Nat'l Mar. Safety Ass'n v. Occupational Safety & Health Admin.

• Citation: 649 F.3d 743,2011 O.S.H.D. (CCH) P 33141,2011 A.M.C. 2849,23 O.S.H. Cas. (BNA) 1513,396 U.S.App.D.C. 362
• Decision Date: 17 June 2011
• Docket Number: No. 09–1050.,09–1050.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Parties: NATIONAL MARITIME SAFETY ASSOCIATION, Petitionerv.OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION and Secretary of Labor, Respondents.International Longshore and Warehouse Union, AFL–CIO, Intervenor.

649 F.3d 743

2011 A.M.C. 2849

396 U.S.App.D.C. 362

23 O.S.H. Cas. (BNA) 1513

2011 O.S.H.D. (CCH) P 33,141

NATIONAL MARITIME SAFETY ASSOCIATION, Petitioner

v.OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION and Secretary of Labor, Respondents.International Longshore and Warehouse Union, AFL–CIO, Intervenor.

No. 09–1050.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 14, 2010.Decided June 17, 2011.

On Petition for Review of a Final Rule of the Occupational Safety & Health Administration.Francis Edwin Froelich argued the cause for the petitioner.Edmund C. Baird, Attorney, United States Department of Labor, argued the cause for the respondents. Deborah Greenfield, Acting Deputy Solicitor, Joseph M. Woodward, Associate Solicitor, and Charles F. James, Counsel, were on brief.Christine S. Hwang, Elizabeth Morris and Randy S. Rabinowitz were on brief for the intervenor.Before: HENDERSON and GRIFFITH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.Opinion for the Court filed by Circuit Judge HENDERSON.KAREN LeCRAFT HENDERSON, Circuit Judge:

On December 10, 2008, the Occupational Safety and Health Administration (OSHA), an agency of the United States Department of Labor, published a final rule regulating vertical tandem lifts (VTLs). Longshoring and Marine Terminals; Vertical Tandem Lifts, 73 Fed.Reg. 75,246 (VTL Standard or Standard). The National Maritime Safety Association (NMSA), a trade association representing marine terminal operators, petitions for review of the VTL Standard and argues (1) OSHA failed to demonstrate that VTLs pose a significant risk to worker safety; (2) two of the Standard's requirements are not technologically feasible; (3) the Standard is not reasonably necessary or appropriate in light of the “safe work zone” requirement; (4) OSHA's authority is limited to requiring, not prohibiting, workplace practices; and (5) if the Standard is otherwise valid, the Occupational Safety and Health Act (OSH Act or Act), 29 U.S.C. §§ 651–678, has made an unconstitutional delegation of legislative power to OSHA. As explained below, we grant the NMSA's petition but only in part, vacating and remanding the Standard with respect to the inspection requirement for ship-to-shore VTLs, 29 C.F.R. § 1917.71(i)(9), and the total ban on platform container VTLs, id. § 1917.71(i)(10). Otherwise, we deny the petition.

I.

Most maritime cargo today is shipped in standardized intermodal containers that can be transferred from ship to shore (thence to rail, and/or truck and, finally, to warehouse) in the same container. The container has openings at each corner that allow it to be secured onboard a ship, truck or train. Containers are frequently vertically stacked on top of one another for transport, in which case interbox connectors can be inserted into the corner openings to fasten the stacked containers to each other. Standard containers are shaped like rectangular boxes. Platform containers (also called flat racks) have no top or long sides and the end panels (or short sides) are either fixed upright or can be folded flat onto the floor of the container. Platform containers may also be attached to other containers using interbox connectors, typically with their end panels folded flat. A crane can lift the interconnected containers in what is called a vertical tandem lift and thereby move multiple containers at once. Marine cargo handlers have been performing VTLs for over twenty years. While the total number of VTLs performed is unknown, OSHA has estimated the number to be one million VTLs since 1986. No injury has been reported as having occurred during a VTL.

In 1986 OSHA asked Matson Terminals, Inc. (Matson), a shipping company then using VTLs, for information regarding the strength and integrity of Matson's containers and interlock connectors. Matson supplied the requested information and additionally sought OSHA's permission to lift two interconnected containers, either empty or with one or both containers holding automobiles. VTL Standard, 73 Fed.Reg. at 75,247. At the time, OSHA regulations did not directly address VTLs but provided that “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.” 29 C.F.R. § 1918.85(c) (1986) (quoted in 73 Fed.Reg. at 75,247). OSHA granted Matson permission to perform the requested lifts but cautioned Matson to “be mindful of the manufacturer's specifications and endorsements, the Matson engineering technical specifications” and the condition of the equipment. 73 Fed.Reg. at 75,247. In 1993, Sea–Land Service, Inc. (Sea–Land), another shipper, requested OSHA's permission to lift two empty, interconnected containers in a VTL. Id. In a response letter that has come to be known as the “Gurnham letter,” OSHA permitted Sea–Land to perform VTLs of two empty containers if Sea–Land met the following eight requirements:

inspect[ ] containers for visible defects; verify[ ] that both containers are empty; assur[e] that containers are properly marked; assur[e] that all the [interbox connectors] operate (lock-unlock) in the same manner and have positive, verifiable locking systems; assur[e] that the load does not exceed the capacity of the crane; assur[e] that the containers are lifted vertically; hav[e] available for inspection manufacturers' documents that verify the capacities of the [interbox connectors] and corner [openings]; and direct[ ] employees to stay clear of the lifting area.

Id. In 1994 OSHA briefly mentioned VTLs in the preamble to its proposed revisions to the Longshoring and Marine Terminals Standards, 59 Fed.Reg. 28,594, 28,602 (June 2, 1994), but “[b]ecause of a lack of information on the safety considerations, cost impacts, and productivity effects of VTLs, as well as on the capability of containers and [interbox connectors] to withstand such loading, OSHA reserved judgment on the appropriate regulatory approach to [VTLs], pending further study.” VTL Standard, 73 Fed.Reg. at 75,247 (citing 62 Fed.Reg. 40,142, 40,152 (July 25, 1997)). OSHA nevertheless reopened the record with respect to VTLs several months later, requesting comments and scheduling an “informal public meeting” to gather information about VTLs. 62 Fed.Reg. 52,671, 52,672 (Oct. 9, 1997). After the public meeting, OSHA contracted with the National Institute of Standards and Technology, an agency of the U.S. Department of Commerce that conducts physical science research, to conduct engineering studies on the strength and durability of container interconnection points and interbox connectors. OSHA also met with several international standard-setting organizations to discuss VTL standards and formed a “workgroup” within its Maritime Advisory Committee for Occupational Safety and Health (MACOSH) to study VTLs and report back to MACOSH. VTL Standard, 73 Fed.Reg. at 75,248.

In 2000, the International Organization for Standardization (ISO)—“a worldwide federation of national standards bodies whose mission is to promote the development of international standards to reduce technical barriers to trade,” 73 Fed.Reg. at 75,246—agreed that interbox connectors could be used to vertically lift up to three containers (depending on the strength of the containers and interbox connectors) and requested ICHCA International Ltd. (ICHCA),¹ an ISO member, to develop a single, comprehensive document dealing with all aspects of VTL operations. Id. at 75,248; ICHCA, Vertical Tandem Lifting of Freight Containers § 1.6. Two years later, the ISO formally adopted a standard permitting VTLs under certain conditions, ISO 3874 § 6.2.5; 73 Fed.Reg. at 75,248, and ICHCA published its comprehensive VTL standard in 2003, ICHCA Int'l Ltd., Vertical Tandem Lifting of Freight Containers (ICHCA Standard) (2003); 73 Fed.Reg. at 75,249. The ISO standard permits VTLs of up to three containers if the total mass of the VTL unit does not exceed 20,000 kilograms (kg), or 20 metric tons,² the interbox connectors have a safe working load ³ of at least 10,000 kg and the vertical force exerted on each corner connection does not exceed 75 kilonewtons (kN).⁴ ICHCA Standard §§ 5.1.4, 5.1.7. The ISO uses a safety factor of five in assessing the safety of VTLs.⁵Id. § 5.1.6. The ICHCA standard imposes the same mass and safety factor requirements and, in addition, prohibits using VTLs of platform containers unless the end panels are folded flat. Id. §§ 8.1.2.3, 8.1.2.5, 8.1.3.1.2, 8. 1.3.2.1. An empty box container weighs between approximately 5000 and 10,000 pounds, depending on the size of the container, which equates to a mass between approximately 2300 kg and 4600 kg. A two-container VTL of the largest containers has a mass of 9200 kg and a three-container VTL, a mass of 13,800 kg. The ISO and ICHCA standards, thus, permit loaded containers to be lifted in a VTL if the total cargo in a two-container VTL does not exceed approximately 10,800 kg, or 10.8 metric tons, and the total cargo in a three-container VTL does not exceed approximately 6200 kg, or 6.2 metric tons.

On September 16, 2003, OSHA issued a notice of proposed rulemaking announcing its intention to regulate VTLs. Longshoring and Marine Terminals; Vertical Tandem Lifts, 68 Fed.Reg. 54,298. The proposed rule would have permitted VTLs of two containers with a total weight (including cargo) of 20 tons. Id. at 54,317. It would have prohibited platform containers with upright end frames from being lifted in a VTL unit but would have allowed empty platform containers with the end frames folded down to be lifted as a VTL unit. Id. It would have also imposed a wind speed restriction on VTL operations and would have required the employer to examine the interbox connectors before each use. Id.

After receiving comments and holding public hearings, OSHA published the final VTL Standard in 2008. 73 Fed.Reg. 75,246 (Dec. 10, 2008). Like the proposed rule, the Standard permits...