A recent comment in the September issue of the National Fisherman (page 18) reminded us that OSHA regulations do indeed apply aboard uninspected vessels, provided that there is an employment condition, and the boat is within the geographic jurisdiction of OSHA.
This issue has been hotly contested in the courts over the years, the courts initially holding that the Coast Guard had jurisdiction over uninspected vessels, and then gradually swinging to the opposite view, that indeed, on uninspected vessels, the Coast Guard had not preempted OSHA. See Red Star Marine Services, Donovan v. 739 F.2d 774 (2nd Cir. 1984, cert. denied, 470 US 1003 (1985) and In re Inspection of Norfolk Dredging Co., 783 F.2d 1526 (11th Cir.) reh. den., 790 F.2d 88, cert. denied, 107 S.Ct 271 (1986).
The analysis of who has exclusive jurisdiction of the enforcement of safety and health begins with the 4(b)(1) clause of the Occupational Safety and Health Act which holds that :
Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal Agencies . . exercise statutory authority to proscribe or enforce standards or regulations affecting occupational safety or health.
The Congressional debates of the bills from which this legislation arose show the purpose of this provision was to prevent employers from being "caught in the cross-fire between conflicting [Federal] safety requirements and/or enforcement proceedings." Leg. Hist. at 1223.
The first step in evaluating whether or not OSHA authority is precluded is to see whether another Federal agency has jurisdiction. Agency power flows from the legislation passed by Congress. Without statutory (legislative) authority, an agency does not have jurisdiction. However, the more common question is whether or not the authority granted by a specific statute is broad enough, or intended to include the regulation of occupational safety or health matters. Such determinations are often left to the courts to decide.
This was addressed by the Court of Appeal for the District of Columbia in Organized Migrants in Community Action, Inc 520 F.2nd 1161 (1975). At issue was whether the Federal Environmental Pesticide Control Act of 1972 granted EPA jurisdiction over the safety and health matters of farm employees. The appellants argued the primary purpose of the Act was to protect the environment, not the farm workers. The court held that the primary purpose of legislation is not relevant in determining whether or not another agency had safety and health jurisdiction. It looked at the legislative history and the Act itself and concluded that the Act did include the protection of the farm worker and thus granted EPA the jurisdiction over health and safety matters.
Usually the issue is whether or not a Federal agency has exercised jurisdiction. A plain reading of the OSH Act would indicate that an exercise of jurisdiction was required before OSHA's authority could be preempted. The legislative history of the Act also revealed that it was required that an agency do something more than merely possess the statutory authority. During consideration of the bill in the House, the following discussion took place:
Mr. Erlenborn . . . If there is authority under Federal law, but it has [not] yet been put into effect and it is not being exercised by the executive agency because they have no rules or regulations, then until they do adopt rules and regulations and exercise that authority - then this [bill] does apply; is that correct?
Mr. Daniels. Yes, that would be correct. The gentleman has placed his finger on the key word - and the key word is "exercise".
If an agency fails to pursue the law and exercise the authority that has been given it, then this law will step in.
Mr. Erlenborn. In other words, the mere existence of statutory authority does not exempt an industry? It is the exercise of that authority pursuant to the statute that does exempt it; is that correct?
Mr. Daniels. That is correct. Leg. Hist. at page 1019.
It is now well settled that some sort of action on the part of the other Federal agency is required to exempt an industry from OSHA jurisdiction.
This involves the issuance of final regulations. The procedures for this are set forth in the Administrative Procedures Act, 5 USC 551 et seq. and involve notice to the public and an opportunity for the public to comment on the proposal.
The question of whether an agency with jurisdiction can "exercise" that jurisdiction so as to exempt a "working condition" from OSHA by issuing an Advanced Notice of Proposed Rulemaking (ANPRM) or a Notice of Proposed Rules Making (NPRM) has been raised several times.
One should clearly understand what an ANPRM and a NPRM are. An ANPRM is an inquiry of the public (see Document Drafting Handbook published by the Federal Register). It sets forth conceptual areas in which the publishing agency may regulate, and poses questions to the public at large seeking information and opinions. It does not set forth specifics, or proposed regulations; this is the difference between it and the NPRM. An ANPRM is not required by the Administrative Procedures Act as a preliminary step in rulemaking.
On the other hand, a NPRM is required by the Administrative Procedures Act as the "notice" part of the "notice and comment" method of issuing rules under 5 USC 553. The NPRM sets forth the proposed rule. It is not conceptual in nature, but detailed.
With one early exception, the courts have held that an ANPRM is not an exercise of jurisdiction. However, we were unable to find any case on whether or not a NPRM was considered an "exercise". It is OSHA's position, and one which we think is quite correct, that since the ANPRM and NPRM are both proposals and have no binding effect on the public, that until such time as these proposals are published as final rules and become effective, OSHA's authority is not precluded by another agency.
Early attempts were made by various employers to claim total industry exemption when an agency other than OSHA had regulated in some, but not all, of the areas or working conditions. In Southern Ry. Co. v. Occupational Saf. & H. Review Comm. 539 F.2d 335 (1976) the Fourth Circuit focused on the term "working conditions" contained in the 4(b)(1) exemptive section of the Act and defined it to mean "the environmental area in which an employee customarily goes about his daily tasks".
Thus, where an agency has prescribed standards effecting health and safety in such an area, the authority of OSHA is foreclosed. In other areas, OSHA retains its authority. This decision effectively overturned the OSH Review Commissions earlier decisions which espoused the "nook and cranny" theory that OSHA could regulate any standard which another agency had not promulgated.
After this dissertation on the history and meaning of the exemption clause in the Occupational Safety and Health Act, where does that leave the fishing industry?
OSHA and the Coast Guard entered into a memorandum of understanding published in the Federal Register on 18 March 1983, page 11550 in which it was agreed that the Coast Guard had preempted OSHA with respect to "inspected vessels." The term "inspected vessels" varies depending on the usage and the applicable law. However, if a Coast Guard Certificate of Inspection is required, it is an "inspected vessel" and regulated by the Coast Guard for the purpose of occupational safety and health.
Fishing industry vessels are not currently "inspected vessels" as defined by the Coast Guard. Therefore the Coast Guard has not preempted OSHA with regard to this class of vessel as of this date. OSHA has for years claimed it had jurisdiction over uninspected vessels such as tugs and fishing industry vessels. OSHA [Seattle] Regional Instruction CPL 2.6 dated May 19 1982. However, due to a shortage of personnel, they normally did not exercise their authority.
However, The Commercial Fishing Industry Vessel Safety Act will probably change that, at least with respect to the class of fishing industry vessels that are regulated. An ANPRM was issued by the Coast Guard on 29 December 1988 setting forth conceptual proposals.
The next stage will be the Notice of Proposed Rulemaking which the Coast Guard has indicated it expects to publish in November 1989. However, that date is considered overly optimistic. It will be interesting to see the degree to which the Coast Guard intends to regulate the safety and health of fishing industry vessel crews, and to what class of vessels this applies. It should be emphasized that before the Coast Guard preempts OSHA, not only must it have the legislative authority, but it must have final rules in effect and be implementing them. Once they regulate some of the aspects of safety and health, they will most probably preempt OSHA for all occupational safety and health areas aboard fishing vessels. Thus the Coast Guard rules will be the only ones which apply.
By letter of 28 June 1989, Thor Lassen, Government Relations person of the National Fisheries Institute urged the Coast Guard to advise OSHA of its regulatory authority over "uninspected" commercial fishing industry vessels. From the foregoing discussion, it is clear that until the final rulemaking is completed, the Coast Guard has not preempted OSHA since jurisdiction alone is insufficient to trigger the 4(b)(1) clause. It would also be ill advised to assume the NPRM would be the "exercise" of jurisdiction which the 4(b)(1) clause anticipated since to do so would leave the fishing industry with no regulation until the effective date of the final Coast Guard regulations.
The OSHA National Headquarters issued a memorandum on 5 April 1989 to reiterate its existing policy and clarify the status of congressional legislative action with respect to compliance authority within the fishing industry. It stated that "when U. S. Coast Guard regulations . . . are promulgated and effective, this office will provide notification of revised policy and procedures with respect to related compliance authority" (underscoring added). Some authorities expect that will not be until 1992 because of the controversy surrounding the proposed regulations.
Until then, the fishing industry which has the poorest safety record of any industry will have to live with OSHA and abide by their regulations.