Tidewater Pacific, Inc.

Plain-English summary

OSHA cited working conditions on an uninspected tugboat operating within Alaska's three-mile territorial waters. The Commission held that a vessel in those waters is a workplace in a state under the OSH Act. Coast Guard regulation did not preempt OSHA's confined-space, machine-guarding, bloodborne-pathogen, or illness-recordkeeping requirements because the Coast Guard did not regulate those conditions on uninspected vessels. Coast Guard casualty and accident reporting did cover occupational injuries, so that portion of OSHA's recordkeeping item was preempted. The remaining items were affirmed, and the stipulated penalty was reduced from $3,600 to $3,375.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.146(c)(4); 29 C.F.R. § 1910.215(a)(4); 29 C.F.R. § 1910.215(b)(9); 29 C.F.R. § 1910.1030(c)(1)(i); 29 C.F.R. § 1904.2(a)
• Outcome: OSHA jurisdiction was upheld for all cited conditions except injury recordkeeping, and the penalty was reduced to $3,375.
• Key point: Coast Guard authority over uninspected vessels preempts OSHA only for specific working conditions the Coast Guard has actually regulated.

Full text (OSHRC public release)

                          United States of America
         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                     1120 20th Street, N.W., Ninth Floor
                        Washington, DC 20036-3419

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 93-2529
TIDEWATER PACIFIC, INC.,
Respondent.

                                    DECISION

BEFORE: WEISBERG, Chairman; MONTOYA and GUTTMAN, Commissioners.
BY THE COMMISSION:
On May 12, 1993 the Occupational Safety and Health Administration (“OSHA”)
inspected the vessel M.V. Dr. Jack, (“Dr. Jack”) operated by Tidewater Pacific, Inc.
(“Tidewater”), and subsequently issued two citations alleging four serious and one other than
serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678
(“the Act” or “OSH Act”), proposing a combined penalty of $7,200. The cited conditions
pertain to confined space permit entry (29 C.F.R. § 1910.146(c)(4)), machine guarding (29
C.F.R. § 1910.215(a)(4) and (b)(9)), blood borne pathogen exposure control plans (29 C.F.R.
§ 1910.1030(c)(1)(i)), and recordkeeping (29 C.F.R. § 1904.2(a)). Tidewater contested the
citations alleging that OSHA jurisdiction is preempted under section 4(b)(1) of the Act, 29
U.S.C. § 653(b)(1), by the United States Coast Guard's regulation of shipping.
On a stipulated record, Administrative Law Judge James H. Barkley concluded that
Tidewater had not satisfied its burden of demonstrating the existence of applicable Coast
 2

Guard regulations concerning the cited working conditions, and accordingly found that
OSHA jurisdiction was not preempted. Judge Barkley then entered a final order reflecting
the parties’ second stipulation, which provided for an amended penalty of $3,600, but
reserved their right to appeal the contested jurisdictional issue. In addition to the issue of
section 4(b)(1) preemption raised by the parties, we ordered supplemental briefing and held
oral argument on the issue of OSH Act applicability under section 4(a), 29 U.S.C. § 653(a).1
For the following reasons, we affirm the judge’s decision with respect to all of the cited
conditions except the recordkeeping violation. As to it, we conclude that OSHA is not
preempted from enforcing the illness recordkeeping requirement, but that applicable Coast
Guard regulations requiring reporting of marine accidents and casualties preempts OSHA
jurisdiction over injury recordkeeping. Accordingly, we reduce the penalty to $3,375.
I. BACKGROUND
The Dr. Jack is a U.S. flag ocean-going tug boat that operates in foreign and U.S.
territorial waters and was, at the time of the alleged violations, engaged in vessel escort and
oil spill emergency response activities for the oil tankers entering and exiting the Valdez Oil
Terminal in Valdez, Alaska. It is undisputed that the vessel was located in the U.S. territorial
waters known as the “three-mile ring”2 at the time of the inspection. The Dr. Jack’s nine-
person crew consists entirely of Coast Guard licensed and certified officers and seamen, but
the vessel is classified as an “uninspected vessel” and thus is not subject to the shipping
inspection requirements of 46 U.S.C. §§ 3301-3318 and extensive Coast Guard regulations

1
Direction for review by the Commission establishes jurisdiction to review the entire case,
and is not limited to those issues raised by the parties. See Commission Rule 2200.92(a), 29
C.F.R. § 2200.92(a).
2
See United States v. Maine, 469 U.S. 504, 513 (1985); Submerged Lands Act, 43 U.S.C.
§ 1312.
 3

promulgated thereunder.3 Accordingly, the Dr. Jack is not subject to the 1983 Memorandum
of Understanding (“MOU”) between the Coast Guard and OSHA, which provides that OSHA
will not enforce the OSH Act with respect to the working conditions of seamen aboard
inspected vessels.4
The Coast Guard, however, has issued some regulations applicable to the Dr. Jack
pursuant to its authority to regulate uninspected vessels. See 46 U.S.C. § 4102; 46 C.F.R.
Part 25. The Dr. Jack is also subject to the marine casualty and accident reporting
requirements of 46 U.S.C. §§ 6301-6307 and 46 C.F.R. Part 4, and is periodically examined
by the Coast Guard's Valdez Marine Safety Office for compliance with applicable
uninspected vessel regulations.
II. DISCUSSION
A. Section 4(a) Applicability
It is undisputed that although the Dr. Jack operates within and outside U.S. territorial
waters, it was, at the time of the alleged violations, located inside the U.S. territorial waters
appurtenant to Valdez, Alaska. We must decide, therefore, whether a vessel located within
these waters is “a workplace in a State” within the meaning of section 4(a) and,
consequently, whether the OSH Act is applicable to the working conditions aboard such a
vessel.5

3
A vessel’s inspection classification is unrelated to whether it operates on the high seas (the
area seaward of U.S. territorial waters) or solely in territorial waters.
4
The agreement excludes the section 11(c), 29 U.S.C. § 660(c), prohibition on discrimination
against employees for exercising their rights under the Act, and leaves unresolved any
recordkeeping issues. OSHA issued an internal “instruction” dated November 8, 1996, that
affirms the continued applicability of the MOU to inspected vessels and establishes that
OSHA’s policy is to require recordkeeping for inspected and uninspected vessels. OSHA
Instruction CPL 2-1.20, OSHA/U.S. Coast Guard Authority Over Vessels.
5
Although we presume that OSHA inspected the Dr. Jack while the vessel was docked at port
in Valdez Harbor, which may constitute coastal “inland waters,” see United States v.
(continued...)
 4

   Section 4(a) provides:
   This Act shall apply with respect to employment performed in a workplace in a State,
   the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
   American Samoa, Guam, the Trust Territory of the Pacific Islands, Wake Island,
   Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act,
   Johnston Island, and the Canal Zone. The Secretary of the Interior shall, by
   regulation, provide for judicial enforcement of this Act by the courts established for
   areas in which there are no United States district courts having jurisdiction.

   The Act is otherwise silent as to coverage of vessels at sea.6 The legislative history

is not particularly elucidating, except for a reference to House withdrawal of a proposal that
vessels underway on Outer Continental Shelf Lands7 be excluded from coverage. H.R. Rep.
No. 91-1765, 91st Cong., 2d Sess. 32 (1970), reprinted in Senate Comm. on Labor and
Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and
Health Act of 1970, at 1185 (1971). While in no way dispositive of the issue, the withdrawal
of this proposal indicates that Congress was at least aware of the potential for vessel
coverage, and did not expressly exclude it.
In the absence of clearly stated legislative intent regarding vessel coverage, we
consider whether the open sea8 within the territorial bounds of the United States is deemed,
in any respect, to be within the territorial bounds of the appurtenant state. The Admiralty

5
(...continued)
California, 381 U.S. 139 (1965), we do not rely on that presumption as the record does not
establish the vessel’s precise location.
6
OSHA does regulate health and safety on vessels for longshore and harbor workers engaged
in ship repairing, shipbuilding, and shipbreaking. See § 4(b)(2) of the Act, 29 U.S.C.
§ 653(b)(2); 29 C.F.R. Part 1915.
7
The Outer Continental Shelf (“OCS”) consists of the seabed beyond the area delineated in
the Submerged Lands Act, 43 U.S.C. § 1301. Outer Continental Shelf Lands Act, 43 U.S.C.
§ 1331(a).
8
We use the term “open sea” to refer to the area seaward of coastal inland waters. 43 U.S.C.
§ 1301(c). See also United States v. California, 381 U.S. at 147.
 5

Clause of the Constitution accords to the United States jurisdiction over maritime activities
located on navigable waters in interstate or foreign commerce, “whether or not the particular
body of water is wholly within a state, and whether or not the occurrence or transaction that
is the subject-matter of the suit is confined to one state.” Gilmore and Black, The Law of
Admiralty, 31-32 (2d ed. 1975). See also Pacific Merchant Shipping Ass’n v. Aubry, 918
F.2d 1409, 1420-22 (9th Cir. 1990). Reasoning that criminal acts would go unpunished in
the absence of state law applicability to events occurring on such waters, the Supreme Court
concluded in Manchester v. Massachusetts, 139 U.S. 240 (1891), that “[t]he extent of the
territorial jurisdiction of Massachusetts over the sea adjacent to its coast is that of an
independent nation; and, except so far as has been granted to the United States, this control
remains with the [S]tate.”9 Id. It has since become well-settled that a state may exercise its
police powers over vessels and conduct occurring on the open sea to the extent such action
does not conflict with federal law. See, e.g., Askew v. American Waterways Operators, Inc.,
411 U.S. 325, 328-29 (1973) (Florida regulation of oil spills in territorial waters not per se
preempted by federal regulation); Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 442
(1960) (stating that states may exercise their police power to act in “many areas of interstate
commerce and maritime activities[] concurrent with the [F]ederal [G]overnment,” Court

9
The effect of this holding here is undiminished by the Court’s later caveat that any
indication in Manchester suggesting that “a [s]tate may draw its boundaries as it pleases
within limits recognized by the law of nations regardless of the position taken by the United
States,” would be dictum. United States v. California, 381 U.S. at 168-169. We do not cite
Manchester for the proposition that a state may expand its “traditional international
boundary” in the face of opposition by the United States. 381 U.S. at 168-69. Rather, we
rely on it only to establish that states have historically exercised jurisdiction over appurtenant
waters, at least to the federally mandated territorial boundary of the United States, in matters
that do not conflict with federal regulation.
 6

found permissible Detroit’s Smoke Abatement Code, compliance with which required
structural alterations to appellant’s vessels).10
The Submerged Lands Act, 43 U.S.C. §§ 1301-1315, which establishes the three-mile
seaward boundary of coastal states, 43 U.S.C. § 1312, further suggests that a state’s
boundary extends to the three-mile limit. The purposes of that Act were to “confirm and
establish the titles of the States to lands beneath navigable waters within State boundaries
and to the natural resources within such lands and waters, to provide for the use and control
of said lands and resources, and to confirm the jurisdiction and control of the United States
over the natural resources of the seabed of the Continental Shelf seaward of State
boundaries.” United States v. Louisiana, 363 U.S. 1, 8 (1960). Although the statute applies
by its terms to the lands beneath the waters, it provides for the extension of a state’s seaward
boundary to the three-mile limit, indicating an assumption that a state’s territory does not end
at its coastline. 43 U.S.C.§§ 1301(b), 1311(a), and 1312. Moreover, although the
Submerged Lands Act provides that the United States retains constitutional powers of
regulation and control over commerce, navigation, national defense, and international affairs,
these limitations apply to the submerged lands as well as to the waters. 43 U.S.C. § 1314(a).
Finally, the Supreme Court has decided a number of cases arising under the Submerged
Lands Act in which it referred to the waters located within the three-mile limit as within a
state’s boundary. See Amoco Prod. Co. v. Gambell, Alaska, 480 U.S. 531, 547 (1987)
(stating that Alaska’s boundaries “can be delineated with exactitude” and include territorial
waters, Court noted that under Submerged Lands Act, “the seaward boundary of a coastal
[s]tate extends to a line three miles from its coastline”); United States v. Maine, 469 U.S.

10
We recognize that a state’s geographic boundary is not necessarily defined by the limit of
its power to apply its laws, as there are circumstances when those laws may apply beyond
the state’s territory. See, e.g., Skiriotes v. Florida, 313 U.S. 69, 77-78 (1941) (sovereign
states have power to govern their own citizens’ conduct occurring on high seas); Pacific
Merchant Shipping Ass’n v. Aubry, 918 F.2d 1409 (California overtime pay laws applicable
to seamen and maritime workers on territorial waters and high seas off California coast).
 7

504, 512-13 (1985) (“waters up to three miles seaward of the coastline are also within a
[s]tate’s boundary as part of the 3-mile ring referred to as the marginal sea”); United States
v. California, 436 U.S. 32, 36-37 (1978) (finding that Submerged Lands Act transferred
dominion to California over contested lands and waters situated within the three-mile
marginal sea off the southern California mainland).
We find that the above-referenced authority supports the conclusion that a coastal
state’s boundary has long been commonly understood to extend to the limit of the territorial
sea and, therefore, that this was the likely intent of Congress in drafting section 4(a) of the
OSH Act. Moreover, because the marginal sea extending to the three-mile limit constitutes
United States territory, this interpretation effectuates the clearly expressed intent of Congress
that the statutory purpose of the OSH Act is “to assure so far as possible every working man
and woman in the Nation safe and healthful working conditions” (29 U.S.C. § 651(b)), and
to provide for OSHA coverage as broad as “the authority vested in the Federal government
by the [C]ommerce [C]lause of the Constitution” (Conf. Rep. S. 2193, 91st Cong., 2d Sess.
(1970), Leg. Hist., supra, at 1216). Accordingly, we find that the phrase “in a State” under
section 4(a) of the OSH Act includes the territorial waters adjacent to a state extending out
to the boundary established under the Submerged Lands Act.11 Consequently, we conclude

11
We do not consider whether OSH Act coverage would extend to vessels underway over
OCS lands or beyond, but note that OSHA indicates in its November 8, 1996 instruction (see
note 4, supra) that its jurisdiction ends at the territorial boundary. Consequently, the
Supreme Court’s decision in OCAW v. Mobil Oil Corp., 426 U.S. 407 (1976), is inapposite.
In Mobil, the Court applied a job situs test under the National Labor Relations Act to
determine whether Texas’ right-to-work law prevented application of the collective
bargaining agreement’s union security clause, where eighty to ninety percent of the seamen’s
work was performed on a vessel underway on the high seas, “outside the territorial bounds
of the State of Texas.” 426 U.S. at 410-412, 420-421. The vessels there at issue were
tankers transporting oil from a port in Beaumont, Texas to Providence or New York, a 4 ½
to 5-day trip. The Court’s observation, that the high seas between these locations are not
within the territorial bounds of the State of Texas, does not indicate whether the open sea
within three miles of a state’s coastline is within the territorial bounds of the state.
 8

that OSHA has authority to enforce the OSH Act with respect to vessels that are located in
U.S. territorial waters. Because the Dr. Jack was located within the three-mile territorial
limit of the State of Alaska at the time of the OSHA inspection, the inspection and the
citation were within the confines of OSHA’s statutory jurisdiction.
B. Section 4(b)(1) Preemption
1. Applicable Standard
It is well settled under Commission precedent that in order to preempt OSHA
jurisdiction over a cited working condition, another federal agency must possess the statutory
authority to regulate the cited condition and must also have taken some action to exercise that
authority by promulgating standards or regulations having the force and effect of law.
Alaska Trawl Fisheries, Inc., 15 BNA OSHC 1699, 1703, 1991-93 CCH OSHD ¶ 29,758,
p. 40,449 (No. 89-1192, 1992) (consolidated); Northwest Airlines, Inc., 8 BNA OSHC 1982,
1989-91, 1980 CCH OSHD ¶ 24,751, pp. 30,487-89 (No. 13649, 1980). Where the
employer claiming the exemption satisfies its burden of proving that the other agency has so
exercised its authority, OSHA jurisdiction will be preempted only as to those working
conditions actually covered by the agency regulations. Alaska Trawl, 15 BNA OSHC at
1703-1704, 1991-93 CCH OSHD at p. 40,449. In effect, OSHA’s jurisdiction over the
workplace as a whole is preserved, while the redundant regulation of particular working
conditions proscribed by section (4)(b)(1) is avoided. See Southern Pac. Transp. Co. v.
Usery, 539 F. 2d 386, 391-92 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); Northwest
Airlines, Inc., 8 BNA OSHC at 1989-90, 1989-90 CCH OSHD at p. 30,488.
Originally, the Commission had indicated that it deemed jurisdiction over the working
conditions of seamen to remain with the Coast Guard after passage of the Act.12 In 1981,
however, it rejected that view in Puget Sound Tug & Barge, concluding that the Coast
Guard's authority to regulate the occupational safety and health of seamen should be

See T. Smith & Son, Inc., 2 BNA OSHC 1177, 1973-74 CCH OSHD ¶ 17,106 (No. 2240,
12

1974).
 9

governed by the same preemption standard as any other federal agency with authority to
regulate employee safety and health, and that no industry-wide exemption from OSHA
regulations existed for the cited inspected vessels. 9 BNA OSHC 1764, 1775-1776, 1981
CCH OSHD ¶ 25,373, pp. 31,594-95 (No. 76-4905, 1981) (consolidated). Applying this
standard in Alaska Trawl Fisheries, Inc., the Commission found that in the absence of
relevant Coast Guard regulations, OSHA jurisdiction over fish processing work performed
on uninspected factory ships was not preempted. 15 BNA OSHC at 1704, 1991-93 CCH
OSHD at p. 40,450. The Commission distinguished Dillingham Tug & Barge Corp,13 a prior
decision in which Coast Guard regulations were found to preempt OSHA jurisdiction over
mooring line operations, finding that Dillingham involved a sailor engaged in the operation
of a ship, “the traditional area of Coast Guard expertise.” Alaska Trawl, 15 BNA OSHC at
1704-1705, n.10, 1991-93 CCH OSHD at p. 40,450 n. 10. The Alaska Trawl decision
dismissed as dictum any implication that Dillingham created an industry-wide exemption,
as the Coast Guard’s regulations applied generally to the cited condition and would have
preempted OSHA jurisdiction even absent such an exemption. Id.
Here, the cited working conditions affect the safety and health of seamen engaged in
tugboat operations that are apparently routine, though not plainly navigational. While such
conditions may be amenable to Coast Guard regulation, they do not fall within the
“traditional area of Coast Guard expertise” that was dispositive of OSHA preemption in
Dillingham. Absent an industry-wide exemption, therefore, OSHA jurisdiction would be
preempted only if the Coast Guard has specifically regulated the cited conditions.
2. Coast Guard Uninspected Vessel Regulations
We are aided in our consideration of whether applicable Coast Guard regulations
preempt OSHA jurisdiction in this case by the Coast Guard’s amicus brief, to which
Commission precedent supports according considerable weight.

13
10 BNA OSHC 1859, 1982 CCH OSHD ¶ 26,166 (No. 77-4143, 1982).
 10

   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. [Citation omitted.] While such statements by a federal
   agency are not controlling, the [C]ommission will limit its inquiry to determining
   whether the statute reasonably supports the agency's assertions.

Alaska Trawl Fisheries, Inc., 15 BNA OSHC at 1703, 1991-93 CCH OSHD ¶ at pp. 40,448-
49.
Simply stated, the Coast Guard unequivocally disclaims comprehensive regulation of
uninspected vessels generally, regulation of the cited conditions, and statutory authority to
promulgate such regulations. Overall, the Coast Guard describes its safety standards
applicable to uninspected vessels as “minimal.” It asserts that its authority to regulate these
vessels is, in relevant part, limited solely to those areas delineated in 46 U.S.C. Chapter 41,
which provides for regulation concerning (a) number, type and size of fire extinguishers; (b)
type and number of life preservers; (c) flame arrestors, backfire traps, or similar devices on
vessels with gasoline engines; (d) ventilation of engine and fuel tank compartments; and (e)
number and types of alerting and locating equipment for vessels on the high seas. The Coast
Guard describes the purpose of such regulations as “protect[ing], in the event of an
emergency, individuals on board and . . . ensur[ing] the safe operation of the vessel,” and
contrasts this limited authority with the comprehensive regulation of inspected vessels
authorized under 46 U.S.C. § 3306(a) (regulation of inspected vessels).
Moreover, the Coast Guard notes that broader regulation is not evidenced by the
provisions concerning the seaworthiness of vessels, load line stability, or seamen licensing,
nor by the Valdez Marine Safety Office uninspected vessel examination procedures. Though
applicable to uninspected vessels, the Coast Guard does not enforce the seaworthiness
requirement of 46 U.S.C. § 10902(a)(1).14 While the Coast Guard does enforce the load line

14
The warranty of seaworthiness is judicially enforceable only through the appropriate
federal district court or, where no such court is held at the vessel’s location, a judge or justice
of the peace. 46 U.S.C. § 10902(a)(1).
 11

stability regulations (46 C.F.R. Table 24.05-1) applicable to the Dr. Jack, it contends that
their purpose in ensuring the safety of the vessel and crew does not pertain to the type of
working conditions cited by OSHA. Similarly, with respect to seamen licensing, the Coast
Guard acknowledges that the minimum competency standards required of seamen are
generally designed to promote the safe operation of vessels, but asserts that they are not
otherwise directly related to the safety and health of the crew's working conditions. Finally,
the Coast Guard describes the Valdez Marine Safety Office examination procedures as
implementing the Coast Guard's role as the “primary maritime law enforcement agency”
responsible for all United States laws and regulations applicable to vessels operating on
United States navigable waters. Any local examination conducted by the Valdez office
would be motivated by this function, but circumscribed by the Coast Guard's limited
authority to regulate uninspected vessels described above.
a. Confined Space Permit Entry, Machine Guarding and Blood Borne Pathogens
With respect to the confined space permit entry, machine guarding and blood borne
pathogen items cited here, it is apparent that none of the Coast Guard’s uninspected vessel
regulations duplicate those of OSHA. The OSHA confined space permit entry standard
applies to all “confined spaces” and to hazardous atmospheres caused by a broad range of
conditions. See generally 29 C.F.R. §1910.146(b). According to the Coast Guard, its
ventilation regulation pertains only to explosive or flammable gasses contained in engine
spaces or fuel tanks and, accordingly, does not cover most of the conditions regulated by
OSHA. The Coast Guard also states that its limited authority to regulate uninspected vessels
does not include authority to regulate the safe use of machinery on those vessels, except for
the boiler and machinery examination provisions applicable only to vessels which, unlike the
Dr. Jack, are steam propelled. See 46 C.F.R. Table 24.05-1(a), n.8; 46 C.F.R. § 24-20-1.
Moreover, despite any applicability the warranty of seaworthiness may have to the alleged
machine guarding hazards, it is judicially enforced and, therefore, does not preempt OSHA’s
 12

regulations as it is not a standard over which “[an]other Federal agenc[y] . . . exercise[s]
statutory authority.” Finally, the Coast Guard does not regulate blood borne pathogens.
We find that the relevant statutes and pertinent legislative history15 “reasonably
support” the Coast Guard's interpretation of its regulatory authority over uninspected vessels
and its implementing regulations. Alaska Trawl, 15 BNA OSHC at 1703, 1991-93 CCH
OSHD ¶ at pp. 40,448-49. Accordingly, we conclude that the Coast Guard's regulation of
uninspected vessels is insufficient to warrant an “industry-wide” exemption from OSHA
regulation, and that the Coast Guard has conclusively established that none of its regulations
concerning uninspected vessels reasonably pertain to the confined space permit entry,
machine guarding, or blood borne pathogen exposure control plan items contained in the
OSHA citation. These citation items, therefore, are not preempted under section 4(b)(1).

   b. Recordkeeping
   The OSHA recordkeeping item presents a somewhat different inquiry. The cited

recordkeeping regulation16 implements the statutory mandate of section 24(a), 29 U.S.C.

15
See Donovan v. Red Star Marine Services, Inc, 739 F. 2d 774, 777 (2d Cir. 1984), cert.
denied, 470 U.S. 103 (1985) (finding a significant distinction between Coast Guard
regulation of inspected and uninspected vessels, court references several unsuccessful Coast
Guard attempts to obtain from Congress additional regulatory authority over uninspected
vessels).
16
29 C.F.R. § 1904.2(a) provides:
Each employer shall, . . . (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
(continued...)
 13

§ 673(a), which directs the Secretary to “maintain an effective program of collection,
compilation, and analysis of occupational safety and health statistics,” and of section 8(c)(2),
29 U.S.C. § 657(c)(2), which directs the Secretary to issue regulations requiring employers
to maintain accurate records of “work-related deaths, injuries and illnesses.” 29 C.F.R. §
1904.1. The Secretary's efforts in this area, however, are circumscribed by the section 8(d),
29 U.S.C. § 657(d), mandate to minimize the recordkeeping burden on employers and avoid
unnecessary duplication of efforts, as well as the section 24(a) exclusion from statistical
obligations of “employments excluded by section 4 of th[e] Act.”
We are guided by the statutory purpose of the OSHA recordkeeping requirement in
determining whether it is preempted by the Coast Guard’s reporting requirements. See Tri-
State Steel Constr. Co., Inc., 17 BNA OSHC 1769, 1771, 1996 CCH OSHD ¶ 31,145, p.
43,511 (No. 93-0512, 1996) (consolidated) (citing Supreme Court in Chandris v. Latsis, 115
S.Ct. 2172, 2190 (1995), Commission followed well-settled rule of statutory construction
that “statutes are to be construed consistent with their substantial purpose”).17 The
recordkeeping and statistical reports mandated by Congress were motivated by a recognition
that “[f]ull and accurate information is a fundamental precondition for meaningful

16
(...continued)
log and summary shall be completed in the detail provided in the form and
instructions on form OSHA No. 200.
17
Commission precedent includes only a few cases presenting the question of section 4(b)(1)
preemption of recordkeeping, and reflects a lack of consistency and authority on this issue.
See S. Pac. Transp. Co., 2 BNA OSHC 1313, 1974-75 CCH OSHD ¶ 19,054 (No. 1348,
1974), aff'd on other grounds, 539 F.2d 386 (5th Cir. 1975), cert. denied, 434 U.S. 874
(1977) (OSHA recordkeeping preempted by Department of Transportation (“DOT”) accident
reporting for railroad employers); Puget Sound Tug & Barge, 9 BNA OSHC at 1777-1778,
1981 CCH OSHD at p. 31,597 (no preemption of OSHA recordkeeping for seamen employed
on a drill ship); Consol. Rail Corp., 10 BNA OSHC 1706, 1708, 1982 CCH OSHD ¶ 26,082,
pp. 32,827-28 (No. 80-3495, 1982) (overruling S. Pac. Transp. Co. and finding OSHA
recordkeeping for railroad industry not preempted by DOT regulations).
 14

administration of an occupational safety and health program.”18 The adoption of “adequate”
statistical programs was described as “an essential first action under th[e] bill.” Id.
Explicitly included in this mandate were both injury and illness recordkeeping and reporting.
Id. at 156-157. In contrast, the Coast Guard's reporting requirement pertains only to
maritime casualties and accidents, excluding entirely any illness reporting.19 Thus, the scope
of information reported to the Coast Guard by uninspected vessel operators does not satisfy
the statutory purpose of an entire category of information required under the OSHA
statistical program. See S. Pac. Transp., 2 BNA OSHC at 1318-1319, 1974 CCH OSHD at
pp. 22,788-89 (dissenting opinion of Commissioner Cleary). Accordingly, we affirm the
recordkeeping citation concerning occupational illnesses.
We also conclude, however, that injury recordkeeping is sufficiently accomplished
by the Coast Guard’s casualty and accident reporting requirements to warrant preemption of
that portion of the OSHA recordkeeping obligation. Although the Coast Guard does not
require vessel operators to maintain the type of log required by OSHA, the injury reports to
the Coast Guard must be in writing and are presumably available to OSHA upon request.
This conclusion follows long-established Commission precedent holding that “[s]ection
4(b)(1) does not require that another agency exercise its authority in the same manner or in
an equally stringent manner,”20 and effectuates the section 8(d) prohibition on unnecessary
duplication of recordkeeping. Accordingly, we vacate the recordkeeping citation as to
injuries and reduce the penalty by $225, one-half the stipulated amount for the recordkeeping
violation, and assess a total penalty in this case of $3,375.
C. Fifth Circuit Precedent

18
S. Rep. 91-1282, 91st Cong., 2d Sess. 16 (1970), Leg. Hist., supra, at 156.
19
46 C.F.R. §§ 4.03 & 4.05-1.

Mushroom Transp. Co., Inc., 1 BNA OSHC 1390, 1392, 1971-73 CCH OSHD ¶ 16,880,
20

p. 21,591 (No. 1588, 1973). See also Alaska Trawl, 15 BNA OSHC at 1704 n.9, 1991-93
CCH OSHD at p. 40,450 n.9.
 15

   “Where it is highly probable that a case will be appealed to a particular circuit, the

Commission generally has applied the law of that circuit in deciding the case, even though
it may clearly differ from the Commission's law.” See, e.g., D. M. Sabia Co., 17 BNA
OSHC 1413, 1414, 1996 CCH OSHD ¶ 30,930, p. 43,057 (No. 93-3274, 1995), vacated &
remanded on other grounds, 17 BNA OSHC 1680, 1996 CCH OSHD ¶ 31,117 (3rd Cir.
1996). Here, Tidewater's principal office is located in New Orleans and the violations
occurred in Alaska. Accordingly, this case could be appealed by Tidewater to the District
of Columbia Circuit, or by either party to the Fifth or Ninth Circuits.21
The Fifth Circuit has broadly stated that OSHA regulations do not apply to the
working conditions of seamen on vessels in navigation. In Clary v. Ocean Drilling and
Exploration Co., 609 F.2d 1120 (5th Cir. 1980), the court held that evidence of non-
compliance with OSHA regulations could not be introduced to support a negligence action
filed by a seaman under Jones Act22 and maritime law because the OSH Act “does not apply
to the working conditions of seamen on vessels operating on the high seas.” Id. at 1121.
Concluding that application of OSHA regulations was precluded by section 4(b)(1), the court
relied on its view that the Coast Guard’s vessel regulations were extensive and cited then
applicable Commission precedent indicating that the working conditions of seamen were
subject only to Coast Guard regulation. Id. The court found additional support for its
decision in its conclusion that the proffered OSHA regulations pertained to construction
work and shipbuilding, and could not apply to the special purpose drilling vessel there at
issue. Id. In Donovan v. Texaco, Inc., 720 F.2d 825 (5th Cir. 1983), the court concluded
that the Secretary lacked jurisdiction to bring an action under section 11(c) for the retaliatory
discharge of a Coast Guard-licensed engineering officer employed in the defendant's deep
sea fleet. First, the court cited Clary and the Commission's decision in Dillingham in support

21
See OSH Act § 11(a) and (b), 29 U.S.C. § 660 (a) and (b).
22
46 U.S.C. § 688 (provides for damage action by seamen injured in the course of their
employment).
 16

of its conclusion that section 4(b)(1) creates an industry-wide exemption from OSHA
regulation for the working conditions of seamen serving on vessels operating on navigable
waters. Id. at 826. The court also found preemption warranted under section 4(b)(1) based
on its view that the extensive regulations governing the rights and duties of seamen include
“protections paralleling, in some degree, th[ose] accorded complaining landside workers by
the provisions of Section 11(c) of OSHA.'' Id. at 828. Finally, the court considered the
geographic limitation of OSHA coverage contained in section 4(a) and concluded that “[a]
vessel on the high seas is not . . . a ‘workplace [in a State].’”
Here, the OSHA citations indisputably concern the working conditions of seamen on
vessels in navigation and arguably come within the Fifth Circuit's proscription against OSHA
regulation of such workplaces. Nevertheless, with due respect to the court, we find that
Clary and Donovan v. Texaco are sufficiently distinguishable from the case here presented
to have left undecided the precise question of OSH Act applicability to uninspected vessels.23
In neither of the cases considered by the court did it differentiate between the
extensive degree to which the Coast Guard regulates inspected vessels and the minimal
degree to which it regulates those that are uninspected. The vessel classifications in those
cases were not identified, although the court's consideration in Donovan v. Texaco of the
MOU between the Coast Guard and OSHA suggests that the vessel there was inspected. 720
F.2d at 827 n.3. Moreover, the court relied in both cases on Commission precedent,
subsequently overruled, suggesting that OSHA lacks jurisdiction over the working conditions
of seamen. Most significantly in Clary, the court found that the cited OSHA construction
and shipbuilding regulations did not, by their own terms, pertain to the special purpose
drilling vessel on which the injured seaman worked. 609 F.2d at 1122. This fact alone

23
See Southern S.S. v. NLRB, 316 U.S. 31, 42 (1942) (question of applicability of mutiny
statute to seamen aboard a docked vessel unresolved by previous cases finding that such
statute applies to seamen on vessels located in a harbor, because in none of the prior cases
was the vessel tied to a dock).
 17

would have been sufficient to decide the case. See Inspection of Norfolk Dredging Co., 783
F.2d 1526, 1531 n.5 (11th Cir. 1986), cert. denied, 479 U.S. 883; Donovan v. Red Star
Marine Services, Inc., 739 F.2d at 779. Similarly, the court's finding in Donovan v. Texaco,
that the Coast Guard's regulations included protections “parallel” to those contained in
section 11(c), would have been sufficient to dismiss the Secretary's case. See Inspection of
Norfolk, 783 F.2d at 1531; Donovan v. Red Star Marine, 739 F.2d at 778-779.
We also note that other courts of appeal have distinguished Clary and Donovan v.
Texaco from cases involving the application of OSHA regulations to uninspected vessels.
In a case involving crane safety on an uninspected dredge operating in navigable waters off
the coast of Florida, the Eleventh Circuit upheld the validity of an OSHA inspection warrant,
concluding that “the Coast Guard's regulation of safety aboard uninspected vessels is so
circumscribed that it does not preempt OSHA's jurisdiction over crane safety aboard
uninspected vessels . . . .” Inspection of Norfolk, 783 F.2d at 1531-1532.24 Similarly, on
appeal of an unreviewed Administrative Law Judge’s decision in which the judge found that
OSHA lacked jurisdiction to cite an uninspected tugboat operator for non-compliance with
an OSHA noise standard, the Second Circuit concluded that since the Coast Guard does not
regulate noise hazards on uninspected vessels, OSHA may exercise its authority to do so.
Donovan v. Red Star Marine, 739 F.2d at 780. The court particularly noted that “[i]n light
of the extensive tradition of congressional concern for mariners, Congress could not have
intended that employees aboard uninspected vessels be deprived of the protections accorded
the vast majority of American workers by the OSH Act, and those protections offered
employees aboard inspected and certificated vessels.” Id.
Finally, in Donovan v. Texaco, the Fifth Circuit expressed its concern that OSH Act
coverage of seamen’s working conditions would create the anomaly of “steaming in and out

The Eleventh Circuit's decision is particularly noteworthy as it was bound to follow Clary
24

under the Fifth Circuit Court of Appeals Reorganization Act of 1980. Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).
 18

of OSHA coverage” because of the limits of OSHA’s geographic reach under section 4(a).
720 F.2d at 829. To the extent the court was concerned about the possibility of vessels
steaming between OSHA and Coast Guard coverage, and the lack of uniformity and
predictability that would ensue, section 4(b)(1) precludes such a result. As with any
stationary workplace concurrently regulated by OSHA and another federal agency, OSHA
regulations apply only to those working conditions not regulated by the other agency. See,
e.g., Consol. Rail Corp., 16 BNA OSHC 1033, 1993 CCH OSHD ¶ 30,012 (No. 91-3133,
1993) (consolidated). Thus, when a vessel departs U.S. territorial waters, it does not become
subject to Coast Guard regulation of conditions that were covered by OSHA within the three-
mile limit, because OSHA regulations apply only to working conditions not regulated by the
Coast Guard.
Nonetheless, it is true that a vessel might steam in and out of OSHA coverage as it
enters and departs U.S. territorial waters. Some vessel owners would be required to comply
with OSHA regulations while underway within territorial waters but may disregard them
upon entering the high seas beyond the three-mile limit. We emphasize, however, both the
limit of this anomaly and the logic of tolerating it. Inspected vessels subject to the MOU
between OSHA and the Coast Guard are essentially regulated only by the Coast Guard and,
consequently, would not steam in and out of OSHA coverage.25 As to the uninspected fleet,
OSHA provides the only significant regulation of non-navigational working conditions for
seamen employed on these vessels. Absent OSH Act coverage, these conditions would be
completely unregulated.
Moreover, despite the obvious appeal of a universal system of vessel regulation, some
lack of uniformity has been tolerated even within U.S. territorial waters. Courts have
consistently upheld the exercise of a locality’s police power to regulate vessels located only

25
As mentioned in note 4, supra, the MOU excludes the prohibition on discrimination and
leaves unresolved any recordkeeping issues. OSHA’s November 8, 1996 instruction
indicates that OSHA will enforce recordkeeping obligations on inspected vessels.
 19

temporarily within its territorial waters where those regulations do not conflict with federal
law. See e.g., Askew v. American Waterways Operators, Inc., 411 U.S. 325 (upholding
Florida’s police power over sea-to-shore pollution, and finding Florida Oil Spill Prevention
and Pollution Control Act which requires, inter alia, that vessels maintain containment gear
and other equipment for the prevention of oil spills in the State’s territorial waters, not per
se preempted by federal regulation); Huron Portland Cement Co. v. Detroit, 362 U.S. at 442
(vessels used to transport cement from Michigan port to ports located in various other states
required to comply with Detroit’s Smoke Abatement Code which required structural
alterations to vessels); Kelly v. Washington, 302 U.S. 1 (1937) (upholding those provisions
of State vessel inspection code not in conflict with federal requirements); Chevron U.S.A.,
Inc. v. Hammond, 726 F.2d 483 (9th Cir. 1984), cert. denied 471 U.S. 1140 (1985)
(upholding Alaska statute governing discharge of oil tanker ballast in territorial waters).26
In light of this authority, we find that OSHA jurisdiction over vessels located only
temporarily within U.S. territorial waters is consistent with a locality’s ability to exercise its
police power over vessels plying the waters appurtenant to its shore.
We do not suggest, however, that OSH Act applicability to these vessels is necessarily
the most desirable approach to achieving workplace safety. We realize that OSHA does not
regularly inspect seagoing vessels for compliance with the Act, nor has it indicated any
interest in dedicating its limited resources to promulgating regulations specifically applicable
to such workplaces. We are also particularly mindful of the complexities and anomalies that
may inure to illness recordkeeping on a mobile workplace that may enter and exit the

26
The Supreme Court’s admonitions concerning uniformity and predictability in OCAW v.
Mobil, and Chandris v. Latsis, are inapposite, as they were derived from the purposes and
policies of the statutes being enforced, and involved conflicts of laws issues. Here, there is
no conflict of laws because the OSH Act does not apply to any condition regulated by the
Coast Guard, and because the OSH Act is a federal law which applies uniformly to vessels
located within all U.S. territorial waters. Moreover, OSH Act applicability to these vessels
furthers the statutory purpose of providing safe and healthful workplaces to all men and
women within the Nation.
 20

geographic reach of OSHA’s jurisdiction in the course of a single illness, and recognize the
inefficiency inherent in dividing the recordkeeping obligation between OSHA and the Coast
Guard. It may be that Coast Guard regulation of all health and safety aboard vessels would
best serve the public interest. In our view, however, that is not what the present state of the
law and regulation provides. Since we find that Congress has accorded to OSHA regulatory
authority over vessels underway in U.S. territorial waters, OSHA may exercise that authority
unless and until it is rescinded by Congress or is preempted by applicable Coast Guard
regulations.

                                                      Stuart E. Weisberg
                                                      Chairman




                                                      Velma Montoya
                                                      Commissioner




                                                      Daniel Guttman
                                                      Commissioner

Dated: