UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 14483
CHESAPEAKE AND OHIO RAILWAY COMPANY BALTIMORE AND OHIO RAILROAD COMPANY,
Respondent.

November 8, 1977

DECISION

BEFORE CLEARY, Chairman; and BARNAKO, Commissioner.

BARNAKO, Commissioner:

The issue in this case is whether Complainant is precluded by Section 4(b)(1) of the Act[1] from enforcing certain of his occupational safety and health standards against Respondent when the Department of Transportation, through its Federal Railway Administration, publishes an Advance Notice of Proposed Rulemaking[2] proposing to regulate the same working conditions. Judge Paul L. Brady granted Respondent’s motion to dismiss on the ground that publication of this notice constituted a sufficient exercise of statutory authority to trigger the exemptory provision of Section 4(b)(1). We hold that the Judge erred in granting Respondent’s motion to dismiss.

In Indiana Harbor Belt R.R., 77 OSAHRC 13/A2, 4 BNA OSHC 2006, 1976 77 CCH OSHD para. 21,473 (No. 12420, 1977) and Seaboard Coast Line R.R., 75 OSAHRC 11/E14, 3 BNA OSHC 1767, 1975 76 CCH OSHD para. 20,185 (No. 11904, 1975), the Commission held that an Advance Notice of Proposed Rulemaking was not an ‘exercise’ of authority within the meaning of Section 4(b)(1). Three Courts of Appeals which have considered this issue have reached the same conclusion. Baltimore and Ohio R.R. v. OSHRC, No. 75 2163, D.C. Cir., Dec. 30, 1976; Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. denied, 46 U.S.L.W. 3219, (No. 76 1400, Oct. 3, 1977). Southern Ry. Co. v. OSHRC, 539 F.2d 335 (4th Cir. 1976), cert. denied, 45 U.S.L.W. 3410 (U.S. Dec. 6, 1976). Accordingly, the Judge erred in finding that the Advance Notice gave rise to a Section 4(b)(1) exemption for Respondent.

Therefore, the Judge’s order granting Respondent’s motion to dismiss is reversed and the case is remanded for further proceedings.

FOR THE COMMISSION

Ray H. Darling, Jr.

ACTING EXECUTIVE SECRETARY

Dated: November 8, 1977

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 14483
CHESAPEAKE AND OHIO RAILWAY COMPANY BALTIMORE AND OHIO RAILROAD COMPANY,
Respondent.

FINAL ORDER DATE: April 1, 1976

ORDER

On January 9, 1976, respondent filed a motion to dismiss the complaints filed in the above-entitled proceedings. It is contended by respondent that by virtue of section 4(b)(1) of the Occupational Safety and Health Act, neither the Commission nor the Department of Labor has jurisdiction over the railroad industry. In support of this contention, respondent cites the judges’ decisions in Secretary v. Indiana Harbor Belt Railroad Company, —— OSAHRC —— (Docket No. 12420, September 5, 1975) and Secretary v. Southern Pacific Transportation Company, —— OSAHRC —— (Docket No. 12755, November 10, 1975) as applicable to the facts in this case.

In response, the Secretary of Labor maintains that the order in Indiana Harbor Belt Railroad, supra is incorrect for the reasons set forth in his brief filed with the Commission on October 14, 1975. It is also asserted that the Commission decision in Secretary v. Belt Railway Company of Chicago, et al, October 17, 1975) is dispositive of the issues raised by the motion. In a supplement to the response, the Secretary cites the Commission decision in Secretary v. Winston-Salem Southbound Railway Company, et al, —— OSAHRC —— (Docket Nos. 11904 and 11237, December 1, 1975). It was pointed out that the Commission held that a notice of proposed rulemaking by the Department of Transportation was not an exercise of its authority within the meaning of section 4(b)(1) of the Act, as asserted by respondent.

Contrary to the view expressed by the Secretary, the specific jurisdictional issues raised by this motion have not been resolved by previous Commission decisions. In rejecting respondent’s argument in Secretary v. Winston-Salem Southbound Railway Company, supra, the Commission noted that the inspections were conducted and the citations issued prior to publication of the notice of proposed rulemaking in 40 Fed. Reg. 10693, (March 7, 1975) by the Department of Transportation.

The citations issued to respondent in the instant cases involve working conditions regulated under 29 C.F.R. § 1910, and the inspections were conducted subsequent to publication of the notice of proposed rulemaking. Also, the rulemaking proceeding was initiated to adopt OSHA standards contained in 29 C.F.R. § 1910.

The clear and express language of section 4(b)(1) does not require that another agency adopt or have in effect an enforceable standard or regulation before the exemption provision applies. Although the action by the Department of Transportation is in its formative stages, it constitutes sufficient exercise of its statutory authority to prescribe safety regulations consistent with the exemption provisions of section 4(b)(1).

Based upon the foregoing considerations and the reasons expressed in Secretary v. Indiana Harbor Belt Railroad Company, supra, it must be held that respondent is not subject to the jurisdiction of the Occupational Safety and Health Act of 1970, by virtue of section 4(b)(1).

Therefore, it is ORDERED:

That the motion to dismiss is sustained.

Dated this 2nd day of March, 1976.

PAUL L. BRADY

Judge

[1] The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. Section 4(b)(1) states in part:

Nothing in this Act 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.