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 LECRAFTHENDERSON, Circuit Judge:OnDecember

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. (SeaLand), anothershipper, 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 standardsetting 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), an ISO member, to develop a

1

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, the interbox connectors have a safe 2

ICHCA describes itself as “an independent, non-political

1

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).

One metric ton equals 1000 kilograms or approximately 2200

2

pounds. Webster’s Third New Int’l Dictionary 1424 (1993).
6

working load of at least 10,000 kg and the vertical force exerted 3

on each corner connection does not exceed 75 kilonewtons

(kN). ICHCA Standard §§ 5.1.4, 5.1.7. The ISO uses a safety 4

factor of five in assessing the safety of VTLs. Id. § 5.1.6. The 5

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 threecontainer 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

 A “safe working load,” also called a “maximum rated load,” “is

3

the highest load permitted to be carried by the component.” 73 Fed.

Reg. at 75,254.

One kilogram equals approximately 2.2 pounds. Comm’r v.

4

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).

A safety factor measures the difference between the safe

5

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. Further departing 6

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

Thus, unlike the Standard, the ISO and ICHCA standards would

6

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 Labor to 7

“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.

The Secretary of Labor has delegated this authority to OSHA.

7

72 Fed. Reg. 31,160.
9

607, 642 (1980) (plurality opinion). The requirement that 8

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 VTLand found “that lifting loaded

containers in a VTL or lifting more than two containers in a

VTL poses a significant risk of failure.” Id.

Although Benzene commanded only a plurality of the Court, our

8

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. In calculating 9

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 onlytwo 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

OSHA began by determining the “maximum rated load”—or

9

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 g of acceleration that 10

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

“g” represents the acceleration due to gravity, approximately

10

9.8 meters per second per second (m/s ) at sea level. VI Oxford

2

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

 Although we uphold OSHA’s determination that VTLs pose a

11

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 onecontainer 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), and the ban on platform container 12

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.

29 C.F.R. § 1917.71(i)(9) provides:

12

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) —as technologically infeasible. 13

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 VTLStandard 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).

29 C.F.R. § 1917.71(i)(10) provides: “No platform container

13

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

OSHA protests that the NMSA’s evidence supporting the

14

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-toshore 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.

Forthe 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.