United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2010 Decided June 17, 2011
No. 09-1050
NATIONAL MARITIME SAFETY ASSOCIATION ,
PETITIONER
v.
OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION AND
SECRETARY OF LABOR,
RESPONDENTS
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION ,
AFL-CIO,
INTERVENOR
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.
2
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
3
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
4
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
5
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
1
ICHCA describes itself as “an independent, non-political
international membership organi[z]ation, whose membership
comprises corporations, individuals[ and] academic institutions . . .
involved in . . . the international transport and cargo handling
industry.” ICHCA Int’l Safety Panel Technical/Operational Advice
No. 1, Vertical Tandem Lifting of Freight Containers (2003).
2
One metric ton equals 1000 kilograms or approximately 2200
pounds. Webster’s Third New Int’l Dictionary 1424 (1993).
6
working load3 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.5 Id. § 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
3
A “safe working load,” also called a “maximum rated load,” “is
the highest load permitted to be carried by the component.” 73 Fed.
Reg. at 75,254.
4
One kilogram equals approximately 2.2 pounds. Comm’r v.
Shapiro, 424 U.S. 614, 623 n.9 (1976). A newton is a unit of force
equal to “the force that would give a mass of one kilogram[] an
acceleration of one met[er] per second per second.” X Oxford English
Dictionary 378 (2d ed. 1989).
5
A safety factor measures the difference between the safe
working load of a unit and the ultimate strength of the unit. For
example, a safety factor of three requires that the ultimate strength of
the unit be three times greater than the unit’s safe working load; i.e.,
for the unit to have a safe working load of 100, its ultimate strength
has to be at least 300. The purpose of the safety factor is “to guard
against the possibility that the component is accidentally subjected to
forces greater than it can bear.” Resp’ts’ Br. 20.
7
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 only two-container VTL lifts. Unlike the proposed rule,
however, the Standard permits VTLs of empty containers only
so that a two-container VTL can have a mass at most of
approximately 9200 kg or 9.2 metric tons.6 Further departing
from the proposed rule, the final Standard categorically bans
VTLs of platform containers. The Standard additionally
requires “that interbox connectors and containers, including, in
particular, their corner castings [connection points], . . . be
inspected immediately before being used in a VTL” despite
OSHA’s acknowledgment that this requirement “may make
ship-to-shore VTLs impractical.” Id. at 75,278 & n.31. Finally,
the Standard imposes a “safe work zone” requirement, which
requires the employer to “establish a safe work zone within
6
Thus, unlike the Standard, the ISO and ICHCA standards would
permit a two-container VTL to carry up to approximately 10.8 metric
tons of cargo.
8
which employees may not be present when vertically connected
containers are in motion[] . . . sufficient to protect employees in
the event that a container drops or overturns.” 29 C.F.R.
§ 1917.71(k) to (k)(1). As discussed more fully below, OSHA
also determined that “unregulated VTL operations” pose a
“significant risk” to worker safety. 73 Fed. Reg. at 75,251.
NMSA petitioned for review of the Standard on February 6,
2009.
II.
We address, in order, OSHA’s finding of significant risk,
the feasibility of the Standard and its “safe work zone”
requirement. We then discuss—and reject—the NMSA’s two
remaining arguments. OSHA’s determinations are conclusive
if supported by substantial evidence in the record as a whole. 29
U.S.C. § 655(f); Steel Joist Inst. v. OSHA, 287 F.3d 1165, 1168
(D.C. Cir. 2002).
A. Significant Risk
The OSH Act authorizes the Secretary of Labor7 to
“promulgate, modify, or revoke any occupational safety or
health standard.” 29 U.S.C. § 655(b). The Act defines an
“occupational safety or health standard” as a standard
“reasonably necessary or appropriate to provide safe or healthful
employment and places of employment.” Id. § 652(8). Before
OSHA can enact any permanent health or safety standard, it
must make “a threshold finding that a place of employment is
unsafe—in the sense that significant risks are present and can be
eliminated or lessened by a change in practices.” Indus. Union
Dep’t, AFL-CIO v. Am. Petroleum Inst. (Benzene), 448 U.S.
7
The Secretary of Labor has delegated this authority to OSHA.
72 Fed. Reg. 31,160.
9
607, 642 (1980) (plurality opinion).8 The requirement that
OSHA make a threshold finding of significant risk imposes an
important limitation on its regulatory authority, see id. at 646,
but OSHA does not have to “calculate the exact probability of
harm” or “support its finding . . . with anything approaching
scientific certainty.” Id. at 655-56. Nor must it “wait for deaths
to occur before taking any action.” Id. at 655. It “is free to use
conservative assumptions” and to err “on the side of
overprotection rather than underprotection.” Id. at 656.
OSHA based its determination that VTLs pose a significant
risk on four factors. First, OSHA considered “evidence of at
least nine VTL separations in the United States and Canada over
the past 15 years” which it believed “could have resulted in
injury to or death of one or more employees” even though the
separations did not cause any injuries. 73 Fed. Reg. at 75,251.
Second, OSHA noted that the marine cargo handling industry
has adopted its own standards for VTLs, which OSHA took as
an industry acknowledgment that VTLs pose a significant risk.
Id. Third, having previously determined the “handling” of a
single container “to include risk,” OSHA concluded that lifting
multiple containers in a VTL “cannot be less risky.” Id. Fourth,
OSHA conducted an engineering analysis of the strength of the
interbox connectors used in a VTL and found “that lifting loaded
containers in a VTL or lifting more than two containers in a
VTL poses a significant risk of failure.” Id.
8
Although Benzene commanded only a plurality of the Court, our
reading of subsequent Supreme Court precedent is that a majority of
the Court has adopted the significant risk requirement. Bldg. &
Constr. Trades Dep’t, AFL-CIO v. Brock, 838 F.2d 1258, 1263 (D.C.
Cir. 1988) (citing Am. Textile Mfrs. Inst. v. Donovan (Cotton Dust),
452 U.S. 490, 505-06 n.25 (1981)).
10
The engineering analysis needs explanation.9 In calculating
the “forces imposed on interbox connections during [a] VTL[],”
OSHA followed the ICHCA methodology but used more
restrictive assumptions. Id. at 75,260. First, whereas the
ICHCA assumed the forces are spread across four fully engaged
interbox connectors (one at each corner of the container), OSHA
assumed that only two connectors on opposite (diagonal) corners
carry the entire load. Id. at 75,260. OSHA based its assumption
on testimony of longshoremen and container manufacturers that
one or more interbox connectors can frequently detach (or not
attach in the first place) and that it is difficult to detect such
detachments if the two connectors on opposite corners remain
attached. Id. at 75,256, 75,258, 75,260. OSHA concluded “that
it is not uncommon” for a VTL to be performed with only the
two connectors at opposite corners attached and therefore it
sought to ensure that, using the “two diagonal connectors
attached” assumption, a VTL could be performed safely. Id. at
75,258. Second, because the ICHCA did not account for the fact
that a container being lifted and moved accelerates, putting
additional force on the connectors, OSHA considered the
9
OSHA began by determining the “maximum rated load”—or
safe working load— of interbox connectors as well as an appropriate
“safety factor.” See supra notes 3, 5 (explaining safe working load
and safety factor). OSHA adopted a safety factor of five, relying
primarily on the ISO and ICHCA standards, which, as noted earlier,
use a safety factor of five. 73 Fed. Reg. at 75,258. OSHA also relied
on the ISO and ICHCA standards in adopting a safe working load of
10,000 kg, which is the equivalent of 98 kN of force (10,000 kg
multiplied by 0.00980665 kN/kg). Id. at 75,257. To satisfy a safety
factor of five with a safe working load of 98 kN, interbox connectors
must have a minimum ultimate strength that allows them to withstand
forces equal to 490 kN (98 kN multiplied by 5). Id. at 75,257 n.14.
11
additional force caused by up to 2.0 g10 of acceleration that
occurs during a VTL “to determine the baseline force on each of
the two intact connections between the” containers. Id. at
75,260, 75,262.
The NMSA challenges OSHA’s significant risk finding on
two grounds. First, it asserts OSHA failed to take the necessary
step of quantifying the risk VTLs pose to worker safety.
Second, it argues that OSHA cannot rely on a finding that
“unregulated VTL operations,” id. at 75,251, pose a significant
risk to worker safety but instead must determine that VTLs pose
a significant risk to worker safety under current industry
practice. We reject both challenges.
OSHA’s determination that significant risk should be
measured against the baseline of what current law requires
amounts to an interpretation of what is “reasonably necessary or
appropriate to provide safe or healthful employment.” 29
U.S.C. § 652(8). By not allowing voluntary industry standards
to preempt regulation, OSHA’s interpretation furthers the Act’s
purpose of “building upon advances already made through
employer and employee initiative.” Id. § 651(b)(4). The NMSA
does not cite, and we are not aware of, any case requiring OSHA
to consider voluntary industry standards in determining the
existence of a significant risk in a workplace. Because neither
the OSH Act nor our precedent “unambiguously forecloses the
agency’s interpretation,” we owe deference to OSHA’s
reasonable construction. Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 982-83 (2005); see also
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-43 (1984); Associated Builders & Contractors, Inc. v.
Brock, 862 F.2d 63, 68 (3d Cir. 1988) (“We reject . . . the
10
“g” represents the acceleration due to gravity, approximately
9.8 meters per second per second (m/s2 ) at sea level. VI Oxford
English Dictionary 299 (2d ed. 1989).
12
contention . . . that because the construction industry already
provides training in hazardous materials handling, there is no
significant risk in that industry. At best that argument
establishes the existence of risks . . . .”), cert. denied, 490 U.S.
1064-65 (1989), 494 U.S. 1003 (1990).
Nor is OSHA required to quantify a risk before determining
that it is significant. We have previously noted the “peculiar
problem of reviewing the rules of agencies like OSHA” that
arises from “applying the substantial evidence test to regulations
which are essentially legislative and rooted in inferences from
complex scientific and factual data.” United Steelworkers of
Am. v. Marshall, 647 F.2d 1189, 1206-07 (D.C. Cir. 1980), cert.
denied, 453 U.S. 913 (1981). In such a case, as this one is, our
task is not to “second-guess an agency decision that falls within
a zone of reasonableness” but rather to “ensure public
accountability” by requiring the agency to identify the evidence
upon which it relies, to explain its logic and the policies
underlying its choices, to state candidly any assumptions on
which it relies and to provide its reasons for rejecting contrary
evidence and arguments. Id. (internal quotation marks omitted).
OSHA has met that burden regarding its significant risk
determination of VTLs.11
11
Although we uphold OSHA’s determination that VTLs pose a
significant risk to worker safety, we think it important to note a flaw
in the third factor upon which OSHA relied to support its significant
risk determination, namely that a two-container VTL “cannot be less
risky” than a one-container lift. 73 Fed. Reg. at 75,251. OSHA
apparently failed to account for the reduced number of lifts required
to be performed if VTLs are used. Because a VTL moves two
containers, a ship can be loaded or unloaded with half as many lifts as
it can be using single lifts. Even if a VTL is riskier than a one-
container lift, it could still be safer to perform VTLs because of the
smaller number of total lifts. Had OSHA relied on this factor alone,
its significant risk determination might well have been arbitrary and
13
B. Feasibility
The NMSA also challenges two discrete requirements of the
VTL Standard—the interbox connector inspection requirement,
29 C.F.R. § 1917.71(i)(9),12 and the ban on platform container
capricious. See Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). OSHA’s engineering analysis
and the evidence of past VTL separations are sufficient, however, to
support its determination that VTLs pose a significant risk to worker
safety.
12
29 C.F.R. § 1917.71(i)(9) provides:
The employer shall ensure that each container and interbox
connector used in a VTL and each corner casting to which
a connector will be coupled is inspected immediately before
use in the VTL.
(i) Each employee performing the inspection shall be
capable of detecting defects or weaknesses and be able to
assess their importance in relation to the safety of VTL
operations.
(ii) The inspection of each interbox connector shall
include: a visual examination for obvious structural defects,
such as cracks; a check of its physical operation to
determine that the lock is fully functional with adequate
spring tension on each head; and a check for excessive
corrosion and deterioration.
(iii) The inspection of each container and each of its
corner castings shall include: a visual examination for
obvious structural defects, such as cracks; a check for
excessive corrosion and deterioration; and a visual
examination to ensure that the opening to which an interbox
connector will be connected has not been enlarged, that the
welds are in good condition, and that it is free from ice, mud
or other debris.
14
VTLs, id. § 1917.71(i)(10)13—as technologically infeasible.
OSHA standards must be both economically and
technologically feasible. See Int’l Union, United Auto.,
Aerospace & Agric. Implement Workers of Am. v. OSHA, 37
F.3d 665, 668 (D.C. Cir. 1994). “To establish technological
feasibility, OSHA, after consulting the best available evidence,
must prove a reasonable possibility that the typical firm will be
able to develop and install engineering and work practice
controls that can meet the [standard] in most of its operations.”
Am. Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir.
1991) (internal quotation marks omitted). We defer to OSHA’s
feasibility determination in pre-enforcement review but “the test
for feasibility cannot be lamely deferential.” Id. (internal
quotation marks omitted). We conclude that the record lacks
substantial evidence to support the feasibility of section
1917.71(i)(9) in part and of section 1917.71(i)(10) and,
accordingly, that upholding the sections in toto would be lamely
deferential.
The VTL Standard is almost devoid of a feasibility analysis.
It contains only OSHA’s bare conclusion that “[b]ecause all of
the[] conditions [imposed by the Standard] can be met by
(iv) The employer shall establish a system to ensure that
each defective or damaged interbox connector is removed
from service.
(v) An interbox connector that has been found to be
defective or damaged shall be removed from service and
may not be used in VTL operations until repaired.
(vi) A container with a corner casting that exhibits any of
the problems listed in paragraph (i)(9)(iii) of this section
may not be lifted in a VTL. (emphases added).
13
29 C.F.R. § 1917.71(i)(10) provides: “No platform container
may be lifted as part of a VTL unit.”
15
stevedores, and in fact most are being met where VTLs are
currently being performed, . . . the [Standard] is technologically
feasible.” 73 Fed. Reg. at 75,285. The NMSA disagrees with
OSHA’s assessment. It asserts that the inspection requirement
“has resulted in a total ban of ship-to-shore VTLs” because “[i]t
is neither safe, nor feasible, for employees” to inspect containers
that are “in a stack between other containers sitting 80 feet
above the ship’s deck and twice that distance above the water
and dock.” Pet’r’s Br. 34-35; see also Transcript of Informal
Public Hearing for the Proposed Rule on Variable Tandem Lifts,
at 100 (OSHA, July 30, 2004) (Joint Appendix 865) (testimony
of Bill Williams, vice president for Maersk, Inc.) (requiring
longshoremen to ascend containers stacked on ship can “expose[
them] to a fall hazard of 60 feet or more above deck”). Absent
substantial evidence to support OSHA’s determination that its
inspection requirement is feasible for ship-to-shore VTLs, we
cannot uphold that determination. As to shore-to-ship VTLs,
however, the NMSA concedes that inspection before each VTL
is feasible and that it is current industry practice to perform it.
Oral Arg. 39:12-39:55. We therefore uphold OSHA’s feasibility
determination with regard to the inspection requirement for
shore-to-ship VTLs.
The NMSA further alleges that the total ban on platform
container VTLs can make it infeasible to unload cargo from a
ship because platform containers are often stacked and
interconnected overseas and thereafter cannot always be
separated or chained together before lifting. See Curto Decl.
¶ 12 (Ex. A to Pet’r’s Br.) (prohibition on platform container
VTLs leaves marine terminal operators “no feasible option” for
handling platform containers in many circumstances because
containers “frequently cannot be accessed to separate or unitize
for lifting in accordance with the VTL Standard”); Pet’r’s Br. 33
(“Under many circumstances, it simply is not technologically
feasible to access a set of platform containers that have been
interconnected overseas and separate or chain them together
16
before lifting them.”). If that occurs, a domestic marine terminal
operator must either lift the platform containers as a unit—and
thus violate the Standard—or leave the containers—and any
containers beneath them—onboard. Curto Decl. ¶ 12. Because
OSHA’s proposed rule would have permitted VTLs of empty
platform containers with their end panels folded, commenters
had no notice of the Standard’s total ban and therefore did not
address the infeasibility of the ban. In light of the lack of record
evidence regarding feasibility vel non, we cannot conclude that
substantial evidence supports OSHA’s feasibility determination
with regard to the total ban on platform container VTLs.14
14
OSHA protests that the NMSA’s evidence supporting the
infeasibility of the ban on platform container VTLs—the declaration
of Joseph Curto, president of the New York Shipping Association, an
“association of marine terminal operators, stevedores and ocean
carriers handling and transporting cargo and passengers in the Port of
New York and New Jersey,” Curto Decl. ¶ 2—was submitted after the
rulemaking ended and therefore comes too late for judicial review.
See IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997). The
total ban, however, is a significant departure from OSHA’s proposed
rule, which would have permitted VTLs of platform containers with
their end panels folded. See Am. Wildlands v. Kempthorne, 530 F.3d
991, 1002 (D.C. Cir. 2008) (parties may supplement administrative
record if, inter alia, court “need[s] to supplement the record with
background information in order to determine whether the agency
considered all of the relevant factors” (internal quotation marks
omitted)); Envtl. Integrity Project v. EPA, 425 F.3d 992, 996 (D.C.
Cir. 2005) (“[W]e have refused to allow agencies to use the
rulemaking process to pull a surprise switcheroo on regulated
entities.”); Int’l Union, United Mine Workers of Am. v. Mine Safety &
Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005) (“Notice
requirements are designed (1) to ensure that agency regulations are
tested via exposure to diverse public comment, (2) to ensure fairness
to affected parties, and (3) to give affected parties an opportunity to
develop evidence in the record to support their objections to the rule
and thereby enhance the quality of judicial review.”). Because the
17
Accordingly, we vacate and remand the inspection
requirement, 29 C.F.R. § 1917.71(i)(9), as applied to ship-to-
shore VTLs, and the total ban on platform container VTLs, id.
§ 1917.71(i)(10).
C. “Safe Work Zone” Requirement
The “safe work zone” requirement directs the employer to
“establish a safe work zone within which employees may not be
present when vertically connected containers are in motion.” 29
C.F.R. § 1917.71(k). The safe work zone must be “sufficient to
protect employees in the event that a container drops.” Id.
§ 1917.71(k)(1). If an employer establishes a safe work zone as
the Standard requires, the NMSA asserts, employees will not
face any danger and the Standard’s other requirements are
therefore not “reasonably necessary or appropriate” to protect
worker safety. 29 U.S.C. § 652(8). According to the NMSA,
OSHA has a duty to explain why it did not simply “adopt the
‘safe work zone’ requirement without some or all of the other
requirements in the VTL Standard.” Pet’r’s Br. 30. The NMSA
further argues that, because employees are not at risk when an
employer complies with the safe work zone requirement, OSHA
lacks jurisdiction to impose additional requirements because no
risk to employees remains. The NMSA is mistaken. While the
safe work zone requirement adequately protects employees
located on the ground, it does not necessarily protect the crane
operator who moves the containers. If a container were to
separate during a VTL, the separation could jar the crane and
injure the operator. See 73 Fed. Reg. at 75,256 (testimony of
union representative that container can “alligator” during VTL
and “slam back down, jarring the crane cab operator”); cf.
administrative record lacks evidence regarding the feasibility of the
total ban on platform container VTLs, the NMSA’s evidence should
be considered “in order to determine whether the agency considered
all of the relevant factors.” Am. Wildlands, 530 F.3d at 1002.
18
Transcript of Informal Public Meeting, “Piggyback” Container
Issue at 248 (OSHA, Jan. 27, 1998) (Joint Appendix 345)
(testimony of Matthew Laport, crane operator for Sea-Land)
(describing as “a hell of a feeling” when interbox connector
initially fails to disengage during single lift so that lifted
container remains attached to container below and “everything
just jolts” when connector finally releases). The safe work zone
requirement, therefore, does not make the VTL Standard’s other
requirements unnecessary or inappropriate and we believe
OSHA has supported the requirement with substantial evidence.
See 73 Fed. Reg. at 75,256, 75,272.
D. OSHA’s Authority to Prohibit Workplace Practices
The NMSA takes issue with OSHA’s statement in the VTL
Standard that it “permits VTLs of no more than two empty
containers.” Pet’r’s Br. 35 (emphasis in brief) (quoting 73 Fed.
Reg. at 75,246). OSHA, according to the NMSA, lacks statutory
authority to permit or ban workplace practices, arguing that
OSHA can regulate only how workplace practices are
performed, not what workplace practices are performed.
OSHA’s unquestioned authority to ensure safe workplace
practices, however, includes the authority to prohibit unsafe
practices. See 29 U.S.C. § 655(b) (authorizing OSHA to
“promulgate, modify, or revoke any occupational safety or
health standard”); id. § 652(8) (“ ‘[O]ccupational safety and
health standard’ means 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 and places of
employment.”). OSHA might be stymied in its responsibility to
require certain practices if it could not also prohibit
noncompliant practices.
19
E. Non-Delegation Challenge
The United States Constitution vests “[a]ll legislative
Powers herein granted . . . in a Congress of the United States.”
U.S. Const. art. I, § 1. The Constitution “permits no delegation
of those powers, and so . . . when Congress confers
decisionmaking authority upon agencies Congress must lay
down by legislative act an intelligible principle to which the
person or body authorized to act is directed to conform.”
Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 472 (2001)
(emphasis in original) (internal citations, quotation marks and
brackets omitted). In Benzene, the Supreme Court interpreted
the OSH Act to require OSHA, before issuing a standard under
the Act, to “determine that [the standard] is reasonably
necessary and appropriate to remedy a significant risk of
material health impairment.” Benzene, 448 U.S. at 639
(plurality opinion). The limiting construction was necessary
because a plurality of the Court believed that without the
construction “the statute would make such a sweeping
delegation of legislative power that it might be
unconstitutional.” Id. at 646 (internal quotation marks omitted).
That the Court did not invalidate the Act manifests that the
Court believes the Act, as interpreted in Benzene, contains an
intelligible principle for promulgating health standards. But
here the NMSA challenges, as an unconstitutional delegation of
legislative power, the Act’s grant of authority to issue safety
standards. See Int’l Union, United Auto., Aerospace & Agric.
Implement Workers of Am. v. OSHA, 938 F.2d 1310, 1316 (D.C.
Cir. 1991).
The delegation of power to OSHA under the OSH Act to set
health or safety standards that are “reasonably necessary or
appropriate to provide safe or healthful employment and places
of employment,” 29 U.S.C. § 652(8), is no broader than other
delegations that direct agencies to act in the “public interest,”
e.g., Nat’l Broad. Co. v. United States, 319 U.S. 190, 215-16
20
(1943) (internal quotation marks omitted), or in a way that is
“fair and equitable,” Yakus v. United States, 321 U.S. 414, 420-
23 (1944), or in a manner “requisite to protect the public
health,” Whitman, 531 U.S. at 472-76 (internal quotation marks
omitted), or when “necessary to avoid an imminent hazard to the
public safety,” Touby v. United States, 500 U.S. 160, 163, 165
(1991) (internal quotation marks omitted). See also Am. Power
& Light Co. v. SEC, 329 U.S. 90, 104 (1946) (authorizing SEC
to reorganize corporate structures to ensure they are not “unduly
or unnecessarily complicate[d]” and do not “unfairly or
inequitably distribute voting power among security holders”
(internal quotation marks omitted)); Michigan Gambling
Opposition v. Kempthorne, 525 F.3d 23, 30-31 (D.C. Cir. 2008)
(authorization to obtain land “for Indians” contains intelligible
principle), cert. denied, 129 S. Ct. 1002 (2009). See generally
Whitman, 531 U.S. at 472-76. “In light of these precedents, one
cannot plausibly argue that [29 U.S.C. § 652(8)’s “reasonably
necessary or appropriate to provide safe or healthful
employment and places of employment”] standard is not an
intelligible principle.” Touby, 500 U.S. at 165. Accordingly, we
reject the NMSA’s non-delegation challenge.
III.
For the foregoing reasons, we deny the NMSA’s petition for
review in large part; we also grant the petition in part, vacating
and remanding only that portion of the VTL Standard providing
for the inspection requirement for ship-to-shore VTLs and the
total ban on platform container VTLs.
So ordered.