No. 00-927 

In the Supreme Court of the United States 

HENRY L. SOLANO, ACTING SECRETARY OF LABOR, 
PETITIONER 

v. 

MALLARD BAY DRILLING, INC. 

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

REPLY BRIEF FOR THE PETITIONER 

JUDY E. KRAMER 

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

TABLE OF AUTHORITIES 

Cases: Page 

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

(D.C. Cir. 1976) ....................................................................... 

3 

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

(1974) ........................................................................................ 9 

Donovan v. Red Star Marine Servs., Inc., 739 

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

(1985) ........................................................................................ 

2, 3 

Herman v. Tidewater Pac., Inc., 160 F.3d 1239 (9th 

Cir. 1998) ................................................................................. 

2, 3, 9 

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

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

2, 3 

Secretary of Labor v. Alaska Trawl Fisheries, Inc., 

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

3 

Secretary of Labor v. Dillingham Tug & Barge 

Corp., 10 O.S.H. Cas. (BNA) 1859 (1982) ......................... 

3 

Secretary of Labor v. Tidewater Pac., Inc., 17 

O.S.H. Cas. (BNA) 1920 (1997), aff ’d, 160 F.3d 1239 

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

3, 9 

Southern Ry. v. OSHRC, 539 F.2d 335 (4th Cir.), 

cert. denied, 429 U.S. 999 (1976) ......................................... 

3 

Taylor v. Moore-McCormack Lines, Inc., 621 F.2d 

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

3 

Statutes, regulations and rule: 

Occupational Safety and Health Act, 29 U.S.C. 651 

et seq. ................................................................. 

1, 2, 3, 4, 5, 6, 8, 9 

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

5 

§ 4(a), 29 U.S.C. 653(a) .................................................... 

9 

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

1, 2, 4, 5, 7 

46 U.S.C. 4102 (1994 & Supp. IV 1998) ................................. 

6 

46 C.F.R.: 

Pt. 4 ...................................................................................... 7 

(I) 

II 

Regulations and rule—Continued: 

Page 

Pts. 24-26 (Subch. C) ........................................................ 

6 

Section 24.05-1 (Table 24.05-1(A)) ............................ 

6 

Section 24.10-27 ........................................................... 

6 

Sup. Ct. R. 10 ............................................................................. 

2 

Miscellaneous: 

S. Rep. No. 1282, 91st Cong., 2d Sess. (1970) ...................... 5 

In the Supreme Court of the United States 

No. 00-927 

HENRY L. SOLANO, ACTING SECRETARY OF LABOR, 
PETITIONER 

v. 

MALLARD BAY DRILLING, INC. 

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

REPLY BRIEF FOR THE PETITIONER 

The Secretary of Labor seeks this Court’s review of a 
decision of the United States Court of Appeals for the 
Fifth Circuit holding that the Occupational Safety and 
Health Act (OSH Act) does not apply to the working 
conditions of seamen aboard uninspected vessels. As 
we have explained in our petition for a writ of certio- 
rari, that decision squarely conflicts with the holdings 
of three courts of appeals. Pet. 9-10. More generally, 
the decision departs from the consensus of other courts 
of appeals that Section 4(b)(1) of the OSH Act, 29 
U.S.C. 653(b)(1), on which the Fifth Circuit relied, does 
not confer an industry-wide exemption from the Act’s 
coverage based on limited regulation by another agency 
of employees in a particular industry. Pet. 10-11. We 

(1) 

2 

also explain in the petition that the issue addressed by 
the court of appeals is an important one. Pet. 19-21. 

Respondent acknowledges (Br. in Opp. 14) that there 
is a conflict among the courts of appeals and does not 
dispute the importance of the issue. Instead, respon- 
dent opposes this Court’s review (id. at 8-30) only on 
the ground that respondent considers the decision of 
the court of appeals to be correct. The merit of the 
court of appeals’ decision, however, does not warrant 
denial of review when, as respondent acknowledges, the 
decision has created a circuit conflict on a question of 
recurring importance. See Sup. Ct. R. 10. Moreover, as 
we explain in the certiorari petition (at 12-19), and 
contrary to respondent’s contention, the court of 
appeals’ decision is incorrect. 

1. As respondent acknowledges (Br. in Opp. 14), the 
courts of appeals are in conflict on the question pre- 
sented. The Second, Ninth, and Eleventh Circuits have 
each upheld regulation by the Occupational Safety and 
Health Administration (OSHA) of working conditions 
on uninspected vessels. Herman v. Tidewater Pac., 
Inc., 160 F.3d 1239, 1244-1245 (9th Cir. 1998); In re 
Inspection of Norfolk Dredging Co., 783 F.2d 1526, 1531 
(11th Cir.), cert. denied, 479 U.S. 883 (1986); Donovan v. 
Red Star Marine Servs., Inc., 739 F.2d 774, 780 (2d Cir. 
1984), cert. denied, 470 U.S. 1003 (1985). The Fifth 
Circuit in this case disagreed and held that only the 
Coast Guard can regulate working conditions of seamen 
on uninspected vessels. Pet. App. 3a-7a; see also id. at 
66a-67a (denying petition for rehearing en banc). 

In addition, the Fifth Circuit’s decision conflicts more 
generally with decisions of the District of Columbia and 
Fourth Circuits holding that Section 4(b)(1) does not 
authorize industry-wide exemptions from OSH Act 
coverage based on limited regulation by another 

3 

agency. Baltimore & Ohio R.R. v. OSHRC, 548 F.2d 
1052, 1053-1054 (D.C. Cir. 1976) (per curiam); Southern 
Ry. v. OSHRC, 539 F.2d 335, 338 (4th Cir.), cert. 
denied, 429 U.S. 999 (1976); accord Tidewater Pac., 160 
F.3d at 1245; Norfolk Dredging, 783 F.2d at 1531; Red 
Star, 739 F.2d at 778.1 

2. In addition to acknowledging the conflict, respon- 
dent does not dispute that the question presented is 
important. As we describe in our petition (at 19-20), the 
effect of the decision of the court of appeals is to leave 
the crews of several thousand uninspected vessels 
within the Fifth Circuit with no statutory or regulatory 
protection from serious threats to their occupational 
safety and health, except for a few Coast Guard rules 
addressing a few hazards on only some uninspected 

1 Respondent suggests (Br. in Opp. 13, 14, 18-19) that the 
Fourth Circuit and the Occupational Safety and Health Review 
Commission share the Fifth Circuit’s position on OSH Act cover- 
age of uninspected vessels. That is incorrect. The Fourth Circuit 
decision on which respondent relies, Taylor v. Moore-McCormack 
Lines, Inc., 621 F.2d 88 (4th Cir. 1980), did not address OSH Act 
coverage of working conditions of seamen on uninspected vessels, 
but instead held that a longshoreman could not rely on a Coast 
Guard regulation to support a negligence action against a ship- 
owner. As for the Commission decision cited by respondent, 
Secretary of Labor v. Dillingham Tug & Barge Corp., 10 O.S.H. 
Cas. (BNA) 1859 (1982), subsequent Commission decisions have 
held that uninspected vessels are covered by the OSH Act and 
have rejected a reading of Dillingham that would endorse an 
industry-wide exemption from OSH Act coverage. See Secretary 
of Labor v. Tidewater Pac., Inc., 17 O.S.H. Cas. (BNA) 1920, 1923- 
1924 (1997), aff ’d, 160 F.3d 1239 (9th Cir. 1998); Secretary of Labor 

v. Alaska Trawl Fisheries, Inc., 15 O.S.H. Cas. (BNA) 1699, 1704- 
1705 (1992). The ALJ relied on those precedents in finding OSH 
Act coverage in this case, see Pet. App. 13a-17a, and the 
Commission itself elected not to review the ALJ’s decision, there- 
by rendering it the final decision of the Commission, see id. at 20a. 

4 

vessels. Indeed, respondent tacitly acknowledges that 
the issue in this case is important to employers as 
well as employees, because respondent contends 
(erroneously) that the rule followed by all the other 
courts of appeals “[s]ubject[s] employers to double 
agency jurisdiction” and therefore “involves a waste of 
the employer’s resources.” Br. in Opp. 28. 

3. a. In our petition (at 12-19), we explain that the 
Fifth Circuit’s decision in this case is incorrect. 
Contrary to the view of the Fifth Circuit, Section 
4(b)(1) does not create industry-wide exemptions from 
the OSH Act based on limited exercises of regulatory 
authority by other federal agencies. Rather, the OSH 
Act is displaced only when another agency actually has 
regulated the working conditions at issue or has 
articulated a policy that the working conditions should 
not be regulated. Because the Coast Guard has neither 
regulated the working conditions at issue here nor 
articulated a policy that they should not be regulated, 
the OSH Act continues to apply. 

That understanding of Section 4(b)(1) follows from 
its text, the history surrounding its enactment, the 
Secretary of Labor’s long-standing interpretation, and 
the purpose of the OSH Act. Section 4(b)(1) provides 
that “[n]othing in [the OSH 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). As 
all the courts of appeals (including the Fifth Circuit) 
agree, that language expressly provides that OSH 
Act coverage is displaced only when another agency 
actually has “exercise[d]” its statutory authority to 
regulate occupational safety and health by prescribing 
or enforcing regulations or by articulating a policy that 

5 

regulation is not warranted. See Pet. 13 & n.6 (citing 
cases). 

The text of Section 4(b)(1), which limits preemption 
of OSH Act coverage to “working conditions * * * 
with respect to which” another agency has exercised 
such authority, also makes clear that another agency’s 
exercise of its authority to regulate some working con- 
ditions of some employees within an industry does not 
create an industry-wide exemption from OSH Act 
coverage. See Pet. 14 (citing cases). The drafting 
history of the provision confirms that this language was 
used precisely in order to limit the circumstances in 
which the OSH Act is superseded to “particular work- 
ing conditions regarding which another Federal agency 
exercises statutory authority.” S. Rep. No. 1282, 91st 
Cong., 2d Sess. 22 (1970) (emphasis added); see Pet. 15. 
That understanding is also reflected in long-standing 
OSHA regulations, a 1980 report by the Secretary of 
Labor to Congress, and three decades of citations for 
OSH Act violations. See Pet. 16. Finally, the Secre- 
tary’s interpretation of Section 4(b)(1) advances the 
OSH Act’s express purpose “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) 
(emphasis added). 

We further explain in the certiorari petition that, if 
the court of appeals had applied the proper inter- 
pretation of Section 4(b)(1) in this case, the court would 
have concluded that Coast Guard action has not 
displaced the OSH Act. See Pet. 17-18. Although the 
Coast Guard has issued comprehensive standards and 
regulations concerning the working conditions of sea- 
men aboard inspected vessels, the vessel at issue in this 
case, the Mr. Beldon, is an uninspected vessel. See 
ibid.; Pet. 4, 12 & n.5. The Coast Guard has regulated 

6 

only a few working conditions on uninspected vessels. 
See 46 C.F.R. Pts. 24-26 (implementing 46 U.S.C. 4102 
(1994 & Supp. IV 1998)). The working conditions at 
issue in this case are the hazards posed by oil drilling 
operations on uninspected vessels. The Coast Guard 
has not regulated those working conditions. It 
therefore has not exercised any authority that displaces 
OSH Act coverage of those conditions. 

b. Respondent begins its defense of the Fifth 
Circuit’s decision by arguing (Br. in Opp. 8-13) that its 
holding is dictated by Fifth Circuit precedent. That 
contention is, however, irrelevant to whether the 
decision is correct. Respondent therefore attempts 
to bolster its defense by asserting (id. at 6-7, 15-21) that 
the distinction between inspected and uninspected 
vessels is of no import because “the Coast Guard’s 
regulations over uninspected vessels is [sic] pervasive 
and unencumbered” (id. at 6). As we have explained, 
however, that assertion is incorrect. Coast Guard 
regulations directed at uninspected vessels cover only a 
limited range of health and safety hazards on only 
certain uninspected vessels. See Pet. 4; 46 C.F.R. Pts. 
24-26 (Subch. C). Those regulations do not address the 
particular working conditions faced by employees 
engaged in oil drilling operations, and they do not even 
apply to the Mr. Beldon, which is an uninspected barge 
that does not carry passengers for hire. See 46 C.F.R. 

24.10-27; id. § 24.05-1 (Table 24.05-1(A) (Col. 6)).2 

2 Respondent asserts (Br. in Opp. 3) that its expert witness 
“confirmed that the MR. BELDON’s living quarters met or ex- 
ceeded Coast Guard requirements for structural fire protection, 
habitability, machinery spaces, electrical distribution system, fire 
prevention, life saving, communication, abandon ship, training and 
safety programs.” That assertion is both unsupported by the 
record and irrelevant. First, respondent’s witness testified only 

7 

Notably, respondent does not identify a single Coast 
Guard regulation that addresses the safety hazards 
posed by oil drilling operations on uninspected vessels. 
The reason for that omission is simple: no such regu- 
lation exists.3 

Respondent also argues (Br. in Opp. 21-26, 27-30) 
that the Secretary’s interpretation of Section 4(b)(1) is 
incorrect. That argument, however, is based on a 
misreading of the Secretary’s interpretation. Contrary 
to respondent’s characterization (id. at 21), the Secre- 

that the living quarters on a “sister vessel” (ALJ Tr. 130, 142) met 
Coast Guard regulations for “inspected vessels” (id. at 143). 
Second, and more fundamentally, those regulations do not apply to 
the Mr. Beldon. Respondent’s further assertions (Br. in Opp. 29) 
that the Coast Guard “absolved Mallard of any wrongdoing” in this 
case and “decided that no regulation is needed” of the hazards that 
led to the deaths of respondent’s employee’s are also incorrect. 
The Coast Guard report identified several shortcomings in re- 
spondent’s safety procedures, Pet. App. 48a-50a, and referred the 
matter to OSHA because the Coast Guard lacked applicable regu- 
lations, id. at 12a, 24a-25a. 

3 Respondent asserts (Br. in Opp. 17) that “numerous other 
Coast Guard regulations outside the chapter entitled ‘Uninspected 
Vessels’ govern the working conditions of seamen aboard unin- 
spected vessels.” The only regulations that respondent identifies, 
however, are those concerning reporting and investigation of 
marine casualties (46 C.F.R. Pt. 4), which, as we note in our peti- 
tion (at 5 n.1), apply to both inspected and uninspected vessels. 
Even though marine casualties may, in some instances, result from 
unsafe working conditions, regulations that govern reporting and 
investigation of casualties that have already occurred do not regu- 
late those working conditions themselves. Although uninspected 
vessels may become subject to certain additional Coast Guard 
regulations because of the particular activities in which they 
engage at a particular time, the Coast Guard has no ongoing, 
substantial regulations of the working conditions of employees on 
uninspected vessels other than those specified in the subchapter 
governing those vessels. 

8 

tary does not take the position that “OSHA regulations 
are preempted under Section 4(b)(1) only if the Coast 
Guard has a specific regulation which is nearly identical 
to the OSHA regulation.” Rather, as we have ex- 
plained, the Secretary’s position, which is shared 
by the Coast Guard and the rest of the United States 
government, is that “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 enforce its own safety and health stan- 
dards or has articulated a policy that the working 
conditions not be regulated.” Pet. 17. Also contrary to 
respondent’s contentions (Br. in Opp. 21, 22, 25), the 
government’s approach is not a “nook and cranny” 
theory. Displacement of OSHA regulation can occur 
with regard to either a specific working condition or a 
set of working conditions with respect to which an 
agency has comprehensive statutory authority and has 
indicated that its exercise of that authority is sufficient. 
See Pet. 12 n.5. Indeed, that is precisely why OSHA 
and the Coast Guard agree that Coast Guard regulation 
has displaced OSH Act coverage of the working con- 
ditions of seamen on inspected vessels. See ibid. (citing 
Memorandum of Understanding reprinted in Pet. App. 
62a-65a). But OSHA and the Coast Guard also agree 
that the Coast Guard’s limited regulation of some 
working conditions on some uninspected vessels has not 
displaced OSH Act coverage of all working conditions 
on all of those vessels. 

Finally, respondent errs in contending (Br. in Opp. 
22-25) that the Secretary’s interpretation is based on 
a misreading of the phrase “working conditions of 
employees.” Contrary to respondent’s contention, 
“working conditions” means particular hazards encoun- 
tered by an employee in the course of his or her job 

9 

activities. See Pet. 18 n.8; see also Corning Glass 
Works v. Brennan, 417 U.S. 188, 202 (1974) (technical 
meaning of “working conditions” in the language of 
industrial relations is a worker’s “surroundings”—“the 
elements, such as toxic chemicals or fumes, regularly 
encountered by a worker, their intensity, and their 
frequency”—and “hazards”—“physical hazards regu- 
larly encountered, their frequency, and the severity of 
injury they can cause”). As we have acknowledged, not 
all the courts of appeals accept that definition of 
“working conditions,” Pet. 18 n.8 (citing cases), but it is 
the Secretary’s long-standing interpretation. In any 
event, as we explain in the certiorari petition (at 18 n.8), 
even under the “environmental definition [of working 
conditions espoused by respondent], it is apparent that 
the Coast Guard regulation of uninspected vessels is 
not so pervasive as to preempt [OSHA] jurisdiction as 
to any particular portion of such vessels nor as to such 
vessels in whole.” Tidewater Pac., 160 F.3d at 1245- 
1246.4 

* * * * * 

4 Respondent also argues (Br. in Opp. 7, 27) that the Mr. Beldon 
is not subject to the OSH Act because a vessel “operating in state 
territorial waters” is not a “workplace in a State” under 29 U.S.C. 
653(a). That argument was not addressed by the court of appeals, 
Pet. App. 7a, and is, in any event, without merit. See Tidewater 
Pac., 17 O.S.H. Cas. (BNA) at 1923 (OSH Act applies to territorial 
waters within a State); Pet. App. 13a (ALJ decision, following 
Tidewater Pac.). 

10 

For the foregoing reasons, and those set forth in our 
petition, the petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

JUDY E. KRAMER 

Acting Solicitor of Labor 
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 

JANUARY 2001