UNITED STATES COURT OF APPEALS
FOR FIFTH CIRCUIT
TEXAS ASSOCIATION OF
OCCUPATIONAL SAFETY AND
|Case No. 15 - 60350|
The Secretary of Labor (Secretary) and the National Association of Homebuilders and Texas Association of Builders (collectively, NAHB) have reached an agreement to settle NAHB's challenge to the Occupational Safety and Health Administration's (OSHA) Confined Spaces in Construction final rule, 80 Fed. Reg. 25366 (May 4, 2015) (final rule), as set forth below.
WHEREAS, on May 4, 2015, OSHA promulgated the final rule regulating confined spaces in construction;
WHEREAS, NAHB timely filed a Petition for Review of the final rule in the United States Court of Appeals for the Fifth Circuit;
WHEREAS, NAHB and the Secretary wish to resolve NAHB's challenges to the final rule without further litigation;
NOW, THEREFORE, the parties to this Settlement Agreement do hereby agree to the following terms:
- OSHA agrees to issue the attached Questions and Answers (Qs and As), which are incorporated into this Settlement Agreement. The Qs and As represent OSHA's interpretation of the final rule as of the effective date of this Settlement Agreement. OSHA will distribute this Settlement Agreement with the Qs and As to its Regional Offices, to the State Plan Programs, and will post the Qs and As on its webpage, including on the following page: https://www.osha.gov/confinedspaces/.
- OSHA agrees that if, at any time after the effective date of this Settlement Agreement, it plans to withdraw or revise any of the Qs and As, it will first provide NAHB an opportunity to provide input on the planned change.
- Within 90 days of the effective date of this Settlement Agreement, NAHB agrees to provide additional draft compliance assistance material to OSHA drawn from the Qs and As for OSHA's consideration.
- OSHA agrees that, subject to its right to make changes as provided in paragraph 2, it (i) will incorporate the Qs and As into the compliance directive for the final rule, and (ii) will not include other provisions in the compliance directive that are inconsistent with the Qs and As.
- NAHB agrees to move to withdraw its Petition for Review of the final rule within five calendar days after OSHA issues the Qs and As pursuant to paragraph 1.
- Each party agrees to bear its own attorneys' fees, costs, and other expenses that have been incurred in connection with the Petition for Review and the negotiations of this Settlement Agreement.
- This Settlement Agreement constitutes the complete and exclusive statement of agreement between OSHA and NAHB with respect to this matter. All prior or contemporaneous statements, understandings, and agreements by and between the parties, whether written or oral, are superseded by this Settlement Agreement.
- This Settlement Agreement does not constitute a waiver of any rights not explicitly set forth herein nor does it constitute an admission by any of the parties hereto for purposes of this or future litigation. By entering into this Settlement Agreement, NAHB does not waive its rights to challenge any provision of the final rule in a future enforcement proceeding.
- The parties agree that in the event either party breaches the terms of this Settlement Agreement, the Agreement will be enforceable in an appropriate United States District Court and the parties will not contest jurisdiction of such Court to review the Settlement Agreement.
Agreed to this 19th day of May, 2016
Louise McGauley Betts
Charles F. James
U.S. Department of Labor
Office of the Solicitor, Room S-4004
200 Constitution Avenue, NW
Washington, DC 20210
Attorneys for Respondent
Bradford T. Hammock
Tressi L. Cordaro
Jackson Lewis P.C.
10701 Parkridge Boulevard
Reston, VA 20191
Attorneys for Petitioner