PUGET SOUND TUG & BARGE; MISSION VIKING, INC.; NORTHWESTERN CONSTRUCTION, INC.

OSHRC Docket No. 76-4905; OSHRC Docket No. 78-617; OSHRC Docket No. 76-5155

Occupational Safety and Health Review Commission

April 30, 1981

[*1]

Before BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor, USDOL

George D. Palmer, Associate Regional Solicitor, USDOL

James H. Bauer, for the employer

Michael A. McGlone, for the employer

Linda Heller Kamm, General Counsel, Department of Transportation

OPINION:

DECISION

By the COMMISSION:

These cases are before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 (the "Act"). They have been consolidated for purposes of our review and present the following issues: Whether the Coast Guard has exercised its authority to prescribe or enforce standards or regulations affecting the occupational safety or health of employees working on vessels on the navigable waters of the United States, and, if so, whether, under section 4(b)(1) n1 of the Act, the cited working conditions are exempt from the requirements of the Act by virtue of the Coast Guard's exercise of its statutory authority?

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n1 Section 4(b)(1) provides as follows:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

[*2]

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In all three cases, the respondents have conceded the existence of the conditions cited by the Secretary and have stipulated that if the citations are affirmed the penalties proposed by the Secretary are appropriate. Oral argument before the Commission was heard on April 17, 1979. Mission Viking declined to appear at the oral argument. The Coast Guard entered an appearance in its capacity of amicus curiae.

For the reasons that follow, we conclude that the Coast Guard has the statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. We also conclude, however, that a section 4(b)(1) exemption applies only to those working conditions over which the Coast Guard has exercised that authority.

Having thoroughly reviewed the records in these cases, we find that respondents have failed to establish Coast Guard regulations applicable to any of the cited conditions and, therefore, affirm all citations in their entirety.

I

A. Mission Viking, Inc. - No. 78-617

This case was decided by Administrative Law Judge Cecil L. Cutler, Jr., without a hearing, [*3] on a stipulated record. The stipulation establishes that on January 23, 1978, respondent was engaged in ship repair operations at the Bender Shipyard #2B, in Mobile, Alabama. The work was being performed on respondent's Drill Ship, Mission Viking, which is a vessel certificated and licensed by the Coast Guard. All work on the ship was being performed by employees of Mission Viking, Inc. Specifically, the employees were drillers, roustabouts, and other members of the drilling crew, who actually lived aboard and sailed with the vessel. At all times pertinent, the drill ship remained in navigational status, although it was tied up to the dock.

As a result of an OSHA inspection, respondent received one serious and one nonserious citation. The citation for serious violation alleged noncompliance with the standards at 29 C.F.R. 1915.23(c)(3)(ii) n2 (employees engaged in abrasive blasting were not protected with proper respiratory equipment), and 29 C.F.R. 1915.41(1)(3) n3 (where there was no railing, employees working over water were not protected by proper buoyant work vests). Penalties of $560 were proposed for each of the alleged violations.

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n2 29 C.F.R. 1915.23 Mechanical paint removers.

* * *

(c) Abrasive blasting

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(3) Personal protective equipment

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(i) Abrasive blasters working in enclosed spaces shall be protected by hoods and air fed respirators or by air helmets of a positive pressure type in accordance with the requirements of 1915.82(a).

(ii) Abrasive blasters working in the open shall be protected as indicated in paragraph (c)(3)(i) of this section except that when synthetic abrasives containing less than one percent free silica are used filter type respirators approved by the Bureau of Mines for exposure to lead dusts may be used in accordance with 1915.82(a) and (d).

n3 29 C.F.R. 1915.41 Scaffolds or staging.

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(i) Backrails and toeboards.

* * *

(3) Rails may be omitted where the structure of the vessel prevents their use. When rails are omitted, employees working more than 5 feet above solid surfaces shall be protected by safety belts and life lines meeting the requirements of 1915.84(b), and employees working over water shall be protected by buoyant work vests meeting the requirements of 1915.84(a).

[*5]

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The citation for nonserious violations alleged noncompliance with 29 C.F.R. 1903.2(a)(1) n4 (failure to post OSHA notice), 29 C.F.R. 1904.2(a) n5 (log of occupational injuries and illnesses not maintained at establishment), 29 C.F.R. 1904.5(a) n6 (annual summary not compiled), and 29 C.F.R. 1915.41(a)(10) n7 (improper securing of working platform suspended by crane hook). No penalties were proposed for any of the nonserious items.

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n4 29 C.F.R. 1903.2 Posting of notice; availability of the Act, regulations and applicable standards.

(a)(1) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

n5 29 C.F.R. 1904.2 Log and summary of occupational injuries and illnesses.

(a) Each employer shall, except as provided in paragraph (b) of this section, (1) maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment; and (2) enter each recordable injury and illness on the log and summary as early as practicable but no later than 6 working days after receiving information that a recordable injury or illness has occurred. For this purpose form OSHA No. 200 or an equivalent which is as readable and comprehensible to a person not familiar with it shall be used. The log and summary shall be completed in the detail provided in the form and instructions on form OSHA No. 200.

n6 29 C.F.R. 1904.5 Annual summary.

(a) Each employer shall post an annual summary of occupational injuries and illnesses for each establishment. This summary shall consist of a copy of the year's totals from the form OSHA No. 200 and the following information from that form: Calendar year covered, company Name establishment name, establishment address, certification signature, title, and date. A form OSHA No. 200 shall be used in presenting the summary. If no injuries or illnesses occurred in the year, zeros must be entered on the totals line, and the form must be posted.

n7 29 C.F.R. 1915.41 Scaffolds or staging.

(a) General requirements.

* * *

(10) Unless the crane hook has a safety latch or is moused, the lifting bridles on working platforms suspended from cranes shall be attached by shackles to the lower lifting block or other positive means shall be taken to prevent them from becoming accidentally disengaged from the crane hook.

[*6]

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In his decision, Judge Cutler noted that Commission precedent established that, for purposes of section 4(b)(1), the Coast Guard retains authority to the exclusion of OSHA where the safe working conditions of "seamen" as opposed to "longshoremen" are concerned. California Stevedore & Ballast Co., 74 OSAHRC 34/A2, 1 BNA OSHC 1757, 1973-74 CCH OSHD P17,931 (No. 1132, 1974); T. Smith & Son, Inc., 74 OSAHRC 61/B13, 2 BNA OSHC 1177, 1974-75 CCH OSHD P18,536 (No. 2240, 1974). Moreover, the Judge noted that 29 C.F.R. 1915.1(b) n8 rendered the cited standards inapplicable to "crew members . . . within the regulatory authority of the Coast Guard." Therefore, he concluded that the basic question is whether the drillers, roustabouts, and other members of the crew were "seamen" as opposed to nonseamen employees.

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n8 29 C.F.R. 1915.1 Purpose, scope and responsibility.

* * *

(b) Pursuant to Public Law 85-742 the regulations of this part [relating to ship repair] do not make determinations with respect to matters under the control of the United States Coast Guard within the scope of Title 52 of the Revised Statutes and Acts supplementary or amendatory thereto (46 U.S.C. 1-1388, passim), including, but not restricted to, the master, ship's officers, crew members, design, construction, and maintenance of the vessel, its gear and equipment; to matters within the regulatory authority of the United States Coast Guard to safeguard vessels, harbors, ports, and waterfront facilities under the provisions of the Espionage Act of June 15, 1917, as amended (40 Stat. 220; 50 U.S.C. 191 et seq.; 22 U.S.C. 401 et seq.); including the provisions of Executive Order 10173, as amended by Executive Orders 10277 and 10352 (3 CFR, 1949-1953 Comp., pp. 356, 778, and 873); or to matters within the regulatory authority of the United States Coast Guard with respect to lights, warning devices, safety equipment and other matters relating to the promotion of safety of lives and property under section 4(e) of the Outer Continental Shelf Lands Act of August 7, 1953 (67 Stat. 462; 43 U.S.C. 1333).

[*7]

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Judge Cutler concluded that respondent's employees were "seamen." He observed that the vessel, although under repair, was in navigational status, that the employees lived and worked on the vessel, and that their duties contributed to the function and maintenance of the vessel. Accordingly, the Judge concluded that the Coast Guard had jurisdiction over occupational safety and health aboard the Mission Viking to the exclusion of OSHA, and vacated the citations.

B. Puget Sound Tug & Barge - No. 76-4905

This case arose out of a fatal accident that occurred on September 28, 1976, when one of respondent's employees, a licensed seaman, was crushed against a metal cargo basket by a crane on board respondent's Barge #214. At the time, respondent was engaged in loading operations at the Dillingham City Dock in Alaska. The loading operations on the barge were performed by eight employees. Four of the workers were crew members of the tug San Diegan, which, like Barge #214, was owned by respondent. The other employees were not crew members, but were members of the Operating Engineers Union who were on [*8] board the barge to operate the crane.

The accident was reported to the Coast Guard's Marine Safety Office, and Ensign Ohr was assigned to investigate. Following standard procedure, Ensign Ohr took statements from the other employees and inspected the site. He concluded that the fatality was caused when the employee's head was caught between a container, the cargo basket, and the back of the crane, as the crane swung back and forth. The cargo basket contained pieces of gear needed on the barge, and was so situated that the back end of the crane would pass over the basket, scraping it as it went by. When an employee obtained gear from the basket, he could be hit on the head by the counterbalance of the crane.

As a result of the inspection, Ensign Ohr determined that the location of the cargo basket presented a hazard. Ohr told respondent's safety manager that the cargo basket should be moved. Ohr was assured that the basket would be moved before any further loading or unloading operations took place. No follow-up inspection of Barge #214 was conducted to determine if Ohr's recommendation regarding the cargo basket was carried out.

Subsequent to Ensign Ohr's inspection, another [*9] safety inspection was conducted by an OSHA compliance officer. That inspection resulted in the issuance of one serious and one nonserious citation. The serious citation alleged a failure to comply with the longshoring standard at 29 C.F.R. 1918.74(c) n9 (failure to guard accessible areas within the swing radius of the crane). A penalty of $500 was proposed. The nonserious citation alleged nomcompliance with the standards at 29 C.F.R. 1918.33(a) n10 (permitting employees to pass fore and aft over and around deck loads where there was no safe passage), 29 C.F.R. 1918.91(a) n11 (tripping hazards), and 29 C.F.R. 1904.8 n12 (failure to report a fatality within 48 hours). A $100 penalty was proposed for the alleged reporting violation. No penalties were proposed for any of the other alleged non-serious violations.

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n9 29 C.F.R. 1918.74 Cranes and derricks other than vessel's gear.

* * *

(c) Accessible areas within the swing radius of the outermost part of the body of a revolving crane shall be temporarily guarded by ropes or other suitable means during cargo operations, so as to prevent an employee being in a position to be caught between the body of the crane and fixed parts of the vessel or of the crane itself.

n10 29 C.F.R. 1918.33 Deck loads.

(a) Employees shall not be permitted to pass fore and aft over or around deck loads unless there is a safe passage.

n11 29 C.F.R. 1918.91 Housekeeping.

(a) Weather deck walking and working areas shall be kept reasonably clear of lines, bridles, dunnage and all other loose tripping or stumbling hazards.

n12 29 C.F.R. 1904.8 Reporting of fatality or multiple hospitalization accidents.

Within 48 hours after the occurrence of an employment accident which is fatal to one or more employees or which results in hospitalization of five or more employees, the employer of any employees so injured or killed shall report the accident either orally or in writing to the nearest office of the Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor. The reporting may be by telephone or telegraph. The report shall relate the circumstances of the accident, the number of fatalities, and the extent of any injuries. The Area Director may require such additional reports, in writing or otherwise, as he deems necessary, concerning the accident.

[*10]

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Administrative Law Judge Erwin L. Stuller affirmed the citations. Judge Stuller stated that to establish a section 4(b)(1) exemption, an employer must establish: (1) that the Coast Guard was authorized to promulgate job safety standards, (2) that the Coast Guard issued standards that cover the cited conditions, and (3) that the standards were enforced.

Judge Stuller concluded that the respondent failed to prove a Coast Guard enforcement effort that would fulfill the purposes of the Act. The Judge noted that the Coast Guard officer who conducted the accident inspection had no job safety training, failed to note any hazards other than the cargo basket, and admitted that he did not know how to guard the crane. Moreover, the Judge observed that the Coast Guard's enforcement effort consisted only of a statement requiring the cargo basket to be moved. Comparing the Coast Guard enforcement program to OSHA, he noted that Coast Guard investigations often consist only of telephone inquiries and that 99 percent of the inspections are scheduled in advance. OSHA inspections, on the other hand, are conducted [*11] in person and without advance notification. Judge Stuller also noted that Coast Guard inspections are designed to insure the seaworthiness and qualifications of the ship and crew and, where a casualty is involved, to avoid a repetition. Noting that the purpose of section 4(b)(1) is to avoid unnecessary regulatory duplication, the Judge found that the Coast Guard's enforcement scheme was not duplicative of OSHA's. Accordingly, he held that there was no section 4(b)(1) exemption, and affirmed the citations and proposed penalties.

C. Northwestern Construction, Inc. - No. 76-5155

On October 13, 1976, respondent was engaged in building an extension to a dock for the Collier Chemical Company in Kenai, Alaska. The work was being performed approximately 100 yards offshore by construction employees aboard Derrick Barge #300, a vessel licensed by the Coast Guard. The crew consisted of pile drivers, who did the actual construction work and were hired out of a hiring hall, laborers, and operating engineers who operated the derrick and performed other support work. Besides the construction crew, Barge #300 also had cooks, and a barge captain. The barge captain's job did not require [*12] him to concern himself with the work of the construction crew. There were also ten welders who worked from the dock rather than the barge. Besides Barge #300, there were three tugs leased from another company and used to move the barges and ferry the crew between the barge and shore, one other manned barge, and several unmanned material barges.

Approximately 40 employees actually lived on Barge #300, including some of the welders. The employees were given the option to live on board or receive a per diem allowance to live onshore. The tug crew lived on their own vessel.

James Strassberg, the assistant business agent for the pile drivers' union, testified that he telephoned complaints to the Coast Guard about working conditions aboard the barge. Among the problems Strassberg listed were inadequate living space on the barge, the absence of a safety boat to pick up employees who might fall overboard, a faulty headblock that once caused a 250 lb. chunk of iron to fall 100 feet to the deck of the barge, improper rigging that caused two employees to fall 10 feet, and lack of protective clothing for the welders.

Strassberg was informed that an inspection would be made, but that it [*13] would have to wait because Coast Guard personnel were tied up with a beached oil tanker elsewhere in Alaska. Strassberg testified that, to the best of his knowledge, no inspection was ever made. Strassberg visited the Coast Guard office, however, to register his complaints. The problems concerning the adequacy of the living space were resolved when Strassberg was informed that the living space aboard Barge #300 complied with Coast Guard requirements.

Strassberg remained concerned about the other hazards and finally shut down the job. After the faulty headblock was repaired, however, he allowed the job to continue. Strassberg also contacted OSHA, but was informed that there was a "jurisdictional problem" with the Coast Guard. n13

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n13 The record does not indicate whether the complaints to OSHA were made before or after Strassberg's contacts with the Coast Guard.

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On October 13, 1976, an OSHA inspection n14 was conducted, resulting in a citation for violation of section 5(a)(1) of the Act, n15 and a citation for [*14] several nonserious violations. The citation for violation of section 5(a)(1) alleged that rigging which was subject to unpredictable and violent movements was not guarded to prevent it from striking employees. A penalty of $550 was proposed for this violation.

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n14 The record does not indicate what, if anything, prompted the OSHA inspection.

n15 Sec. 5(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

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The citation for nonserious violations alleged a failure to comply with the standards at 29 C.F.R. 1926.153(k)(2) n16 (improperly secured propane tanks) and 29 C.F.R. 1926.605(b)(2) n17 (failure to provide safe walkways between Barge #300 and a material barge. No penalties were proposed for the non-serious citation.

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n16 29 C.F.R. 1926.153 Liquefied petroleum gas (LP-Gas).

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(k) Storage outside of buildings

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(2) Containers shall be in a suitable ventilated enclosure or otherwise protected against tampering.

n17 29 C.F.R. 1926.605 Marine Operations and equipment.

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(b) Access to barges

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(2) Unless employees can step safely to or from the wharf, float, barge, or river towboat, either a ramp, meeting the requirements of subparagraph (1) of this paragraph, or a safe walkway, shall be provided.

[*15]

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In his decision, Judge Stuller essentially reiterated his rationale expressed in Puget Sound. Thus, he again concluded that to establish a 4(b)(1) exemption, the employer must prove (1) that the Coast Guard was authorized to promulgate job safety standards, (2) that the Coast Guard issued standards that cover the violations, and (3) that the standards were enforced. Judge Stuller observed that although the Coast Guard had the authority to inspect the qualifications and seaworthiness of all licensed vessels, there was no evidence indicating that the barge was ever inspected to assure safe and healthful working conditions for the employees who used the barge as a work platform. The Judge concluded that the Coast Guard's enforcement scheme was not shown to fulfill the statutory purpose of the Act and that, therefore, there was no 4(b)(1) exemption. Accordingly, he affirmed the citations.

II

A.

Respondent Mission Viking, arguing in support of the Judge's decision, contends that the Coast Guard is the proper governmental agency to issue and enforce regulations dealing with the maintenance of the [*16] vessel's gear and equipment, and the promotion of safety on vessels. When employees are seamen, as opposed to longshoremen, respondent argues, their working conditions are within the jurisdiction of the Coast Guard. The fact that the crew members were temporarily engaged in ship repair does not alter the fact that they were seamen. Finally, respondent argues that the Judge properly concluded that 1915.1(b) precludes the Secretary from exercising any authority over seamen in favor of the Coast Guard.

The Secretary, on the other hand, argues that the Judge erred in holding that OSHA lacked jurisdiction because the employees were seamen or crew members of the drill ship. The Secretary observes that the Act applies to every employer engaged in commerce. Therefore, he argues, the 4(b)(1) exemption is triggered when another federal agency exercises its authority to prescribe or enforce occupational safety and health regulations and does not depend upon the classification of employees, e.g., seamen. Moreover, the Secretary contends that the 4(b)(1) exemption applies only to the particular working conditions addressed by the other federal agency, and that the record fails to [*17] indicate any Coast Guard regulations that cover the cited working conditions.

The Secretary also argues that the Judge erred by concluding that OSHA enforcement is precluded by 29 C.F.R. 1915.1(b). n18 First, it is argued, the standard, on its face, applies only to standards in Part 1915, and is therefore inapplicable to 29 C.F.R. 1903.2(a)(1) and 29 C.F.R. 1904.5(a). Second, the Secretary observes that Part 1915 was originally adopted under the Longshoremen's and Harbor Worker's Compensation Act, 33 U.S.C. 901-950 (LHWCA), which was enforced by the Department of Labor prior to the passage of OSHA. The LHWCA contains a provision exempting members of a crew from its coverage. It was this exemption that was incorporated in Part 1915 through section 1(b). When Part 1915 was adopted as an established federal standard under sections 4(b)(2) n19 and 6(a) n20 of the Act, the scope of the Part was extended to every employment and place of employment engaged in ship repair. See 29 C.F.R. 1910.11(a) n21 and 1910.13(a). n22 Therefore, the scope and coverage limitations of LHWCA are inapplicable to OSHA.

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n18 See n.8, supra.

n19 Section 4(b):

(2) The safety and health standards promulgated under the Act of June 30, 1936, commonly known as the Walsh-Healey Act (41 U.S.C. 35 et seq.), the Service Contract Act of 1965 (41 U.S.C. 351 et seq.), Public Law 91-54, Act of August 9, 1969 (40 U.S.C. 333), Public Law 85-742, Act of August 23, 1958 (33 U.S.C. 941), and the National Foundation on Arts and Humanities Act (20 U.S.C. 951 et seq.) are superseded on the effective date of corresponding standards, promulgated under this Act, which are determined by the Secretary to be more effective. Standards issued under the laws listed in this paragraph and in effect on or after the effective date of this Act shall be deemed to be occupational safety and health standards issued under this Act, as well as under such other Acts.

n20 Sec.6.(a) Without regard to chapter 5 of title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.

n21 29 C.F.R. 1910.11 Scope and purpose.

(a) The provisions of this Subpart B adopt and extend the applicability of, established Federal standards in effect on April 28, 1971, with respect to every employer, employee, and employment covered by the Act.

n22 29 C.F.R. 1910.13 Ship repairing.

(a) Adoption and extension of established safety and health standards for ship repairing. The standards prescribed by Part 1501 of this title and in effect on April 28, 1971, are adopted as occupational safety or health standards under section 6(a) of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in ship repair or a related employment. Each employer shall protect the employment and places of employment of each of his employees engaged in ship repair or a related employment, by complying with the appropriate standards prescribed by this paragraph.

[*19]

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B.

In Puget Sound and Northwestern Construction the employers argue that the Coast Guard has jurisdiction over safety on the nation's navigable waters, which it was exercised. They argue, therefore, that under section 4(b)(1) the Act does not apply to the worksites on which the alleged violations occurred.

In Puget Sound the respondent observes that under 46 C.F.R. 4.05-1 n23 it has the duty to report marine accidents to the Coast Guard. The Coast Guard, in turn, has the duty, under 46 C.F.R. 4.07-1(a) n24 to investigate marine casualties. Moreover, the Coast Guard has the authority to conduct inspections, make recommendations requiring the abatement of hazards, and promulgate regulations affecting the safety of seamen. Respondent further argues that the Coast Guard has, in fact, exercised its authority and has promulgated numerous regulations involving the health and safety of employees who are aboard vessels. Indeed, respondent continues, not only does the Coast Guard have regulations covering the cited working conditions, but it has exercised its authority by conducting investigations [*20] into hazardous conditions aboard vessels. Moreover, respondent notes that Coast Guard inspectors may order abatement of a hazard even when there is no applicable regulation covering that condition. That these regulations and inspections are concerned with the seaworthiness of vessels, does not vitiate the fact that "seaworthiness" encompasses a safe workplace for seamen. Respondent also points out that for a section 4(b)(1) exemption to apply, it is not necessary that the agency's exercise of authority be either the same or as stringent as that exercised by OSHA. Mushroom Transportation Co., Inc., 73 OSAHRC 51/E10, 1 BNA OSHC 1390, 1973-74 CCH OSHD P16,881 (No. 1588, 1973), appeal dismissed, No. 74-1014 (3d Cir. April 17, 1974).

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n23 46 C.F.R. 4.05-1 Notice of marine casualty.

The owner, agent, master, or person in charge of a vessel involved in a marine casualty shall give notice as soon as possible to the nearest marine inspection office of the Coast Guard whenever the casualty results in any of the following:

(a) Actual physical damage to property in excess of $1500.00;

(b) Material damage affecting the seaworthiness or efficiency of a vessel;

(c) Stranding or grounding;

(d) Loss of life; or,

(e) Injury causing any persons to remain incapacitated for a period in excess of 72 hours; except injury to harbor workers not resulting in death and not resulting from vessel casualty or vessel equipment casualty.

n24 46 C.F.R. 4.07-1 Commandant or District Commander to order investigation

(a) The Commandant or District Commander upon receipt of information of a marine casualty or accident, will immediately cause such investigation as may be necessary in accordance with the regulations in this part.

[*21]

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Puget Sound also argues that Commission precedent establishes that if the employees on board a vessel are seamen, OSHA is divested of jurisdiction in favor of the Coast Guard. T. Smith & Sons, Inc., 74 OSAHRC 61/B13, 2 BNA OSHC 1177, 1974-75 CCH OSHD P18,536 (No. 2240, 1974). Respondent argues that the original exclusion for "members of the crew of a vessel" from the longshoring regulations, found at 33 U.S.C. 903(a)(1), n25 were retained when authority to administer those regulations was redelegated to OSHA. Respondent contends that its employees were crew members and, accordingly, that OSHA was prohibited from regulating the safety of its vessels under section 4(b)(1) of the Act.

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n25 33 U.S.C. 903 Coverage.

(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). No compensation shall be payable in respect of the disability or death of --

(1) A master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. . .

[*22]

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Northwestern's arguments essentially parallel those of Puget Sound. In addition, however, Northwestern points out several specific Coast Guard regulations that it contends apply to the conditions for which it was cited by OSHA. Northwestern cites to 46 C.F.R. 92.25-15 n26 and 46 C.F.R. 58.01-20 n27 as the Coast Guard standards that regulate the guarding of rigging, and 46 C.F.R. 58.16 n28 and 147.04-3 n29 as the standards that regulate the liquefied petroleum gas (LPG) on board for use of the welders.

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n26 46 C.F.R. 92.25-15 Guards in dangerous places.

(a) Suitable hand covers, guards, or rails shall be installed in way of all exposed and dangerous places such as gears, machinery, etc.

n27 46 C.F.R. 58.01-20 Machinery guards.

Gears, couplings, flywheels and all machinery capable of injuring personnel shall be provided with adequate covers or guards.

n28 46 C.F.R. Subpart 58.16 is entitled "Liquefied Petroleum Gases for Cooking and Heating."

n29 46 C.F.R. 147.04-3 Stowage and care of cylinders.

All cylinders serving as containers of a compressed gas used as an article of stores on board vessels shall be stowed in accordance with the requirements shown in the table, 147.05-100. When not in use, cylinders shall be secured in a rack provided for this purpose. Cylinders shall be protected from all sources of heat and shall not be dropped, rolled or dragged on the deck. Cylinders shall not be used as a roller to transfer weighty objects. Heat from an open flame shall never be applied to a cylinder in an attempt to exhaust the contents thereof.

[*23]

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The Secretary argues that the contention of Puget Sound and Northwestern that they are exempt from the Act because their employees are seamen is without merit. Even if the employees were seamen that fact alone does not entitle the respondents to a section 4(b)(1) exemption because the Act applies to every employer engaged in commerce. The Secretary contends that section 4(b)(1) is not intended to create industry-wide exemptions, but rather exempts certain working conditions which are the subject of an exercise of statutory authority by another federal agency. According to the Secretary, the respondents have failed to prove an exercise of statutory authority by the Coast Guard sufficient to invoke a section 4(b)(1) exemption.

The Secretary contends that section 4(b)(1) comes into effect only when the sister agency has articulated a regulation addressing the specific working condition. Addressing the arguments of Puget Sound, the Secretary contends that neither the Coast Guard's inspection program, nor its ability to order the correction of hazards not addressed by a specific standard constitute an [*24] articulation sufficient to constitute a section 4(b)(1) exemption.

The Secretary also argues that the standards claimed by Northwestern to apply to its cited working conditions are clearly inapplicable. The Secretary argues that 46 C.F.R. 58.01-20, which requires that gears, couplings, flywheels and all other machinery capable of injuring employees be provided with covers or guards, does not apply to rigging or ropes used to anchor barges. Similarly, the Secretary contends that 46 C.F.R. 92-15, which requires covers, guards, or rails to be installed in the way of all exposed and dangerous places such as gears and machinery, does not apply to rigging. Moreover, the Secretary states that 46 C.F.R. 58-16, which deals with "Liquefied Petroleum Gases for Cooking and Heating," does not regulate the LPG on board for use of the welders.

Finally, the Secretary points out that Northwestern's employees were engaged in construction work and Puget Sound's employees were engaged in longshoring activities, both activities being areas in which the Coast Guard is without jurisdiction. California Stevedore and Ballast Co., 74 OSAHRC 34/A2, 1 BNA OSHC 1757, 1973-74 CCH OSHD P17.931 (No. [*25] 1132, 1974). The Secretary asserts that the term "seamen" is to be narrowly construed in order to effectuate the intent of Congress "to give broad statutory coverage in order to protect working people from job-related injuries and illnesses." T. Smith & Sons, Inc., supra. Thus, even if "seamen" are exempt from OSHA coverage, the Secretary argues that the employees involved were not seamen.

C.

The Coast Guard argues, in its amicus brief, that it is enforcing a reasonable and comprehensive program to promote health and safety on inspected vessels. The Coast Guard contends that its authority to prescribe occupational safety and health is derived from a number of statutes. For example, 46 U.S.C. 391 n30 and 395 n31 authorizes the Commandant of the Coast Guard to establish all necessary regulations to ensure that every steam vessel and every seagoing barge has a structure suitable for the service in which she is employed, has suitable accommodations for the crew, and is in a "condition to warrant the belief" that the vessel may be used in navigation with safety to life.

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n30 46 U.S.C. 391. Hulls and equipment -- Steam vessles carrying passengers; annual inspection

(a) The head of the department in which the Coast Guard is operating shall require the Coast Guard to inspect before the same shall be put into service, and at least once in every year thereafter, the hull of every steam vessel carrying passengers; to determine to its satisfaction that every such vessel so submitted to inspection is of a structure suitable for the service in which she is to be employed, has suitable accommodations for passengers and the crew, and is in a condition to warrant the belief that she may be used in navigation, with safety to life, and that the vessel is in full compliance with the applicable requirements of this title or Acts amendatory or supplementary thereto and regulations thereunder; and if deemed expedient, to direct the vessel to be put in motion or to adopt any other suitable means to test her sufficiency and that of her equipment.

Steam vessels not carrying passengers biennial inspection

(b) The head of the department in which the Coast Guard is operating shall require the Coast Guard to inspect before the same shall be put into service, and at least once in every two years thereafter, the hull of each steam vessel, not carrying passengers; to determine to its satisfaction that every such vessel so submitted to inspection is of a structure suitable for the service in which she is to be employed, has suitable accommodations for the crew, and is in a condition to warrant the belief that she may be used in navigation, with safety to life, and that the vessel is in full compliance with the applicable requirements of this title or Acts amendatory or supplementary thereto and regulations thereunder; and if deemed expedient, to direct the vessel to be put in motion or to adopt any other suitable means to test her sufficiency and that of her equipment.

Sail vessels over 700 tons or other vessels and barges over 100 tons carrying passengers; annual inspection

(c) The head of the department in which the Coast Guard is operating shall require the Coast Guard to inspect before the same shall be put into service, and at least once in every year thereafter, the hull of each sail vessel of over seven hundred gross tons carrying passengers for hire and all other vessels and barges of over one hundred gross tons carrying passengers for hire; and to determine to its satisfaction that every such vessel so submitted to inspection is of a structure suitable for the service in which she is to be employed, has suitable accommodations for the passengers and crew, and is in condition to warrant the belief that she may be used in navigation with safety to life.

Requirements and enforcement; appeals

(d) Whenever it is found on board any vessel subject to the provisions of this title, or any Acts amendatory or supplementary thereto, that any equipment, machinery, apparatus, or appliances do not conform to the requirements of law or regulations promulgated thereunder, the owner or master of said vessel shall be required to place the same in proper condition; and if there shall be found on board any such vessel any life preserver or fire hose so defective as to be incapable of repair, the owner or master shall be required to destroy the same in the presence of an official designated by the head of the department in which the Coast Guard is operating. In any of the foregoing cases the requirements may be enforced by revoking the certificate of said vessel, and by refusing to issue a new certificate until the requirements have been fully complied with. In any case where the head of the department in which the Coast Guard is operating has delegated to a Coast Guard official the authority to enforce the said requirements by revocation of certificates of inspection, the action of said Coast Guard official may be reversed, modified, or set aside by the head of the department in which the Coast Guard is operating on proper appeal by the owner or master of said vessel. Appeals shall be made to the head of the department in which the Coast Guard is operating within thirty days after the final action of the aforesaid Coast Guard official.

Exemptions

(e) Vessels subject to inspection under this title or Acts amendatory or supplementary thereto while laid up and dismantled and out of commission may, by regulations established by the head of the department in which the Coast Guard is operating, be exempted from any or all inspection under this section and sections 392, 404, and 405 of this title. R.S. 4417, Dec. 21, 1898, c. 29, 4, 30 Stat. 765; Mar. 3, 1905, c. 1454, 1, 33 Stat. 1023; Mar. 4, 1913, c. 141, 1, 37, Stat. 736; 1946 Reorg. Plan No. 3, 101-104, eff. July 16, 1946, 11 F.R. 7875, 60 Stat. 1097; June 4, 1956, c. 350, 1, 70 Stat. 223.

n31 46 U.S.C. 395. Seagoing barges; hulls and equipment -- Annual inspection of barges over 100 tons carrying passengers

(a) The head of the department in which the Coast Guard is operating shall require the Coast Guard to inspect, before the same shall be put into service and at least once in every year thereafter, the hull and equipment of every seagoing barge of one hundred gross tons or over carrying passengers; and to determine to its satisfaction that such barge is of a structure suitable for the service in which she is to be employed, has suitable accommodations for the crew and passengers, and is in a condition to warrant the belief that she may be used in navigation with safety to life.

Biennial inspection of barges over 100 tons not carrying passengers

(b) The head of the department in which the Coast Guard is operating also shall require the Coast Guard to inspect, before the same shall be put into service and at least once in every two years thereafter, the hull and equipment of every seagoing barge of one hundred gross tons or over, not carrying passengers; and to determine to its satisfaction that such barge is of a structure suitable for the service in which she is to be employed, has suitable accommodations for the crew, if manned, and is in a condition to warrant the belief that she may be used in navigation with safety to life.

Certificate of inspection

(c) Upon the satisfactory completion of the inspection authorized herein, a certificate of inspection shall be issued in the manner and for the purposes prescribed in sections 399 and 400 of this title. May 28, 1908, c. 212 10, 35 Stat. 428; 1946 Reorg. Plan No. 3, 101-104, eff. July 16, 1946, 11 F.R. 7875, 60 Stat. 1097; June 4, 1956, c. 350 3, 70 Stat. 225.

[*26]

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The Coast Guard points out that to be a "structure suitable for service" a vessel must be capable of providing a safe environment to those persons on board. The adequacy of a guardrail or the configuration of a door or hatchway, the Coast Guard observes, is as much a part of the structural suitability of a vessel as is the hull configuration.

The Coast Guard observes that, to carry out its regulatory obligations, it has an extensive inspection program to insure compliance with its regulations. All certificated vessels are inspected on an annual basis, as well as in response to complaints. The Coast Guard points out that inspectors are not limited to the regulations, but may take action deemed necessary to assure the seaworthiness of the vessel.

The Coast Guard also points out that pursuant to 46 U.S.C. 239, n32 it has developed an extensive investigatory procedure to determine the cause of marine casualties. The inquiry is not limited to the specific accident, but may encompass other areas.

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n32 46 U.S.C. 239 states in part:

Investigation of marine casualties -- Casualty involving loss of life; reports

(a) The Commandant of the Coast Guard shall prescribe rules and regulations for the investigation of marine casualties involving loss of life in order to determine whether any incompetence, misconduct, unskillfulness or willful violation of law on the part of any licensed officer, pilot, seaman, employee, owner, or agent of such owner of any vessel involved in such casualty, or any inspector, officer of the Coast Guard, or other officer or employee of the United States, or any other person, caused, or contributed to the cause of such casualty. All reports shall be made to the Commandant of the Coast Guard and such reports shall be public records and be open to inspection at reasonable times by any persons.

Casualty not involving loss of life; classification

(b) The Commandant of the Coast Guard shall establish rules and regulations for the investigation of marine casualties and accidents not involving loss of life, any act in violation of any of the provisions of title 52 of the Revised Statutes or of any of the regulations issued thereunder, and all cases of acts of incompetency or misconduct committed by any licensed officer or holder of a certificate of service while acting under the authority of his license or certificate of service, whether or not any of such acts are committed in connection with any marine casualty or accident. The Commandant of the Coast Guard shall classify marine casualties and accidents not involving loss of life according to the gravity thereof and in making such classification the commandant shall give consideration to the extent of injuries to persons, the extent of property damage, the dangers actual or potential which such marine casualties or accidents may create to the safety of navigation or commerce.

[*27]

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III

A.

We first consider whether the United States Coast Guard has the requisite statutory authority to regulate the working conditions that are the subject of the citations at issue.

In order for a sister agency's exercise of authority to exempt the affected working conditions from OSHA coverage, the agency's statutory scheme must have a direct rather than incidental impact on the occupational safety and health of employees. Fineberg Packing Co., 74 OSAHRC 14/E12, 1 BNA OSHC 1598, 1973-74 CCH OSHD P17,518 (No. 61, 1974); see Northwest Airlines, Inc., 80 OSAHRC    , 8 BNA OSHC 1982, 1980 CCH OSHD P24,751 (No. 13649, 1980), petitions for review dismissed, Nos. 80-4218 & 80-4222 (2d Cir., February 18, March 31, 1981).

It is clear from the Coast Guard's statutory scheme that one of the primary functions of the Coast Guard is to promote the safety of employees on vessles on the navigable waters of the United States. The Coast Guard's primary statutory duties are defined at 14 U.S.C. 2 as follows:

2. Primary duties

The Coast Guard shall enforce or assist in the enforcement [*28] of all applicable Federal laws on and under the high seas and waters subject to the jurisdiction of the United States; shall administer laws and promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas and waters subject to the jurisdiction of the United States covering all matters not specifically delegated by law to some other executive department; shall develop, establish, maintain, and operate, with due regard to the requirements of national defense, aids to maritime navigation, icebreaking facilities, and rescue facilites for the promotion of safety on, under, and over the high seas and waters subject to the jurisdiction of the United States; shall, pursuant to international agreements, develop, establish, maintain, and operate icebreaking facilities on, under, and over waters other than the high seas and waters subject to the jurisdiction of the United States; shall engage in oceanographic research on the high seas and in waters subject to the jurisdiction of the United States; and shall maintain a state of readiness to function as a specialized service in the Navy in time of war.

Other statutes make it clear that the phrase [*29] "promotion of safety of life" in 14 U.S.C. 2 refers to employees as well as passengers. For example, 46 U.S.C. 395(b) states:

Biennial inspection of barges over 100 tons not carrying passengers

(b) The head of the department in which the Coast Guard is operating also shall require the Coast Guard to inspect, before the same shall be put into service and at least once in every two years thereafter, the hull and equipment of every seagoing barge of one hundred gross tons or over, not carrying passengers; and to determine to its satisfaction that such barge is of a structure suitable for the service in which she is to be employed, has suitable accommodations for the crew, if manned, and is in a condition to warrant the belief that she may be used in navigation with safety to life. (emphasis added)

Pursuant to that statutory authority the Coast Guard has developed its own regulatory scheme to promulgate and enforce standards regarding working conditions on vessels subject to Coast Guard inspection and certification. The availability of a section 4(b)(1) exemption does not require the agency to exercise its authority in the same manner or in an equally stringent manner [*30] as OSHA. See Northwest Airlines, Inc., supra. Accordingly, in both Puget Sound and Northwestern, whether the Coast Guard's enforcement scheme was sufficiently stringent to fulfill the purposes of the Occupational Safety and Health Act is not dispositive.

When it is established that another federal agency has the statutory authority to regulate the occupational safety and health of employees, a section 4(b)(1) exemption will lie only over those working conditions that the other federal agency has exercised its authority to regulate. PBR v. Secretary of Labor, No. 80-1376 (1st Cir. March 11, 1980); Columbia Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913 (3d Cir. 1980); Northwest Airlines, Inc., supra; Southern Pacific Transportation Co., 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1974-75 CCH OSHD P19,054 (No. 1348, 1974), aff'd, 539 F.2d 386 (5th Cir. 1975), cert. denied, 434 U.S. 874 (1977). The burden of proving that the other agency has exercised its authority to regulate the subject working condition is on the employer claiming the section 4(b)(1) exemption. Crescent Wharf & Warehouse Co., 75 OSAHRC 35/E3, 2 BNA OSHC 1623, 1974-75 [*31] CCH OSHD P19,327 (No. 1672, 1975); Bettendorf Terminal Co., 74 OSAHRC 28/E13, 1 BNA OSHC 1695, 1973-74 CCH OSHD P17,782 (No. 837, 1974).

The respondents in this matter argue, however, that the Commission has held that the Coast Guard has exclusive jurisdiction over the working conditions of "seamen" n33 aboard vessels on the navigable waters of the United States, citing T. Smith & Sons, Inc., supra. This position has been adopted by Courts of Appeals in at least two circuits. Clary v. Ocean Drilling Exploration Co., 609 F.2d 1120 (5th Cir. 1980); Rosalee Taylor v. Moore-McCormick Lines, 621 F.2d 88 (4th Cir. 1980).

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n33 A seaman is generally defined as an employee

(1) whose ship is in navigation;

(2) who has a permanent connection with the ship; and

(3) whose duties contribute to the function of the vessel, the accomplishment of its mission, or the operation or welfare of the vessel in terms of its maintenance during its movements or during anchorage for its future trips.

Offshore Co. v. Robinson, 266 F.2d 769, 775, 779 (5th Cir. 1959).

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We have reviewed T. Smith and Sons and conclude that, for purposes of section 4(b)(1), the Coast Guard's authority over occupational safety and health should not be treated any differently than the authority of other federal agencies. Accordingly, the Coast Guard is on the same footing in its relation to OSHA as any federal agency with authority to regulate employee safety and health. Thus, section 4(b)(1) applies to specific working conditions over which the Coast Guard has exercised its authority to promulgate or enforce standards or regulations affecting occupational safety or health.

After passage of the LHWCA, whether maritime employees injured during the course of employment would receive compensation under the LHWCA or the Jones Act, 46 U.S.C. 688, turned on whether the employee was a "seaman." Offshore Co. v. Robinson, 266 F.2d 769 (5th Cir. 1959). If the employee was found to be a seaman he would be compensated under the provisions of the Jones Act, otherwise compensation would be determined under the LHWCA.

In T. Smith and Sons the Commission implied that the Coast Guard retained exclusive jurisdiction [*33] over the working conditions of "seamen" after passage of the Act. Implicit in the Commission's discussion was the assumption that the jurisdictional limitations of the LHWCA carried over to the Act. The Commission failed to give adequate weight, however, to the fact that the Act was made applicable to every employer engaged in a business affecting commerce. 29 U.S.C. 653(5), section 3(5) of the Act. Thus, while the scope of the Coast Guard's authority remained the same, it now shared jurisdiction with OSHA insofar as maritime employers were in a business affecting commerce. n34

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n34 That both agencies recognize the overlapping nature of their authority is demonstrated in their "Memorandum of Agreement on Occupational Health Standards for Workplaces Aboard Inspected Vessels" where it is stated, in pertinent part:

IV. Cooperative Health Standards Development

Because both USCG and OSHA have statutory authority relating to occupational health within the maritime industry, cooperation between the agencies is essential in the area of health standards development.

45 Fed. Reg. 14,739 (1980)

[*34]

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We are not unmindful of appellate decisions which have held that whether a workplace is regulated by OSHA or the Coast Guard depends on whether the affected employees are seamen. Clary v. Ocean Drilling Exploration Co., supra; Barger and Iwoncio v. Mayor and City Council of Baltimore, 616 F.2d 730 (4th Cir. 1980), petition for cert. filed, 49 LW 3040 (U.S. June 3, 1980) (No. 79-1906); Rosalee Taylor v. Moore-McCormick Lines, supra.

We note that in Clary, the Fifth Circuit relied largely on the Commission view as set forth in our decision in T. Smith & Sons which we repudiate today. In Rosalee Taylor, the Fourth Circuit relied heavily on our decision in California Stevedore and Ballast Co., supra. In that decision the Commission concluded that while Coast Guard regulations relating to job sagety applied to seamen as a class to the exclusion of longshoremen as a class, its jurisdiction did not extend to longshoremen who were regulated by the Secretary of Labor under the LHWCA. We did not consider whether the Coast Guard's jurisdiction over seamen was exclusive. [*35] In addition, the Fourth Circuit in Barger and Iwancio, interpreted 29 C.F.R. 1910.5(b) n35 as establishing that the Secretary of Labor placed outside the reach of OSHA regulations employees whose occupational safety and health are within the statutory jurisdiction of other federal agencies, such as the Coast Guard. 616 F.2d at 732. That standard, however, is merely a regulatory codification of section 4(b)(1) that neither expands nor restricts the statutory exemption.

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n35 29 C.F.R. 1910.5 Applicability of standards.

* * *

(b) None of the standards in this part shall apply to working conditions of employees with respect to which Federal agencies other than the Department of Labor, or State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

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We also note that the decisions of both the United States Courts of Appeals for the Fourth and Fifth [*36] Circuits purport to create an industry-wide exemption from OSHA for the maritime industry insofar as its employees meet the definition of "seamen." Such a holding is irreconcilable, however, with a long line of Commission and appellate decisions, including decisions of the Fourth and Fifth Circuits, which hold that section 4(b)(1) was not designed to create industry-wide exemptions, but rather exemptions only over those working conditions that have been the subject of an exercise of another agency's statutory authority to regulate occupational safety and health. See, e.g., PBR, Inc., v. Secretary of Labor, supra; Southern Pacific Transportation Co. v. Usury, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); Southern Railway Co. v. OSHRC, 539 F.2d 335 (4th Cir. 1976), cert. denied, 429 U.S. 999 (1976); Delaware and Hudson Railway Co., 80 OSAHRC    , 8 BNA OSHC 1252, 1980 CCH OSHD P24,422 (No. 76-787, 1980); Seaboard Coast Line Railroad Co., 78 OSAHRC 21/C8, 6 BNA OSHC 1433, 1978 CCH OSHD P22,596 (No. 12078, 1978); Texas Eastern Transmission Corp., 75 OSAHRC 88/D9, 3 BNA OSHC 1601, 1975-76 CCH OSHD P20,092 (Nos. 4091 & 4078, 1975); [*37] Mushroom Transportation Co., supra.

We also note that a jurisdictional division based on whether the affected employees were "seamen" would create practical difficulties. For example, it has been held that a crew member who performs routine maintenance on his ship may still be a "seaman." See Offshore Co. v. Robinson, supra. It is conceivable, however, that the vessel may hire a shore based worker to assist its crewmen. If Coast Guard and OSHA jurisdiction were differentiated according to the classification of the employees, one employee would come under OSHA jurisdiction, while the other would be regulated under Coast Guard standards -- even though they were performing the same job, at the same time, at the same place, for the same employer. Cf. Gelco Builders, Inc., 77 OSAHRC 203/B14, 6 BNA OSHD 1104, 1106, n.6, 1977-78 CCH OSHD P22,353, p. 26,941, n.6 (No. 14505, 1977) (no distinction in protection based on craft). Thus, where both agencies have regulations covering the particular working conditions the goal of section 4(b)(1) to eliminate duplicative regulation would be effectively thwarted. Where the agencies did not have the same requirement, [*38] there would be conflicting duties. Where one of thr agencies did not have a relevant regulation, one of the employees would be totally unprotected.

Accordingly, we hold that insofar as it indicated that OSHA would be without jurisdiction if the affected employees were "seamen," T. Smith & Sons, supra, must be rejected. n36

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n36 We acknowledge that this holding is contrary to the views of several courts of appeals, discussed supra. The Commission, however, is charged with formulating a uniform national policy on the adjudication of cases arising under the Act and, therefore, is not bound to acquiesce in the views of a U.S. Court of Appeals that conflict with those of the agency. S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979).

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Finally, respondents and the Coast Guard Stress that Coast Guard inspectors are authorized to order the abatement of hazards not covered by specific regulations. [*39] 46 C.F.R. 91.27-15. n37 Therefore, they argue, the Coast Guard has exercised its jurisdiction over all workplace hazards, thereby creating a section 4(b)(1) exemption for all maritime workplaces on inspected and certificated vessels. Section 4(b)(1), however, creates an exemption only over those working conditions that are the subject of another federal agency's exercise of authority to "prescribe or enforce standards or regulations." In our view, an exemption based on the authority of a Coast Guard inspector to order the abatement of hazards not the subject of specific standards or regulations would constitute the type of blanket exemption previously rejected under Commission precedent. Accordingly, 46 C.F.R. 91.27-15 does not constitute an exercise of authority cognizable under section 4(b)(1). See PBR, Inc., v. Secretary of Labor, supra; Southern Pacific Transportation Co. v. Usury, supra.

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n37 46 C.F.R. 91.27-15 Inspectors not limited.

(a) Nothing in this subpart shall be construed as limiting the inspector from making such tests or inspections as he deems necessary to be assured of the seaworthiness of the vessel.

[*40]

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C.

We also reject Judge Cutler's holding in Mission Viking that OSHA lacks jurisdiction over the working condition of "seamen" by virtue of 29 C.F.R. 1915.1(b). n38

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n38 See n.8, supra.

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First, the Commission recently held that the coverage of Part 1915 under the Act is not governed by 1915.1(b). Brown & Root, Inc.,    OSAHRC   , 9 BNA OSHC 1407, 1981 CCH OSHD P25,226 (No. 77-805, 1981).

Acting pursuant to authority guanted under the LHWCA, 33 U.S.C. 939 & 941, the Secretary of Labor promulgated a body of regulations applicable to the occupational safety and health of maritime employees. In those regulations the Secretary recognized that the standards would not apply to those areas under the jurisdiction of the Coast Guard, specifically crew members and vessel structure. 29 C.F.R. 1915.1(b); 1916.1(b); n39 1917.1(b); n40 1918.1(b). n41

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n39 29 C.F.R. 1916.1(b) is substantially similar to 1915.1(b) but relates to Part 1916: Regulations for shipbuilding.

n40 29 C.F.R. 1917.1(b) is substantially similar to 1916.1(b) but relates to Part 1917: Regulations for shipbreaking.

n41 29 C.F.R. 1918.1(b) is substantially similar to 1916.1(b) but relates to Part 1918: Regulations for longshoring.

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After passage of the Occupational Safety and Health Act, the substantive parts of Parts 1915-1918 were adopted as established federal standards and extended to every employer, emloyee, and employment covered by the Act. 29 C.F.R. 1910.11(a); n42 1910.13(a); n43 1910.14(a); n44 1910.15(a); n45 1910.16(a). n46 Indeed, the Secretary emphasized that only the substantive requirements of Parts 1915-1918 were adopted as OSHA standards, and that other material in those parts relating to the coverage of the LHWCA were excluded. 29 C.F.R. 1910.11(b). n47 Thus, the adopted standards are not limited by 1915.1(b). See 29 U.S.C. 652(5), section 3(5) of the Act. See 29 U.S.C. 652(5), section 3(5) of the Act. See [*42] Brown & Root, Inc., supra; Bechtel Power Corp., 1976 OSAHRC 38/E2, 4 BNA OSHC 1005, 1975-76 CCH OSHD P20,503 (No. 5064, 1976), aff'd, 548 F.2d 248 (8th Cir. 1977).

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n42 See n.21, supra.

n43 See n.22, supra.

n44 29 C.F.R. 1910.14(a) is substantially similar to 1910.13(a) but relates to the adoption and extension of established safety and health standards for shipbuilding.

n45 29 C.F.R. 1910.15(a) is substantively similar to 1910.13(a) but relates to the adoption and extension of established safety and health standards for shipbreaking.

n46 29 C.F.R. 1910.16(a) is substantively similar to 1910.13(a) but relates to the adoption and extension of established safety and health standards for longshoring.

n47 29 C.F.R. 1910.11 Scope and purpose.

* * *

(b) It bears emphasis that only standards (i.e., substantive rules) relating to safety or health are adopted by any incorporations by reference of standards prescribed elsewhere in this chapter or this title. Other materials contained in the referenced parties are not adopted. Illustrations of the types of materials which are not adopted are these. The incorporations by reference of Parts 1915, 1916, 1917, 1918 in 1910.13, 1910.14, 1910.15, and 1910.16 are not intended to include the discussion in those parts of the coverage of the Longshoremen's and Harbor Workers' Compensation Act or the penalty provisions of the Act. Similarly, the incorporation by reference of Part 1926 in 1910.12 is not intended to include references to interpretive rules having relevance to the application of the Construction Safety Act, but having no relevance to the application of the Occupational Safety and Health Act.

[*43]

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Second, the Judge erred by interpreting 1915.1(b) as a jurisdictional limitation over all working conditions of "seamen," including those conditions regulated by standards not in Part 1915. Thus, assuming arguendo that 1915.1(b) was applicable to OSHA, it would limit the applicability only of those standards in Part 1915, and would not affect the applicability of standards found in other parts of volume 29 of the Code of Federal Regulations.

IV

Having concluded that an exemption from OSHA jurisdiction exists only where the Coast Guard has exercised its authority to promulgate or enforce occupational safety or health standards affecting specific working conditions, the issue is whether the respondents have established such an exercise for the various working conditions for which they have been cited by OSHA. n48

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n48 The burden is on the employer to establish that the other federal agency has exercised its authority to promulgate a regulation covering the cited working condition. Belt Railway Company of Chicago, supra.

[*44]

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A.

Mission Viking was cited by the Secretary for a failure to comply with the ship repairing standards published at 29 C.F.R. 1915.23(c)(3)(ii), n49 1915.41(i)(3) n50 and 1915.41(a)(10). n51 In each case respondent failed to establish an applicable Coast Guard regulation covering the cited working condition. Accordingly, these items are affirmed.

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n49 See n.2, supra.

n50 See n.3, supra.

n51 See n.7, supra.

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Respondent was also cited for failing to comply with several posting and recordkeeping requirements: 29 C.F.R. 1903.2(a)(1), n52 1904.2(a), n53 1904.5(a). n54 The Commission has held that the requirement to post the OSHA notice under 1903.2(a)(1) is a statutory obligation not amenable to a section 4(b)(1) exemption. Belt Railway Company of Chicago, 75 OSAHRC 87/A3, 3 BNA OSHC 1612, 1614, n.4, 1975-76 CCH OSHD P20,069, p. 23,877-3, n.4 (No. 4616, 1975). The Commission has also held, however, that OSHA recordkeeping [*45] requirements are preempted under section 4(b)(1) when it is established that another federal agency has exercised its statutory authority to require the maintenance of similar records, Southern Pacific Transportation Co., supra; Belt Railway Co. of Chicago, supra.

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n52 See n.4, supra.

n53 See n.5, supra.

n54 See n.6, supra.

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Acting Chairman Barnako would follow this precedent. He notes that respondent has not established that the Coast Guard has standards requiring the maintenance of records concerning incidents of occupational injuries and illnesses. Accordingly he would find that section 4(b)(1) does not preempt the Secretary from citing for violations of OSHA recordkeeping requirements. Therefore Acting Chairman Barnako would affirm the citations for violation of 29 C.F.R. 1903.2(a)(1), 1904.2(a), 1904.5(a).

Commissioner Cottine has considered the holdings in Southern Pacific and Belt Railway in this regard and concludes that a section 4(b)(1) exemption from OSHA's recordkeeping [*46] requirement is inappropriate. In his view, Section 4(b)(1) is directed specifically at "working conditions." The various recordkeeping requirements of OSHA do not, in his view, constitute working conditions amenable to a section 4(b)(1) exemption. He notes that OSHA's recordkeeping requirements are vital information gathering devices which increase knowledge about occupational illnesses and injuries thus enabling OSHA to determine the need for future standards as well as pinpoint those workplace activities that warrant either increased or diminished enforcement efforts. Because of the vital importance of recordkeeping to the integrity of the Act he finds that such OSHA requirements must be concurrent with any similar requirements of other federal agencies. Accordingly, he would affirm those items alleging that respondent failed to comply with 29 C.F.R. 1903.2(a)(1), 1904.2(a), and 1904.5(a).

Mission Viking has stipulated that if the citations are affirmed, the penalties proposed by the Secretary are appropriate. Accordingly, penalties are assessed in the amount proposed.

B.

Citation No. 1 issued to Puget Sound Tug and Barge alleges that respondent failed to comply with [*47] 29 C.F.R. 1918.74(c) n56 by not guarding the area around the swing radius of its crane. Respondent asserts that 92.25-15 n57 is the Coast Guard regulation applicable to the cited working condition. We disagree. The scope provision of subpart 92.25 indicates that 92.25-15 applies only to vessels contracted for on or after July 1, 1969. 46 C.F.R. 92.25-1(a). n58 The record establishes that the barge was constructed in 1970, but does not establish when the contracts were signed. Thus, respondent has failed to establish the applicability of the standards.

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n56 See n.9, supra.

n57 See n.26, supra.

n58 46 C.F.R. 92.25-1(a) Application.

(a) The provisions of this subpart, with the exception of 92.25-90, shall apply to all vessels contracted for on or after July 1, 1969. Vessels contracted for prior to July 1, 1969, shall meet the requirements of 92.25-90.

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Respondent also notes that 46 C.F.R. 58.01-20 n59 is applicable to the cited conditions. We find that this standard is not applicable. [*48] The scope provision of that subpart, 58.01-1 n60 indicates that it is applicable only to the design and construction of main and auxiliary equipment. We interpret the term "main or auxiliary equipment" to refer to equipment needed for the operation of the vessel, such as the drive train or motor of a barge. Because the crane was not equipment needed for the operation of the vessel, we find that 58.01-20 is inapplicable to the cited condition.

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n59 See n.27, supra.

n60 46 C.F.R. 58.01-1 Scope.

The regulations in this Part contain requirements for the design and construction of main and auxiliary machinery installed on vessels.

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Respondent also argues that the marine casualty investigation requirement of 4l C.F.R. 4.07-1 n61 covered the cited working condition because, under that regulation, the Coast Guard was obligated to investigate the fatality and determine appropriate corrective measures. As discussed previously, however, a standard or regulation conferring general enforcement authority does [*49] not constitute an exercise of authority cognizable under section 4(b)(1) because it does not address specific working conditions. n62 Accordingly, citation No. 1 is affirmed.

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n61 See n.24, supra.

n62 Commissioner Cottine observes that although the Coast Guard investigated the accident as required by 46 C.F.R. 4.07-1, see n.24, supra, and ordered the cargo basket moved from the crane, Ensign Ohr did not address the hazard created by the rotating superstructure of the crane. Commissioner Cottine notes that the hazard presented by the rotating superstructure was broader than the hazard deemed to have caused the casualty because the unguarded rotating superstructure could injure any employee passing within the swing radius of the crane. Thus, assuming arguendo, that the Coast Guard's authority to inspect marine casualties and order the abatement of hazards not covered by specific standards could be sufficient to trigger a section 4(b)(1) exemption, Commissioner Cottine would find that, in this case, the Coast Guard's exercise of that authority did not cover the working condition cited by OSHA. Therefore, a section 4(b)(1) exemption will not lie.

[*50]

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Item 1 of Citation No. 2 alleged noncompliance with 29 C.F.R. 1918.33(a) n63 because employees were not given safe passage around the deck loads on the barge. We affirm the item. Respondent has not indicated any applicable Coast Guard standard. n64 Moreover, at the oral argument the Coast Guard representative testified that the Coast Guard did not have a standard addressed to that hazard.

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n63 See n.27, supra.

n64 Respondent cites numerous Coast Guard standards that it claims relate to access to deck. None of those standards, however, relate to the falling hazard cited by OSHA.

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Item 2 of Citation No. 2 alleged noncompliance with 29 C.F.R. 1918.91(a) n65 because there were tripping hazards on the barge. Respondent has failed to indicate an applicable Coast Guard standard and the Coast Guard representative at the oral argument stated that he was unaware of an applicable standard.

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n65 See n.11, supra.

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Finally, item 3 of Citation No. 2 alleges noncompliance with 29 C.F.R. 1904.8 n66 on the grounds that respondent failed to report the fatality that occurred on Barge 214. OSHA's reporting requirements at 1904.8 are crucial to the effective enforcement of the Act. Because there is no industry exemption under section 4(b)(1), OSHA must be advised of all fatalities and injuries in order to determine whether the working conditions involved are subject to OSHA jurisdiction. Therefore, this requirement is not subject to section 4(b)(1) exemptions. Accordingly, this item is affirmed.

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n66 See n.12, supra.

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Respondent has stipulated that if the citations are affirmed, the penalties proposed by the Secretary are appropriate. Accordingly, penalties are assessed in the amount proposed.

C.

Citation No. 1 issued to respondent, Northwestern Construction Co., alleged a violation [*52] of section 5(a)(1) of the Act on the grounds that the rigging that was used to anchor and position the barge was not guarded to prevent it from striking employees. Respondent alleges that this hazard is covered by the Coast Guard regulations at 46 C.F.R. 92.25-15 n67 which requires the guarding of dangerous places. As was the case with Puget Sound's claim of the applicability of this standard, the record fails to indicate whether the vessel was contracted for on or after July 1, 1969. n68 Thus, respondent has failed to prove the applicability of the standard.

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n67 See n.26, supra.

n68 The record reveals only that the barge was built in 1975. It does not indicate when the vessel was contracted.

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Citation No. 2, item 1, alleged noncompliance with 29 C.F.R. 1926.153(k)(2) n69 in that respondent had unsecured propane tanks on the barge. Respondent alleges that the Coast Guard standards at 46 C.F.R. Part 58.16 n70 apply to the hazard. We disagree. The heading of that standard indicates that it is applicable [*53] only to the uses of gas for cooking and heating. Acting Chairman Barnako finds that the heading limits the applicability of the standard to cooking and heating uses and, therefore, concludes that the standard is inapplicable to the instant hazard because respondent's propane tanks were used for welding. See Wray Electric Contracting, Inc., 78 OSAHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD P23,031 (No. 76-119, 1978) (Barnako, dissenting), aff'd 633 F.2d 220 (6th Cir. 1980). Commissioner Cottine would not make a conclusive determination as to the limits of the standard solely on the basis of the heading. See Continental Oil Company, 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD P23,626 (No. 13750, 1979); Wray Electric Contracting, Inc., supra. Nevertheless, he notes that the burden is on respondent to establish the applicability of the standard. Belt Railway Co. of Chicago, supra. Therefore, Commissioner Cottine concludes that respondent has not established that the Coast Guard standard is applicable.

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n69 See n.16, supra.

n70 See n.28, supra.

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Respondent also cites 46 C.F.R. 147.04-3. That standard provides:

147.04-3 Stowage and care of cylinders.

All cylinders serving as containers of a compressed gas used as an article of stores on board vessels shall be stowed in accordance with the requirements shown in the table, 147.05-100. When not in use, cylinders shall be secured in a rack provided for this purpose. Cylinders shall be protected from all sources of heat and shall not be dropped, rolled or dragged on the deck. Cylinders shall not be used as a roller to transfer weighty objects. Heat from an open flame shall never be applied to a cylinder in an attempt to exhaust the contents thereof.

"Stores" is defined at 46 C.F.R. 147.02-1 as follows:

147.02-1 Ships' stores and supplies

For the purposes of the regulations in this part ships' stores and supplies are defined as any article or substance which is used on board a vessel subject to the regulations in this subchapter, for the upkeep and maintenance of the vesse; or for the safety or comfort of the vessel, its passengers or crew; or for the operation or navigation [*55] of the vessel (except fuel for its own machinery); except shipboard fumigation that is regulated under Part 147A of this subchapter.

The evidence indicates that the tanks were used by the welders for construction of the dock and not for any of the reasons set forth in the definition of "stores and supplies" in 147.02-1. Thus, the standard is not applicable.

Accordingly, respondent has failed to establish any Coast Guard standard applicable to the use and storage of propane tanks used for welding, and the item is affirmed.

Citation No. 2, item 2, alleged noncompliance with 29 C.F.R. 1526.605(b)(2) n71 in that respondent failed to provide its employees with safe passage between barges. Respondent cites 46 C.F.R. 91.27-15 n72 which allows Coast Guard inspectors to make tests or inspections regarding conditions not otherwise addressed by the Coast Guard regulations. As we stated previously, such a provision is not the type of exercise of authority envisioned by section 4(b)(1) of the Act as establishing an exemption from OSHA requirements. Moreover, we note that, at the oral argument, the Coast Guard representative testified that he was unaware of any Coast Guard regulation [*56] controlling the instant hazard. Accordingly, the item is affirmed.

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n71 See n.17, supra.

n72 See n.45, supra.

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Respondent has stipulated that if the citations are affirmed, the penalties proposed by the Secretary are appropriate. Accordingly, the penalties are assessed in the amount proposed.

V

In Mission Viking, OSHA Docket No. 78-617, items 1 and 2 of the serious citation alleging noncompliance with the standards at 29 C.F.R. 1915.23(c)(3)(ii) and 1915.41(i)(3) are affirmed and penalties of $560 for each item are assessed. Items 1, 2, 3, and 4 of Citation No. 2 alleging noncompliance with the standards at 29 C.F.R. 1903.2(a)(1), 1904.2(a), 1904.5(a), and 1915.41(a)(10) are affirmed. No penalty is assessed for any of the items of Citation No. 2.

In Puget Sound Tug & Barge, OSHA Docket No. 76-4905 Citation No. 1 alleging a serious violation of the Act for noncompliance with 29 C.F.R. 1918.74(c) is affirmed and a penalty of $500 is assessed. Items 1, 2, and 3 of Citation No. 2, alleging [*57] noncompliance with the standards at 29 C.F.R. 1918.33(a), 1918.91(a) and 1904.8 are affirmed. A penalty of $100 is assessed for item 3 ( 1904.8); no penalty is assessed for items 1 and 2.

Items 1 and 2 of Citation No. 2 alleging noncompliance with the standards at 29 C.F.R. 1926.153(k)(2) and 1926.605(b)(2) are affirmed. No penalty is assessed for Citation No. 2.

So ORDERED.

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Commissioner; concurring in part, dissenting in part:

Under the pretext of not treating the Coast Guard's authority over occupational safety and health "any differently than the authority of other federal agencies," the majority has taken the unprecedented step of adopting the "nook and cranny" theory of safety regulation. According to that theory, the Secretary's authority under section 4(b)(1) would extend into every detail of the work environment not covered by a specific standard or regulation of another federal agency. Southern Railway Co. v. OSHRC, 539 F.2d 335 (4th Cir. [*58] 1976), cert. denied, 429 U.S. 999 (1976) (theory defined and rejected).

In taking this approach, the majority has disregarded decisions from both the Fourth and Fifth Circuits that have held that whether the Coast Guard or OSHA has authority over a maritime worksite depends on whether the affected employees were "seamen." Clary v. Ocean Drilling Exploration Co., 609 F.2d 1120 (5th Cir. 1980); Rosalee Taylor v Moore-McCormick Lines, 621 F.2d 88 (4th Cir. 1980). To support their holdings, it is stated that both Clary and Rosalee Taylor are "irreconcilable" with cases from those same circuits that have rejected the creation of industry-wide exemptions. Southern Pacific Transportation Co. v. Usury, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977)); Southern Railway Co. v. OSHRC, supra. In my view, not only are Clary and Rosalee Taylor reconcilable with Southern Pacific and Southern Railway, but represent logical and consistent extensions of those earlier decisions.

For example, the Fifth Circuit, in Southern Pacific, stated:

Our rejection of the railroads' position does not constitute an acceptance of [*59] the theory that every OSHA regulation remains operative until the FRA adopts a regulation of its own on that specific subject. As we have noted, the statutory term 'working conditions' embraces both 'surroundings,' such as the general problem of the use of toxic liquids, and physical 'hazards,' which can be expressed as a location (maintenance shop), a category (machinery), or a specific item (furnace). Neither OSHA itself nor the existence of OSHA regulations affects the ability of the primary regulatory agency, here the FRA, to articulate its regulations as it chooses. Much of their displacing effect will turn on that articulation. Section 4(b)(1) means that any FRA exercise directed at a working condition -- defined either in terms of a 'surrounding' or a 'hazard' -- displaces OSHA coverage of that working condition. [Emphasis added]

539 F.2d at 391.

Thus, in Clary, the Fifth Circuit stated:

The Coast Guard is a federal agency exercising statutory authority over the working conditions of seamen. Coast Guard regulations cover, among other things, standards governing the safety and health of persons working on vessels.

609 F.2d at 1122.

Viewing its holding in [*60] Clary together with its holding in Southern Pacific it is clear that the Fifth Circuit viewed the Coast Guard's regulation of the safety and health of crew members on inspected vessels to be a sufficient exercise of its authority to constitute a section 4(b)(1) exemption of the location (vessels) within the meaning of Southern Pacific. n1

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n1 Similarly, the Fourth Circuit, in Southern Railway has stated:

We think this aggregate of 'surroundings and 'hazards' contemplates an area broader in its contours than the 'particular, discrete hazards' advanced by the Secretary, but something less than the employment relationship in its entirety advocated by Southern. The Act was intended both to provide comprehensive coverage to the workers across the country and to avoid duplication of regulatory effort by the various Federal agencies. In the light of these dual objectives, and drawings upon the Corning [Corning Glass Works v. Brennan, 417 U.S. 188 (1974)] definition, we are of the opinion that the term 'working conditions' as used in Section 4(b)(1) means the environmental area in which an employee customarily goes about his daily tasks. We are further of the opinion that when an agency has exercised its statutory authority to prescribe standards affecting occupational safety or health for such an area, the authority of the Secretary of Labor in that area is foreclosed. Such a construction, we think, avoids the confusion and duplication of effort that Section 4(b)(1) of the Act was designed to prevent, and is consonant with the general statutory purpose. [Footnotes omitted.] [Emphasis added.]

539 F.2d at 339.

[*61]

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I agree with the thrust of the Clary decision. In my view, the record demonstrates that the Coast Guard has exercised its authority over the occupational safety and health of seamen on inspected and certificated vessels so pervasively as to create a section 4(b)(1) exemption for the working conditions of seamen upon such vessels.

I agree with the majority conclusion that the authority of the Coast Guard and OSHA should not be differentiated solely on the basis of the pre-OSHA distinction of Coast Guard and LHWCA jurisdiction. That does not mean, however, that the historical distinction must be totally rejected. Rather, the scope of the Coast Guard's traditional authority to regulate employee safety and health in the maritime industry vis-a-vis the LHWCA is vital to a proper determination of the extent of that authority as it currently exists and conflicts with the authority of OSHA.

As the majority decision indicates, after passage of the LHWCA, whether a maritime employee injured during the course of employment would receive compensation under the LHWCA or the Jones Act turned on whether the [*62] employee was a "seaman." Offshore Co. v. Robinson, 266 F.2d 769 (5th Cir. 1959). Safety and health regulations were promulgated by both agencies covering the employees under their jurisdiction. Although OSHA was granted jurisdiction far beyond that which existed under the LHWCA, 29 U.S.C. 653(5), section 3(5) of the Act, nothing in the Act retracted the scope of the authority previously vested with the Coast Guard. Thus, the Coast Guard continued to have authority over the safety and health of seamen. That the Coast Guard has exercised that authority cannot be doubted. The record in these consolidated cases is replete with references to numerous standards directly affecting the safety and health of seamen. A scanning of volume 46 of the Code of Federal Regulations quickly reveals the comprehensive nature of the Coast Guard's exercise of its authority. n2

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n2 I would note that for many of the items, the majority has found that the employer has failed to establish the applicability of the cited Coast Guard regulation, not that the regulation is inapplicable.

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By including section 4(b)(1) in the Act, Congress indicated a desire to make OSHA an agency of last resort over occupational safety and health. Whenever another federal agency with authority to regulate the safety and health of employees in an industry exercises that authority, it exempts the working conditions affected by that exercise from OSHA regulation. Thus, only when no other federal agency has exercised its authority over an area of its industry does OSHA have the authority to impose regulations. The logic of such an approach is manifest. An agency charged with regulating a specific industry develops a particular knowledge of that industry. When it chooses to exercise its authority to regulate an area of occupational safety and health it can take into account the peculiarities of that industry and the special problems that may arise from such regulation. OSHA, on the other hand, is charged with regulating the occupational safety and health of all American industries except mining. Therefore, when another agency such as the Coast Guard exercises its authority for occupational safety and health over an area of its [*64] subject industry in a comprehensive and detailed manner, a general section 4(b)(1) exemption should be found for that area. If OSHA is allowed to superimpose its regulations into every "nook and cranny" that is not the subject of a specific regulation, the fabric of the comprehensive regulatory scheme developed by the other agency will be impaired, if not destroyed.

Such an approach also creates a regulatory labyrinth for employers who must review two sets of federal regulations in detail to determine where there are voids in one set of regulations which are susceptible to application of a standard from another set of regulations. In the ensuing uncertainty the goal of providing employees with a safe and healthful workplace can only suffer. Here, the Coast Guard has been demonstrated to have exercised its authority over the working conditions of seamen aboard Coast Guard inspected and certificated vessels. I would find a section 4(b)(1) exemption when the affected employees were seamen working upon such vessels.

Two points need clarification. First, I am not rejecting the well-established precedent that an agench exercise of authority over a few working conditions does not trigger [*65] an industry-wide section 4(b)(1) exemption. See, e.g., Southern Pacific Transportation Co. v. Usury, supra; Southern Railway Co. v. OSHRC. supra. Rather, I would hold that, at some point, another federal agency's exercise of its safety and health jurisdiction over an area of its subject industry becomes so pervasive that a section 4(b)(1) exemption must be triggered for that segment of the industry. Second, the availability of such an area exemption must be determined on a case by case basis. The primary considerations are the scope of the other agencies' regulatory scheme and the degree to which the imposition of OSHA regulations will complicate the regulatory burden of employers in that area. Here, the Coast Guard's regulation of the working conditions of seamen aboard inspected vessels has been demonstrated to be comprehensive. n3 To selectively apply OSHA regulations into gaps in the Coast Guard regulations imposes a burden on employees which section 4(b)(1) was created to avoid.

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n3 I also note that the regulation at 46 C.F.R. 91.27-15, quoted in the majority opinion, grants the Coast Guard authority to regulate conditions not the subject of specific standards. For reasons stated in the majority opinion such a regulation, in isolation, would not be sufficient to constitute a section 4(b)(1) exemption. However, it must be considered as part of the comprehensive regulatory scheme set up by the Coast Guard to regulate employee safety and health when determining the scope of the section 4(b)(1) exemption. Considered together with the numerous Coast Guard regulations affecting employee safety and health, it is clear that the Coast Guard intended to regulate all working conditions of seamen on certificated vessels.

[*66]

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The question at this point becomes whether these cases involve the working conditions of seamen aboard certificated vessels. n4 The Commission has previously determined that for purposes of the Act, the term "seamen" n5 should be defined narrowly and reserved essentially for the crew of a vessel. T. Smith & Son, Inc., 74 OSAHRC 61/B13, 2 BNA 1177, 1974-75 CCH OSHD P18,536 (No. 2240, 1974); see Clary v. Ocean Drilling Exploration Co., supra; California Stevedore & Ballast Co., 74 OSAHRC 34/A2, 1 BNA OSHC 1757, 1973-74 CCH OSHD P17,931 (No. 1132, 1974). Employees engaged in activities such as longshoring, are not deemed to be crew members so as to qualify as seamen for purposes of the section 4(b)(1) exemption. T. Smith & Sons, Inc., supra; California Stevedore & Ballast Co., supra.

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n4 The only issue before us is the section 4(b)(1) defense. The respondents have all conceded the existence of the violative conditions if there is no section 4(b)(1) exemption.

n5 For purposes of the LHWCA and Jones Act a seaman has been generally defined as one:

(1) whose ship is in navigation;

(2) who has a permanent connection with the ship; and

(3) whose duties contributed to the function of the vessel, the accomplishment of its mission, or the operation or welfare of the vessel in term of its maintenance during its movements or during anchorage for its future trips.

Offshore Co. v. Robinson, supra at 779.

[*67]

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In Mission Viking, the affected employees were regular members of the crew who were engaged in performing repairs on the ship, a vessel certificated by the Coast Guard. The maintenance of a vessel performed by crew members during movements or during anchorage is work traditionally performed by seamen. Offshore Co. v. Robinson, 266 F.2d 769 (5th Cirt. 1959). Therefore, the worksite was subject tof a section 4(b)(1) exemption.

Accordingly, I would vacate the citation for serious violation, and all the items of the nonserious citation including the item alleging a posting violation, 29 C.F.R. 1903.2(a)(1). It would be incongruous to require respondent to post notice of OSHA provisions in an area over which there exists a section 4(b)(1) exemption.

I would also vacate the recordkeeping violations, 29 C.F.R. 1904.2(a), 1904.5(a). Although respondent has not cited any specifically applicable Coast Guard recordkeeping regulation, it would be unnecessarily duplicative to require respondent to keep records for an area over which there exists a section 4(b)(1) exemption. Southern Pacific [*68] Transportation Co., 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1974-75 CCH OSHD P19,054 (No. 1348, 1974), aff'd, 539 F.2d 386 (5th Cir. 1975), cert. denied, 434 U.S. 874 (1977). Moreover, 46 U.S.C. 239, which is fully quoted in the majority opinion, clearly places a statutory obligation upon the Commandant of the Coast Guard to establish investigation and reporting requirements for all incidents causing marine casualties. As we stated in Southern Pacific, supra, section 4(b)(1) requires the avoidance of unnecessary duplication including those created by multiple recordkeeping requirements.

In Puget Sound Tug and Barge, the record establishes that the affected employees were engaged in the loading and unloading of cargo -- a longshoring operation. Moreover, the employees involved included a crane operator, a crane mechanic, a forklift operator, and a loading operations supervisor, all of whom boarded the vessel only to accomplish the longshoring operation. Although other employees were regular members of the crew, the crucial fact is that they were, at the time of the citation, all engaged in longshoring operations. Therefore, for purposes of section 4(b)(1), they [*69] were not "seamen." T. Smith & Son, Inc., supra; California Stevedore & Ballast Co., supra. Accordingly, there was no section 4(b)(1) exemption and the citations are properly affirmed.

The affected employees in Northwestern Construction Co. were constructing an extension to a dock. They consisted of pile drivers, laborers, and operating engineers and were hired out of local hiring halls. The job was a construction project and the employees in question were construction workers. Therefore, the section 4(b)(1) exemption was inapplicable. Accordingly, the citations are properly affirmed.

The majority points out the practical difficulties of basing the availability of a section 4(b)(1) exemption on whether the affected employees are seamen. Certainly, some of the conflicts they point out may occur, but such situations will be the exception, not the rule, for it is not likely that the same employer will employ both seamen and other employees, or if so that they will be performing the same functions at the same time.

Finally, I take note of an observation by the District of Columbia Circuit in Baltimore and Ohio Railroad Company v. OSHRC, 548 F.2d 1052 (D.C. [*70] Cir. 1976):

It is unquestionably true that, as petitioners understandably lament, the Congressional scheme fixed upon in this instance is visibly pregnant with dangers of duplication and overlapping assertions of authority by competing federal agencies. An industry caught in the middle by this approach has, at the least, every right to expect that, until the final boundaries are defined, there will be sensible cooperation and mutual adjustment between the various agencies involved.

548 F.2d at 1055.

Unfortunately, the regulatory scheme continues to be that both agencies argue before this Commission that each has jurisdiction. I think it is singularly unfortunate that two agencies litigate against one another for jurisdiction as to various working conditions while the employer is dragged into the conflict not knowing which regulation to follow. If both agencies and this Commission after applying considerable effort to these cases cannot agree as to which regulations apply, I believe the Commission is working a serious injustice to employers in requiring them to selectively enforce some Coast Guard regulations and some OSHA regulations.