Shipbuilders Council Of America Settles Subpart F Challenge
11 June 2013
On November 26, 2012 SCA filed a Motion to Dismiss with the U.S. Court of Appeals for the Fourth Circuit, formally ending the challenge to OSHA’s Subpart F: General Working Conditions in Shipyard Employment Final Rule ("Subpart F" or "Final Rule"). The SCA/OSHA Settlement Agreement, which can be found HERE, provides key implementation guidance, as well as an extended enforcement stay of the group lockout/tagout section of the Final Rule (1915.89(k)(2)(ii)) for 180 days.
When the Final Rule was issued on May 2, 2011, SCA had outstanding concerns primarily about two provisions (1) new Lockout/Tagout (LO/TO) requirements and (2) additional lighting requirements. It was SCA's position that OSHA underestimated the cost impact of these sections, did not fully envision the complexities of shipboard systems and environments when developing them, and did not provide proper justification that new requirements would be any safer than existing practices. In addition, at that time OSHA had no plans to provide implementation guidance for the new, costly and complex regulation.
As a result of these concerns and to seek relief from impending OSHA enforcement, on June 29th, 2011, the SCA Board of Directors approved filing a Petition for Review with the U.S. Court of Appeals for the Fourth Circuit challenging the Final Rule. Since that time, representatives from SCA member shipyards have worked in close concert with lawyers for SCA and OSHA to negotiate a favorable settlement that addresses industry's concerns.
Additionally, as a result of the SCA challenge, last year OSHA issued several stays of enforcement for sections of the Final Rule such as Lighting and Motor Vehicles. While now expired, these stays allowed membership much needed additional time for compliance after the Final Rule was issued last year. The industry also received a complete stay of OSHA enforcement for the group lockout/tagout section of the Final Rule (1915.89(k)(2)(ii) while negotiations were ongoing.
- OSHA will issue within 10 days an interpretation letter to serve as industry guidance comprised of the Question and Answer section in the Settlement Agreement. OSHA has complied with this term and you can find the signed document HERE, which was sent to the OSHA Regional Offices and State Plans. This guidance will provide immediate clarity and regulatory certainty regarding certain sections of the Final Rule.
- OSHA will extend the stay of enforcement for the group LO/TO section of the Final Rule for 180 days. OSHA has complied with this term and you can find the memorandum to the Regional Administrators delaying the enforcement of 1915.89(k)(2)(ii) until May 19, 2013 HERE.
- OSHA has committed to issuing expedited guidance on the entire LO/TO section of the Final Rule, should a Compliance Directive not be issued in a timely manner.
- OSHA will provide the SCA a copy of all excerpts of the Subpart F Compliance Directive relating to the subject matter addressed in SCA's interpretive letter. OSHA will allow SCA two weeks in which to review the content and provide general feedback before OSHA issues the Directive.
SCA views this as a very positive result for the industry. If you have any questions, please contact Ian Bennitt.