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DEPARTMENT OF LABOROccupational Safety and Health Administration29 CFR Parts 1910, 1917, and 1918Docket No. S-025RIN 1218-AA56Longshoring and Marine TerminalsAGENCY: Occupational Safety and Health Administration (OSHA), Labor.ACTION: Final rule.SUMMARY: The Occupational Safety and Health Administration (OSHA) is revising its Safety and Health Regulations for Longshoring and those parallel sections of its Marine Terminals Standard. These rules address cargo handling and related activities conducted aboard vessels (the Longshoring Standard) and landside operations at marine terminals (the Marine Terminals Standard). The comprehensive revisions to the Longshoring Standard essentially rewrite that standard for the first time since it was adopted in 1971 under Section 6(a) of the Occupational Safety and Health Act, while the amendments being made to the Marine Terminals Standard will provide consistency with the language of the new Longshoring Standard. The changes that OSHA is making to both standards are part of OSHA's continuing efforts to reinvent its workplace regulations to keep them current with evolving work practices and to reduce inconsistencies in regulatory requirements. Although the longshoring and marine terminal rules are 'vertical' standards that apply only to longshoring and marine terminal activities, OSHA has also made minor changes to some of the general industry provisions referenced within these rules. These changes, which are non-substantive, have been made to conform the general industry requirements to the terminology used in the marine cargo-handling environment.This final document contains requirements for the testing and certification of specific types of cargo lifting appliances and associated auxiliary gear and other cargo handling equipment such as conveyors and industrial trucks; access to vessels; entry into hazardous atmospheres; working surfaces; and use of personal protective equipment.
Additionally, OSHA addresses specialized longshoring operations such as containerized cargo, logging, and roll-on/roll-off (Ro-Ro) operations.The principal hazards this rule addresses are injuries and fatalities associated with cargo lifting gear, transfer of vehicular cargo, manual cargo handling, and exposure to hazardous atmospheres. OSHA also addresses those hazards posed by more modern and sophisticated cargo handling methods, such as intermodalism.DATES: Effective Dates: This rule becomes effective on January 21, 1998.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of January 21, 1998.Compliance: Start-up dates for specific provisions are set in 1917.43(f)(3), 1917.71(f)(4), 1918.11(a) (1) and (2), 1918.24(d), (f)(1), and (g), 1918.62 (h)(5)(ii), 1918.65(d)(4) and (g), 1918.85(j)(1)(1) and (ii), 1918.86(g), and 1918.98(b)(1). However, affected parties do not have to comply with the information collection requirements in 1917.25 (g) warranty of fumigated tobacco, 1917.26(d)(7) labelling of stretcher closets, 1917.50(i)(2) labelling of cargo handling gear, 1917.71(f)(4) marking of trailers, 1918.22(g) labelling gangway hazards, 1918.74(i)(1) tagging ladders, 1918.61(b)(2) labelling gear, 1918.86(g) labelling trailers, and 1918.94(b)(3) maintenance of air sampling results, until the Department of Labor publishes in the Federal Register the control numbers assigned by the Office of Management and Budget (OMB). Publication of the control numbers notifies the public that OMB has approved these information collection requirements under the Paperwork Reduction Act of 1995.Comments: Interested parties may submit comments on the information collection requirements for this standard until September 23, 1997.ADDRESSES: In compliance with 28 U.S.C.
2112(a), the Agency designates the Associate Solicitor for Occupational Safety and Health, Office of the Solicitor, Room S-4004, U.S. Department of Labor, 200 Constitution Ave., N.W., Washington, D.C. 20210, as the recipient of petitions for review of the standard.Comments on the paperwork requirements of this final rule are to be submitted to the Docket Office, Docket No. ICR97-3, U.S. Department of Labor, Room N-2625, 200 Constitution Ave., N.W., Washington, D.C.
20210, telephone (202) 219-7894. Written comments limited to 10 pages or less in length may also be transmitted by facsimile to (202) 219- 5046.Copies of the referenced information collection request are available for inspection and copying in the Docket Office and will be mailed immediately to persons who request copies by telephoning Vivian Allen at (202) 219-8076. For electronic copies of the final Longshoring and Marine Terminals Standards and Information Collection Request, contact OSHA's WebPage on Internet at under Standards.FOR FURTHER INFORMATION CONTACT: Mr. Larry Liberatore, Director of the Office of Maritime Safety Standards, or Paul Rossi, Project Officer, Office of Maritime Safety Standards, Occupational Safety and Health Administration, Room N-3609, U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, D.C.
20210, (202) 219-7234.SUPPLEMENTARY INFORMATION: The principal author of this final rule is Paul Rossi, Directorate of Safety Standards Programs, with editorial assistance from Joseph Daddura, Michael B. Moore and Odet Shaw of the Directorate of Safety Standards Programs and Paul Bolon of the Directorate of Policy; the economic analysis was developed by Paul Bolon and Clarinda Giddings of the Directorate of Policy; and James Estep of the Office of the Solicitor provided legal assistance.GeneralThe preamble to the final rule on the Longshoring and Marine Terminals Standards discusses the events leading to the final rule, the Summary of the Final Economic Analysis and Regulatory Flexibility Analysis, and the rationale behind the specific provisions set forth in the final Standard.
The discussion follows this outline:I. Pertinent Legal AuthorityIII. Review of General Industry Standards for Applicability to Longshoring OperationsIV. Summary and Explanation of the Final RuleV. Other IssuesVI.
Summary of the Final Economic Analysis and Regulatory Flexibility AnalysisVII. Environmental ImpactVIII. Recordkeeping and Paperwork RequirementsIX. State Plan RequirementsX. Unfunded MandatesI.
BackgroundBecause of the high number and serious nature of accidents occurring to port employees in the United States, Congress, in 1958, amended the Longshore and Harbor Workers' Compensation Act (LHWCA) (33 U.S.C. 901 et seq.) to provide a large segment of port-based employees with a safer work environment. The amendments (Pub. 85-742, 72 Stat. 835) significantly strengthened section 41 of the LHWCA (33 U.S.C. 941) by requiring employers covered by that Act to 'furnish, maintain and use' equipment, and to establish safe working conditions, in accordance with regulations promulgated by the Secretary of Labor.
Two years later, in 1960, the Labor Standards Bureau (LSB) of the Department of Labor issued the first set of safety and health regulations for longshoring activities as 29 CFR part 9 (25 FR 1565). LSB amended these standards several times between 1960 and 1971. Since 1971, there have been no substantive changes to these provisions.The Occupational Safety and Health Act of 1970 (the Act) (29 U.S.C. 650 et seq.), which established the Occupational Safety and Health Administration (OSHA), granted the Secretary of Labor the authority for two years to adopt, under section 6(a) of the Act, 'any established Federal standard' as an OSHA standard. OSHA adopted the Longshoring Standard, then codified as 29 CFR part 1504, under section 6(a) in 1971, and recodified the standard as 29 CFR part 1918.The longshoring industry has changed dramatically since 1971.
The methods of cargo handling and the equipment associated with those methods have undergone significant modification. Vessels designed specifically for the carriage of intermodal containers, vehicular rolling stock, and even barges, are now the most common types of ships calling at U.S.
By contrast, the existing Longshoring Standard was designed largely for activities using methods and equipment that have since been overshadowed or replaced by more modern methods of cargo handling. The final rule will modernize OSHA's regulatory approach to deal with these changes in the industry. However, because some older, more conventional vessel types, equipped with features and aspects addressed in the existing standard, continue to call at U.S.
Ports, the Agency will retain in this final rule several provisions whose utility, although diminished, continues on a more limited scale.On July 5, 1983, OSHA published its final rule for Marine Terminals (48 FR 30886) (Ex. OSHA issued the Marine Terminals rule to address the shoreside segment of marine cargo handling operations. Since the Marine Terminals Standard currently addresses equipment and situations (i.e., powered industrial trucks, conveyors, passage between levels and across openings, etc.) that have shipboard counterparts, appropriate provisions from the Marine Terminals Standard were incorporated into this rulemaking for shipboard cargo handling as well. Accordingly, the Agency relied upon background material and data used to support OSHA's Marine Terminals Standard and incorporated the docket (Docket No.
S-506) developed in that rulemaking into the record of this rulemaking.OSHA published a Notice of Proposed Rulemaking (NPRM) for Longshoring and Marine Terminals on June 2, 1994 (59 FR 28594). As part of the NPRM, OSHA announced three public hearings to be held in Charleston, SC on September 20, 1994; Seattle, WA on October 19, 1994; and in New Orleans, LA on November 15, 1994. Later, OSHA published a notice of correction changing the dates of the hearings and announcing the specific hearing sites. Hearings were held October 4-6, 1994 in Charleston, SC; October 19-21, 1994 in Seattle, WA; and November 15-17, 1994 in New Orleans, LA.
Administrative Law Judge Stuart A. Levin presided at the hearings. After receipt of all evidence and testimony, the record was closed on May 15, 1995.This final rule will provide continuity for the cargo handling industry because it addresses both the more conventional and time- proven methods of cargo handling and more modern and innovative approaches. In keeping with OSHA's commitment to clarity, flexibility, and in order to encourage employers to comply with these standards, OSHA has adopted the performance approach except in those cases in which employee safety would be enhanced by more specific requirements.Longshoring HazardsTraditionally, the longshore industry, which is classified within Standard Industrial Classification (SIC) 449, has been notable in terms of its accident experience. The work environment found in marine cargo handling exposes employees to a greater risk of injury than is true for most other industries. In fact, in 1993, the last calendar year for which full tables of industrial illnesses and accidents are currently available, this industrial sector had one of the highest rates of lost workdays in the nation. The following data, shown in Table A below, came from Bureau of Labor Statistics reports (Exs.
1-109, 1-110, 1-111, 1-112, 1-113, 1-154, and 1-155), and are useful in making a comparative assessment:TABLE A - RATE OF TOTAL LOST WORKDAY CASES Total lost workday cases (rate per 100 full time employees)Private sector overall4.04.13.93.93.8Construction6.86.76.15.85.5SIC 4499.17.88.56.17.1Thus, serious job-related injuries have continued to occur in the marine cargo handling industry at an unacceptably high rate. Based on this historical injury data, OSHA concludes that regulatory action is necessary to meet its mandate under the Act.
The standards being published today, which were developed by OSHA with substantial input from labor and industry representatives from the marine cargo handling industry, have been developed specifically to address the principal causes of these illnesses, injuries, and fatalities.II. Pertinent Legal AuthorityThe purpose of the Occupational Safety and Health Act, 29 U.S.C. ('the Act') is to 'assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources' (29 U.S.C. To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. (See 29 U.S.C. 655(a) (authorizing summary adoption of existing consensus and federal standards within two years of the Act's enactment), 655(b) (authorizing promulgation of standards pursuant to notice and comment), 654(b) (requiring employers to comply with OSHA standards).)A safety or health standard is a standard 'which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment or places of employment.'
652(8).A standard is reasonably necessary or appropriate within the meaning of section 652(8) if it substantially reduces or eliminates significant risk, and is economically feasible, technologically feasible, cost effective, consistent with prior Agency action or supported by a reasoned justification for departing from prior Agency actions, supported by substantial evidence, and is better able to effectuate the Act's purposes than any national consensus standard it supersedes. See 58 FR 6 (March 30, 1993).The Supreme Court has noted that a reasonable person would consider a fatality risk of 1/1000 to be a significant risk, and would consider a risk of one in one billion to be insignificant. Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 646 (1980) (the 'Benzene decision').
So a risk of 1/1000 (10 -3) represents the uppermost end of a million-fold range suggested by the Supreme Court, somewhere below which the boundary of acceptable versus unacceptable risk must fall. The Court further stated that 'while the Agency must support its findings that a certain level of risk exists with substantial evidence, we recognize that its determination that a particular level of risk is significant will be based largely on policy considerations.' International Union, UAW v. Pendergrass, 878 F.2d 389 (D.C.
1989) (formaldehyde standard);Building and Constr. Trades Department, AFL-CIO v.
Brock, 838 F.2d 1258, 1265 (D.C. 1988) (asbestos standard).A standard is technologically feasible if the protective measures it requires already exist, can be brought into existence with available technology, or can be created with technology that can reasonably be expected to be developed. American Textile Mfrs.
OSHA 452 U.S. 490, 513 (1981) (' ATMI'), American Iron and Steel Institute v. OSHA, 939 F.2d 975, 980 (D.C. Cir 1991) ('AISI').A standard is economically feasible if industry can absorb or pass on the cost of compliance without threatening its long term profitability or competitive structure. See ATMI, 452 U.S.
55; AISI, 939 F.2d at 980.A standard is cost effective if the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection. ATMI, 453 U.S. 32; International Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. 1994) (' LOTO III').All standards must be highly protective.
See 58 FR 5; LOTO III, 37 F.3d at 668. However, health standards must also meet the 'feasibility mandate' of section 6(b)(5) of the Act, 29 U.S.C. Section 6(b)(5) requires OSHA to select 'the most protective standard consistent with feasibility' that is needed to reduce significant risk when regulating health hazards. ATMI, 452 U.S.
At 509.Section 6(b)(5) also directs OSHA to base health standards on 'the best available evidence,' including research, demonstrations, and experiments (29 U.S.C. OSHA shall consider 'in addition to the attainment of the highest degree of health and safety protection. the latest scientific data. feasibility and experience gained under this and other health and safety laws.' Id.Section 6(b)(7) of the Act authorizes OSHA to include among a standard's requirements labeling, monitoring, medical testing and other information gathering and transmittal provisions (29 U.S.C. Review of General Industry Standards for Applicability to Longshoring OperationsAmong the work environments OSHA regulates, the marine cargo handling industry ranks high in terms of the number of hazards that are not adequately addressed by OSHA's general industry regulations (29 CFR part 1910).
Longshoring is essentially a transport industry and, as such, is free from some of the hazards found in general industry such as those associated with woodworking machinery, spray painting, power presses, and so on. On the other hand, many hazards that are common in longshoring, such as those posed by falling loads and working on the top of intermodal containers, are less common in other types of workplaces.The Longshoring Standards (part 1918) were designed to deal with these and other unique hazards encountered in marine cargo handling. Where the standards in part 1918 did not provide coverage of hazards encountered in longshoring they were supplemented by the applicable General Industry Standards. This final rule updates and revises OSHA's existing Longshoring Standard (29 CFR part 1918) but continues to rely on OSHA's General Industry Standards (29 CFR part 1910) to address a number of hazards and operations that are not unique to longshoring. The applicable standards from part 1910 are cross-referenced in the final rule. Examples of such provisions are the toxic and hazardous substances requirements from subpart Z of 29 CFR part 1910 (with an exception for intact or sealed cargo and the Bloodborne Pathogens Standard), and 29 CFR part 1910 subpart T, which addresses commercial diving operations. In other instances, such as when addressing container and roll-on roll-off (Ro-Ro) operations,OSHA has developed new regulatory language specifically to address the hazards posed by these specialized operational aspects of modern stevedoring.
This approach is similar to the one followed by OSHA in developing its Marine Terminals Standard (part 1917) for shoreside cargo handling promulgated in 1983.In many situations, shipside cargo handling (i.e. Longshoring) hazards are directly parallel to those encountered in shoreside cargo handling (i.e. Marine terminals), such as hazards requiring the use of personal protective equipment and risks associated with the handling of intermodal containers.
One of the goals of this rulemaking effort has been to provide consistent coverage of these hazards, regardless of whether the cargo handling is shipside or shoreside. Accordingly, in drafting its revised provisions for longshoring (part 1918), OSHA incorporated similar language into the Marine Terminals Standard (part 1917).IV. Summary and Explanation of the Final RuleThis section discusses the important elements of the final standard, explains the purpose of the individual requirements, and explains differences between the final rule, the proposed rule, and existing standard. Issues raised in the public hearings and in written comments to the standard's docket are presented and summarized.
The Agency also presents its discussion of the issues and its reasoning for specific determinations. References in parentheses are to exhibits and transcript pages in the rulemaking record.In developing the final rule the Agency actively worked with the marine cargo handling industry to build a consensus among labor and management with OSHA. This was possible because the marine cargo handling industry is relatively small and well-defined.
In addition, a high percentage of employees are represented by labor unions. Employers are also well-organized into employer groups at each port and in each of the four major port regions of the country - East Coast, West Coast, Gulf Coast, and Great Lakes and Inland Waterways. Drafts of the 1994 proposal were circulated to key stakeholders, and many issues were resolved before the proposed rule was published. As a result, there was considerable support for the proposed regulation.General comments of support such as 'supports OSHA efforts to promote workplace safety' or 'strongly supports revision' were expressed by several commenters (Exs.
19, 6-20, 6-21, 6-35, and 6-44). Many commenters submitted statements to the effect that they 'wholeheartedly endorse' the comments submitted by the National Maritime Safety Association (NMSA) in Ex. These commenters, who wished to go on record as concurring with the views expressed by the NMSA in Ex. 8-20 are represented by Exs. 6-6, 6-7, 6-8, 6-9, 6-11, 6- 12, 6-13, 6-14, 6-15, 6-16, 6-17, 6-27, 6-32, 6-34, 6-35, 6-36, 6-39, 6-40, and 6-43. Another group of commenters submitted statements to the effect that they concurred with the Pacific Maritime Association's (PMA's) written comments, which were submitted as Ex. These commenters are represented by Exs.
6-7, 6-27, 6-32, 6-34, 6-40, and 6- 43. Accordingly, throughout this preamble, whenever reference is made to 'Ex. , the citationreflects the written comments received from NMSA and those commenters listed above that supported NMSA. The same applies to exhibit 'Ex. Which refers to PMA's comments and those of the commenters that supported the PMA. This condensed referencing technique streamlines the document.A. 29 CFR Part 1910 - General IndustryIn the proposal (59 FR 28594 et seq.), OSHA proposed a number of editorial changes to several provisions of part 1910 (the General Industry Standards being incorporated by reference into the Longshoring Standard) to make the application of the General Industry Standards to the Longshoring and Marine Terminals Standards clearer.
OSHA received no substantive comments on the proposed editorial changes to the General Industry Standards. Accordingly, these editorial revisions have been made in the final rule.Paragraphs (a) and (b) of 1910.16, Longshoring and Marine Terminals, have been updated and revised editorially.
The definition of a 'marine terminal' ( 1910.16(b)(4)) has been amended to be consistent with the revised definition in 1917.2(u). The Marine Terminals Standard preamble, which follows, has a detailed explanation of this definitional change.B. 29 CFR Part 1917 - Safety and Health Regulations for Marine Terminals1. Non-substantive changes. In the proposal, OSHA proposed numerous revisions to provisions in OSHA's existing Marine Terminals Standard (29 CFR part 1917) that were considered non-substantive.
These changes were widely supported by commenters. For the purposes of this final regulation, OSHA has divided these changes into two categories: correction of typographical errors and changing the phrase 'shall be available at the terminal' to 'shall be made available for inspection'. The paragraphs affected by each type of change are identified in the appropriate footnote below.OSHA had proposed deleting the introductory phrase 'the employer shall ensure' from various requirements to correct technical drafting amendments from the final Marine Terminals Standard published on July 5,1983 (48 FR 30886). These paragraphs included: 1917.18(a), 1917.43(e)(1)(i), 1917.44(o)(3)(ii), 1917.44(o)(4), 1917.126(b), 1917.152(f)(1), 1917.152(f)(2), and 1917.152(f)(3)(iv).However, after the June 2, 1994, publication of the Longshore and Marine Terminals proposal, OSHA compliance staff reported that deletion of this phrase in other standards actions ( e.g. 61 FR 19547) had caused difficulty in connection with the employer's obligation to have employees wear personal protective equipment (PPE).
Therefore, OSHA is retaining this language in the current part 1917 paragraphs noted above. 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.In keeping with the Agency's efforts to develop regulatory language that is more 'user-friendly' and easier to follow, the references to part 1910 (OSHA's General Industry Standards) in 1917.1(a) have been renumbered and placed in alphabetical order.2.
Substantive changes made in both parts 1917 and 1918. OSHA proposed substantive, identical changes to OSHA's existing part 1917 (the Marine Terminals Standard) and part 1918 (the Longshoring Standard) to provide consistency between them. The rationale for these changes to part 1917 can be found in Section IV of this preamble, Summary and Explanation of the Final Rule, at the respective part 1918 section discussion.