CHICAGO AND NORTHWESTERN TRANSPORTATION COMPANY, a Corporation

OSHRC Docket No. 15920

Occupational Safety and Health Review Commission

June 28, 1977

[*1]

Before BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor

Foster Mattson, Chicago & Northwestern Transportation Company, for the employer

OPINION:

DECISION

BY THE COMMISSION: The sole issue on review is whether 29 U.S.C. 653(b)(1) n1 exempts the railroad industry from compliance with the Occupational Safety and Health Act of 1970. Relying on prior Commission decisions, Judge Louis S. Rubin properly held that it did not.

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n1 That section provides, in pertinent part, as follows:

"Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health."

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In a prior decision, the Commission held that an exemption is created under 29 U.S.C. 653(b)(1) only when another agency exercises its statutory authority over the specific working conditions cited. Southern Pacific Transportation [*2] Company, 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1974-75 CCH OSHD para. 19,054 (No. 1348, 1974), aff'd, 539 F.2d 386 (5th Cir. 1976). Subsequent to that decision, the Federal Railroad Administration published an Advance Notice of Proposed Rulemaking, n2 announcing that it planned to adopt the job safety and health standards codified at 29 C.F.R. Part 1910. The Commission has held that the publication of this notice was antecedent to rulemaking and did not constitute an exercise of authority within the meaning of 29 U.S.C. 653(b)(1). n3 The Commission recently reaffirmed this position. Indiana Harbor Belt Railroad Company,    OSAHRC   , 4 BNA OSHC 2006, 197677 CCH OSHD para. 21,473 (No. 12420, 1977).

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n2 40 Fed. Reg. 10693 (1975).

n3 Accord, Baltimore and Ohio Railroad Co. v. OSHRC, 548 F.2d 1052 (D.C. Cir. 1976); Southern Railway Co. v. OSHRC, 539 F.2d 335 (4th Cir. 1976), cert. denied, 97 S. Ct. 525 (1976).

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Respondent contends that previous decisions should be distinguished because the instant [*3] inspection was conducted after publication of the notice, whereas the inspections in the other cases were conducted before its issuance. The Commission disagrees. Whether an inspection is conducted before or after the March 7, 1975, publication of the notice in no way affects the Commission's determination that the publication was not an exercise of authority as contemplated by 29 U.S.C. 653(b)(1).

The Judge's decision is affirmed.