OSHRC Docket No. 89-1017 & 89-1192


Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

The respondents, Alaska Trawl Fisheries, Inc. ("Alaska Trawl"), and Golden Age Fisheries, a partnership ("Golden Age"), operate fishing and fish processing vessels.  Two of these vessels, one belonging to each company, were inspected by the Occupational Safety and Health Administration ("OSHA") of the Department of Labor.  As a result of these inspections, the Secretary of Labor issued citations to each company alleging violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act" or "the OSH Act"), and of standards promulgated pursuant to that statute.[[1]]  Both companies timely contested the citations, and the cases were assigned to an administrative law judge of this Commission.

The two cases were consolidated and submitted to the judge on stipulations.  The only issue remaining in dispute between the parties was whether OSHA had jurisdiction over the cited working conditions.[[2]]  The judge held that OSHA had jurisdiction, and the companies petitioned to have the judge's decision reviewed by the Commission.  The judge's decision was directed for review pursuant to section 12(j) of the Act, 29 U.S.C. 661(j).


At the time of the inspections and issuance of the citations, both companies were engaged in fishing and fish processing activities in and around Dutch Harbor, Alaska.  These activities included cleaning, processing, freezing, and packaging fish products for shipment to destinations in Alaska and outside of that state.  Alaska Trawl operated the F/T Endurance; Golden Age operated the F/T Browns Point.  The ships in question were classified by the Coast Guard as "uninspected vessels," meaning that, at the time of OSHA's inspections and the issuance of the citations, they were subject to limited regulation by the Coast Guard. See 46 U.S.C. 4101-4116. [[3]]

In September 1988, the Commercial Fishing Industry Vessel Safety Act of 1988, 46 U.S.C. 4501-4508 ("CFIVSA"), which requires the Coast Guard to regulate the operation of fishing trawlers such as the two vessels cited here, was enacted into law.  At the time OSHA conducted its inspections of the two vessels in February 1989, the Coast Guard had not yet taken any official action to follow that mandate.  The citations were issued in March of 1989, and the judge issued his decision in these consolidated cases in November 1989.  The following year, in April 1990, the Coast Guard issued a notice of proposed rulemaking to adopt standards under the new statute.[[4]]

Review was directed on the following issue:  Whether OSHA had jurisdiction over the cited working conditions.  The respondents make two arguments in support of their claim that OSHA had no jurisdiction, each based on a different statute.  Their first argument is premised on their contention that Congress intended in CFIVSA to vest the Coast Guard with exclusive jurisdiction over all safety matters aboard commercial fishing vessels.  Thus, they argue that, under the rules of statutory construction, if the provisions of CFIVSA conflict with those of the OSH Act, CFIVSA must prevail because it is a subsequent statute that more specifically addresses the conditions in question than does the earlier, more general OSH Act.   The respondents' second argument is that OSHA was preempted, under the provisions of section 4(b)(1) of the Act, 29 U.S.C. 653(b)(1),[[5]] because the United States Coast Guard has acted to regulate the cited working conditions.[[6]]

Having examined the two statutes in question and the applicable regulations in effect when the citations were issued and considered the arguments of the parties and the amicus curiae, we conclude that the judge correctly decided the issue.  We affirm his decision for the reasons set forth below.


Alaska Trawl and Golden Age assert that the central issue in this case is one of statutory interpretation and Congressional intent, namely whether CFIVSA grants the Coast Guard exclusive jurisdiction over all safety matters aboard the cited vessels.  According to the respondents, there is a conflict between the two statutes because Congress intended to vest the Coast Guard with exclusive jurisdiction over all aspects of safety on commercial fishing vessels, thereby depriving OSHA of any jurisdiction.  The judge concluded that there was no such conflict because CFIVSA was intended to govern navigational safety, the traditional area of Coast Guard expertise, not safety in the fish processing activities aboard factory ships such as those cited here.  He found that the operation of a ship in navigation and the processing of the fish were separate and distinct operations.

The respondents do not assert that the Act never governed activities aboard uninspected vessels such as the ones cited here.  Prior to the enactment of CFIVSA, OSHA clearly had the statutory authority to regulate the working conditions of employees aboard uninspected vessels.  Donovan v. Red Star Marine Servs., 739 F.2d 774, 780 (2d Cir. 1984), cert. denied, 470 U.S. 1003 (1985).   Therefore, OSHA's authority continues unless some specific provision in CFIVSA or another more-recently-enacted statute has preempted it.

The respondents assert that nothing in CFIVSA limits the Coast Guard's authority under that statute to purely navigational matters.  The respondents argue that this failure to limit the Coast Guard's authority demonstrates Congress' clear intent for the Coast Guard to develop a comprehensive program for establishing safe working conditions for the crews of commercial fishing vessels and fish processing vessels.  The respondents further assert that, if there is any ambiguity as to the intent of Congress, it is resolved by examining the legislative history of CFIVSA, citing references in the legislative history.

The respondents' arguments state correct legal tenets. The basic principles for interpreting two statutes in pari materia (dealing with the same subject) are:

It is assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter.  In the absence of any express repeal or amendment, the new provision is presumed in accord with the legislative policy embodied in those prior statutes.  Thus, they all should be construed together....

When two statutes are involved each of which by its terms applies to the facts before the court, the statute which is the more recent of the two irreconcilably conflicting statutes prevails.  Where a conflict exists the more specific statute controls over the more general one....

Provisions in one act which are omitted in another on the same subject matter will be applied when the purposes of the two acts are consistent.   Prior statutes relating to the same subject matter are compared with the new provision; if it is possible by reasonable construction, both are construed so that effect is given to every provision in all of them. . .

Statutes for the same subject, although in apparent conflict, are construed to be in harmony if reasonably possible. However, it has been held where two statutes deal with the same subject matter, the more recent enactment prevails as the latest expression of legislative will.  If there is an irreconcilable conflict between the new provision and the prior statutes, the new provision will control as it is the later expression of the legislature.

2B N. Singer, Sutherland on Statutory Construction 51.02 (5th ed., rev. 1992).

These principles of statutory construction apply, however, only if there is uncertainty as to the meaning of language used in one of the statutes.   When the terms of a statute are not ambiguous, there is no need for further inquiry.  Howe v. Smith, 452 U.S. 473, 483 (1981), Caminetti v. United States, 242 U.S. 470, 485 (1917) (where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise and rules which are to aid doubtful meanings need no discussion); McCord v. Bailey, 636 F.2d 606, 614-15 (D.C. Cir. 1980).  We may therefore look to the legislative history only if there is ambiguous language in the statute itself which suggests, but does not explicitly state, that the Coast Guard is to have exclusive jurisdiction.  TVA v. Hill, 437 U.S. 153, 184 n.29 (1978) (citing Ex parte Collett, 337 U.S. 55, 61 (1949) and cases cited therein) (when statute is unambiguous on its face, a court should not look to legislative history for its meaning).   We therefore conclude that, if the statute does not suggest on its face that the intent of Congress was to exclude OSHA from all regulatory activities in this field, it is neither necessary nor proper to look to secondary sources.

Having examined CFIVSA, we find nothing to indicate that Congress intended to vest exclusive jurisdiction over working conditions aboard commercial fishing vessels to the Coast Guard so as to preempt OSHA from regulating those conditions.   Congress vested the Coast Guard with authority to regulate safety aboard such vessels, but there is nothing in the statute that excludes other federal agencies from regulating matters that come under their jurisdiction. [[7]] In fact, we note that, in its amicus curiae brief, the Coast Guard has disputed the respondents' assertion that the two statutes are in conflict.  The Coast Guard states that, after CFIVSA was enacted, an amendment to another bill was introduced in Congress that would have specified that the Coast Guard was the agency responsible for all aspects of safety aboard fishing and fish processing vessels and that this amendment was rejected.

The Coast Guard argues that CFIVSA does not expressly provide that the Coast Guard has exclusive jurisdiction and that it cannot be interpreted to say that the Act no longer applies to fishing vessels. In contrast, the Coast Guard argues, CFIVSA clearly delineates the areas that the Coast Guard has authority to regulate, areas which are limited to traditional maritime safety items, not factory conditions. The Coast Guard concludes that there is no basis in CFIVSA or its legislative history to support the limits on OSHA's jurisdiction put forth by the respondents.

The Secretary of Labor also contends that there is no conflict between CFIVSA and the Act.

When federal agencies assert that they do or do not have statutory authority to regulate particular working conditions, the Commission gives considerable weight to the agency's representations.  See Northwest Airlines, Inc., 8 BNA OSHC 1982, 1988, 1980 CCH OSHD 24,751, p. 30,487 (No. 13649, 1980).  While such statements by a federal agency are not controlling, the Commission will limit its inquiry to determining whether the statute reasonably supports the agency's assertions.   Id.  Accordingly, while we give considerable weight to the assertions of the Department of Transportation and the Department of Labor that the provisions of CFIVSA and the Act are not in conflict, we have independently reviewed the provisions of both statutes and reached a similar conclusion.

Although Alaska Trawl and Golden Age assert that there is a conflict between the statutes and that the intent of Congress was for the Coast Guard to have exclusive jurisdiction, we find no support for either of these contentions. Nowhere in their brief or their reply brief have the companies pointed to any specific language in the statute that indicates that Congress intended the Coast Guard to have exclusive jurisdiction over the working conditions aboard commercial fishing vessels that would preempt the jurisdiction OSHA exercises under the Act.  Without a clear expression by Congress that its intent was to preempt OSHA's jurisdiction over the cited working conditions, we are unwilling to infer such an intent.


The next question is whether OSHA's jurisdiction over the cited working conditions is precluded by the provisions of section 4(b)(1) of the Act designed to prevent regulatory duplication.

The fact that another federal agency possesses the statutory authority to regulate the cited working conditions does not constitute the exercise of statutory authority meant by section 4(b)(1); under that section, the other agency must have taken some action to exercise that authority.  E.g., In re Inspection of Norfolk Dredging Co., 783 F.2d 1526 (11th Cir.), cert. denied, 449 U.S. 834 (1986); Columbia Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913 (3d Cir. 1980); Southern Pac. Transp. Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); Southern Ry. v. OSHRC, 539 F.2d 335 (4th Cir.), cert. denied, 429 U.S. 999 (1976); Baltimore & O.R.R v. OSHRC, 548 F.2d 1052 (D.C. Cir. 1976); Organized Migrants in Community Action, Inc. v. Brennan 520 F.2d 1161 (D.C. Cir. 1975); Indiana Harbor Belt R.R., 4 BNA OSHC 2006,1976-77 CCH OSHD 21,473 (No. 12420, 1977).  We must therefore determine whether the Coast Guard has exercised its statutory authority by promulgating standards or regulations having the force and effect of law that govern the cited working conditions.  Northwest Airlines, Inc., 8 BNA OSHC at 1989-91, 1980 CCH OSHD at pp. 30,487-89.  Both the Coast Guard and the Secretary of Labor assert that the Coast Guard had not exercised its statutory authority over the cited working conditions at the time the citations in these cases were issued, while the companies assert that it had.

When another federal agency has the statutory authority to regulate the safety and health of employees, an exemption under section 4(b)(1) exists only as to those working conditions that the other federal agency has exercised its statutory authority to regulate; and the employer claiming the exemption has the burden of proving that the agency has exercised its authority to regulate the working conditions in question.  Puget Sound Tug & Barge, 9 BNA OSHC 1764, 1774, 1981 CCH OSHD 25,373, p. 31,594 (No. 76-4905,1981).

In support of their claim to an exemption, Alaska Trawl and Golden Age assert that each of the working conditions for which they were cited[[8]] is sufficiently subject to the Coast Guard's exercise of authority to exempt those conditions under section 4(b)(1).  Citing Dunlop v. Burlington Northern R.R., 395 F.Supp. 203 (D. Mont. 1975), a decision of the federal district court in Montana, they also assert that the Coast Guard's issuance of draft regulations subsequent to the issuance of the citation constitutes sufficient exercise of authority to create an exemption, because CFIVSA required the Coast Guard to follow a lengthy procedure before it could issue them.  The companies cite a statement in Dillingham Tug & Barge Corp., 10 BNA OSHC 1859, 1982 CCH OSHD 26,166 (No. 77-4143, 1982), that, in certain circumstances, section 4(b)(1) can create an industry-wide exemption.  They claim that the Coast Guard's activity in regulating the maritime industry generally, and the commercial fishing industry in particular, create such an industry- wide exemption for the fishing industry.

The companies' arguments place considerable reliance on events that occurred after the citations were issued, particularly the Coast Guard's April 1990 notice of proposed rulemaking.  Our inquiry, however, is limited to determining whether the Coast Guard took sufficient action to regulate the cited working conditions before the citations were issued to have exempted the companies from OSHA's jurisdiction under Consolidated Rail Corp., 10 BNA OSHC 1851, 1982 CCH OSHD 26,165 (No. 78-238, 1982).  See also Southern Pac. Transp. Co. v. Usery (proposing future regulations not sufficient to create exemption).

We conclude that the actions taken by the Coast Guard in this case were not sufficient to give rise to an exemption from OSHA's jurisdiction.   Under Consolidated Rail Corp., the issuance of proposed regulations does not, as a matter of law, constitute an exercise of statutory authority to prescribe or enforce standards or regulations within the meaning of section 4(b)(1).  Even if we were to hold that the issuance of proposed regulations, by itself, was sufficient action to preempt OSHA, we would not find preemption on these facts.  At the time the citations were issued, the Coast Guard had not yet issued even proposed regulations, much less promulgated final regulations having the force and effect of law.  Thus, because the proposed regulations did not have the force and effect of law, we need not look at the proposed regulations to determine whether they would, as the companies assert, govern each of the cited working conditions.  Northwest Airlines, Inc., 8 BNA OSHC at 1990, 1980 CCH OSHD at p. 30,488.


There are two remaining issues that require the Commission's attention.
First, there is a controversy as to the effect of the Commission's decision in Dillingham Tug & Barge in the section 4(b)(1) issue.  The Secretary urges us to overrule that decision; the companies assert that it controls the situation here. We believe, however, that the Commission did not hold in Dillingham that an industry-wide exemption had been created.  The Commission observed that, under certain circumstances, such a situation could exist, but its disposition of the case was based on a finding that the Coast Guard had, in fact, exercised its statutory authority to regulate the working conditions that were the subject of the Secretary's citation, the hazard of a seaman's falling into the water while engaged in navigational, docking, or mooring activities.[[9]]   Because the Coast Guard had already regulated the general hazard addressed by OSHA's citation, the same result would have been found under the existing case law, and it was unnecessary for the majority in Dillingham to go as far as it did.  To the extent that the discussion in Dillingham went beyond what was strictly necessary to adjudicate the issues presented by that case, it constituted obiter dictum (remarks not necessary to decide the case) and therefore is not controlling here.[[10]]

Second, the Secretary filed a letter on December 2,1991, which raises several possible problems.  The letter states that on September 15, 1991, after this case had been directed for review, the Coast Guard acted to exercise its statutory authority by adopting regulations to govern certain of the cited working conditions and that, as a result of the Coast Guard's action, the Secretary withdraws the abatement orders for some of the items covered by the citations.  Our first reservation about the Secretary's action is that we are not at all confident that the Commission has the authority under the Act to find a violation (other than a de minimis violation) and not require it to be abated.[[11]] Assuming that the Commission does have that authority, would the assessment of the penalties stipulated to by the parties without requiring abatement of the violative conditions, as the Secretary seeks in her letter, make the Commission's order penal rather than remedial?  If so, would the Commission have to follow the requirements for a criminal proceeding?  These cases were submitted to the judge on a stipulated record.  We are uncertain of the admissibility of any admissions by the companies if adequate criminal procedural safeguards were not followed.

Another factor that troubles the Commission is that the Secretary appears to be attempting, by letter, to alter the terms of the stipulations agreed to by all parties and submitted to the judge.  The companies have objected to the filing of the letter, although not on this specific ground.  We are therefore unwilling to act on the Secretary's letter without affording the parties an opportunity to address the questions it raises.  Accordingly, we will remand these cases to the administrative law judge for him to rule on the arguments the parties address to these questions.

Before the judge, the parties may also wish to address the question of whether it is appropriate for them to enter into an agreement requiring the companies to abate the violations but providing that compliance with the new Coast Guard regulations will be deemed to constitute abatement for the purposes of these cases.


For the reasons set out above, we find that the administrative law judge did not err in denying the companies' motions to dismiss.  We affirm the judge's decision finding that OSHA had jurisdiction over the cited working conditions and affirming the citations on the basis of the parties' stipulations.  We do, however, remand these cases for the parties to address before the judge the questions raised by the letter filed by the Secretary on December 2, 1991.

Accordingly, these cases are remanded for further proceedings consistent with this decision.

Edwin G. Foulke, Jr.

Donald G. Wiseman

Velma Montoya

Dated: June 18, 1992


The Stipulation of the Parties on Remand and the Settlement Agreements are approved.

Sidney J. Goldstein Judge, OSHRC
Dated: October 2, 1992






Come now the parties, by and through their undersigned counsel of record, and in response to the Decision entered herein on June 18, 1992, and remanding this consolidated proceeding, do represent, agree and stipulate as follows:

Whereas, the Decision has raised questions relating to the abatement of the alleged violations at issue herein and to the nature and content of any prospective abatement order to be entered as well as to the authority of the Review Commission in this regard, and

Whereas, each of the alleged violations at issue herein has been abated in accordance with the applicable cited OSHA safety and health standards prior to September 15, 1991 (the date upon which certain U.S. Coast Guard occupational safety and health standards became effective), as set forth in the two Settlement Agreements and Stipulations for Entry of Final Order previously filed in each of the individually docketed proceedings.

1. The parties stipulate and agree that all questions relating to the abatement of the alleged violations at issue herein have been resolved between the parties prior to September 15, 1991;
2. No controversy or dispute warranting resolution, order or any further action by the Review Commission currently exists between the parties with respect to any matters of abatement; and
3. This matter may be concluded upon entry of a further final order in accordance with the agreement of the parties as set forth in the aforesaid Settlement Agreements and Stipulations for Entry of a Final Order filed herein.

Marshall J. Breger
Solicitor of Labor

Daniel W. Teehan
Regional Solicitor

Robert A. Friel
Associate Regional Solicitor

William W. Kates


Attorneys for Complainant

Dated September 3, 1992.


James P. Walsh, of,
Davis Wright Tremaine

Attorneys for Respondent
Dated September 11, 1992.
William W.Tattles
U.S. DEPARTMENT OF LABOR Attorneys for Complainant
Dated September 11, 1992.


[[1]] Alaska Trawl Fisheries was issued two citations. One citation alleged that the company had committed two violations of section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), and serious violations of a number of standards promulgated by OSHA, including 29 C.F.R. 1910.212(a)(1), 1910.215(a)(4), 1910.215(b)(9), 1910.219(d)(1), 1910.219(e)(1)(i), 1910.219(f)(3), and 1910.243(c)(3).  The other citation alleged a number of other-than-serious violations of OSHA standards, including 29 C.F.R. 1903.2(a)(1), 1910.22(b)(1), 1910.1200(e)(1), 1910.1200(g)(1), and 1200(h)(1).   The Secretary proposed that Alaska Trawl Fisheries pay a total of $2280 in penalties.

Golden Age was cited for serious violations of 29 C.F.R. 1910.215(a)(4), 1910.215(b)(9), and 1910.243(c)(3), and other-than-serious violations of 29 C.F.R. 1904.2(a), 1904.5(a), 1910.22(b)(1), 1910.252(a)(2)(iv)(c), 1910.1200(e)(1), 1910.1200(g)(1), and 1910.1200(h)(1), with a total penalty of $500 proposed.

[[2]] The parties have stipulated that, if the working conditions cited are not exempt from OSHA's jurisdiction, both companies were in violation of the Act as alleged.  The companies also stipulated to the appropriateness of the penalties.

[[3]] For the provisions governing inspected vessels, see 46 U.S.C. 3301-3318 and the standards in Parts 90-96 of 46 C.F.R.

[[4]] The Coast Guard has adopted regulations that went into effect on September 15, 1991, while this case was on review.  On December 2, 1991, the Secretary filed a letter informing the Commission of that fact and making certain other representations.  The respondents have objected to the filing of that letter, arguing that it contains legal argument and therefore constitutes a brief filed in violation of Rule 93(b)(3) of the Commission's Rules of Procedure, 29 C.F.R. 2200.93(b)(3).  The respondents have filed a motion asking for the alternative remedies of returning the letter to the Secretary or allowing the respondents to file a brief in response to cure the Secretary's violation of the rules.  We deny the remedies requested.  The Commission will, however, afford a remedy not requested in respondents' motion. Specifically, the Commissioners have not considered any representations or arguments contained in the Secretary's letter during the Commission's deliberations on the issue directed for review, namely whether OSHA had jurisdiction to regulate the cited working conditions.

[[5]] Section 4(b)(1) provides:

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.

[[6]] The Coast Guard has filed an amicus curiae brief presenting arguments contrary to those made by the companies.

[[7]] While we do not refer to the legislative history of CFlVSA for assistance in making our decision on this issue, we note with interest that respondents' brief states that nowhere in that document or in the legislative history of a 1984 statute dealing with commercial fishing vessels is there any discussion of OSHA.

[[8]] The citations involved the guarding of machines, belts, and pulleys, clearance in passageways, recordkeeping, storage of combustible gases used in welding, and violations of the hazard communication standard.

[[9]] In Dillingham, a crewman on a tugboat climbed onto a mooring buoy to fasten a line while the tug was assisting a tanker mooring at an offshore anchorage.  He was injured when he fell into the water and was caught between the buoy and the tug.  While the Coast Guard's regulations did not address the specific facts of this accident, they addressed the broader situation.  It is well-established that, when another federal agency has acted to regulate specific working condition, it is not necessary that it act in the same manner or in an equally stringent manner as OSHA in order for an exemption to arise under section 4(b)(1).  Northwest Airlines, Inc., 8 BNA OSHC at 1990, 1980 CCH OSHD at p. 30,489; Pennsuco Cement & Aggregates, Inc., 8 BNA OSHC 1378, 1980 CCH OSHD 24,478 (No. 15462, 1980); Mushroom Transp. Co., 1 BNA OSHC 1390, 1392, 1973-74 CCH OSHD 16,881 at p. 21,591 (No. 1588, 1973).

[[10]] Even if the discussion in Dillingham were not dictum, that case is distinguishable from the one before us.  The employee in Dillingham was a sailor engaged in the operation of the ship, the traditional area of Coast Guard expertise. The vessels involved here are called "factory ships" because they perform the same function at sea that a canning factory performs ashore.   The operations cited here were all activities involving fish processing and required neither knowledge nor skills of seamanship.  The Coast Guard has stated that the working conditions cited are outside its area of expertise and that, when these cases arose, it had taken no steps to regulate them.  We could therefore find that the policy reasons underlying section 4(b)(1), to avoid the duplication of regulation which subjects employers to unnecessary and confusing requirements and wastes government resources, would not require that an exemption be found here.  The Coast Guard claims no expertise in regulating the conditions of factory workers, whether ashore or afloat, while OSHA does.  To find an exemption here would not further the purposes of workplace safety, which is, after all, the object of both CFIVSA and the Act.

[[11]] Section 9(a) of the Act requires the citation to fix a reasonable time for the abatement of the violation.  Section 10(c) of the Act gives the Commission jurisdiction over employee contests of the reasonableness of the abatement period, which clearly demonstrates that the Commission may establish a different abatement date.  The Commission also has the authority to find that there was a violation but that abatement is not required when it finds that a violation is de minimis.   The question that has not been answered is whether the Commission can find a violation that is not de minimis and hold that abatement is not required.  It is not at all clear that the provision in section 10(c) of the Act empowering the Commission to grant "other appropriate relief" would cover this situation.