Shipbuilders Council of America and OSHA Settle Lawsuit, OSHA Issues First Interpretation Letter for Shipyard Industry on Subpart F

On August 1, 2011, the Occupational Safety and Health Administration’s (OSHA) standards for General Working Conditions in Shipyard Employment (1915, Subpart F) became effective. These standards included requirements covering the following areas:

  • Housekeeping, Lighting, and Working Alone
  • Medical Services/First Aid and Sanitation
  • Lockout/Tags-Plus (control of hazardous energy)
  • Motor Vehicles

The original existing standards in Subpart F were adopted in 1972 from regulations under the Longshore and Harbor Workers’ Compensation Act and industry consensus standards, such as the American National Standards Institute (ANSI). In 1988, OSHA established an advisory committee for the shipyard industry, the Shipyard Employment Standards Advisory Committee (SESAC). Comprised of industry representatives and labor and safety professionals in the maritime industry, SESAC developed regulatory language revising the requirements in Subpart F. Thereafter, in 1995, OSHA established the Maritime Advisory Committee for Occupational Safety and Health (MACOSH), which reviewed SESAC’s draft regulatory language for revisions to Subpart F and made additional recommendations to OSHA, including that OSHA consider requirements for the control of hazardous energy.

In December 2007, OSHA finally published a proposed rule for General Working Conditions in Shipyard Employment, and on May 2, 2011, OSHA published the final rule. While many of the revisions in the new rule are simply updates to existing requirements, the final rule is significant in that it is the first time that OSHA has established requirements for the control of hazardous energy (lockout/tagout) in the shipyard industry.

On June 29, 2011, the Shipbuilders Council of America (SCA) filed a petition for review in the U.S. Court of Appeals for the Fourth Circuit, challenging OSHA’s new standard for General Working Conditions in Shipyard Employment.

During early settlement negotiations between SCA and OSHA, OSHA agreed to delay the enforcement of the regulation governing group lockout/tags-plus (29 C.F.R. section 1915.89(k)(2)(ii)) and issued a series of memoranda to the regional administrators delaying the effective date of section 1915.89(k)(2)(ii). As part of the final settlement agreement reached in November 2012, OSHA agreed to provide an extension of enforcement for section 1915.89(k)(2)(ii) until May 19, 2013. Therefore, OSHA compliance officers should not be issuing shipyard employers citations under this provision. In addition to the delay of enforcement for the group lockout/tags-plus requirements, OSHA agreed to issue an interpretation letter providing industry members guidance regarding the lockout/tags-plus, lighting, and working alone requirements.

This interpretation letter provided further clarification such as:

  • The use of job assignment sheets to sign on and sign out of a lockout/tags-plus system is permissible under section 1915.89(k)(2).
  • Employees simply entering the space or inspecting the space where a lockout/tags-plus system is applied are not authorized employees.
  • Lockout/tags-plus applies only where employees are exposed to the energization of machinery, equipment.
  • A lockout/tags-plus coordinator is not automatically required every time a task involves more than one employee or more than one servicing operation.
  • The minimum 5-lumen requirement is only for locations were work is actually being performed.
  • OSHA will not enforce the 10-lumen requirement under section 1915.82 for outdoor work tasks if those tasks do not pose a danger to employees working under less lighting.
    • In those cases, OSHA will permit temporary lighting of 5-lumens.
    • For areas of vessel ingress/egress, temporary lighting of 3 lumens is permissible.
    • Under section 1925.84, employers may use cell phones as the primary means of verbal communication for employees working alone provided the employer verifies that there is cell phone reception in the areas where the employee will be working alone.

A copy of this interpretation letter can be found on OSHA’s website by clicking here.

It is believed that OSHA is in the process of developing a Compliance Directive to provide OSHA compliance officers and industry members with additional guidance in the application and interpretation of various requirements in Subpart F. SCA is hopeful that OSHA will issue this guidance relatively soon.

By challenging the final Subpart F rule and negotiating with OSHA, SCA was able to receive helpful industry guidance. Unfortunately, sometimes it takes a legal challenge to get OSHA to the table to talk.  This should be a lesson to other industries as we start to get into what is likely to be a very active rulemaking period for OSHA.

Tressi L. Cordaro is Of Counsel in the Washington, D.C. office of Ogletree Deakins.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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