D.M. Sabia Company
Repeat scaffold violation reinstated after court mandate
Apply this precedent to your situation
This is citable Commission precedent from 1996, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Sabia stipulated that it violated the scaffold standard requiring guardrails and toeboards on elevated platforms. The judge classified the violation as repeated and assessed an agreed $4,000 penalty, but the Commission initially reduced it to serious with a $1,000 penalty under then-controlling Third Circuit precedent. The Third Circuit later vacated that Commission decision and directed reinstatement of the judge's order. Following the court's mandate, the Commission restored the repeat classification and the $4,000 penalty.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.451(a)(4)
- Outcome: The repeat scaffold violation and stipulated $4,000 penalty were reinstated.
- Key point: On remand from a court of appeals, the Commission implemented the mandate by restoring the judge's original repeat classification and penalty.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19
Office of Phone: (202) 606-5400
Executive Secretary Fax: (202) 606-5050
.
.
SECRETARY OF LABOR, ..
.
.
Complainant, .
.
.
.
V. . OSHRC Docket No. 93-3274
D. M. SABIA COMPANY,
Respondent.
NOTICE OF COMMISSION DECISION AND ORDER
The attached decision and order by the Occupational Safety and Health Review Commission was issued
on October 16. 1996. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO
WISHES TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL
WITH THE APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE
DATE OF THIS DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29
U.S.C. tj 660.
FOR THE COMMISSION
Date: October 16, 1996 I t
Rav H. Darling. Jr.
Executive Secretary
93-3274
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Deborah Pierce-Shields
Office of the Solicitor, U.S. DOL
Room 14480
3535 Market Street
Philadelphia, PA 19 104
James F. Sassaman, Director of Safety
GBCA
PO Box 15959
36 South 18th Street
Philadelphia, PA 19 103
Michael H. Schoenfeld
Administrative Law Judge
Occupational Safety and Health
Review Commission
1120 20th Street, Suite 990
Washington, D.C. 20036-3419
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19
PHONE: FAX:
(202) 606-S 100 (202) 606-5050
.
:
SECRETARY OF LABOR, ::
::
:
Complainant, ::
.:
:I
v. i:. OSHRC Docket No. 93-3274
:
D.M. SABIA CO., ::
:
Respondent. .
ORDER
In its decision in Reich v. DM Sabia Co., 90 F.3d 854,861 (3d Cir. 1996), the United
States Court of Appeals for the Third Circuit vacated the Commission’s decision at 17 BNA
OSHC 1413, 19% CCH OSHD T[30,930 (No. 93-3274, 1995), and it “remand[ed] to the
Commission with the direction that the Commission reinstate the November 25, 1994 order
of the [Administrative Law Judge] affirming the citation and imposing a penalty of $4,000
as stipulated by the parties. Jt. App. 15.” In accordance with the Third Circuit’s decision
and mandate, we reinstate the judge’s decision finding a repeat violation of 29 C.F.R.
tj 1926.45 l(a)(4), as the citation alleged, and assessing a penalty of $4,000 therefor.
Stuart E. Weisberg
Chairman
Commissioner
Daniel Guttman
Date& October 16, 1996 Commissioner
1996 OSHRC No. 31
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 200363419
PHONE:
.
COM (202) 60&s 00 zii (202) 6os5osO
Fls (202) 60&!5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-3274
D. M. SABIA & COMPANY, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTR4TIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on December 2, 1994. The decision of the Judge
will become a fial order of the Commission on January 4, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEZWOF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
December 22, 1994 in order to permit sufficient time for its review. See
Commission Rule 91,29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO8.
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review r@ts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: December 2, 1994 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 93-3274
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Catherine Oliver Murphy
De uty Regional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Buildilng
3535 Market Htreet
Philadelphia, PA 19104
James F. Sassaman, Director of
Safety
GBCA
P.O. Box 15959
36 South 18th Street
Philadelphia, PA 19103
Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00123265563:03
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE .
coM(202)606-5100 zi (202) 6o64oso
fTs(202)60645100 ~(202)-
SECRETARY OF LABOR, ..
.
Complainant, ..
..
v. .. Docket No. 93-3274
..
D. M. SABIA COMPANY, ..
.
..
Respondent.
..
..
Appearances:
Maureen A Russo, Esq. James F. Sassaman, Dir. of Safety
Office of the Solicitor General Building Contractors
U.S. Department of Labor Association
For Complainant Philadelphia, Pennsylvania
For Respondent
Before: Administrative Law Judge Michael H. Schoenfeld
DECISION AND ORDER
This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. 8 6
651 - 678 (1970) (“the Act”).
The sole issue to be determined is whether the violation of 29 C.F.R. 0 1926.451(d)
(1) is a “repeat” violation under section 17(a) of the Act1 as alleged.
1 Section 17(a) of the Act, 29 U.S.C. 0 666(a) provides:
Any employer who willfully or repeatedly violates the require-
ments of Section 654 of this title, any standard, rule, or order
promulgated pursuant to Section 655 of this title, or regulations
(continued...)
The violation alleged to be repeat is so because “at the time of the alleged repeated
violation, there was a Commission final order against the same employer for a substantially
similar violation” as required under the Commission decision in Potlach Cop, 7 BNA OSHC
1061, 1063 (No. 16183, 1979)(‘%tZach”).
The stipulation between the parties establishes the factual predicate for the
conclusion that the violation is repeated. There is agreement that Respondent had been
cited for the “same or similar” violations of the same standard on three prior occasions and
that each of the prior citations was a final order of the Commission (Stipulation, lI 4).
The legal conclusion is less obvious. The parties are fully aware that for many years
the Commission’s definition of “repeated” under Potlach, Supra., was not the same as that
applied by the Third Circuit. Under their decision in Bethlehem Steel Cop., v. OSHRC, 540
F.2d 157 (3rd Cir. 1976) (“Bethlehem”) the Third Circuit reached a different conclusion. It
held that a violation could be classified as repeated only where there were at least two
previous violations and the respondent “flaunted” the requirements of the Act.
It appears that the Commission has decided that it will no longer apply the Bethlehem
test in the Third Circuit. In its decision in a case arising in the Third Circuit, Jersey Steel
Erectors, 16 BNA OSHC 1162 (No.90~1307, 1993) (“Jersey Steer’), the Commission
acknowledged the divergence. It nonetheless stated “[w]e continue to adhere to the Potlach
test.” Jersey Steel, supra, 16 BNA at 1167. By pointing out that the result would have been
the same “even if we were to a apply the Bethlehem test,” Id. (Emphasis added.), the
Commission emphasized its determination to decline to apply Bethlehem, even in the Third
Circuit case then before it. Thus, the test of “repeated’* which must be applied here is that
laid out in PotZach.2 As an Administrative Law Judge with the Commission I am
‘( ...continued)
prescribed pursuant to this chapter, may be assessed a civil
penalty of not more than $70,000 for each violation, but not less
than $5,000 for each willful violation.
’ Although the Third Circuit affirmed the Commission’s decision in which it adhered
to Potlach it is not, as the Secretary argues in his brief clear that the Third Circuit was
(continued...)
constrained to follow its precedents. Under the Potlach test, the violation is repeated.3
Finally, Respondent’s reliance on a provision of the Secretary’s Field Operation
Manual in asserting that prior violations must have occurred within a certain time in order
to form the basis of a repeat violation is misplaced in that the manual is not binding on the
Commission.
The violation of 29 C.F.R. 6 1926.451(a)(4) is repeated. Accordingly, Citation 2, Item
1 is AFFIRMED.
The stipulation entered into between parties includes their agreement that:
The proposed penalty of $4,000 gives due consideration to the
serious nature of the violation, the repeated nature of the viola-
tion and is otherwise in accordance with the requirements of the
Act.
(Stipulation, ll 6).
There is nothing in the record before this Administrative Law Judge which might
indicate that a penalty of $4,000 is anything other than appropriate. Accordingly, a penalty
of $4,000 is assessed for the repeat violation.
FINDINGS OF FACT
Findings of fact relevant and necessary for a determination of all issues have been
made above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law
inconsistent with this decision are hereby denied.
2(...continued)
abandoning BethZehem. The decision of the Court is included in a listing of cases decided
without opinion. Under Third Circuit rules opinions which have “precedential or institutional
value” are to be reported, not merely issued as an unpublished disposition. See, Third
Circuit Rules, App. 1, Internal Operating Procedures, Ch. 5, sec. 5.1, 28 U.S.C.A.
3 It is noted that under the Bethlehem test, the alleged violation in this case could not
be found to be repeated because the stipulation, which is the only factual record, is
insufficient to support a finding that Respondent “flaunted” the requirements of the Act.
- 4-
CONCLUSIONS OF LAW
1. Respondent was, at all times pertinent hereto, an employer within the meaning
of $ 3(S) of the Occupational Safety and Health Act of 1970, 29 U. S. C. 8 0 651 - 678
(1970).
2. The Occupational Safety and Health Review Commission has jurisdiction over the
parties and the subject matter.
3. Respondent was in repeated violation of the construction safety standard at 29
C.F.R. 8 1926.451(d)(4) as alleged in Item 1 of Citation No. 2 issued to it on or about
November 26, 1993.
ORDER
1. Citation 2, Item 1, issued to Respondent on or about November 26, 1993, is
AFFIRMED.
2. A civil penalty of $4,000 is assessed.
HfJj 2 3 ~~~ ’
Judge, OSHRC
Dated:
Washington, D.C.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
SECRETARY OF LABOR, ..
.
Complainant,
v. .. OSHRC Docket No. 93-3274
.
D.M. SABIA CO., ..
Respondent.
DECISION
BEFORE: WEISBERG, Chairman; MONTOYA, Commissioner.
BY THE COMMISSION:
D .M. Sabia Co. (‘ ‘Sabia’ ‘), a masonry contractor, stipulated that it violated 29 C .F.R.
5 1926.45 1(a)(4), which requires guardrails and toe boards on open sides and ends of platforms
more than 10 feet above the ground or floor. At issue is whether Administrative Law Judge
Michael H. Schoenfeld erred in finding the violation repeated under section 17(a), 29 U. S. C.
0 666(a),’ of the Occupational Safety and Health Act of 1970, 29 U.S.C. 55 651-678 (“the
Act”). For the reasons stated below, we apply the law of the Third Circuit, reverse the judge’s
decision, and conclude that, based on the stipulated record in this case, the Secretary did not
prove that the violation is repeated.
‘Section 17(a) of the Act, amended @ Omnibus Budget Reconciliation Act of 1990, Rub. L. No.
101-508, 5 3101 (1990), provides:
Any employer who willfully or repeatedly violates the requirements of section
654 of this title, any standard, rule, or order promulgated pursuant to section 655
of this title, or regulations prescribed pursuant to this chapter, may be assessed
a civil penalty of not more than $70,000 for each violation, but not less than
$5,000 for each willful violation.
1995 OSHRC No. 50
2
I. Third Circuit Law Applies
Where it is highly probable that a case will be appealed to a particular circuit, the
Commission generally has applied the law of that circuit in deciding the case, even though it
may clearly differ from the Commission’s law. See, e.g., Fawevts Tree Surgeons, Inc. , 15 BNA
OSHC 1793, 1794-95, 1991-93 CCH OSHD 7 29,770, p. 40,489 (No. 90-998, 1992).* Those
circumstances are present in this case.3 Under the law of the Third Circuit, a violation is
repeated if (1) there are at least two previous violations of the standard or regulation; and (2)
the cited employer “flaunted” the requirements of the Act. Bethlehem Steel Corp. v. OSHRC,
540 F.2d 157, 160-62 (3d Cir. 1976). This differs from the Commission’s repeated test,
subsequently announced in PotZatch Corp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD
7 23,294, p. 28,171 (No. 16183, 1979), that a violation is repeated if, at the time of the alleged
repeat violation, there was a Commission final order against the same employer for a
substantially similar violation.4 See, e.g., R.G. Friday Masonry, Inc., 17 BNA OSHC 1070,
*Contrary to the judge’s conclusion, the Commission in Jersey Steel Erectors, 16 BNA OSHC
1162, 1168, 1993 CCH OSHD 1 30,041, p. 41,220 (No. 90-1307, 1993), ard without
published opinion, 19 F.3d 643 (3d Cir. 1994), did not state that it would no longer apply the
Third Circuit test. Rather, the Commission there found that the violations were repeated under
either the Commission’s test or the Third Circuit’s test. Id. The Commission followed the same
approach in R.G. Friday Masonry, Inc., 17 BNA OSHC 1070, 1074, 1995 CCH OSHD
1[ 30,682, p. 42,579 (No. 91-1873, 1995) (consolidated); see also Nooter Constr. Co., 16 BNA
OSHC 1572, 1577 & n.8, 1994 CCH OSHD 1[ 30,345, p. 41,840 & n.8 (No. 91-237, 1994)
(result is same under Commission’s or Third Circuit’s unpreventable employee misconduct
analysis).
3The parties c an appeal this case to the Third Circuit because the violation occurred in
Pennsylvania and the employer’s principal office is located there as well. See section 1 l(a) and
(b) of the Act, 29 U. S .C. 5 660(a) and (b) . The cited employer may also appeal to the D .C .
Circuit. Section 11(a) of the Act, 29 U.S.C. 5 660(a).
4The other circuit courts that have discussed Potlatch in their decisions have expressed their
general agreement with it. See J.L. Foti Constr. Co. v. OSHRC, 687 F.2d 853, 856-57 (6th Cir.
1982); Dun-Par Engineered Form Co. v. Marshall, 676 F.2d 1333, 1337 (10th Cir. 1982);
WillametteIron and Steel Co. v. Secretary of Labor, 673 F.2d 1341 [lo BNA OSHC 14771 (9th
Cir. 1982) (not published in official reporter); Communications, Inc. v. Marshall, 672 F.2d 893
[lo BNA OSHC 1273, 12741 (not published in offkial reporter) (D.C. Cir. 1981); see ako
Bunge COT. v. Secretary of Labor, 638 F.2d 831, 837-38 (5th Cir. Unit A Mar. 1981) (Fifth
(continued.. .)
3
1074, 1995 CCH OSHD 7 30,682, p 42,579 (No. 91-1873, 1995) (consolidated). The Third
Circuit reaffirmed its repeated test in Jones & Laughlin Steel Corp. v. Marshall, 636 F.2d 32
(3d Cir. 1980) (court changed “flaunted” to “flouted”). While noting the Commission’s test
in Potlatch, the court stated
we remain bound by our decision in Bethlehem SteeZ unless that case is
overturned by the Court [e]n bane, or until the Supreme Court chooses to resolve
the conflicting interpretations of 5 666(a) adopted by [other circuits].
636 F.2d at 33 n. 1. Since neither of these events have taken place, we are constrained to apply
the Third Circuit’s test here to determine if the violation is repeated, although we respectfully
disagree with that test?
II. Application of the Third Circuit’s Test
We conclude that the Secretary has failed to meet his burden of proof under the Third
Circuit’s test. While the stipulation by the parties quoted in note 5 establishes that Sabia violated
4
(. . continued)
Circuit noted its general agreement but held that the Secretary has the burden of proving the
substantial similarity of conditions associated with the prior and present violations of the same
standard). The Commission’s test in Potlatch was derived to a large extent from George Hymun
Constr. Co. v. OSHRC, 582 F.2d 834, 839 (4th Cir. 1978) and Todd Shipyards Corp. v.
Secretary of Labor, 566 F.2d 1327, 1330-31 (9th Cir. 1977).
‘Under the Commission’s test, a prima facie case of substantial similarity is established by
showing that the prior and present violations are for failure to comply with the same standard.
Potlatch, 7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28,171; see, e.g., Edward Joy Co.,
15 BNA OSHC 2091, 2092, 1991-93 CCH OSHD 129,938, p. 40,904 (No. 91-1710, 1993).
The employer can then introduce evidence to rebut this showing. Id. The Secretary has made
such a prima facie showing of substantial similarity here based on the following stipulation
agreed to by the parties:
Respondent has been cited for this same or similar violation of 29 C .F.R.
5 1926.451(a)(4), on July 22, 1974; January 23, 1985; and May 16, 1991; and
each citation went to a final order.
In light of Sabia’s concession that it had previously been cited for violating the same standard
and that the prior citations became final orders, and Sabia’s failure to introduce any evidence
to rebut the Secretary’s showing of substantial similarity, we conclude, as the judge did, that the
violation is repeated under the Commission’s test.
4
the same standard more than twice before,6 we find that, based on the stipulation by the parties,
the Secretary has not shown that Sabia flouted the Act. According to the Third Circuit, among
the factors to be considered in determining if an employer has flouted the requirements of the
Act are:
the number, proximity in time, nature and extent of violations, their factual and
legal relatedness, the degree of care of the employer in his efforts to prevent
violations of the type involved, and the nature of the duties, standards, or
regulations violated.
Bethlehem Steel, 540 F.2d at 162. “The mere occurrence of a violation of a standard or
regulation more than twice” does not constitute flouting. Id.
Sabia’s four violations of the standard, which are spread out over a period of 19 years,
have increased in proximity, but their number and proximity do not rise to the level of flouting
when considered in light of other cases. In R. G. Friday, 17 BNA OSHC at 1073-74, 1995 CCH
OSHD at p. 42,579, the Commission applied the Third Circuit test and found that the employer
flouted the Act based mainly on the seven prior fmal orders it had received over the previous
ten years for violating the same scaffolding standard, with increasing rather than diminishing
frequency; the two most recent violations occurred fourteen days apart. See also Jersey Steel
Erectors, 16 BNA OSHC at 1167-68, 1993 CCH OSHD at p. 41,220 (Commission found
flouting where three prior final orders of the same standard occurred within the previous five
years and two of the three fml orders were themselves characterized as repeated). Here, the
stipulations are silent as to whether the more recent of Sabia’s prior violations were themselves
repeated.
While section 1926.451(a)(4) is not a general standard, neither are its requirements so
specific and narrow that they would, on their own, establish the sort of factual and legal
6Relying on the p art of the Secretary’s Field Operations Manual included in the parties’
stipulations, which provides that find1 orders more than three years old would not be considered
as a basis for a repeated characterization, Sabia argues that the Secretary unfairly did not apply
this policy to Sabia. (Only one out of the three orders against Sabia relied upon here became
final within three years of the violation.) However, as Sabia acknowledges, the Manual does
not have the force or effect of law, and for that reason we dismiss this argument, as the judge
did. See, e.g., Consolidated Freightways Cop., 15 BNA OSHC 1317, 1323 n.lO, 1991-93 CCH
OSHD 7 29,500, 39,812 n.10 (No. 86-351, 1991).
5
relatedness that would support a finding that the employer flouted the Act. Nor does the
stipulated record indicate whether the violations are factually related. We only know that they
involved the same standard and occurred within the Third Circuit. In contrast, in Jersey Steel,
16 BNA OSHC at 1167, 1993 CCH OSHD at p. 41,220, the Commission noted that the three
prior final orders involved ‘‘strikingly similar’ ’ head protection violations.
We also do not have information regarding the employer’s degree of care. In R. G.
Ftiday, there was evidence that the safety program was not initiated until after many of the prior
violations became fmal orders. 17 BNA OSHC at 1074, 1995 CCH OSHD at p. 42,580. We
cannot infer merely from Sabia’s pattern of violations that the company does not place a very
high priority on compliance; Sabia’s violations were remote in time and relatively few.
We therefore find that the Secretary did not prove that Sabia flouted the Act’s
requirements, and thus under the Third Circuit’s test the Secretary has not shown that the
violation is repeated. 7
III. Serious Characterization and Penal@
We fmd that Sabia’s violation of section 1926.451(a)(4) is serious. Under section 17(k)
of the Act, 29 U.S.C. 8 666(k), a violation is serious if there was a “substantial probability that
death or serious physical harm could result. ” Here the parties stipulated that the violation
“involved exposure to a ‘serious’ hazard. ” Under section 17(j) of the Act, 29 U.S.C. 5 666(j),
we determine an appropriate penalty by considering the size of the employer’s business, the
gravity of the violation, the good faith of the employer, and the employer’s history of violations.
Because there was no hearing in this case, there is little information in the record regarding these
factors. The amended complaint (to which Sabia did not take exception) states that Sabia has
152 employees overall, including approximately 34 employees at the worksite in this case. The
gravity of the violation is moderate to high because, as the parties stipulated, the violation
“involved a fall potential between 16 and 20 feet’ ’ that could result in serious physical injury.
‘Chairman Weisberg notes that given the law in other circuits which have adopted the
Commission’s Potlatch test, it is incumbent on the Secretary to persuade the Third Circuit to
overturn its decision in Bethlehem Steel, or to seek review by the Supreme Court to resolve the
conflict and provide a uniform interpretation of the term “repeated. ”
6
As noted above, Sabia had a history of violations, for it had three prior violations of section
1926.451(a)(4), one each in 1974, 1985, and 1991. The record is silent as to Sabia’s good will.
Based on the above, we assess a penalty of $1,000 for Sabia’s violation of section
1926.451(a)(4). .
It is so ordered.
Stuart E. Weisberg
Chairman
Velma Montoya
Commissioner
Dated: October 30, 1995
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