longshoring operations aboard vessels engaged in the menhaden trade (or trade in similar species of fish). Menhaden is a term that refers to several species of trash fish. Menhaden is used to produce, among other products, fertilizer, pet food and fish oil (See 46 FR 4213.) In the form of cargo handled at specialized menhaden marine terminals, menhaden presents a health hazard to longshore workers because it decomposes, generating hydrogen sulfide (H(2)S). As recently as 1987, a hydrogen sulfide incident aboard a menhaden vessel led to serious injury and a fatality (Ex. 1-80). This section of the final rule does not apply to vessels that are using refrigerated holds for the storage of all cargo, because refrigeration prevents the menhaden from decomposing.

This section requires that, before employees enter a hold that contains menhaden, the hold be tested for hydrogen sulfide and oxygen deficiency. These tests must be performed by designated supervisory personnel. The maximum allowable atmospheric concentrations of hydrogen sulfide, as measured by direct reading instruments is a 20 ppm ceiling. The oxygen level must not be less than 19.5%. Unless these atmospheric levels are met, employees are not permitted to enter the hold. The corresponding provisions of the Marine Terminals Standard appear at 1917.73(a)(2).

OSHA's current limit for hydrogen sulfide in Marine Terminals is a 20 ppm ceiling; this limit applies, along with other provisions, in menhaden tanks (1917.73); the Agency's current Longshoring Standard is silent with regard to both H(2)S and menhaden. The General Industry Standard (which applies to marine terminals and longshoring through subpart Z of Part 1910) is a 20 ppm ceiling.

OSHA proposed an 8-hour TWA of 10 ppm in Longshoring and Marine Terminals and a STEL of 15 ppm for menhaden operations. It should be noted that this rulemaking only addresses the appropriate level of H(2)S in compartments, holds, and enclosed spaces and does not apply to other circumstances in longshoring operations and marine terminals.

As discussed earlier, OSHA intends to review and revise many of the permissible exposure limits currently in subpart Z of Part 1910, most of which are applicable to both general industry and longshoring employment. As a result, OSHA has decided not to change the permissible exposure limits for H(2)S in longshoring or marine terminal operations at this time. The 20 ppm ceiling currently in the part 1910 subpart Z standards will continue to apply; for consistency between shipboard and shoreside cargo handling operations, OSHA is retaining the existing 20 ppm ceiling contained in the Marine Terminals Standard (1917.73(a)(2)) and making it applicable to longshoring as well (1918.94(f)). If the health evidence ultimately supports lower limits for H(2)S than are contained in either the current general industry standard or the longshoring standard, the Agency will propose the necessary changes for both standards.

Final 1918.94(f) requires that atmospheric testing be conducted prior to entry, and during work operations to ensure safe levels of both H(2)S and oxygen, that the tests must be conducted by designated personnel, and that employees may not enter a hold unless safe atmospheric levels of both H(2)S and oxygen are present.

Final 1918.95, titled "Sanitation," contains requirements necessary to maintain sanitary conditions. These provisions, for the most part, are consistent with the current regulations for shoreside cargo handling (1917.127). They address washing and toilet facilities, drinking water, eating areas, and garbage and overboard discharges.

OSHA received considerable comment and testimony objecting to the inclusion of tables in the proposal specifying the number of required toilet facilities (Exs. NMSA et al., PMA et al., 6-31a, SEA Tr. p. 107, NO Tr. pp. 160-161, 361-365, 387, 559-562). The Agency does not believe that the tables are necessary, and has decided, instead, to use the more performance-oriented language of the current Marine Terminal Standards. This change also has the added benefit of achieving uniformity between the two aspects of marine cargo handling operations.

Longshoring work is normally done next to a marine terminal. If the marine terminal's sanitation facilities are available for longshore employees, this would constitute compliance with 1918.95. Section 1917.127, which covers sanitation at marine terminals, is essentially identical to 1918.95. The remainder of 1918.95 is essentially unchanged from the corresponding provisions of the proposal.

Final 1918.96, titled "Maintenance and repair work in the vicinity of longshoring operations," addresses work (such as ship's maintenance and repair) performed while marine cargo handling operations are being done. In such circumstances, employees may be exposed to hazards not found in longshore operations (such as excessive light or heat from hot work or over spray from abrasive blasting or spray painting). In OSHA's current Longshoring Standard, the parallel provisions (1918.95) contain requirements to account for the hazards that can be anticipated when maintenance and repair work are undertaken concurrently with cargo handling. These requirements were proposed as 1918.95, and only minor changes have been made to improve clarity.

Sections 1918.96(a) through (d) remain the same as proposed. These requirements prohibit the conduct of longshoring operations in situations where the noise associated with maintenance or repair work is such as to interfere with the ability to communicate warnings or instructions (paragraph (a)); prohibit longshoring operations in the hold or on deck if work is being performed overhead that could expose longshore employees to falling objects (paragraph (b)); prohibit longshoring operations in conditions that could expose longshoring employees to damaging light rays, hot metal, or sparks from hot work operations being conducted in the vicinity (paragraph (c)); and prohibit longshoring operations in the immediate vicinity of abrasive blasting or spray painting operations to protect longshore workers from exposure to the hazards associated with these operations (paragraph (d)).

OSHA also proposed in 1918.96(e) to prohibit cargo handling operations where employees are exposed to electromagnetic (nonionizing) radiation emitted from the radio and radar equipment on the vessel or from radio and television towers that are close to marine cargo handling facilities. OSHA issued a Hazard Information Bulletin on September 5, 1990, concerning a nonionizing radiation incident caused by radio transmitting towers that were near a cargo handling facility. The radio frequency emissions were aimed in the direction of the cargo handling operation and the radiation caused longshore workers touching the crane wires and hooks to be burned. This situation was corrected by having the transmissions directed away from the cargo handling area. Two commenters asked OSHA to delete this paragraph from the final rule, contending that nonionizing radiation has not been a problem in the longshoring industry (Exs. 6-1, 6-16a). Other commenters agreed that this paragraph should be deleted because it is duplicated by regulations found in 1918.1(b)(7) (Exs. NMSA et al., PMA et al.), which incorporates by reference OSHA's General Industry Standard for nonionizing radiation, 1910.97. In addition, comment and testimony brought to OSHA's attention two articles, one by the United Kingdom's Health and Safety Executive and the other from the Canadian Coast Guard, that specifically addressed nonionizing radiation emitted by vessel radar (Exs. 22 and 77, SEA Tr. pp. 235-236, NO Tr. pp. 660-662). In summary, these studies suggested that nonionizing emissions from vessel radar are not harmful, even in a worst case scenario, where the radar is transmitting and the scanner is stationary at a distance of 19 feet (6 m). If the scanner is transmitting while rotating, the safe distance is 5 feet (1.8 m). OSHA agrees that proposed 1918.96(e) is somewhat duplicative because of the incorporation by reference of 1910.97 in the "Scope" of this standard. However, the proposed provisions were also not as protective as the General Industry provisions. The proposed provision has therefore not been included in the final rule. Nevertheless, although OSHA believes that nonionizing radiation is not generally a hazard during marine cargo operations, the OSHA Hazard Information Bulletin, discussed above, illustrates that problems can occur. Accordingly, OSHA has added a "Note" to 1918.1(b)(7) that addresses the proximity hazards of vessel radar emissions.

OSHA is adding a new paragraph, 1918.96(e), to the final rule that addresses machine guarding (including the control of hazardous energy sources-lockout/tagout). It requires guarding of danger zones on machines and equipment used by employees and further stipulates that the power supply to machines be turned off, locked out, and tagged out during repair, adjustment, or servicing work on such machines. This provision is written in performance-oriented language and is similar to 1917.151. In addition, this provision of the final rule relies on the "danger zone" concept used in part 1917 and carried forward in final part 1918 (1918.2). For additional discussion of the danger zone concept, see the "Other Issues" and "Scope and application" sections of this preamble.

Final 1918.97 sets out requirements for first aid and lifesaving facilities, and parallels closely the same provisions of OSHA's rule for the shoreside aspect of marine cargo handling (1917.26). Paragraph (a) states that employers must direct their employees to report work-related injuries to the employer, regardless of the severity of the injury. This requirement is essential to ensure that hazards causing injury to employees are identified and controlled. Paragraph (b) requires that a first aid kit be available on or near each vessel being worked and that at least one person trained in first aid be available to provide first aid during cargo handling operations. This requirement is designed to ensure that first aid can be provided quickly if needed. For the benefit of small employers, OSHA is including a non-mandatory Appendix V, which contains a list of the basic elements of a first aid training program that incorporates generally accepted guidelines for, among other aspects of a first aid program, the handling of potentially infectious body fluids (i.e. "universal precautions"). Providing such compliance assistance materials is consistent with the intent of recently enacted small business legislation (e.g. the Small Business Regulatory Enforcement Fairness Act of 1996).

In final paragraph (c), the requirements for first aid kits are specified. OSHA proposed to require that the contents of the first aid kit(s) be chosen by a physician who, in consultation with the employer, would customize the first aid kit to fit the hazards to be encountered. OSHA received considerable comment suggesting that the requirement that a physician customize the first aid kit was unnecessary and burdensome (Exs. NMSA et al., PMA et al., 6-1, 6-16a, 6-29a, 6-30, 6-31a, 6-36, CH Tr. p.160). After careful consideration of the comments received, OSHA has modified the final rule's approach to the use and selection of first aid kits to recognize that a person who is certified in first aid and familiar with the hazards found in marine cargo handling operations is qualified to select and restock a first aid kit. Accordingly, OSHA has revised 1918.97(c) so that it reads:

* * * The contents of each kit shall be determined by a person certified in first aid and cognizant of the hazards found in marine cargo handling operations. The contents shall be checked at intervals that allow prompt replacement of expended items.

OSHA believes that allowing first-aid trained individuals rather than requiring physicians to stock the kit will provide employers with greater flexibility while maintaining employee protections unchanged. OSHA notes that small employers may seek guidance from ANSI guidelines on this issue--ANSI Z308.1-1978, "minimum requirements for industrial unit-type first aid kits". These guidelines are currently being updated.

Final 1918.97(d) addresses specific requirements for the strength, design characteristics, and positioning of emergency stretchers (Stokes baskets). Two commenters stated that the provision of Stokes baskets is the responsibility of the vessel and should not be required in part 1918 (Exs. 6-16, 6-31). In response to these commenters, OSHA notes that these provisions have always been a part of the Agency's longshoring requirements and are also a part of the marine terminal requirements. Generally, the Stokes basket(s) is attached to the shoreside crane in a marine terminal. However, since longshoring operations can also take place in the middle of a river or at a facility that is considered a production facility rather than a marine terminal, Stokes baskets are also required in the final Longshoring Standard. Another commenter stated that only trained and qualified personnel should move an injured person (Ex. 6-30). OSHA strongly agrees with that position, but notes that Stokes baskets are specifically designed to lift an injured person securely, vertically if necessary. This may be needed if the injured person has fallen into a narrow space, such as between a column of containers and the hold of a ship. OSHA believes that a Stokes basket is necessary equipment that should be available for trained personnel to use. As with first aid kits and sanitation requirements, if a Stokes basket is available to longshore workers shoreside in accordance with part 1917, this will satisfy the parallel requirement in part 1918. Sections 1917.26 (c) and (d) of OSHA's marine terminal regulations are being revised in the present rulemaking to mirror the final Longshoring Standard's requirements for first aid kits and emergency stretchers.

Final paragraph (e) addresses life-rings and requires that a sufficient number of Coast Guard-approved rings be available to rescue personnel who have fallen into the water. Means of communication are required by paragraph (f) of the final rule to be readily available to obtain emergency and other sources of aid when necessary.

Final 1918.98 sets out requirements for the qualifications of machinery operators (i.e. crane or winch operators, industrial truck drivers, conveyor operators, etc.) and training requirements for supervisory personnel (i.e. gang supervisors, stevedore superintendents, etc.) in accident prevention. These same provisions can be found in the Marine Terminals Standard (1917.27). Paragraph (a) only permits workers to operate a crane, winch, or other power-operated cargo handling apparatus or any power-operated vehicle or give signals to the operator of any hoisting apparatus if the employer has determined that they are competent, through training or experience; that they know the signs, notices, and operating instructions of the equipment; and that they are familiar with the signal code being used. The only exception to this rule is that employees who are being trained and supervised by a designated person may operate such machinery or give signals to operators during their training.

At paragraph (a)(2), the final rule provides that employees with defective eyesight or hearing that has not been corrected are not permitted to operate certain equipment (i.e., cranes, winches, other power-operated cargo handling apparatus, or power-operated vehicles). In addition, employees suffering medical ailments that may suddenly incapacitate them are not permitted to operate such equipment. This provision includes heart disease and epilepsy as examples of medical ailments that could, in some cases, be suddenly incapacitating. OSHA stresses, however, that nothing in this provision requires employers to exclude from operating machinery all employees who have heart disease or epilepsy or a history of such conditions. Rather, OSHA intends that employees with medical ailments, such as heart disease and epilepsy, should be excluded from operating the specified machine only if their particular medical condition poses a high probability that they could become suddenly incapacitated and only if there is no reasonable accommodation that would eliminate or reduce the risk of direct threat of harm to the employee or others.

For purposes of this standard, OSHA defines "suddenly incapacitating" medical ailments as those that pose a direct threat of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by some form of reasonable accommodation. Direct threat refers to those risks that are significant, specific, and imminent or current. In addition, direct threat is limited to those situations in which there is a high probability that substantial harm might occur. This provision does not apply to medical ailments, including heart disease and epilepsy, that pose a speculative or remote risk of harm. Likewise, this provision is not intended to include medical ailments that pose only a slightly increased risk of harm.

In determining whether there is a direct threat to the health or safety of the employee or others, the employer should identify the specific risk posed by the employee as well as the particular aspect of the ailment that would pose a direct threat. There are certain factors the employer should consider when determining whether the employee poses the type of direct threat anticipated by this provision:

  1. The duration of the risk;
  2. The nature and severity of the potential harm;
  3. The likelihood that the potential harm will occur; and
  4. The imminence of the potential harm.

The determination of the seriousness and imminence of the potential harm must also be based on the employee's current medical condition and the employee's current ability to perform the job. The determination is not to be based on mere speculation or predictions of the employee's future medical condition or ability to perform the job at some future date.

Determinations of whether an employee poses a direct threat of substantial harm must be made on a case-by-case basis. The determination must be based on the best available objective data or other factual evidence and/or medical analyses regarding the particular employee. The determination must be based upon reasonable medical judgment that relies on current medical knowledge and not generalized or out-of-date assumptions about the risks that are assumed to be associated with certain disabilities. It is not proper to base determinations on mere speculation, subjective perceptions, irrational fear, patronizing attitudes, or stereotypes. Relevant evidence, for example, may include input from the employee; the employee's experience in previous similar positions; and opinions of physician, rehabilitation counselors, or physical therapists who have expertise in the medical ailment in question and/or direct knowledge of the employee.

Where the employer does determine that the employee's medical ailment poses a significant risk of substantial harm, the employer must also consider whether reasonable accommodations are available that would eliminate or reduce the risk so that it is below the level of direct threat.

OSHA has noted in the standard in both 1917.27(a)(2) (marine terminals) and 1918.98(a)(2) (longshoring) that it has defined OSHA suddenly incapacitating medical ailments consistent with the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 (1990). Therefore, employers who act in accordance with the employment provisions (Title I) of the ADA (42 U.S.C. 12111-12117), the regulations implementing Title I (29 CFR part 1630), and the Technical Assistance Manual for Title I issued by the Equal Employment Opportunity Commission (Publication number: EEOC--M1A), will be considered as being in compliance with this paragraph.

Paragraph 1918.98(b) addresses supervisory accident prevention proficiency and requires immediate supervisors of cargo handling operations that involve more than 5 persons to complete a course in accident prevention within 2 years after the publication of this standard. Employees who are newly assigned to supervisory duties after that date must receive such training within 90 days of being assigned to those duties. The content of the accident prevention course must be relevant to the particular work operations being supervised by the supervisor. The final rule's criteria for the content of the accident prevention course are performance-based and allow for the instruction to be tailored to the particular operation(s). The recommended topics included as a footnote are considered rudimentary to most shipboard cargo handling operations. Throughout the public hearings, testimony was presented concerning the training done in the marine cargo handling industry and its effectiveness. The supervisory training phase-in periods in the final Longshoring Standard are the same as those in the Marine Terminals Standard (two years after the promulgation of the final rule and after that date 90 days after supervisory assignment. The provisions in 1918.98(b) received widespread support (NMSA et al.).

Section 1918.99 of the final rule is entitled, "Retention of DOT markings, placards and labels." This section concerns the removal of Department of Transportation-required labels and placards on packages, freight containers, rail freight cars, motor vehicles, or transport vehicles of hazardous materials (see 49 CFR parts 171 through 180). Paragraphs (a) and (b) requires employers who receive packages, containers, or vehicles labeled in accordance with these DOT requirements to retain those markings, labels, and placards until the package, container, or vehicle has been cleaned or purged so that it presents no hazard to employees. Paragraph (c) requires employers to maintain markings, placards, and labels in a manner that ensures that they will remain visible, and paragraph (d) states that non-bulk packages that will not be re-shipped will be considered to satisfy these provisions if the label or other acceptable marking is attached to the package as required by OSHA's Hazard Communication Standard (29 CFR 1910.1200). The provisions in this section of the final rule that are required by DOT's Hazardous Materials Regulations, were published by OSHA in the Federal Register (59 FR 36700, July 19, 1994). Similar language has been included in the Marine Terminals Standard (see 1917.29).

The regulatory text of final 1918.100, "Emergency action plans," which was discussed in the Summary and Explanation for subpart A, is included here. It stipulates that this section applies to all action plans required by a particular OSHA standard, and contains requirements covering the elements of the action plan, alarm systems, the evacuation of employees in emergencies, and the training of persons to assist in evacuation of employees. These requirements parallel those for emergency action plans in OSHA's general industry standards.

Subpart J--Personal Protective Equipment

This subpart is based upon the requirements for personal protective equipment (PPE) found in the shoreside requirements for marine cargo handling (1917.91 through 1917.95). The hazards addressed by this subpart are those that can cause physical injury to the eyes, respiratory system, head, feet, or other body parts of employees. The subpart also addresses protection from the hazard of drowning associated with working around or above water. The use of the personal protective equipment required in this subpart can reduce or eliminate physical injury to employees caused by exposure to certain maritime workplace hazards. This subpart received widespread support, as evidenced by a number of comments (Exs. NMSA et al., PMA et al.).

OSHA has updated references to the American National Standards Institute (ANSI) standards incorporated by reference in this subpart. The ANSI standards for eye protection, head protection and foot protection referenced were the most current editions of those standards available at the time this subpart was published. OSHA believes that the more current editions of the ANSI standards can be adopted by reference in the final rule for both the Marine Terminals Standards and the Longshoring Standard without substantively changing the OSHA regulations.

With this rulemaking, OSHA is consistently applying previous guidelines for determining when employers would be expected to pay for PPE and when employees would be expected to pay.

On October 18, 1994, OSHA issued a memorandum to its field offices which stated as follows:

OSHA has interpreted its general PPE standard, as well as specific standards, to require employers to provide and to pay for personal protective equipment required by the company for the worker to do his or her job safely and in compliance with OSHA standards. Where equipment is very personal in nature and is usable by workers off the job, the matter of payment may be left to labor-management negotiations. Examples of PPE that would not normally be used away from the worksite include, but are not limited to: welding glasses, wire mesh gloves, respirators, hard hats, specialty glasses and goggles (designed for laser or ultraviolet radiation protection), specialty foot protection (such as metatarsal shoes and linemen's shoes with built in gaffs), face shields and rubber gloves, blankets and cover-ups and hot sticks and other live-line tools used by power generation workers. Examples of PPE that is personal in nature and often used away from the worksite include non-specialty safety glasses, safety shoes, and cold-weather outer wear of the type worn by construction workers. However, shoes or outer wear subject to contamination by carcinogens or other toxic or hazardous substances which cannot be safely worn off-site must be paid for by the employer. Failure of the employer to pay for PPE that is not personal and not used away from the job is a violation and shall be cited. (Ex. 1-157.)

Although the equipment used in marine cargo handling operations often differs from that mentioned in the October 18 memorandum, the same policy considerations apply in the Longshore and Marine Terminals Standard PPE context. Therefore, OSHA will apply the above-stated policy when determining whether the employer is required to pay for a particular kind of PPE.

In 1918.101, Eye protection, OSHA maintains the language from the proposal. This section requires that employers provide employees with eye protection that meets the requirements of the American National Standards Institute, ANSI Z-87.1-1989, "Practice for Occupational and Educational Eye and Face Protection." The section also requires that employees use the equipment and that it be cleaned and disinfected before issuance to another employee. In addition, for employees wearing corrective spectacles, paragraph (a)(2) states that the required eye protection equipment must be capable of being worn over the spectacles, unless prescription-ground safety lenses that provide equivalent protection are substituted.

In 1918.102, Respiratory protection, OSHA incorporates by reference the OSHA General Industry Standard for respiratory protection found in 29 CFR 1910.134 by referencing 1918.1(b)(12) of the Longshoring Standard. Section 1918.1(b)(12) refers to 29 CFR 1910.134. On November 11, 1994, OSHA published a proposed rule that would revise the respiratory protection rules (59 FR 58884). When this standard is published as a final rule, it will apply, by reference, to both the Marine Terminals and Longshoring Standards (1917.1(a)(2)(x) and 1918.1(b)(8)).

Final 1918.103, Head protection, is unchanged from the proposal. This section provides that employers require employees who are exposed to hazards associated with direct head impact or electric shock or burns to the head wear head protection. Such head protection must meet the requirements of the American National Standards Institute, ANSI Z-89.1-1986, "Personnel Protection-Protective Headwear for Industrial Workers-Requirements." The section also requires that employees use the equipment and that it be cleaned and disinfected before issuance to another employee.

Final 1918.104, foot protection, is also unchanged from the proposal. This section requires that employers provide employees exposed to puncture or impact hazards associated with the foot with safety footwear meeting the requirements of the American National Standards Institute, ANSI Z-41-1991, "American National Standard for Personal Protection-Protective Footwear." The section also requires that employees use the equipment provided.

In final 1918.105, other protective measures, OSHA is mandating a general approach that requires the employer to provide and ensure the proper use of any additional personal protective equipment that may be necessary to protect other parts of an employee's body. Paragraphs (a)(1) and (a)(2) are unchanged from the proposal. These paragraphs require the employer to provide and require the wearing of any additional special personal protective equipment that may be necessary to protect employees from recognized hazards in the workplace. It also requires that such equipment be cleaned and disinfected before reissuance to other employees.

Paragraph (b) of 1918.105 addresses the use of personal flotation devices (PFDs). The employer is required to provide for and ensure the wearing of PFDs by all employees whose work may expose them to falls into water. This paragraph received several comments. For example, one witness at the Seattle hearing stated:

We question paragraph * * * [1918.105(b)(1)], which requires personal flotation equipment to be worn when working on the deck of a barge. Almost all of our barges are outfitted with a safety fence consisting of stanchions and two courses of wire rope; that the vessel is alongside the dock and there is not a chance for a person to fall between the barge and the dock, and have proper means of access through a ladder or a gangway with handrails is provided and there is a safety fence on the barge, this proposed safety regulation appears to be superfluous * * * My concern was * * * that * * * it would be viewed as a rule that if you're working on the deck of a barge, you must wear an PFD regardless of if there is a proper safety fence. (SEA Tr. pp. 622-623.)

Another commenter argued that the current regulation, which requires the wearing of PFD's when working on log booms and barges on the Mississippi River, was sufficient and should be retained (Ex. 6-16a). Other commenters argued that OSHA should modify these requirements by deleting proposed paragraphs (b)(1)(i) through (b)(1)(iv) of 1918.105, which specified situations where PFDs had to be worn (Exs. 8-8, NMSA, et al.). These commenters believed that the performance language of 1918.105(b)(1) adequately addressed employee safety and allowed flexibility in the means of compliance. OSHA agrees that paragraph (b)(1) adequately addresses safety concerns and has modified the language of the final rule accordingly. OSHA believes that the specification language contained in the proposal would limit worker protection by not including non-specified situations where PFDs are needed.

An area of concern that was not addressed directly in the proposal relates to the wearing of PFDs while working on log rafts. During questioning by OSHA at the Seattle hearing, one witness agreed that PFDs should be specifically required for employees engaged in logging operations (SEA Trans. pp. 447-449). OSHA believes that the wearing of PFDs is essential in logging operations because of the continuous exposure to water when working on rafts, and has added this requirement in 1918.88, "Log operations".

As discussed above, paragraph (b) sets requirements for PFDs. Some of the language in the final rule has been editorially revised to reflect the language used in the U.S. Coast Guard's standard for approved lifesaving equipment (46 CFR part 160). OSHA's existing 1915.154(a) specifies that the above-cited U.S. Coast Guard requirements for this equipment shall be followed. The OSHA final rule provides clarification on what constitutes an acceptable PFD and uses terminology that is consistent with current U.S. Coast Guard requirements.

Final paragraph (b)(3) addresses the inspection of PFDs for dry rot, chemical damage, or other defects (such as tears, punctures, missing or nonfunctioning components) that affect their strength and buoyancy. Final paragraph (b)(3) also includes the proposed language to the effect that all personal flotation devices must be maintained in a safe and serviceable condition.

Appendices

There are five appendices that follow the regulatory text of this rulemaking. Appendix I, which is non-mandatory, titled "Cargo Gear Register and Certificates," is a sample cargo gear register and certificates that are in the international standard form that complies with ILO Convention number 152, as required by subpart B.

Appendix II, which is mandatory, titled "Tables for Selected Miscellaneous Auxiliary Gear," contains tables that are to be used when manufacturers' specifications or gear certificates are not immediately available at the worksite for determining the Safe Working Load for various synthetic and wire ropes slings, chain slings, and shackles; allowable chain link wear; and the minimum number and spacing of wire rope clips.

Appendix III, which is non-mandatory, titled "Conventional Cargo Gear," provides guidance to employers and employees on how to correctly rig conventional ship's gear (two cargo derricks with married falls).

Appendix IV, which is non-mandatory, titled "Summary Chart for Testing Special Stevedoring Gear," provides all the requirements found in 1917.50(c)(5) and 1918.61 for testing special cargo gear and container spreaders in one chart.

Appendix V, which is non-mandatory, titled "Basic Elements of a First Aid Training Program," outlines the basic elements of a first aid program, including universal precautions to prevent the spread of bloodborne diseases.




Footnote (1) CH--Transcript of the hearings held in Charleston, SC, October 4, 5, 6, 1994.
SEA--Transcript of the hearings held in Seattle, WA, October 19, 20, 21, 1994.
NO--Transcript of the hearings held in New Orleans, LA, November 15, 16, 17, 1994.



Footnote (2) Sections 1917.13(g); .17(i), (j), (k); .20; .23(b)(1), (d); .27(a)(2); .42(d)(2), (h)(4), (j)(1); .44(a), (i), (o)(3)(i); .45, (f)(4)(iii), (f)(5)(i), (f)(7), (f)(13)(ii), (i)(5), (j)(1)(iii)(D); .48(d)(2); .71(c); .112(a)(1); .118(d)(2)(i), (f)(2); .119(b)(1), (d)(2), (f)(4); .121(b)(3); .156(b)(3)(iii)(D); .157(n).



Footnote (3) Sections 1917.24(d), 1917.25.(c), 1917.42(b)(4), 1917.42(c)(1), 1917.42(d)(1), 1917.42(h)(4), and 1917.42(h)(5).



Footnote (4) High speed container gantry cranes are those capable of hoist speeds of 360 feet per minute (110 m/min) (without a load) and trolley speeds of 500 feet per minute (152 m/min) or faster.



Footnote (5) The International Maritime Organization publishes the International Maritime Dangerous Goods Code to aid compliance with the international legal requirements of the International Convention for the Safety of Life at Sea, 1960.



Footnote (6) Proof load testing, as used here, means lifting a known weight that is in excess of the safe working load (SWL) of the lifting appliance being tested.



Footnote (7) This is the date when ILO Convention 152, Occupational Safety and Health in Dock Work, was put into effect.



Footnote (8) The 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. The ISO standards are consensus documents and represent voluntary guidelines.

[62 FR 40142, July 25,1997]


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