IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
______________________________________________
NATIONAL MARITIME SAFETY )
ASSOCIATION, INC., )
)
Petitioner, )
)
)
vs. )
)
OCCUPATIONAL SAFETY AND HEALTH ) No. 99-1031
ADMINISTRATION, UNITED STATES )
DEPARTMENT OF LABOR, AND )
ALEXIS M. HERMAN, SECRETARY, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Respondents, )
)
)
)
CARRIERS CONTAINER COUNCIL, INC. )
INTERNATIONAL LONGSHORE & WAREHOUSE UNION, )
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, )
)
Intervenors for )
Petitioner. )
______________________________________________)
SETTLEMENT AGREEMENT
1. Coverage. This Settlement Agreement addresses the application of 29 CFR 1910.178(l) -- Powered Industrial Truck Operator Training ("the standard") -- to the longshoring and marine terminal industries (SIC 4491). The standard was issued on December 1, 1998 (63 Fed. Reg. 66238) and is made applicable to marine terminals by 29 CFR 1917.1(a)(2)(xiv) and to longshoring by 29 CFR 1918.1(b)(10).
2. Implementation. Within 30 days of the signing of this Settlement Agreement, OSHA shall instruct its regional and area offices to follow the terms of this Settlement Agreement in enforcing the standard with respect to longshoring and marine terminal operations. OSHA shall provide this Settlement Agreement to state plan occupational safety and health agencies and encourage that the states follow its terms.
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3. Compliance Deadline. Employers engaged in longshoring or marine terminal operations shall, as to workers who did not regularly operate a powered industrial truck (PIT) in a marine terminal or longshoring workplace before December 1, 1998, comply with all provisions of the standard, as set forth herein, by June 30, 2001. With respect to workers who regularly operated a PIT in a marine terminal or longshoring workplace before December 1, 1998, employers must comply with all provisions of the standard, as set forth herein, by October 1, 2001. Prior to June 30, 2001 or October 1, 2001, whichever is applicable, if those employers are not in full compliance with 1910.178(l), they must ensure that their powered industrial truck operators are adequately trained as required by 1917.27 for marine terminals and 1918.98 for longshoring.
4. Training, Evaluation and Certification by a Third Party. The person or persons who conduct training, refresher training, evaluations, and certification of operators under 29 CFR 1910.178(l) need not be employed by the employer of those operators. Such third-party training, including appropriate on-the-job training, may be provided by an employers' association, a labor union, a joint labor-management training organization, or any other organization meeting the requirements of the standard.
An employer may rely on a third-party trainer's certification that an employee has been trained and evaluated to operate a particular type of powered industrial truck in accordance with the standard if the training entity presents to the employer -- who shall make it available to OSHA upon request -- verification that the training program conforms to the standard and includes a list of topics covered by the training. When an operator has been certified under the preceding sentence, the employer must provide additional training in any of those topics only when its powered industrial truck operator[s] will be potentially exposed to hazardous workplace-related conditions that could not reasonably have been foreseen when the training took place. Before its employees operate powered industrial trucks under such conditions, the employer shall brief them about the conditions and in how to operate the powered industrial truck safely under those conditions.
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5. Three-Year Evaluations and Certification Records. An employer may comply with the requirement of § 1910.178(l)(4)(iii) that an operator has been evaluated at three-year intervals if it knows that a third party has conducted the required evaluation and the third party certifies the evaluation pursuant to § 1910.178(l)(6). If such evaluations, which can be based on the review of records by an existing entity, such as a joint labor-management committee, are made in the normal course of business, they need not be repeated for purposes of this paragraph.
The certification required by § 1910.178(l)(6) may be performed, and the records of such certification maintained, by a third-party trainer. The certification records must identify the types of equipment on which the operator has been trained and evaluated. Where an employer does not regularly employ the same operators, such as where operators are assigned by a hiring hall, the employer does not need to maintain the records at its own worksite. The employer must, however, know where the records are located, and they must be accessible to an OSHA compliance officer during a workplace inspection.
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6. Avoidance of Duplicative Training of Experienced Operators. An employee who, prior to December 1, 1998, has regularly operated a particular type of PIT in a marine terminal or longshoring operation, which can be determined by an existing entity such as a joint labor-management committee, may be certified under § 1910.178(l)(6) to operate that type of PIT if (a) written documentation establishes that the employee has previously been trained and evaluated in all of the training topics listed in § 1910.178(l)(3) that are applicable to that type of PIT; or (b) the employee's operation of the type of PIT is evaluated under circumstances that typically prevail in the marine terminal and/or longshoring workplaces in which the operator normally works by a person or entity with the requisite knowledge, skills, and experience to perform evaluations, and the employee is found competent to perform the operator's duties safely. If such evaluations, which can be based on the review of records by an existing entity, such as a joint labor-management committee, are made in the normal course of business, they need not be repeated for purposes of this paragraph.
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7. Refresher Training and Evaluation. A PIT operator shall receive refresher training under § 1910.178(l)(4)(ii)(A) or (C) if a workplace observation by a supervisor or other qualified person indicates that the operator is deficient in some of the requisite knowledge and skills needed to operate the vehicle safely. If the observer determines that the deficiencies in the operator's knowledge and skills can be corrected by on-the-job instruction, the observer or another qualified person may immediately provide such instruction. After any such instruction, the observer or other qualified person may reevaluate the operator's performance in the workplace and, if the operator is then able to demonstrate that he or she possesses the knowledge and skills to operate the equipment safely, the operator may continue to operate the PIT without any further training and without affecting his or her certification. If on-the-job instruction is not sufficient to cure the deficiencies in the operator's knowledge and skills, the operator shall receive such additional refresher training and evaluation as is necessary to ensure that the operator has the knowledge and skills needed to operate the powered industrial truck safely.
An operator shall receive refresher training and evaluation under § 1910.178(l)(4)(ii)(B) when the operator has been involved in an incident in which the operator's operation of the PIT caused or contributed to personal injury or property damage or provided other clear evidence that the operator operated the equipment unsafely. In the event that an OSHA inspection of the incident is conducted, the OSHA inspector will include in the case file and will account for any facts and conclusions developed by an independent inquiry of the factors underlying the incident which are made available to the inspector during the inspection or within 14 days of the incident, whichever is later. The affected parties may contact the inspector to discuss the results of the independent inquiry.
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8. Generic Training. An operator who has been trained on a particular type of powered industrial truck may, without additional training, operate other makes and models of the same type of truck that have fundamentally similar operating characteristics and placement of operating controls. Similarly, an employee who has been trained to use a particular type of powered industrial truck attachment need not receive additional training to use a fundamentally similar make or model of the same type of attachment for the same type of truck.
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9. Seatbelt Training. Powered industrial truck operator training programs must cover equipment manufacturers' recommendations as to the use of seatbelts under § 1910.178(l)(3)(I); such programs may also address the hazards, if any, in the opinion of the training provider, that seat belt use could cause in a particular work situation in the marine cargo handling industry.
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10. Withdrawal of Law Suit. NMSA agrees to withdraw its petition for review in the above-captioned case within five working days of the signing of this Settlement Agreement. The Parties and Intervenors signing below shall bear their own costs and expenses incurred in connection with this matter.
11. Support of Settlement Agreement. In the event that all or any portion of this Settlement Agreement is challenged in any forum, the signatories below agree to move to intervene in support of this Settlement Agreement.
HENRY L. SOLANO
Solicitor of Labor
JOSEPH M. WOODWARD
Associate Solicitor for
Occupational Safety and Health
BRUCE JUSTH
Counsel for Appellate Litigation
________________________
CHARLES T. CARROLL, Jr., Esq.
Wilcox, Carroll & Froelich,
Suite 301, 2011 Pa. Ave.,N.W.
Washington, D.C. 20006
General Counsel, National
Maritime Safety Association
________________________
BARUCH A. FELLNER, Esq.
Gibson, Dunn & Crutcher, LLP
1050 Conn. Ave., N.W.
Washington, D.C. 20036-5306
Counsel for the National
Maritime Safety Association
________________________
JOHN SHORTALL
Attorney,
Office of Solicitor
U.S. Department of Labor
Frances Perkins Bld., Rm. S-4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210-0001
________________________
C. PETER LAMBOS, Esq.
CAROL N. LAMBOS, Esq.
Lambos & Junge,
29 Broadway
New York, New York 10006-3101
Counsel for Carriers
Container Council, Inc.
________________________
HERZL EISENSTADT, Esq.
ELIZABETH ALEXANDER, Esq.
Gleason & Mathews, P.C.
26 Broadway -- 17th Floor
New York, New York 10004-1864
Counsel for International
Longshoremen's Association
________________________
CRAIG E. EPPERSON, Esq.
Pacific Maritime Association
550 California Street
San Francisco, CA 94104-1060
General Counsel & Secretary,
Pacific Maritime Association
________________________
C. PETER LAMBOS, Esq.
CAROL N. LAMBOS, Esq.
Lambos & Junge,
29 Broadway
New York, New York 10006-3101
Counsel for United States
Maritime Alliance, Ltd.
________________________
RICHARD ZUCKERMAN, Esq.
Leonard, Carder et al.
Suite 201
1188 Franklin Street
San Francisco, Calif. 94109
Counsel for the International
Longshore & Warehouse Union
July 14, 2000