“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14483 CHESAPEAKE AND OHIO RAILWAY COMPANY BALTIMORE AND OHIO RAILROAD COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November 8, 1977DECISIONBEFORE CLEARY, Chairman; and BARNAKO, Commissioner.BARNAKO, Commissioner:??????????? The issue in this case is whether Complainant isprecluded by Section 4(b)(1) of the Act[1] from enforcing certain ofhis occupational safety and health standards against Respondent when theDepartment of Transportation, through its Federal Railway Administration,publishes an Advance Notice of Proposed Rulemaking[2] proposing to regulate thesame working conditions. Judge Paul L. Brady granted Respondent?s motion todismiss on the ground that publication of this notice constituted a sufficientexercise of statutory authority to trigger the exemptoryprovision of Section 4(b)(1). We hold that the Judge erred in grantingRespondent?s motion to dismiss.??????????? In Indiana Harbor Belt R.R., 77 OSAHRC 13\/A2, 4BNA OSHC 2006, 1976 77 CCH OSHD para. 21,473 (No.12420, 1977) and Seaboard Coast Line R.R., 75 OSAHRC 11\/E14, 3 BNA OSHC1767, 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 ofAppeals which have considered this issue have reached the same conclusion. Baltimoreand Ohio R.R. v. OSHRC, No. 75 2163, D.C. Cir., Dec. 30, 1976; SouthernPacific 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 erredin finding that the Advance Notice gave rise to a Section 4(b)(1) exemption forRespondent.??????????? Therefore, the Judge?s order granting Respondent?s motionto dismiss is reversed and the case is remanded for further proceedings.?FOR THE COMMISSION?Ray H. Darling, Jr.ACTING EXECUTIVESECRETARYDated: November 8, 1977\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14483 CHESAPEAKE AND OHIO RAILWAY COMPANY BALTIMORE AND OHIO RAILROAD COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: April 1, 1976ORDER??????????? On January 9, 1976, respondent filed a motion to dismissthe complaints filed in the above-entitled proceedings. It is contended byrespondent that by virtue of section 4(b)(1) of the Occupational Safety andHealth Act, neither the Commission nor the Department of Labor has jurisdictionover the railroad industry. In support of this contention, respondent cites thejudges? decisions in Secretary v. Indiana Harbor Belt Railroad Company,?? OSAHRC ?? (Docket No. 12420, September 5, 1975) and Secretary v. SouthernPacific Transportation Company, ?? OSAHRC ?? (Docket No. 12755, November10, 1975) as applicable to the facts in this case.??????????? In response, the Secretary of Labor maintains that theorder in Indiana Harbor Belt Railroad, supra is incorrect for thereasons set forth in his brief filed with the Commission on October 14, 1975.It is also asserted that the Commission decision in Secretary v. BeltRailway Company of Chicago, et al, October 17, 1975) is dispositive of theissues raised by the motion. In a supplement to the response, the Secretarycites the Commission decision in Secretary v. Winston-Salem SouthboundRailway Company, et al, ?? OSAHRC ?? (Docket Nos. 11904 and 11237, December1, 1975). It was pointed out that the Commission held that a notice of proposedrulemaking by the Department of Transportation was not an exercise of itsauthority within the meaning of section 4(b)(1) of the Act, as asserted byrespondent.??????????? Contrary to the view expressed by the Secretary, thespecific jurisdictional issues raised by this motion have not been resolved byprevious Commission decisions. In rejecting respondent?s argument in Secretaryv. Winston-Salem Southbound Railway Company, supra, the Commission noted thatthe inspections were conducted and the citationsissued 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 casesinvolve working conditions regulated under 29 C.F.R. ? 1910, and theinspections were conducted subsequent to publication of the notice of proposedrulemaking. Also, the rulemaking proceeding was initiated to adopt OSHAstandards contained in 29 C.F.R. ? 1910.??????????? The clear and express language of section 4(b)(1) doesnot require that another agency adopt or have in effect an enforceable standardor regulation before the exemption provision applies. Although the action bythe Department of Transportation is in its formative stages, it constitutes sufficient exercise of its statutory authority to prescribesafety regulations consistent with the exemption provisions of section 4(b)(1).??????????? ?Based upon theforegoing considerations and the reasons expressed in Secretary v. IndianaHarbor Belt Railroad Company, supra, it must be held that respondent is notsubject 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. BRADYJudge[1]TheOccupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. Section4(b)(1) states in part:Nothing in thisAct shall apply to working conditions of employees with respect to which otherFederal agencies . . . exercise statutory authority to prescribe or enforcestandards or regulations affecting occupational safety or health.\u00a0[2] 40 Fed. Reg.10693 (1975).”