_____________________________________________
)
American Forest and Paper Association )
and American Iron and Steel Institute, )
)
Petitioners )
)
v. ) No. 94-1419
)
Occupational Safety and Health )
Administration, United States )
Department of Labor, )
)
Respondent )
_____________________________________________)
The Petitioners, American Forest & Paper Association (AF&PA) and American Iron and Steel Institute (AISI), by their attorneys, and the Respondent, Occupational Safety and Health Administration (OSHA), by its attorneys, agree to the following settlement of the petition for review.
1. On April 6, 1994, OSHA promulgated in the Federal Register a Final Rule on Personal Protective Equipment for General Industry. 59 Fed. Reg. 16334-16364 (codified at 29 C.F.R. 1910, Subpart I (1994)) (the standard). AF&PA and AISI have petitioned for review of the standard in this Court.
2. Within five working days of the execution of this settlement agreement, AF&PA and AISI will move pursuant to Fed. R. App. P. 42(b) to dismiss their petition for review with prejudice.
3. OSHA agrees to include in its forthcoming Compliance Directive on the standard the agency's interpretations contained in Attachment A to this agreement. While OSHA cannot agree to include these provisions in all future Compliance Directives relating to the standard, OSHA agrees that these represent its contemporaneous interpretations of the standard as of the date of this agreement.
4. OSHA agrees that it will not continue to enforce the interpretations reflected in Attachment A if the standard is subsequently amended to impose less stringent requirements.
5. OSHA agrees that nothing in Docket S-060, the Docket for the rulemaking on Personal Protective Equipment for General Industry, will be relied upon by the agency to justify recordkeeping requirements in any final rule on Personal Protective Equipment for Shipyards (Docket S-045/S-045A) beyond those in 29 C.F.R. 1910.132(d) and (f), as interpreted in Attachment A to this agreement.
6. The parties agree to bear their own attorneys fees, costs and other expenses incurred in connection with these proceedings up to and including the filing of the motion to dismiss the petition for review.
Agreed to this 31st day of JANUARY, 1995.
_______________________________ CHARLES F. JAMES ANN ROSENTHAL U.S. Department of Labor Office of the Solicitor 200 Constitution Avenue, N.W. Washington, D.C. 20210 Attorneys for Respondent Occupational Safety and Health Administration (202) 219-6610 _______________________________ LAWRENCE P. HALPRIN, Esq. ARTHUR S. GARRETT III, Esq. Keller and Heckman 1001 G Street, N.W. Washington, D.C. 20001 Attorneys for Petitioners American Forest & Paper Association and American Iron and Steel Institute (202) 434-4177
May employers who, prior to July 5, 1994, conducted hazard assessments meeting the requirements of 29 C.F.R. 1910.132(d), and/or provided training meeting the requirements of 29 C.F.R. 1910.132(f), rely upon such hazard assessments and training as compliance with the standard?
Yes. It is acknowledged that prior to the promulgation of the standard, many employers may have performed hazard assessments of their worksites and/or provided training to their employees conforming to the requirements in 29 C.F.R. 1910.132(d) and (f). The standard contains no limitation on when the hazard assessment and training requirements must be met. Thus, employers may rely upon appropriate hazard assessments that they have conducted, and training that they have provided, prior to the effective date of July 5, 1994. By extension of this principle, an employer may rely upon a hazard assessment conforming to 29 C.F.R. 1910.132(d) that a previous employer has conducted for the worksite before or after July 5, 1994, provided that the job conditions have not substantially changed. An employer may also rely upon training conforming to 29 C.F.R. 1910.132(f) that a previous employer has provided an employee, or the knowledge and ability to use PPE properly that an employee has gained through his or her prior experience, before or after July 5, 1994.
How will the certification requirement in 29 C.F.R. 1910.132(d)(2) be enforced?
The standard requires that employers prepare a written certification concerning the required workplace hazard assessment that: (A) identifies the workplace evaluated, the person certifying that the evaluation has been performed and the date(s) of the hazard assessment; and (B) identifies the document as a certification of hazard assessment. If the employer relies upon a hazard assessment that it conducted prior to July 5, 1994, or a prior hazard assessment conducted by another employer, whether before or after July 5, 1994, the certification may contain the date the employer determined that the prior hazard assessment was adequate rather than the date(s) of the actual assessment.
How will the certification requirement in 29 C.F.R. 1910.132(f)(4) be enforced?
The standard requires that employers prepare a written certification concerning required training that contains the name of each employee trained, the date(s) of the training, and that identifies the subject of the certification. If the employer relies upon training provided by it before July 5, 1994, or training provided by another employer whether before or after July 5, 1994, or relies upon the knowledge and ability gained by an employee through his or her experience, the certification may contain the date that the employer determined that the prior training, or the employee's knowledge and ability, was adequate rather than the date of the actual training. The employer may use any convenient format that contains the required information. It may use a single certification for all of its employees, for an identifiable group of its employees (based on a common task, type of exposure, or other appropriate characteristic), or for one or more named employees, provided the certification contains the required information.
What is meant by the requirement to "identify the subject of the certification" contained in 29 C.F.R. 1910.132(f)(4)?
As indicated in the preamble, the certification document need only state that it is a certification of training for the PPE being used by the employee. It need not identify the specific category (e.g., eye and face protection), type (e.g., goggles), or model of PPE covered by the certification.
I, Arthur S. Garrett III, hereby certify that on this 1st day of February 1995, I caused a copy of the foregoing Settlement Agreement to be served by United States Mail on Charles F. James, Office of the Solicitor of Labor, U.S Department of Labor, Room S-4004, 200 Constitution Avenue, N.W., Washington, D.C. 20210.
__________________________
Arthur S. Garrett III
___________________________________
AMERICAN FOREST & PAPER )
ASSOCIATION )
and )
AMERICAN IRON AND STEEL )
INSTITUTE, )
)
Petitioners, )
)
v. ) No. 94-1419
)
OCCUPATIONAL SAFETY AND HEALTH )
ADMINISTRATION, United States )
Department of Labor, )
)
Respondent. )
___________________________________)
Petitioners American Forest & Paper Association and American Iron and Steel Institute, by and through their undersigned counsel, and pursuant to Fed. R. App. P. 42(b), hereby move that the Petition for Review filed by the Petitioners in the above-captioned action on June 3, 1994, be dismissed with prejudice upon such terms and conditions as have been agreed upon with the Respondent Occupational Safety and health Administration in the January 31, 1995 Settlement Agreement (filed on February 1, 1995), a copy of which is attached hereto.
Respectfully submitted,
__________________________
Lawrence P. Halprin, Esq.
Arthur S. Garrett III Esq.
KELLER AND HECKMAN
1001 G Street, N.W., Suite 500 West
Washington, D.C. 20001
(202) 434-4100
Counsel for Petitioners American
Forest & Paper Association and
American Iron and Steel Institute
Dated: February 1, 1995