No. 00-927 

In the Supreme Court of the United States 

ELAINE L. CHAO, SECRETARY OF LABOR, 
PETITIONER 

v. 

MALLARD BAY DRILLING, INC. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

BRIEF FOR THE PETITIONER 

JUDITH E. KRAMER 

Acting Solicitor of Labor 

ALLEN H. FELDMAN 

Associate Solicitor 

NATHANIEL I. SPILLER 

Deputy Associate Solicitor 

ELLEN L. BEARD 
EDWARD D. SIEGER 

Attorneys 
Department of Labor 
Washington, D.C. 20210 

ROSALIND A. KNAPP 

Acting General Counsel 

RADM JAMES S. CARMICHAEL 

Chief Counsel 
United States Coast Guard 
Department of 

Transportation 
Washington, D.C. 20590 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

MATTHEW D. ROBERTS 

Assistant to the Solicitor 

General 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Whether the United States Coast Guard has “exer- 
cise[d] statutory authority to prescribe or enforce 
standards or regulations affecting occupational safety 
or health” concerning the “working conditions of em- 
ployees” (29 U.S.C. 653(b)(1)) on “uninspected ves- 
sel[s]” (46 U.S.C. 2101(43)) so as to displace application 
of the Occupational Safety and Health Act of 1970, 
29 U.S.C. 651 et seq. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statutory provision involved ....................................................... 
2 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
9 

Argument: 

The Occupational Safety and Health Act applies to the 

working conditions in this case because the Coast 

Guard has not exercised statutory authority to 

regulate them ......................................................................... 

14 

A. The OSH Act is displaced only when another 

federal agency has exercised its statutory 

authority with respect to the working conditions 

at issue .............................................................................. 

16 

B. No Coast Guard regulations cover the working 

conditions in this case, and the Coast Guard has 

expressed no policy against imposing regulatory 

requirements ................................................................... 24 

C. The Secretary’s interpretation of Section 4(b)(1) 

best furthers the OSH Act’s purpose and is 

entitled to deference ...................................................... 
32 

Conclusion ....................................................................................... 41 

TABLE OF AUTHORITIES 

Cases: 

American Petroleum Inst. v. OSHA, 581 F.2d 493 

(5th Cir. 1978), aff ’d, 448 U.S. 607 (1980) .......................... 

35 

Association of Am. R.R. v. Department of Transp., 

38 F.3d 582 (D.C. Cir. 1994) ....................................... 

18, 29, 40 

Baltimore & Ohio R.R. v. OSHRC, 548 F.2d 1052 

(D.C. Cir. 1976) ...................................................... 17, 19, 35, 36 

(III) 

IV 

Cases—Continue: Page 

Bethlehem Steel Co. v. New York State Labor 

Relations Bd., 330 U.S. 767 (1947) ................................. 

18, 23 

Cearley v. General Am. Transp. Corp., 186 F.3d 887 

(8th Cir. 1999) ......................................................................... 

25 

Chevron U.S.A. Inc. v. Natural Res. Defense 

Council, Inc., 467 U.S. 837 (1984) ............................ 

13, 37, 38 

Clary v. Ocean Drilling & Exploration Co.: 

609 F.2d 1120 (5th Cir. 1980) ............................................... 

8, 9 

429 F. Supp. 905 (W.D. La. 1977) ........................................ 

9 

Columbia Gas of Pa., Inc. v. Marshall, 636 F.2d 

913 (3d Cir. 1980) ............................................. 

18, 19 25, 31, 35 

Corning Glass Works v. Brennan, 417 U.S. 188 

(1974) ......................................................................... 

11, 21, 26, 27 

Donovan v. Texaco, Inc.: 

720 F.2d 825 (5th Cir. 1983) .............................. 

8, 9, 15, 21, 36 

535 F. Supp. 641 (E.D. Tex. 1982) ....................................... 

9 

Donovan v. Red Star Marine Servs., Inc., 739 F.2d 

774 (2d Cir. 1984), cert. denied, 470 U.S. 1003 (1985) ...... 

17, 

18, 19, 25, 29, 34, 35 
Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 

203 (1964) ................................................................................. 

26 

Fidelity Fed. Sav. & Loan v. De La Cuesta, 458 

U.S. 141 (1982) ........................................................................ 

23 

Fort Stewart Schs. v. Federal Labor Relations 

Auth., 495 U.S. 641 (1990) ............................................... 

25, 26 

Gutierrez v. Ada, 528 U.S. 250 (2000) ................................. 

28 

Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 

(1997) ........................................................................................ 31 

Herman v. Tidewater Pac., Inc., 160 F.3d 1239 

(9th Cir. 1998) ........................................................ 

19, 32, 34, 37 

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) ................... 

39 

Inspection of Norfolk Dredging Co., In re, 783 F.2d 

1526 (11th Cir.), cert. denied, 479 U.S. 883 (1986) ....... 

16, 18, 

19, 25, 34 

Manning v. American Airlines, Inc., 329 F.2d 32 
(2d Cir.), cert. denied, 379 U.S. 817 (1964) ........................ 26 

V 

Cases—Continue: Page 

Martin V. OSHRC, 499 U.S. 144 (1991) ...................... 

14, 33, 

37, 38, 39 

NLRB v. Town & Country Elec., Inc., 516 U.S. 85 
(1995) ........................................................................................ 39 

Norfolk S. Ry. v. Shanklin, 529 U.S. 344 

(2000) ........................................................................................ 23 

Organized Migrants in Cmty. Action, Inc. v. 

Brennan, 520 F.2d 1161 (D.C. Cir. 1975) .......................... 

35 

PBR, Inc. v. Secretary of Labor, 643 F.2d 890 

(1st Cir. 1981) ......................................................... 

18, 19, 25, 35 

Pennsylvania Elec. Co. v. FMSHRC, 969 F.2d 1501 

(3d Cir. 1992) ........................................................................... 

30 

Reich v. D.M. Sabia Co., 90 F.3d 854 (3d Cir. 

1996) ......................................................................................... 38 

Reich v. Muth, 34 F.3d 240 (4th Cir. 1994) .................... 

31, 35 

Sealed Case, In re, 223 F.3d 775 (D.C. Cir. 2000) .............. 

38 

Secretary of Labor v. Alaska Trawl Fisheries Inc., 

15 O.S.H. Cas. (BNA) 1699 (1992) ................................... 

34, 37 

Southern Pac. Transp. Co. v. Usery, 539 F.2d 386 

(5th Cir. 1976), cert. denied, 434 U.S. 874 (1977) ............. 

17, 

18, 19, 25 

Southern Ry. Co. v. OSHRC, 539 F.2d 335 
(4th Cir.), cert. denied, 429 U.S. 999 (1976) ................. 

17, 18, 

19, 20, 24, 25, 28, 35, 36 
Taylor v. Moore-McCormack Lines, Inc., 621 F.2d 

88 (4th Cir. 1980) .................................................................... 

31 

U.S. Air, Inc. v. OSHRC, 689 F.2d 1191 (4th Cir. 

1982) ..................................................................................... 31, 36 

United States v. Locke, 529 U.S. 89 (2000) .............. 

10-11, 23 

Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980) ............... 

33 

Statutes and regulations: 

Act of June 4, 1956, ch. 350, § 3, 70 Stat. 225 ........................ 

9 

Act of May 28, 1908 (Seagoing Barge Act), ch. 212, 

§ 10, 35 Stat. 428 ..................................................................... 9 

VI 

Statutes and regulations—Continued: 
Page 

Occupational Safety and Health Act of 1970, 29 U.S.C. 

651 et seq. ............................................................................... 

2, 14 

29 U.S.C. 651(b) .............................................. 

2, 10, 14, 17, 33 

29 U.S.C. 651(b)(1) ............................................................ 

27 

29 U.S.C. 651(b)(2) ............................................................ 

27 

29 U.S.C. 651(b)(4) ............................................................ 

27 

29 U.S.C. 652(8) ................................................................. 

28 

29 U.S.C. 653(a) .................................................. 

2, 7, 8, 14, 34 

29 U.S.C. 653(b)(1) (§ 4(b)(1)) .................................... 

passim 

29 U.S.C. 653(b)(3) ........................................................ 

36, 40 

29 U.S.C. 654(a)(1) ............................................................. 
2, 7 

29 U.S.C. 654(a)(2) ............................................................. 
2 

29 U.S.C. 661(j) .................................................................. 
8 

29 U.S.C. 670(c) .................................................................. 
27 

29 U.S.C. 670(d)(4)(C) (Supp. V 1999) ........................... 
28 

Ports and Waterways Safety Act of 1972, Tit. I, 
33 U.S.C. 1221 et seq. ......................................................... 
11, 23 

5 U.S.C. 7103(a)(14) .................................................................. 
26 

14 U.S.C. 2 .................................................................................. 
3 

33 U.S.C. 1509 (1994 & Supp. IV 1998) ................................. 
5 

43 U.S.C. 1333 .......................................................................... 
5, 31 

46 U.S.C. 2101 et seq. (1994 & Supp. IV 
1998) (Subtit. II)...................................................................... 
4 

46 U.S.C. 2101 (1994 & Supp. IV 1998) ................................. 
4 

46 U.S.C. 2101(10) ..................................................................... 
33 

46 U.S.C. 2101(43) ................................................................... 
4, 14 

46 U.S.C. 3301 (1994 & Supp. IV 1998) ............................... 
4, 33 

46 U.S.C. 3301(6) ....................................................................... 
9 

46 U.S.C. 3306 (1994 & Supp. IV 1998) ................................. 
5 

46 U.S.C. 3306(a) (1994 & Supp. IV 1998) ............................ 
4 

46 U.S.C. 3703 ............................................................................ 
5 

46 U.S.C. 4102 (1994 & Supp. IV 1998) ............................. 
4, 5, 9 

46 U.S.C. 4102(d) ....................................................................... 
31 

46 U.S.C. 4302 ............................................................................ 
32 

46 U.S.C. 4502(a)(4) .................................................................. 
32 

46 U.S.C. 6101-6104 .................................................................. 
5 

46 U.S.C. 6301-6308 (1994 & Supp. IV 1998) ........................ 
5 

46 U.S.C. 12102 (1994 & Supp. IV 1998) ............................... 33 

VII 

Statute and regulations—Continued: 
Page 

49 U.S.C. 108(b) ......................................................................... 
4 

29 C.F.R.: 

Section 1910.120(q)(1) ........................................................... 

7 

Section 1910.120(q)(6) ........................................................... 
7 

Section 1975.1(b) ............................................................ 
3, 16, 39 

Section 1975.3(c) .................................................. 
3, 16, 17, 35, 39 

33 C.F.R.: 

Ch. I, Subch. N ....................................................................... 

5, 31 

Section 175.201 ................................................................... 
32 

Sections 183.601-183.630 .................................................. 
32 

46 C.F.R. Ch. I ........................................................................... 
4 

Pt. 1: 

Section 1.46(b) .................................................................... 

4 

Pt. 4 ........................................................................................... 
5 

Section 4.05-1(a)(6) ............................................................ 
34 

Pts. 24-26 ................................................................................. 
5 

Pt. 25: 

Sections 25.01 et seq. ......................................................... 

9 

Section 25.40 ....................................................................... 
31 

Pt. 26: 

Sections 26.01 et seq. ......................................................... 

9 

Pt. 28: 

Section 28.340 ..................................................................... 

31 

Pt. 197, Subpt. B .................................................................... 
5 

Miscellaneous: 

Black’s Law Dictionary (6th ed. 1990) ................................. 

28 

116 Cong. Rec. 38,381 (1970) ................................................... 
20 

42 Fed. Reg. (1977): 

p. 37,650 ................................................................................... 

38 

p. 37,654 ................................................................................... 
38 

48 Fed. Reg. (1983): 

p. 11,365 ................................................................................... 

5 

p. 30,886 ............................................................................... 
38, 40 

p. 30,887 ............................................................................... 
38, 40 

57 Fed. Reg. (1992): 

p. 38,102 ................................................................................... 

40 

p. 38,123 ................................................................................... 
40 

p. 38,132 ................................................................................... 40 

VIII 

Miscellaneous—Continued: Page 

59 Fed. Reg. (1994): 

p. 30,879 ................................................................................... 

40 

pp. 30,880-30,881 .................................................................... 
40 

62 Fed. Reg. (1997): 

p. 40,142 ................................................................................... 

38 

p. 40,154 ................................................................................... 
38 

65 Fed. Reg. 50,017 (2000) ....................................................... 
2 

H.R. 843, 91st Cong., 1st Sess. (1969) .................................... 
20 

H.R. 4294, 91st Cong., 1st Sess. (1969) .................................. 
20 

H.R. 13373, 91st Cong., 1st Sess. (1969) ............................... 
20 

H.R. 16785, 91st Cong., 2d Sess. (1970) ................................. 
21 

H.R. Conf. Rep. No. 1765, 91st Cong., 2d Sess. 
(1970) ........................................................................................ 21 

OSHA Instr. CPL 2-1.20(R) (Nov. 8, 1996) .......................... 

6 

S. 2788, 91st Cong., 1st Sess. (1969) ....................................... 
20 

S. 2193, 91st Cong., 2d Sess. (1970) .................................... 
20, 21 

S. Rep. No. 1282, 91st Cong., 2d Sess. (1970) ................... 
21, 29 

Senate Comm. on Labor and Public Welfare, 92d Cong., 
1st Sess., Legislative History of the Occupational 
Safety and Health Act of 1970 (Comm. Print 1971) .... 
20, 21 

2 United States Dep’t of Labor, Dictionary of Occupa- 
tional Titles (3d ed. 1965) ..................................................... 
26 

Webster’s Third New International Dictionary 
(1969) ........................................................................................ 25 

In the Supreme Court of the United States 

No. 00-927 

ELAINE L. CHAO, SECRETARY OF LABOR, 
PETITIONER 

v. 

MALLARD BAY DRILLING, INC. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

BRIEF FOR THE PETITIONER 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-7a) 
is reported at 212 F.3d 898. The decision and order of 
the Occupational Safety and Health Review Commis- 
sion (Pet. App. 8a-19a, 20a-21a) are unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
June 2, 2000. A petition for rehearing was denied on 
August 8, 2000 (Pet. App. 66a-67a). On October 27, 
2000, Justice Scalia extended the time within which to 
file a petition for a writ of certiorari to and including 
December 6, 2000. The petition was filed on December 
6, 2000, and was granted on February 20, 2001. 121 
S. Ct. 1076. The jurisdiction of this Court rests on 28 
U.S.C. 1254(1). 

(1) 

2 

STATUTORY PROVISION INVOLVED 

Section 4(b)(1) of the Occupational Safety and Health 
Act of 1970, 29 U.S.C. 653(b)(1), provides, in relevant 
part: 

Nothing in this [Act] shall apply to working condi- 
tions of employees with respect to which other 
Federal agencies * * * exercise statutory 
authority to prescribe or enforce standards or 
regulations affecting occupational safety or health. 

STATEMENT 

1. a. The Occupational Safety and Health Act of 1970 
(OSH Act or Act), 29 U.S.C. 651 et seq., was enacted “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). Each employer covered by the Act 
has a “general duty” to provide to “each of his employ- 
ees employment and a place of employment which are 
free from recognized hazards that are causing or are 
likely to cause death or serious physical harm to his 
employees.” 29 U.S.C. 654(a)(1). Each employer must 
also comply with applicable occupational safety and 
health standards promulgated by the Secretary of 
Labor. 29 U.S.C. 654(a)(2). The Secretary has dele- 
gated her authority under the OSH Act to the Assis- 
tant Secretary for Occupational Safety and Health, who 
heads the Occupational Safety and Health Administra- 
tion (OSHA). See 65 Fed. Reg. 50,017 (2000). 

The OSH Act applies to “employment performed in a 
workplace in a State,” as well as in specified territories 
and “Outer Continental Shelf lands.” 29 U.S.C. 653(a). 
When the Act was passed, certain federal agencies 
already had statutory authority to regulate the occupa- 
tional safety and health of employees in particular 

3 

fields, such as transportation and mining. To avoid 
duplication of effort, Congress provided in Section 
4(b)(1) of the Act that “[n]othing 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.” 
29 U.S.C. 653(b)(1). 

OSHA regulations explain that: 

Section 4(b)(1) of the Act provides that the statute 
shall be inapplicable to working conditions to the 
extent they are subject to another Federal agency’s 
exercise of different statutory authority affecting 
the occupational safety and health aspects of those 
conditions. Therefore, a person may be considered 
an employer covered by the Act, and yet standards 
issued under the Act respecting certain working 
conditions would not be applicable to the extent 
those conditions were subject to another agency’s 
authority. 

29 C.F.R. 1975.1(b). The regulations further explain 
that, in enacting Section 4(b)(1), “Congress did not 
intend to grant any general exemptions under the Act; 
its sole purpose was to avoid duplication of effort by 
Federal agencies in establishing a national policy of 
occupational safety and health protection.” 29 C.F.R. 
1975.3(c). 

b. The United States Coast Guard “administer[s] 
laws and promulgate[s] and enforce[s] regulations for 
the promotion of safety of life and property on and un- 
der the high seas and waters subject to the jurisdiction 
of the United States covering all matters not specifi- 
cally delegated by law to some other executive depart- 
ment.” 14 U.S.C. 2. The extent of the Coast Guard’s 

4 

statutory authority over a vessel depends in large part 
on whether the vessel is “inspected” or “uninspected.” 
See generally 46 U.S.C. 2101 et seq., Subtit. II (1994 & 
Supp. IV 1998) (vessels and seamen). “Inspected” ves- 
sels, listed in 46 U.S.C. 3301 (1994 & Supp. IV 1998), 
include, for example, freight vessels, passenger vessels, 
seagoing motor vessels, tank vessels and certain types 
of barges. See also 46 U.S.C. 2101 (1994 & Supp. IV 
1998) (definitions of different vessel types). “Unin- 
spected vessel[s]” are vessels not subject to inspection 
under Section 3301 that are not recreational vessels. 46 
U.S.C. 2101(43). 
“[T]o secure the safety of individuals and property on 
board” inspected vessels, the Secretary of Transporta- 
tion has comprehensive rulemaking authority over 
those vessels, including their design, construction, 
alteration, repair, and operation. 46 U.S.C. 3306(a) 
(1994 & Supp. IV 1998). The Coast Guard has exercised 
that authority on behalf of the Secretary by issuing 
comprehensive regulations. See generally 46 C.F.R. 
Ch. I; 49 U.S.C. 108(b) (Commandant of Coast Guard 
shall exercise powers delegated by Secretary of Trans- 
portation); 49 C.F.R. 1.46(b) (delegating authority to 
Commandant). 

In contrast to its broad authority over inspected 
vessels, the Coast Guard’s statutory authority to issue 
regulations for uninspected vessels is limited to specific 
topics, including fire extinguishers, life preservers, 
flame arrestors or backfire traps, ventilation, and emer- 
gency locating equipment. See 46 U.S.C. 4102 (1994 & 
Supp. IV 1998). The occupational safety and health of 
workers on uninspected vessels, therefore, are largely 
unregulated by the Coast Guard, as Coast Guard 
regulations cover only a limited range of health and 
safety hazards on only certain uninspected vessels. See 

5 

primarily 46 C.F.R. Pts. 24-26 (implementing 46 U.S.C. 
4102 (1994 & Supp. IV 1998)).1 Of particular relevance 
here, the Coast Guard has not regulated, and does not 
have authority to regulate, hazards presented by oil 
drilling operations on uninspected vessels operating on 
inland waters. 

In light of the foregoing statutory and regulatory 
provisions, OSHA and the Coast Guard have entered 
into a memorandum of understanding (MOU) that clari- 
fies the division of authority over working conditions on 
vessels. 48 Fed. Reg. 11,365 (1983), reprinted in Pet. 
App. 62a-65a. The MOU explains that the Coast Guard 
generally has exclusive authority over the working 
conditions of seamen aboard inspected vessels. Id. at 
63a. The MOU specifically states, however, that it does 
not apply to uninspected vessels. Id. at 62a. Conse- 
quently, OSHA generally exercises authority over such 
vessels unless a Coast Guard regulation applies to the 

1 The Coast Guard is authorized to require reporting and to 
conduct investigations of marine casualties involving both in- 
spected and uninspected vessels. 46 U.S.C. 6101-6104; 46 U.S.C. 
6301-6308 (1994 & Supp. IV 1998). The Coast Guard has exercised 
that authority. See 46 C.F.R. Pt. 4. Other Coast Guard regula- 
tions also apply to uninspected vessels under certain circum- 
stances. To the extent that those regulations address occupational 
safety and health hazards, they generally apply only to particular 
types of vessels engaged in particular activities. See, e.g., 33 
C.F.R. Ch. I, Subch. N (regulating mineral exploration and produc- 
tion activities of vessels operating on the outer continental shelf) 
(promulgated under authority of 43 U.S.C. 1333); 46 C.F.R. Pt. 197, 
Subpt. B (regulating commercial diving operations connected with 
a deepwater port, a deepwater port safety zone, or the outer con- 
tinental shelf, as well as those conducted from any inspected 
vessel) (promulgated under authority of 33 U.S.C. 1509 (1994 & 
Supp. IV 1998); 43 U.S.C. 1333; 46 U.S.C. 3306 (1994 & Supp. IV 
1998); 46 U.S.C. 3703). 

6 

specific working condition at issue. See OSHA Instr. 
CPL 2-1.20(R) at 14 (Nov. 8, 1996) (Secretary’s Exhibit 
C-2). 

2. a. Respondent Mallard Bay Drilling, Inc., conducts 
oil and gas drilling operations. Pet. App. 10a. On June 
16, 1997, four of respondent’s employees were killed 
and two others seriously injured in an explosion on the 
Mr. Beldon, a drilling barge located on Little Bayou 
Pigeon, a navigable waterway within the State of Lou- 
isiana. Id. at 2a. The drilling barge, which does not 
carry passengers for hire, was classified by the Coast 
Guard as an uninspected vessel. Id. at 6a, 27a. Near 
the end of the drilling operation, the well blew out. Id. 
at 11a. The off-duty crew evacuated, but the on-duty 
crew stayed aboard in an unsuccessful attempt to 
regain control of the well. Id. at 23a. Thirty to forty 
minutes later, the explosion occurred. Id. at 32a. 

The Coast Guard conducted a marine casualty 
investigation of the incident. See note 1, supra. The 
Coast Guard determined that explosive concentrations 
of natural gas had spread throughout the atmosphere of 
the barge as a result of the blowout. Pet. App. 32a. It 
found that the explosion most likely originated in the 
pump room, where a motor was operating that could 
have produced sparks to ignite the natural gas. Id. at 
34a-35a. The Coast Guard concluded that respondent 
had not issued any specific directions regarding blow- 
out control; that respondent’s supervisory personnel 
had not followed respondent’s existing emergency 
procedures; and that they had not recognized the 
hazard of explosive gas accumulations on the barge and 
had not ordered the evacuation of on-duty personnel. 
Id. at 48a-50a. Because the Coast Guard had not 
promulgated regulations governing those matters, how- 

7 

ever, it took no enforcement action and referred the 
matter to OSHA. Id. at 12a, 24a-25a. 

b. Based on the report and other information from 
the Coast Guard, OSHA cited respondent for three 
violations of the OSH Act. Pet. App. 2a. OSHA alleged 
that respondent had violated the Act’s general duty 
clause, 29 U.S.C. 654(a)(1), by failing to evacuate em- 
ployees in a timely manner after the well blowout. Pet. 
App. 9a. OSHA also alleged that respondent had vio- 
lated particular OSHA standards by failing to develop 
and to implement an emergency response plan, as 
required by 29 C.F.R. 1910.120(q)(1), and by failing to 
train employees in emergency response, as required by 
29 C.F.R. 1910.120(q)(6). Pet. App. 9a. 

Respondent did not contest the merits of the citation 
but argued before the Occupational Safety and Health 
Review Commission (Commission) that respondent was 
not subject to the OSH Act for two reasons. First, 
respondent contended that the drilling barge was not a 
“workplace in a State” under 29 U.S.C. 653(a); and, 
second, respondent argued that the Coast Guard regu- 
latory scheme rendered the OSH Act inapplicable 
under 29 U.S.C. 653(b)(1). Pet. App. 2a. 

The administrative law judge (ALJ) affirmed the 
citation. Pet. App. 8a-19a. The ALJ held that the 
barge was a “workplace in a State” because it was 
located within the territorial boundaries of Louisiana. 
Id. at 12a-13a. With respect to preemption of OSHA 
authority under 29 U.S.C. 653(b)(1), the ALJ held that 
OSHA authority is preempted only as to those working 
conditions actually covered by another agency’s regula- 
tions. Pet. App. 14a-15a. Because respondent made no 
showing that any Coast Guard regulations addressed 
evacuation and emergency response to releases of 
hazardous substances on uninspected vessels, id. at 15a, 

8 

16a, the ALJ concluded that the Coast Guard had not 
exercised authority to regulate the working conditions 
at issue and that OSHA authority was therefore not 
preempted under 29 U.S.C. 653(b)(1). Pet. App. 18a. 
The Commission declined review, and the ALJ’s 
decision became final agency action. Id. at 20a-21a 
(citing 29 U.S.C. 661(j)). 

c. Respondent sought review of the Commission’s 
decision in the United States Court of Appeals for the 
Fifth Circuit, which reversed. Pet. App. 1a-7a. The 
court of appeals held that OSHA lacks authority to 
regulate the working conditions of respondent’s em- 
ployees under 29 U.S.C. 653(b)(1). Pet. App. 3a, 7a. 
The court therefore declined to address respondent’s 
alternative contention that the barge was not a “work- 
place in a State” within the meaning of 29 U.S.C. 653(a). 
Pet. App. 7a. 

The court noted that, under Fifth Circuit precedent, 
“OSHA regulations do not apply to working conditions 
of seamen on vessels in navigation” because “the Coast 
Guard has exclusive authority over the working condi- 
tions of seamen.” Pet. App. 3a-4a (citing Donovan v. 
Texaco, Inc., 720 F.2d 825, 826 (5th Cir. 1983), and 
Clary v. Ocean Drilling & Exploration Co., 609 F.2d 
1120, 1121 (5th Cir. 1980)). The court rejected the Sec- 
retary’s contention that those cases were distinguish- 
able because they involved inspected, rather than 
uninspected, vessels. Pet. App. 4a-6a. The court found 
“no indication from Clary that the barge in that case 
was inspected,” and the court emphasized that “the 
broad language of Clary does not turn on any such 
distinction.” Id. at 5a.2 The court noted that the Coast 

2 In fact, the United States flag vessel in Clary was a mobile 
offshore drilling unit operating on the outer continental 

9 

Guard is expressly authorized by 46 U.S.C. 4102 (1994 
& Supp. IV 1998) to issue certain safety regulations for 
uninspected vessels and that the Coast Guard has 
exercised that authority. Pet. App. 5a-6a (citing 46 
C.F.R. 25.01 et seq. and 46 C.F.R. 26.01 et seq.).3 The 
court of appeals therefore reaffirmed its conclusion in 
Texaco that “the Coast Guard’s comprehensive regula- 
tion and supervision of seamen’s working conditions 
[creates] an industry-wide exemption [from the OSH 
Act] for seamen serving on vessels operating on 
navigable waters.” Id. at 6a (quoting 720 F.2d at 826).4 

SUMMARY OF ARGUMENT 

A. The Occupational Safety and Health Act of 1970 
(OSH Act or Act) applies to the working conditions in 
this case because the Coast Guard has not exercised 
statutory authority to regulate them, as Section 4(b)(1) 
of the OSH Act, 29 U.S.C. 653(b)(1), requires in order 
for the Secretary’s authority under the OSH Act to be 
displaced. The plain language of that Section provides 

shelf. Clary v. Ocean Drilling & Exploration Co., 429 F. Supp. 
905, 906 (W.D. La. 1977), aff ’d, 609 F.2d 1120, 1122 (5th Cir. 1980). 
As such, it was a “seagoing barge[]” subject to inspection under 
the Act of May 28, 1908 (Seagoing Barge Act), ch. 212, § 10, 35 
Stat. 428 (as amended by Act of June 4, 1956, ch. 350, § 3, 70 Stat. 
225), the predecessor to 46 U.S.C. 3301(6). 

3 The regulations cited by the court of appeals govern life 
preservers and other lifesaving equipment, emergency locating 
equipment, fire extinguishers, flame arrestors, backfire traps, 
engine ventilation, cooking, heating, and lighting systems, garbage 
discharge and some operating procedures on certain uninspected 
vessels. See also p. 4, supra (describing hazards addressed by 46 
U.S.C. 4102). 

4 Texaco also involved a vessel (an oil tanker) subject to Coast 
Guard inspection. See Donovan v. Texaco, Inc., 535 F. Supp. 641, 
642 (E.D. Tex. 1982), aff ’d, 720 F.2d 825 (5th Cir. 1983). 

10 

that OSHA’s authority is displaced only when another 
agency has “exercise[d]” its authority to promulgate or 
enforce standards or regulations affecting occupational 
health or safety. The agency may “exercise” its author- 
ity either by affirmatively promulgating regulations or 
by articulating a policy determination that regulatory 
requirements are not warranted. Section 4(b)(1) 
further provides that the OSH Act is displaced only as 
to the “working conditions * * * with respect to 
which” the other agency has exercised its authority. 
29 U.S.C. 653(b)(1) (emphasis added). The history sur- 
rounding the enactment of Section 4(b)(1) shows that 
Congress rejected bills that would have allowed the 
mere possession of statutory authority by another 
agency to preempt the OSH Act or that would have 
made preemption turn on whether the agency has regu- 
lated any working conditions of the affected employees. 

Thus, the correct inquiry to determine whether the 
OSH Act is displaced under Section 4(b)(1) is whether 
another federal agency has actually exercised its 
statutory authority—either by promulgating standards 
or regulations governing the working conditions at 
issue or by articulating a policy that requirements not 
be imposed with respect to those conditions. That 
inquiry reflects Section 4(b)(1)’s goal of avoiding 
duplicative federal regulation of occupational safety and 
health without undermining the OSH Act’s purpose to 
ensure “every working man and woman in the Nation 
safe and healthful working conditions.” 29 U.S.C. 
651(b). Section 4(b)(1)’s preemption rule is similar to 
one that the Court has used to determine whether 
federal law preempts state law in situations in which 
the federal statutory scheme embodies a balance of 
interests similar to the balance that underlies Section 
4(b)(1). See, e.g., United States v. Locke, 529 U.S. 89, 

11 

110 (2000) (relevant preemption inquiry under Title I of 
the Ports and Waterways Safety Act of 1972, 33 U.S.C. 
1221 et seq., is “whether the Coast Guard has promul- 
gated its own requirement on the subject or has 
decided that no such requirement should be imposed at 
all”). 

B. The court of appeals therefore erred in concluding 
that Section 4(b)(1) creates an industry-wide exemption 
from the OSH Act for seamen serving on all vessels 
(including uninspected vessels) by virtue of the Coast 
Guard’s regulation of some working conditions on 
certain vessels. Under the appropriate Section 4(b)(1) 
analysis, Coast Guard action has not displaced the OSH 
Act with respect to the working conditions involved in 
this case. The Coast Guard has comprehensive statu- 
tory authority over inspected vessels, and it has 
exercised that authority so as to displace OSH Act 
coverage of all working conditions of seamen on those 
vessels. See Pet. App. 63a. The Coast Guard, however, 
does not have and has not exercised comprehensive 
authority over the working conditions on uninspected 
vessels. Therefore, whether OSH Act coverage is 
displaced with respect to the working conditions on the 
uninspected vessel in this case turns on whether the 
Coast Guard has addressed the particular working 
conditions at issue. 

The Secretary and most courts of appeals interpret 
the term “working conditions” to mean occupational 
safety and health hazards that an employee encounters 
on the job. Those hazards include not just physical 
hazards, but also environmental hazards, such as toxic 
chemicals and fumes in an employee’s surroundings. 
See Corning Glass Works v. Brennan, 417 U.S. 188, 202 
(1974). In this case, the relevant working conditions are 
the conditions faced by employees on an uninspected 

12 

barge engaged in inland oil drilling operations when a 
well backs up, spreads natural gas into the vessel’s 
atmosphere, and thereby creates the risk of explosion. 
Because the Coast Guard’s statutory authority to 
regulate occupational safety and health on uninspected 
vessels is limited, its regulations cover only a limited 
range of hazards, and they do not address hazards 
presented by oil drilling operations on inland waters. 
The Coast Guard also has not decided, and has no 
statutory authority to decide, that those hazards should 
not be subject to particular safety and health require- 
ments. Accordingly, there is no Section 4(b)(1) preemp- 
tion under the Secretary’s interpretation of “working 
conditions.” 

The Third and Fourth Circuits have adopted a differ- 
ent interpretation of “working conditions” that equates 
that term with an environmental area in which an 
employee customarily works, and those courts conse- 
quently find preemption whenever an agency regulates 
that physical area. That interpretation inappropriately 
defines “working conditions” without reference to the 
OSH Act’s specific concern with conditions affecting 
occupational safety and health and mistakenly focuses 
on a physical area instead of on conditions within that 
area. Furthermore, the area-based definition of 
working conditions results in gaps in worker protection 
that are inconsistent with the OSH Act’s purpose to 
provide comprehensive protection. The courts of 
appeals that have adopted this “area” definition have 
applied it narrowly, however, so that the focus is on the 
particular area presenting a hazard rather than on the 
entire worksite. Therefore, use of those courts’ area- 
based definition would make no difference in this case. 
The relevant area would be the atmosphere on an 
uninspected barge operating on inland waters. The 

13 

Coast Guard has neither regulated that area nor 
determined that regulatory requirements should not be 
imposed. 

C. To the extent that the language of Section 4(b)(1) 
is ambiguous, the Court should accept the Secretary’s 
interpretation of the Section because that interpreta- 
tion best furthers the OSH Act’s central purpose to 
assure as far as possible that every working man and 
woman in the Nation has safe and healthful working 
conditions. The Secretary’s interpretation furthers 
that purpose by preventing gaps in coverage. In 
contrast, the interpretation adopted by the court of 
appeals would frustrate that purpose by creating gaps 
in worker protection, because the OSH Act would be 
displaced for working conditions that the Coast Guard 
and other federal agencies do not—and in this case 
cannot—regulate. As a result, thousands of employees 
would be left without federal regulatory protection 
from workplace health and safety hazards. The Secre- 
tary’s interpretation is also fully consistent with 
Section 4(b)(1)’s goal of preventing OSHA and other 
federal agencies from regulating the same health or 
safety conditions. 

The Secretary’s interpretation is entitled to defer- 
ence. See Chevron U.S.A. Inc. v. Natural Res. Defense 
Council, Inc., 467 U.S. 837, 842-843 (1984). The Secre- 
tary administers and enforces the OSH Act. Her inter- 
pretation of Section 4(b)(1) is set out in thirty years of 
citations in enforcement proceedings, as well as in a 
long history of regulatory coordination with other 
agencies, longstanding regulations, and a statutorily- 
mandated report to Congress. To the extent that there 
is ambiguity concerning the proper interpretation of 
Section 4(b)(1), the Secretary’s reasonable interpreta- 

14 

tion should therefore control. See Martin v. OSHRC, 
499 U.S. 144, 157 (1991). 

ARGUMENT 

THE OCCUPATIONAL SAFETY AND HEALTH ACT 
APPLIES TO THE WORKING CONDITIONS IN THIS 
CASE BECAUSE THE COAST GUARD HAS NOT 
EXERCISED STATUTORY AUTHORITY TO 
REGULATE THEM 

The Occupational Safety and Health Act of 1970 
(OSH Act or Act), 29 U.S.C. 651 et seq., “establishes a 
comprehensive regulatory scheme designed ‘to assure 
so far as possible . . . safe and healthful working con- 
ditions’ for ‘every working man and woman in the Na- 
tion.’ ” 

Martin v. OSHRC, 499 U.S. 144, 147 (1991) 
(quoting 29 U.S.C. 651(b)). Consistent with that design, 
the Act generally applies to all employment performed 
in any workplace in the several States and territories, 
as well as on outer continental shelf lands. 29 U.S.C. 
653(a). At the time the Act was passed, however, cer- 
tain federal agencies already had statutory authority to 
regulate the occupational safety and health of em- 
ployees in particular fields. Congress therefore pro- 
vided in Section 4(b)(1) of the OSH Act, as an exception 
to the general rule of universal coverage, that “[n]oth- 
ing 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.” 29 U.S.C. 653(b)(1). 

The question in this case is whether the United 
States Coast Guard, through its limited regulations con- 
cerning uninspected vessels (as defined in 46 U.S.C. 
2101(43)), has exercised authority over the working 
conditions of employees on those vessels so as to 

15 

displace application of the OSH Act to all the working 
conditions of those employees. The court of appeals 
held that the Coast Guard’s regulation of some working 
conditions on certain uninspected vessels creates an 
“industry-wide exemption [from the OSH Act] for 
seamen” on all vessels. Pet. App. 6a (quoting Donovan 

v. Texaco, Inc., 720 F.2d 825, 826 (5th Cir. 1983)). In so 
holding, the court of appeals departed from the long- 
standing view of the Secretary and the consensus of 
other courts of appeals that Section 4(b)(1) of the OSH 
Act, 29 U.S.C. 653(b)(1), does not confer an industry- 
wide exception to the Act’s coverage based on limited 
regulation of the safety and health of employees in the 
industry by another agency. See pp. 16-19 & note 8, 
infra (citing cases). 

As we explain below, the interpretation of Section 
4(b)(1) adopted by the court of appeals in this case is 
inconsistent with the statutory text and the history 
surrounding Section 4(b)(1)’s enactment. Under Section 
4(b)(1) properly construed, the Occupational Safety and 
Health Administration (OSHA) retains authority to 
regulate the working conditions at issue here because 
the Coast Guard’s regulations of occupational safety 
and health on uninspected vessels do not address those 
working conditions. To the extent that there is any 
ambiguity about the correct interpretation of the OSH 
Act, the Secretary’s long-standing interpretation of 
Section 4(b)(1) should control because, unlike the 
interpretation embraced by the court of appeals, the 
Secretary’s interpretation furthers the purpose of the 
OSH Act and is entitled to deference. 

16 

A. The OSH Act is displaced only when another federal 

agency has exercised its statutory authority with 

respect to the working conditions at issue 

Section 4(b)(1) provides that the OSH Act does not 
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 and health.” 
29 U.S.C. 653(b)(1). Under the terms of that Section, 
and in accordance with the longstanding interpretation 
by the Secretary and the courts of appeals, OSH Act 
coverage is displaced only when another agency has 
actually exercised its statutory authority with respect 
to the working conditions at issue. See, e.g., In re 
Inspection of Norfolk Dredging Co., 783 F.2d 1526, 1530 
(11th Cir.), cert. denied, 479 U.S. 883 (1986); Pet. App. 
55a-58a (1980 Report of the Secretary of Labor to 
Congress Pursuant to Section 4(b)(3) of the OSH Act 
(Secretary’s Report)); 29 C.F.R. 1975.1(b), 1975.3(c). 
Displacement can occur with regard to either a specific 
working condition or a set of working conditions with 
respect to which an agency has comprehensive statu- 
tory authority and has indicated that its exercise of that 
authority is sufficient.5 

Section 4(b)(1)’s preemption rule gives primacy to 
authority exercised under “other Federal laws which, 
to various degrees, deal with worker safety and health 
issues,” but without undermining the OSH Act’s pur- 
pose to ensure “ ‘every working man and woman in the 

5 Further, if the other agency has exercised its statutory 
authority, OSH Act coverage is displaced regardless of whether 
the other agency’s requirements are the same as or different from, 
or are more or less stringent than, the requirements that would 
apply under the OSH Act. See Pet. App. 56a. 

17 

Nation safe and healthful working conditions.’ ” 
Pet. 

App. 55a-56a (Secretary’s Report) (quoting 29 U.S.C. 
651(b)). Workers are not “denied protection under the 
OSH Act for all hazards they face because their indus- 
try happens to be regulated in part by another federal 
agency which has issued rules for some worker haz- 
ards.” Id. at 57a. “Under this framework, gaps in 
employee protections are avoided while at the same 
time the regulatory activity of [other agencies with 
authority to regulate occupational safety and health in 
particular industries] is not affected.” Id. at 56a. Sec- 
tion 4(b)(1) thus reflects Congress’s intent “to avoid 
duplication of effort by Federal agencies in establishing 
a national policy of occupational safety and health pro- 
tection,” but at the same time not “to grant any general 
exemptions under the Act.” 29 C.F.R. 1975.3(c).6 

1. That understanding of Section 4(b)(1) follows from 
its text, which states that OSH Act coverage is dis- 
placed when another federal agency “exercise[s] statu- 
tory authority to prescribe or enforce standards or 
regulations affecting occupational safety or health.” 
29 U.S.C. 653(b)(1) (emphasis added). As all the courts 
of appeals to address the question have agreed, that 
language indicates that another agency’s mere posses- 
sion of statutory authority to regulate occupational 
safety and health is not sufficient to oust OSHA juris- 

6 See also Donovan v. Red Star Marine Servs., Inc., 739 F.2d 
774, 780 (2d Cir. 1984) (rejecting interpretation of Section 4(b)(1) 
that would result in coverage gaps), cert. denied, 470 U.S. 1003 
(1985); Baltimore & Ohio R.R. v. OSHRC, 548 F.2d 1052, 1054 
(D.C. Cir. 1976) (per curiam) (same); Southern Pac. Transp. Co. v. 
Usery, 539 F.2d 386, 391 (5th Cir. 1976) (same), cert. denied, 434 
U.S. 874 (1977); Southern Ry. v. OSHRC, 539 F.2d 335, 338 (4th 
Cir.) (same), cert. denied, 429 U.S. 999 (1976). 

18 

diction. The other agency must also have actually 
“exercise[d]” that authority.7 

An agency generally exercises its authority by prom- 
ulgating standards or regulations that address particu- 
lar occupational safety and health hazards. See, e.g., 
Columbia Gas of Pa., Inc. v. Marshall, 636 F.2d 913, 
917 (3d Cir. 1980) (discussing regulations issued by the 
Department of Transportation’s Office of Pipeline 
Safety to address the risk of gas ignition during a “hot 
tap” of a natural gas pipeline). But an agency may also 
“exercise” its authority by articulating a policy that 
existing regulation is sufficient and no additional re- 
quirements are warranted. See In re Inspection of 
Norfolk Dredging Co., 783 F.2d at 1530; Southern Pac. 
Transp. Co. v. Usery, 539 F.2d 386, 391-392 (5th Cir. 
1976), cert. denied, 434 U.S. 874 (1977). Cf. Bethlehem 
Steel Co. v. New York State Labor Relations Bd., 330 
U.S. 767, 774 (1947) (explaining that state law is 
preempted when the “failure of the federal officials 
affirmatively to exercise their full authority takes on 
the character of a ruling that no such regulation is 
appropriate or approved pursuant to the policy of the 
statute”); cf. also pp. 22-23, infra. 

The text of Section 4(b)(1) also makes clear that a 
federal agency’s exercise of authority to regulate some 
working conditions of some employees within an indus- 
try does not create an industry-wide exemption from 
OSH Act coverage. By its terms, the text limits pre- 

7 See Association of Am. R.R. v. Department of Transp., 38 
F.3d 582, 586 (D.C. Cir. 1994); In re Inspection of Norfolk Dredg- 
ing Co., 783 F.2d at 1530 (11th Cir.); Red Star Marine Servs., Inc., 
739 F.2d at 778 (2d Cir.); PBR, Inc. v. Secretary of Labor, 643 F.2d 
890, 896 (1st Cir. 1981); Columbia Gas of Pa., Inc. v. Marshall, 636 
F.2d 913, 915 (3d Cir. 1980); Southern Ry., 539 F.2d at 336-337 (4th 
Cir.); Southern Pac. Transp. Co., 539 F.2d at 389 (5th Cir.). 

19 

emption to “working conditions of employees with re- 
spect to which” other federal agencies exercise author- 
ity. 29 U.S.C. 653(b)(1) (emphasis added). If Congress 
had intended to create industry-wide exceptions to 
OSH Act coverage based on limited regulation by other 
agencies, Congress could have provided that the Act 
would not apply to “industries in which” other agencies 
regulate occupational safety and health. Or Congress 
could have displaced OSH Act coverage of “working 
conditions of employees with respect to whom” other 
agencies exercise such authority. Congress’s decision 
not to do so reinforces the conclusion that the Act 
displaces OSH Act coverage only of those particular 
working conditions “with respect to which” another 
agency has exercised regulatory authority. 29 U.S.C. 
653(b)(1). 

The courts of appeals have been virtually unanimous 
in reaching that conclusion as well.8 Indeed, although 
the Fifth Circuit reached a contrary conclusion in this 
case, see Pet. App. 6a, a quarter of a century ago, in a 
case concerning the railway industry, it also espoused 
the position that has been endorsed by all other courts 
of appeals to consider the question. See Southern Pac. 
Transp. Co., 539 F.2d at 389-390. 

2. Review of the legislative process that culminated 
in Section 4(b)(1)’s enactment reinforces the above 
reading of the statutory text. First, the drafting 
history shows that a federal agency with authority to 

8 See Herman v. Tidewater Pac., Inc., 160 F.3d 1239, 1245 (9th 
Cir. 1998); In re Inspection of Norfolk Dredging Co., 783 F.2d at 
1531 (11th Cir.); Red Star Marine Servs., Inc., 739 F.2d at 778 (2d 
Cir.); Columbia Gas of Pa., Inc., 643 F.3d at 915-916 (3d Cir.); 
PBR, Inc., 643 F.2d at 896 (1st Cir.); Baltimore & Ohio R.R., 548 
F.2d at 1053-1054 (D.C. Cir.); Southern Ry., 539 F.2d at 338 (4th 
Cir.). 

20 

regulate health and safety must exercise that authority 
before its actions will displace the OSH Act’s coverage. 
Several bills under consideration would have precluded 
OSH Act enforcement whenever another agency “has” 
statutory authority. See S. 2788, 91st Cong., 1st Sess. 
§ 15, at 32 (1969); H.R. 843, 91st Cong., 1st Sess. § 13, at 
22 (1969); H.R. 4294, 91st Cong., 1st Sess. § 13, at 13 
(1969); H.R. 13373, 91st Cong., 1st Sess. § 15, at 32 
(1969), 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 62, 620, 
671, 710 (Comm. Print 1971) (Leg. Hist.). The versions 
reported in both the House and Senate, see S. 2193, 
91st Cong., 2d Sess., as reported, § 4(b)(1), at 33-34 
(1970), reprinted in Leg. Hist. 236-237; H.R. 16785, 91st 
Cong., 2d Sess. (1970), as reported, § 22(b), at 83 (1970), 
reprinted in Leg. Hist. 975, like the text that was 
ultimately enacted, however, precluded OSH Act en- 
forcement only when another agency “exercise[s]” such 
authority. A colloquy on the House floor emphasized 
that the use of the word “exercise” was deliberate and 
was intended to make clear that “the mere existence of 
statutory authority” does not result in an exemption 
from OSH Act coverage. See Southern Ry. v. OSHRC, 
539 F.2d 335, 337 (4th Cir.) (quoting Leg. Hist. 1019), 
cert. denied, 429 U.S. 999 (1976); 116 Cong. Rec. 38,381 
(1970). 

The history surrounding Section 4(b)(1)’s enactment 
also shows that Congress rejected industry-wide excep- 
tions from the OSH Act’s coverage based on limited 
exercises of regulatory authority by other federal 
agencies. The bill initially passed by the House of 
Representatives would have provided such exceptions 
by preempting “working conditions of employees with 
respect to whom” other agencies exercise statutory 

21 

authority to prescribe or enforce standards or regula- 
tions affecting occupational safety or health. See H.R. 
16785, supra, § 25(b) (1970) (emphasis added), reprinted 
in Leg. Hist. 1109. Congress, however, did not adopt the 
language in the House bill. Instead Congress chose the 
language in the Senate bill, which used “which” instead 
of “whom.” See S. 2193, supra, § 4(b)(1), at 5, reprinted 
in Leg. Hist. 533. As the Senate Report explained, that 
language limits preemption to “particular working con- 
ditions regarding which another Federal agency 
exercises statutory authority.” S. Rep. No. 1282, 91st 
Cong., 2d Sess. 22 (1970) (emphasis added), reprinted in 
Leg. Hist. 162. The Conference Committee recognized 
the difference in the language between the House and 
Senate versions and chose the Senate language. See 
H.R. Conf. Rep. No. 1765, 91st Cong., 2d Sess. 32-33 
(1970), reprinted in Leg. Hist. 1185-1186. Thus, “consid- 
eration of the way in which Congress arrived at the 
statutory language,” Corning Glass Works v. Brennan, 
417 U.S. 188, 198 (1974), confirms that exemptions from 
OSH Act coverage under Section 4(b)(1) depend on 
whether another federal agency has exercised statutory 
authority with respect to the “particular working condi- 
tions” at issue. S. Rep. No. 1282, supra, at 22, reprinted 
in Leg. Hist. 162. 

3. In light of the statutory text and drafting history, 
the court of appeals erred in recognizing “an industry- 
wide exemption [from the OSH Act] for seamen serving 
on vessels operating on navigable waters,” Pet. App. 6a 
(quoting Texaco, Inc., 720 F.2d at 826), including sea- 
men serving on uninspected vessels, by virtue of the 
Coast Guard’s regulation of some working conditions on 
certain vessels. The Coast Guard does have compre- 
hensive statutory authority over the working condi- 
tions of seamen on inspected vessels. As recognized in 

22 

a 1983 Memorandum of Understanding (MOU) between 
the Coast Guard and OSHA, it has exercised that 
authority so as to displace OSH Act coverage of all 
working conditions of seamen on those vessels. See 
Pet. App. 63a (noting that the Coast Guard’s “compre- 
hensive standards and regulations” include “extensive 
specific regulations governing the working conditions of 
seamen aboard inspected vessels as well as ample 
general authority regulations to cover these seamen 
with respect to all other working conditions that are not 
addressed by the specific regulations”). With respect to 
the working conditions of employees on uninspected 
vessels, however, the Coast Guard does not have and 
has not exercised comprehensive authority. Therefore, 
the proper inquiry under Section 4(b)(1) is whether the 
Coast Guard has regulated the particular working 
conditions with respect to which OSHA seeks to en- 
force its own safety or health standards or has articu- 
lated a policy that those working conditions should not 
be regulated. 

Section 4(b)(1)’s rule governing when other federal 
regulation displaces the OSH Act is similar to a rule 
that Congress and the courts have applied in certain 
contexts to determine when federal law preempts state 
law. Under that rule, the existence of federal regu- 
latory authority in a certain field is not sufficient to 
occupy that entire field and displace all state regulation. 
But when federal authority is exercised over a 
particular subject within the field, state law is displaced 
with respect to that subject. The exercise of federal 
authority need not entail affirmative regulation; it can 
instead consist of a determination that no requirements 
concerning the subject are appropriate. But it must 
constitute an actual exercise of authority over the 
subject. 

23 

This Court has used this approach to preemption to 
determine whether and to what extent state law has 
been preempted under Title I of the Ports and Water- 
ways Safety Act (PWSA), 33 U.S.C. 1221 et seq. See 
United States v. Locke, 529 U.S. 89, 110 (2000) (relevant 
preemption inquiry under Title I of the PWSA is 
“whether the Coast Guard has promulgated its own 
requirement on the subject or has decided that no such 
requirement should be imposed at all”).9 As the Court 
explained in Locke, this approach to preemption is 
appropriate when the federal statutory scheme reflects 
strong interests both in maintaining uniformity of 
regulation by the federal agency charged with over- 
sight of a particular field and in preserving an impor- 
tant role for the residual powers of the States when the 
federal agency has not exercised its statutory author- 
ity. See id. at 108-109. 

As we have explained, see pp. 16-17, supra, Section 
4(b)(1) reflects an analogous confluence of interests. It 
is designed in part to avoid duplicative federal regu- 

9 See also, e.g., Norfolk S. Ry. v. Shanklin, 529 U.S. 344, 352 
(2000) (state law is generally preempted under the Federal Rail- 
road Safety Act of 1970 when federal regulation “ ‘cover[s]’ the 
same subject matter”); Bethlehem Steel Co., 330 U.S. at 774 (States 
are “permitted to use their police power in the interval” until a 
federal agency either acts affirmatively or decides that “no * * * 
regulation is appropriate,” if the state regulation “relates to what 
may be considered a separable or distinct segment of the matter 
covered by the federal statute and the federal agency has not acted 
on that segment”); cf., e.g., Fidelity Fed. Sav. & Loan v. De La 
Cuesta, 458 U.S. 141, 152-159 (1982) (regardless whether the Fed- 
eral Home Loan Bank Board’s regulations occupy the field of 
federal savings and loan regulation, the Board’s regulation of the 
due-on-sale practices of federal savings and loan associations pre- 
empts state regulation of those practices because the Board 
intended its regulation on that subject to be exclusive). 

24 

lation of occupational safety and health. Thus, when a 
federal agency other than OSHA has authority to 
regulate an industry, including occupational safety and 
health in that industry, Section 4(b)(1) provides that the 
other agency’s exercise of its specialized authority will 
prevail. But Section 4(b)(1) is also designed to give 
OSHA the role of overseeing worker safety and health 
and preventing gaps in worker protection. Therefore, 
consistent with the approach to preemption of state law 
in Locke and similar cases, Section 4(b)(1) provides that 
OSH Act coverage is not displaced unless the other 
agency has actually exercised its statutory authority 
either by imposing regulatory requirements with re- 
spect to the working conditions at issue or by deter- 
mining that such requirements are not warranted. 

B. No Coast Guard regulations cover the working condi- 
tions in this case, and the Coast Guard has expressed 

no policy against imposing regulatory requirements 

Under Section 4(b)(1) properly construed, Coast 
Guard action has not displaced the OSH Act with 
respect to the working conditions involved in this case. 
The OSH Act does not define the term “working 
conditions,” and the courts of appeals have utilized two 
somewhat divergent definitions. Under either defini- 
tion, however, Coast Guard regulations do not cover the 
working conditions at issue here, and the Coast Guard 
has not articulated any policy that no regulatory 
requirements should be imposed. 

1. The Secretary has long taken the view that 
“working conditions,” as used in Section 4(b)(1), means 
the particular physical and environmental hazards en- 
countered by an employee in the course of his or her job 
activities. See Southern Ry., 539 F.2d at 339 (describ- 
ing Secretary’s interpretation); Pet. App. 56a-57a 

25 

(equating working conditions as used in Section 4(b)(1) 
with “particular hazards”). Several courts of appeals 
have resolved questions under Section 4(b)(1) using 
that understanding of “working conditions.” See In re 
Inspection of Norfolk Dredging Co., 783 F.2d at 1530- 
1531 (11th Cir.); Donovan v. Red Star Marine Servs., 
Inc., 739 F.2d 774, 778-780 (2d Cir. 1984), cert. denied, 
470 U.S. 1003 (1985); PBR, Inc. v. Secretary of Labor, 
643 F.2d 890, 896 (1st Cir. 1981); cf. Cearley v. General 
Am. Transp. Corp., 186 F.3d 887, 892 (8th Cir. 1999) 
(OSHA’s safety regulations “may fill the gaps” in 
another agency’s safety regulations “if, and only if, the 
[agency] has not exercised its statutory authority to 
prescribe or enforce standards or regulations affecting 
the relevant area of occupational safety or health”); 
Southern Pac. Transp. Co., 539 F.2d at 391 (5th Cir.) 
(essentially adopting a hazard-based test but noting 
that “hazards” can sometimes be expressed as “a loca- 
tion (maintenance shop)”). Under a second definition, 
adopted by two courts of appeals, “working conditions” 
refers somewhat more broadly to “the environmental 
area in which an employee customarily goes about his 
daily tasks.” Southern Ry., 539 F.2d at 339 (4th Cir.); 
see also Columbia Gas of Pa. Inc., 643 F.2d at 916 (3d 
Cir.). 

Although resolution of the disagreement about the 
meaning of “working conditions” is not necessary to 
resolve this case, the hazard-based definition is correct. 
In isolation, the term “working conditions” might en- 
compass a range of “‘circumstances’ or ‘state of affairs’ 
attendant to one’s performance of a job.” Fort Stewart 
Schs. v. Federal Labor Relations Auth., 495 U.S. 641, 
645 (1990). See Webster’s Third New International 
Dictionary 473 (1969) (defining “conditions” as “atten- 
dant circumstances” or “existing state of affairs”). The 

26 

term’s precise meaning as it is used in Section 4(b)(1) of 
the OSH Act, however, must be determined with refer- 
ence to the statutory context in which the term 
appears. See, e.g., Fibreboard Paper Prods. Corp. v. 
NLRB, 379 U.S. 203, 210-211 (1964) (looking to indus- 
trial practice and the purposes of the National Labor 
Relations Act to determine the meaning of “conditions 
of employment” under the NLRA); Manning v. Ameri- 
can Airlines, Inc., 329 F.2d 32, 35 (2d Cir.) (Friendly, 
J.) (interpreting “working conditions” that are subject 
to mediation under the Railway Labor Act in light of 
the purposes of that Act), cert. denied, 379 U.S. 817 
(1964). 

For example, this Court has concluded that, as 
the term “working conditions” is used in 5 U.S.C. 
7103(a)(14), which concerns collective bargaining, it 
includes “ ‘conditions of employment’ in the sense of 
qualifications demanded of, or obligations imposed 
upon, employees.” Fort Stewart Schs., 495 U.S. at 646. 
The Court has also noted, however, that “working con- 
ditions” may be used as a “term[] of art” with a “more 
specific meaning in the language of industrial relations.” 
Corning Glass, 417 U.S. at 201, 202 (interpreting 
the Equal Pay Act of 1963). When it is used in that 
sense, “working conditions” encompasses “surround- 
ings,” which include “the elements, such as toxic chemi- 
cals or fumes, regularly encountered by a worker,” and 
“hazards,” which include “the physical hazards regu- 
larly encountered.” Id. at 202. As the Court noted in 
Corning Glass, “[t]his definition of working conditions 
is * * * well accepted across a wide range of 
American industry.” Id. at 202 & n.21 (citing, e.g., 2 
United States Dep’t of Labor, Dictionary of Occupa- 
tional Titles 656 (3d ed. 1965) (defining working 
conditions to include factors such as whether the job is 

27 

performed indoors or outside; exposure to heat or cold; 
exposure to water, or other liquids, or humidity; expo- 
sure to noise and vibration; physical hazards; and expo- 
sure to fumes, odors and toxic conditions). 

10 

As used in Section 4(b)(1) of the OSH Act, the term 
“working conditions” most naturally refers to occupa- 
tional safety and health hazards that an employee 
encounters on the job. That definition is essentially the 
same as the “term of art” recognized in Corning Glass, 
because such hazards include both physical hazards and 
environmental hazards, such as toxic chemicals and 
fumes, which the Court in Corning Glass identified as 
“surroundings.” 417 U.S. at 202. 

Construing “working conditions” to mean occupa- 
tional safety and health hazards is appropriate because 
the OSH Act in general, and Section 4(b)(1) in particu- 
lar, address only those “working conditions” that 
“affect[] occupational safety or health.” 29 U.S.C. 
653(b)(1). 

11 And, because Section 4(b)(1) addresses 

10 In Corning Glass, the Court held that “working conditions,” 
as used in the Equal Pay Act, does not include consideration of 
whether an employee works a day or night shift, although a lay 
person might assume that time of day worked is one aspect of a 
job’s “working conditions.” 417 U.S. at 202-203. 

11 See also, e.g., 29 U.S.C. 651(b)(1) (OSH Act’s purpose is to en- 
sure “safe and healthful working conditions” “by encouraging em- 
ployers and employees in their efforts to reduce the number of 
occupational safety and health hazards at their places of employ- 
ment, and to stimulate employers and employees to institute new 
and to perfect existing programs for providing safe and healthful 
working conditions”); 29 U.S.C. 651(b)(2) (“employers and employ- 
ees have separate but dependent responsibilities and rights with 
respect to achieving safe and healthful working conditions”); 29 
U.S.C. 651(b)(4) (OSH Act builds on existing initiatives for pro- 
viding “safe and healthful working conditions”); 29 U.S.C. 670(c) 
(education and training programs for preventing “unsafe or 

28 

“working conditions” that OSHA or another agency 
may regulate, it specifically concerns those conditions 
that may adversely affect worker health and safety. 
See ibid. See generally Gutierrez v. Ada, 528 U.S. 250, 
255 (2000) (explaining that the words of a statute should 
be interpreted in a manner consistent with their neigh- 
bors to avoid giving the statute an unintended breadth). 
Conditions that may adversely affect occupational 
safety or health are hazards. See Black’s Law Diction- 
ary 719 (6th ed. 1990) (defining “hazard” as “[a] risk or 
peril”). Accordingly, the term “working conditions,” as 
used in Section 4(b)(1), refers to occupational safety and 
health hazards. 

The alternative interpretation—under which “work- 
ing conditions” means “the environmental area in which 
an employee customarily goes about his daily tasks,” 
Southern Ry., 539 F.2d at 339—has several flaws. 
First, it is inconsistent with the ordinary meaning of 
the word “conditions.” See p. 25, supra. An “area” is 
not a “condition.” Instead, conditions (including those 
affecting occupational safety and health) exist within an 
area. Consistent with that ordinary understanding, the 
OSH Act distinguishes between “conditions” and 
“places of employment.” See 29 U.S.C. 652(8) (“ ‘occu- 
pational safety and health standard’ means ‘a standard 
which requires conditions * * * reasonably necessary 
or appropriate to provide safe or healthful employment 
and places of employment’ ”). 

Second, the area-based definition of “working condi- 
tions” is inconsistent with the statutory text in which 

unhealthful working conditions”); 29 U.S.C. 670(d)(4)(C) (Supp. V 
1999) (employer may obtain an exemption from a workplace in- 
spection by establishing, among other things, procedures to 
achieve “safe and healthful working conditions”). 

29 

those words appear. As we have explained, the use of 
the phrase “working conditions with respect to which” 
in Section 4(b)(1) indicates that the OSH Act is dis- 
placed only with respect to those “particular working 
conditions” over which the other agency has exercised 
its statutory authority. S. Rep. No. 1282, supra, at 22 
(emphasis added). And the process by which Congress 
arrived at that phrase confirms that conclusion. See pp. 
18-19, 20-21, supra. 

Third, an area-based definition of “working condi- 
tions” is inconsistent with the OSH Act’s purpose to 
provide comprehensive protection from occupational 
safety and health hazards because it results in signifi- 
cant gaps in worker protection. For example, another 
federal agency may have regulated one hazard in an 
area, such as fire or ventilation, but not regulated, or 
even considered, other hazards, such as noise, in the 
same area. See Association of Am. R.R. v. Department 
of Transp., 38 F.3d 582, 586-587 (D.C. Cir. 1994) (noting 
the difference between the Federal Railroad Admini- 
stration’s regulation of some hazards on railroad 
bridges and OSHA’s regulation of others); Red Star 
Marine Servs., Inc., 739 F.2d at 779-780 (recognizing 
the difference between OSHA’s regulation of noise and 
the Coast Guard’s regulation of petroleum gas, ventila- 
tion requirements, backfire flame control, and fire 
extinguishers on a tugboat). If the OSH Act were 
displaced because of any regulation by another agency 
of any aspect of the workplace, workers would face 
significant numbers of unregulated hazards. 

2. If this case is analyzed using the hazard-based 
interpretation of “working conditions,” it is clear that 
the OSH Act has not been displaced by any exercise of 
Coast Guard authority. The working conditions at issue 
are the conditions faced by employees on an unin- 

30 

spected vessel engaged in oil drilling operations on 
inland waters—in particular, the risk of explosion 
caused by the presence of natural gas in the 
atmosphere of the vessel. The Coast Guard has not 
regulated the risk of explosion caused by the presence 
of natural gas on an uninspected drilling barge operat- 
ing on inland waters, and it does not have statutory 
authority to do so. As we have explained, the Coast 
Guard’s statutory authority to regulate uninspected 
vessels is limited to specific subjects. Coast Guard 
regulations for those vessels therefore cover only a 
limited range of health and safety hazards, and they do 
not address hazards relating to oil drilling operations on 
inland waters. See pp. 4-5, supra. Further, the Coast 
Guard has not made (and has no statutory authority to 
make) any determination that no standards or regula- 
tions should be adopted as a matter of policy with 
respect to the working conditions involved in this case. 
Thus, under the hazard-based definition of “working 
conditions” adopted by the Secretary, the Coast Guard 
has not exercised any authority to regulate the working 
conditions in this case so as to displace application of 
the OSH Act. 

The OSH Act also would not be displaced even under 
the area-based definition of “working conditions.” 
Courts using that definition have construed the rele- 
vant “area” narrowly, perhaps to avoid the gaps in 
worker protection that would arise if any regulation by 
another agency of any aspect of an employee’s work- 
place were sufficient to displace all OSHA regulation in 
that area. Those courts limit the “area” that they 
regard as the relevant “working conditions” to that por- 
tion of the worksite that presents the relevant hazard. 
See, e.g., Pennsylvania Elec. Co. v. FMSHRC, 969 F.2d 
1501, 1504 (3d Cir. 1992) (relevant area is the point on a 

31 

conveyor belt where guards are required to prevent 
injury—“the ‘environmental area,’ that might pose a 
potential danger to [the employer’s] workers”); Colum- 
bia Gas of Pa., Inc., 636 F.2d at 918 (relevant “working 
conditions” are “the ‘hot tap’ of a pipeline transporting 
natural gas,” the discrete area that poses a risk of fire 
or explosion); U.S. Air, Inc. v. OSHRC, 689 F.2d 1191, 
1194 (4th Cir. 1982) (relevant area is the part of the 
passenger lounge entry into which and exit from which 
pose various risks). 

12 

Using that approach, the relevant “area” in this case 
is the atmosphere of the Mr. Beldon, which exposed the 
employees on board to a risk of explosion from natural 
gas. The Coast Guard has not promulgated any regula- 
tions addressing the atmosphere of an uninspected 
barge operating on inland waters, such as the Mr. 
Beldon. 

13 Nor has the Coast Guard articulated a policy 

12 The Fourth Circuit also has concluded that the “area” test 
does not always apply in determining Section 4(b)(1) preemption. 
See Reich v. Muth, 34 F.3d 240, 243-244 (1994) (discussing holding 
in Taylor v. Moore-McCormack Lines, Inc., 621 F.2d 88, 91-93 
(1980), that OSHA can regulate the working conditions of long- 
shore workers on a ship even though the Coast Guard regulates 
the same conditions as they apply to seamen). In this case, how- 
ever, the Fourth Circuit’s exception to the area test for longshore 
workers would not apply, because the court of appeals determined 
that the employees on the Mr. Beldon were seamen. Pet. App. 4a; 
see also Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997) 
(discussing test for seaman status). 

13 Coast Guard regulations address some hazards in the atmos- 
phere of vessels (including uninspected vessels), facilities, and 
other units operating on the outer continental shelf. See 33 C.F.R. 
Ch. I, Subch. N (promulgated under authority of 43 U.S.C. 1333). 
Coast Guard regulations also address ventilation on certain other 
types of uninspected vessels. See 46 C.F.R. 25.40 (motorboats or 
motor vessels) (implementing 46 U.S.C. 4102(d)); 46 C.F.R. 28.340 

32 

that requirements should not be imposed for that area. 
Accordingly, the Coast Guard has not exercised any 
authority that would displace application of the OSH 
Act, even under an “environmental area” definition of 
“working conditions.” See also Herman v. Tidewater 
Pac., Inc., 160 F.3d 1239, 1245-1246 (9th Cir. 1998) 
(finding it unnecessary to choose between the hazard- 
based and area-based definitions of “working 
conditions” because even under “the Third and Fourth 
Circuits’ [area-based] definition, it is apparent that the 
Coast Guard regulation of uninspected vessels is not so 
pervasive as to preempt the Secretary’s jurisdiction as 
to any particular portion of such vessels nor as to such 
vessels in whole”). 

C. The Secretary’s interpretation of Section 4(b)(1) best 

furthers the OSH Act’s purpose and is entitled to 

deference 

For the reasons we have explained, the Secretary’s 
interpretation of Section 4(b)(1) is the best reading of 
that provision. Under that interpretation, the Coast 
Guard has not exercised any authority that displaces 
application of the OSH Act in this case, and, therefore, 
the decision of the court of appeals should be reversed. 
To the extent that there is any ambiguity about the 
proper interpretation of Section 4(b)(1), however, the 
Secretary’s interpretation best furthers the purpose of 
the OSH Act and is entitled to deference. 

1. As described above, the OSH Act’s fundamental 
purpose is “to assure so far as possible every working 
man and woman in the Nation safe and healthful work- 

(commercial fishing industry vessels) (implementing 46 U.S.C. 
4502(a)(4)). See also 33 C.F.R. 175.201, 183.601-183.630 (addressing 
ventilation on recreational vessels) (promulgated under authority 
of 46 U.S.C. 4302). 

33 

ing conditions.” 29 U.S.C. 651(b); see also Martin, 499 
U.S. at 147 (OSH Act establishes “a comprehensive 
regulatory scheme”); Whirlpool Corp. v. Marshall, 445 
U.S. 1, 12 (1980) (OSH Act is “prophylactic in nature” 
and designed “to prevent deaths or injuries from ever 
occurring”). The Secretary’s interpretation of Section 
4(b)(1) furthers the Act’s central purpose by preventing 
the existence of gaps in worker protection. In contrast, 
the interpretation of Section 4(b)(1) adopted by the 
court of appeals would create significant gaps in cover- 
age, because it would displace OSHA’s regulation 
of working conditions even when the Coast Guard (or 
another federal agency) does not—and sometimes 
cannot—regulate those conditions. 

Even if the court of appeals’ interpretation were 
applied only to the working conditions of seamen on 
uninspected vessels, it would put at risk the safety and 
health of many thousands of employees. According to 
data maintained by the Coast Guard, approximately 
68,000 vessels nationwide—including barges, fishing 
vessels, tugboats, towing vessels, and other commercial 
vessels—are classified as “documented” but “unin- 
spected.” 

14 Coast Guard marine casualty reporting 
records show that an average of 100 deaths and 600 

14 To be eligible for documentation, a vessel must be at least five 
net tons and meet certain other statutory requirements. See 46 
U.S.C. 2101(10) (definition); 46 U.S.C. 12102 (1994 & Supp. IV 
1998) (requirements). To be subject to inspection, a vessel must 
fall into one of the categories listed in 46 U.S.C. 3301 (1994 & Supp. 
IV 1998). Some vessels, such as fishing vessels smaller than five 
net tons, are neither inspected nor documented by the Coast 
Guard. As a result, the Coast Guard data understate the number 
of uninspected vessels. 

34 

injuries occur every year on uninspected vessels. 

15 

Thus, if there were an “industry-wide exemption [from 
the OSH Act] for seamen serving on vessels operating 
in navigable waters,” Pet. App. 6a, thousands of em- 
ployees on uninspected vessels would have no federal 
regulatory protection from serious threats to their 
occupational safety and health, except for the few Coast 
Guard rules that address a limited range of hazards on 
some of those vessels. See Tidewater Pac., Inc., 160 
F.3d at 1241 (holding that employees on a tugboat were 
protected by OSHA standards governing confined- 
space entry procedures, machine guarding, and blood- 
borne pathogen exposure, none of which was regulated 
by the Coast Guard); In re Inspection of Norfolk 
Dredging Co., 783 F.2d at 1531 (noting that “no federal 
agency would have the authority to regulate the safety 
of crane equipment aboard uninspected vessels” if the 
OSH Act did not apply); Red Star Marine Servs., Inc., 
739 F.2d at 780 (explaining that, if the OSH Act did not 
apply, “neither OSHA nor the Coast Guard would 
exercise authority over the uninspected vessel fleet, to 
the detriment of those employees exposed to the hazard 
of excessive noise”); Secretary of Labor v. Alaska 
Trawl Fisheries Inc., 15 O.S.H. Cas. (BNA) 1699, 1701 
(1992) (concluding that the OSH Act protects em- 

15 Those figures are based on Coast Guard records for fiscal 
years 1996 through 2000. The Coast Guard defines a reportable 
injury as one “that requires professional medical treatment (treat- 
ment beyond first aid) and, if the person is engaged or employed on 
board a vessel in commercial service, that renders the individual 
unfit to perform his or her routine duties.” 46 C.F.R. 4.05-1(a)(6). 
Not all marine casualties occur in circumstances under which the 
vessel is subject to OSH Act coverage. For example, if an accident 
occurs while a vessel is on the high seas, it is beyond the geo- 
graphical scope of the OSH Act. See 29 U.S.C. 653(a). 

35 

ployees on “factory ships” used to clean, process, freeze, 
and package fish from hazards presented by those 
activities, which are not regulated by the Coast Guard). 

If the rationale of the court of appeals were extended 
to permit industry-wide exemptions based on sporadic 
regulation by other federal agencies in other fields, 
employees in many other large industries, such as 
railroad and airline employees, would face similar gaps 
in protection. See, e.g., PBR, Inc., 643 F.2d at 893 
(employee killed by an unguarded machine used to 
repair railroad tracks); Southern Ry., 539 F.2d at 336 
(employees working in a railroad repair shop). Reading 
Section 4(b)(1) to leave “thousands of workers * * * 
exposed to unregulated industrial hazards would * 

* * 
utterly frustrate the legislative purpose.” Id. at 338; 
see also Red Star Marine Servs., Inc., 739 F.2d at 780; 
Baltimore & Ohio R.R. v. OSHRC, 548 F.2d 1052, 1054 
(D.C. Cir. 1976) (per curiam). 

In contrast, the Secretary’s interpretation of Section 
4(b)(1) ensures the comprehensive coverage that Con- 
gress intended the OSH Act to provide. At the same 
time, the Secretary’s reading of the Section gives full 
force to its specific purpose to prevent the inefficiencies 
that would result from duplicative regulation of the 
same hazards by multiple federal agencies. See Reich 

v. Muth, 34 F.3d 240, 243 (4th Cir. 1994); Columbia Gas 
of Pa., Inc., 636 F.2d at 915; American Petroleum Inst. 

v. OSHA, 581 F.2d 493, 510 (5th Cir. 1978), aff ’d on 
other grounds, 448 U.S. 607 (1980); Organized Migrants 
in Cmty. Action, Inc. v. Brennan, 520 F.2d 1161, 1167 
(D.C. Cir. 1975); 29 C.F.R. 1975.3(c). The Secretary’s 
interpretation avoids that duplication because another 
federal agency will displace OSH Act coverage if it 
adopts standards or regulations governing the working 

36 

conditions at issue or articulates a policy determination 
that such requirements are not warranted. 

16 

Accordingly, there is no merit to respondent’s con- 
tentions (Br. in Opp. 21, 22, 25) that the government’s 
approach is a “nook and cranny” theory. See also 
Texaco, Inc., 720 F.2d at 826 n.1; Southern Ry., 539 
F.2d at 338. As we have explained, see p. 16, supra, 
OSH Act coverage of a set of working conditions is 
displaced if another agency has comprehensive statu- 
tory authority over those working conditions and has 
indicated that its exercise of that authority is sufficient. 
That is why OSHA and the Coast Guard agree that 
Coast Guard regulation has displaced OSH Act cover- 
age of the working conditions of seamen on inspected 
vessels. See Pet. App. 63a. But OSHA and the Coast 
Guard also agree that the Coast Guard’s limited 

16 When another federal agency promulgates a regulation that 
makes compliance with an OSHA regulation a physical impossibil- 
ity, the other agency has thereby articulated a policy that the 
working conditions to which OSHA’s regulation would otherwise 
apply should not be regulated, at least not in the manner called for 
by the OSHA regulation. See U.S. Air, Inc., supra (Federal Avia- 
tion Administration regulation requiring airport doors to be kept 
closed to prevent terrorism preempts OSHA regulation requiring 
doors to be kept open to allow escape in case of fire). Section 
4(b)(1) does not authorize an OSHA regulation to override or to 
displace a safety or health regulation promulgated by another fed- 
eral agency. We note, however, that Congress anticipated that 
Section 4(b)(1) might result in some residual uncertainty and dupli- 
cation of enforcement efforts. See 29 U.S.C. 653(b)(3) (requiring 
Secretary to report to Congress “recommendations for legislation 
to avoid unnecessary duplication and to achieve coordination be- 
tween this chapter and other Federal laws”); Baltimore & Ohio 
R.R., 548 F.2d at 1055. As we discuss infra, OSHA and other 
federal agencies have been able to work together to reduce 
uncertainty and duplication while ensuring that employees remain 
protected. 

37 

regulation of some working conditions on some unin- 
spected vessels has not displaced OSH Act coverage of 
other working conditions on all of those vessels. 

2. Permitting the court of appeals’ decision to stand 
would interfere with long-standing, settled decisions 
regarding the lawful and most effective division of 
safety and health regulatory responsibilities between 
the Departments of Transportation and Labor. Those 
decisions are both workable and entitled to deference 
under the principles reflected in Chevron U.S.A. Inc. v. 
Natural Resources Defense Council, Inc., 467 U.S. 837, 
842-843 (1984), because they represent the views of the 
agency charged with administering and enforcing the 
OSH Act. See Martin, 499 U.S. at 147, 157. 

With the consent and active cooperation of the Coast 
Guard, OSHA historically has enforced the OSH Act 
nationwide with respect to working conditions of em- 
ployees on uninspected vessels (except in the occasional 
case in which the Coast Guard has a regulation applica- 
ble to uninspected vessels that addresses the same 
occupational safety or health hazard). 

17 OSHA inspects 
such vessels in response to employee complaints, fatali- 
ties, and referrals, and OSHA inspectors often accom- 

17 The Coast Guard has repeatedly disclaimed comprehensive 
authority to regulate uninspected vessels. See Tidewater Pac., 
Inc., 160 F.3d at 1241 (noting Coast Guard’s amicus brief in which 
it “unequivocally disclaims comprehensive regulation of unin- 
spected vessels generally, regulation of the cited conditions, and 
statutory authority to promulgate such regulations”); Alaska 
Trawl, 15 O.S.H. Cas. (BNA) at 1703 (noting Coast Guard’s view, 
and Secretary’s agreement, concerning Coast Guard’s authority to 
regulate “traditional maritime safety items, not factory condi- 
tions”). 

38 

pany Coast Guard personnel when they respond to 
marine casualties. 

18 

The Secretary has expressed her understanding of 
Section 4(b)(1) on numerous occasions since shortly 
after enactment of the OSH Act. Most notably, the Sec- 
retary’s interpretation of Section 4(b)(1) is embodied in 
three decades of citations for OSH Act violations that 
OSHA has issued to employers operating in industries 
regulated in part by other federal agencies. That 
history of citations is illustrated by the citations in this 
case and in the court of appeals decisions discussed 
above (see pp. 17-19 & notes 6-8 supra). The Secre- 
tary’s interpretations “embodied in a citation * * * 
assume[] a form expressly provided for by Congress.” 
Martin, 499 U.S. at 157. They are therefore “as much 
an exercise of delegated lawmaking powers as is the 
Secretary’s promulgation of a workplace health and 
safety standard.” Ibid. Such formal exercises of dele- 
gated lawmaking power warrant deference if they are 
reasonable interpretations of an ambiguous statute. 
See Chevron U.S.A. Inc., 467 U.S. at 842-843; e.g., In re 
Sealed Case, 223 F.3d 775, 779-781 (D.C. Cir. 2000) 
(Chevron deference applies to agency’s determination 
whether to bring enforcement action); Reich v. D.M. 
Sabia Co., 90 F.3d 854, 859-860 (3d Cir. 1996) (deferring 

18 OSHA and the Coast Guard have coordinated their enforce- 
ment in other areas as well. See, e.g., Pet. App. 62a-65a (MOU con- 
cerning inspected vessels); 62 Fed. Reg. 40,142, 40,154 (1997) 
(“OSHA coordinated with, and received support from,” Coast 
Guard on OSHA’s standards for handling cargo aboard vessels); 48 
Fed. Reg. 30,886, 30,887 (1983) (OSHA “worked closely” with 
Coast Guard in developing OSHA standards for marine terminals); 
42 Fed. Reg. 37,650, 37,654 (1977) (OSHA and Coast Guard coordi- 
nated in regulating commercial diving). 

39 

to Secretary’s interpretation of OSH Act in light of 
Chevron and Martin). 

19 

The Secretary has also expressed her views on the 
meaning of Section 4(b)(1) in a variety of other formats. 
In long-standing OSHA regulations, the Secretary has 
explained that, in enacting Section 4(b)(1), “Congress 
did not intend to grant any general exemptions under 
the Act; its sole purpose was to avoid duplication of 
effort by Federal agencies in establishing a national 
policy of occupational safety and health protection.” 
29 C.F.R. 1975.3(c); see also 29 C.F.R. 1975.1(b) 
(because the Act is “inapplicable to working conditions 
to the extent they are subject to another Federal 
agency’s exercise of different statutory authority 
affecting the occupational safety and health aspects of 
those conditions,” “standards issued under the Act 
respecting certain working conditions would not be 
applicable to the extent those conditions were subject 
to another agency’s authority”). Consistent with that 
understanding, the Secretary has regulated the work- 
ing conditions of employees in a working environment 
that was also subject to the Coast Guard’s authority, to 

19 Giving Chevron deference to the Secretary’s interpretations 
of the OSH Act made in enforcement proceedings is also consistent 
with the general rule that an agency receives such deference when 
it adjudicates a case. See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 
415, 424 (1999); NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 
89-90 (1995). Under the OSH Act, adjudication is the responsibility 
of the Occupational Safety and Health Review Commission, an 
agency that does not receive deference. See Martin, 499 U.S. at 
151-154. A failure to defer to the Secretary’s views expressed 
through enforcement of a citation would mean that no agency 
would receive deference when the Secretary interprets the OSH 
Act through enforcement of a citation and the Commission 
adjudicates the appropriateness of that interpretation. 

40 

the extent that those working conditions were not 
addressed by the Coast Guard’s regulatory efforts. See 
48 Fed. Reg. 30,886, 30,887 (1983) (discussing the Sec- 
retary’s view of Section 4(b)(1) in promulgating stan- 
dards to address hazards in the marine terminal 
environment). 

20 

The Secretary of Labor also set forth her interpre- 
tation of Section 4(b)(1) in 1980 in a statutorily-man- 
dated report concerning the Secretary’s “recom- 
mendations for legislation to avoid unnecessary dupli- 
cation and to achieve coordination between [the OSH 
Act] and other Federal laws.” 29 U.S.C. 653(b)(3). The 
Secretary explained in the report that “industries as 
such are not preempted from OSHA; rather, the pre- 
emption rule of section 4(b)(1) applies only to particular 
hazards.” Pet. App. 57a. In light of that interpretation, 
the Secretary recommended that Congress make no 
changes to Section 4(b)(1), and Congress did not revise 
the Section after receiving the Secretary’s report. See 
id. at 61a. The Secretary’s longstanding and consis- 
tently-held interpretation of Section 4(b)(1), as ex- 
pressed in numerous citations, other enforcement ef- 
forts, regulations, and that report, is entitled to defer- 
ence. 

20 Other federal agencies also recognize that OSHA may retain 
authority over employees working in areas subject to the other 
agencies’ regulations. See 59 Fed. Reg. 30,879, 30,880-30,881 (1994) 
(regulation by OSHA and Federal Railroad Administration of 
conditions on railroad bridges); Association of Am. R.R., 38 F.3d at 
586-587 (upholding that interpretation of Section 4(b)(1)); 57 Fed. 
Reg. 38,102, 38,123, 38,132 (1992) (EPA’s protection of agricultural 
workers against pesticides in light of OSHA’s field sanitation and 
hazard communication standards). 

41 

CONCLUSION 

The judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

JUDITH E. KRAMER 

Acting Solicitor of Labor 

ALLEN H. FELDMAN 

Associate Solicitor 

NATHANIEL I. SPILLER 

Deputy Associate Solicitor 

ELLEN L. BEARD 
EDWARD D. SIEGER 

Attorneys 
Department of Labor 

ROSALIND A. KNAPP 

Acting General Counsel 

RADM JAMES S. CARMICHAEL 

Chief Counsel 
United States Coast Guard 
Department of 

Transportation 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

MATTHEW D. ROBERTS 

Assistant to the Solicitor 

General 

MAY 2001