No. 00-927 

In the Supreme Court of the United States 

ALEXIS M. HERMAN, 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 

PETITION FOR A WRIT OF CERTIORARI 

HENRY L. SOLANO 

Solicitor of Labor 

ALLEN H. FELDMAN 

Associate Solicitor 

NATHANIEL I. SPILLER 

Deputy Associate Solicitor 

ELLEN L. BEARD 

Attorney 
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 
SETH P. WAXMAN 

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 vessels” 
(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 

Reasons for granting the petition ............................................... 
9 

Conclusion ....................................................................................... 22 

Appendix A ..................................................................................... 
1a 

Appendix B ..................................................................................... 
8a 

Appendix C ..................................................................................... 
20a 

Appendix D ..................................................................................... 
22a 

Appendix E ..................................................................................... 
52a 

Appendix F ..................................................................................... 
62a 

Appendix G ..................................................................................... 
66a 

TABLE OF AUTHORITIES 

Cases: 

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

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

13 

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

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

11, 14, 17 

Clary v. Ocean Drilling & Exploration Co.: 

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

8 

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

8, 11 

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

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

13, 18 

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

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

15, 18 

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

739 F.2d 774 (2d Cir. 1984), cert. denied, 470 

U.S. 1003 (1985) .................................. 

9, 10, 11, 13, 14, 17, 18 

Donovan v. Texaco, Inc.: 

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

8 

720 F.2d 825 (5th Cir. 1983) ............................................... 8, 11 

(III) 

IV 

Cases—Continued: Page 

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

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

9, 10, 11, 14, 19 

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

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

(1986) ...................................................... 

9, 10, 11, 12, 13, 14, 18 

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

16 

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

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

13, 18 

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

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

11, 

13-14 

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

11, 13, 14, 17, 18 

Statutes and regulations: 

Occupational Safety and Health Act of 1970, 

29 U.S.C. 651 et seq. ............................................................... 

2 

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

2, 17 

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

2, 7, 20 

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

passim 

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

6 

29 U.S.C. 654(a)(1) ............................................................ 

2 

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

2 

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

7 

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

4 

46 U.S.C. 395 (1976) .................................................................. 

8 

46 U.S.C. 2101 et seq. ................................................................ 

4 

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

4 

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

19 

46 U.S.C. 2101(43) ..................................................................... 

4 

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

4, 19 

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

8 

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

4 

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

8, 18, 19 

46 U.S.C. 6101-6104 (1994 & Supp. IV 1998) ....................... 

5 

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

V 

Statutues and regulations—Continued: 
Page 

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

19 

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

4 

29 C.F.R.: 

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

6 

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

6 

Section 1975.1(b) .................................................................. 

3, 16 

Section 1975.3(c) .................................................................. 

3, 16 

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

4 

Pt. 4 ......................................................................................... 

5 

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

20 

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

4, 18, 19 

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

8 

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

8 

49 C.F.R. 1.46(b) ........................................................................ 

4 

Miscellaneous: 

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

14 

48 Fed. Reg. 11,365 (1983) ....................................................... 
5 

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

H.R. 843, 91st Cong., 1st Sess. (1969) ................................... 
14 

H.R. 4294, 91st Cong., 1st Sess. (1969) ................................. 
14 

H.R. 13373, 91st Cong., 1st Sess. (1969) ............................... 
14 

H.R. 16785, 91st Cong., 1st Sess. (1970) ........................... 
14, 15 

H.R. Conf. Rep. No. 1765, 91st Cong., 2d Sess. 
(1970) ........................................................................................ 15 

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

5 

S. 2788, 91st Cong., 1st Sess. (1969) ...................................... 
14 

S. 2193, 91st Cong., 2d Sess. (1970) .................................... 
14, 15 

S. Rep. No. 1282, 91st Cong., 2d Sess. (1970) ...................... 
15 

Staff of 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) ........................................................... 14, 15 

In the Supreme Court of the United States 

No. 00-927 

ALEXIS M. HERMAN, 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 

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the Secretary of 
Labor, respectfully petitions for a writ of certiorari to 
review the judgment of the United States Court of 
Appeals for the Fifth Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 1a- 
7a) is reported at 212 F.3d 898. The decision of the 
Occupational Safety and Health Review Commission 
(App., infra, 8a-21a) is 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 (App., infra, 66a-67a). On October 27, 
2000, Justice Scalia extended the time within which to 

(1) 

2 

file a petition for a writ of certiorari to and including 
December 6, 2000. The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1). 

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 
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. 

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 em- 
ployees 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 Admini- 
stration (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). 

3 

When the Act was passed, certain federal agencies 
already had statutory authority to regulate the occupa- 
tional safety and health of employees in particular 
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 “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 
under the high seas and waters subject to the juris- 
diction of the United States covering all matters not 

4 

specifically delegated by law to some other executive 
department.” 14 U.S.C. 2. The extent of the Coast 
Guard’s 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 (vessels and seamen). “Inspected” vessels, 
listed in 46 U.S.C. 3301 (1994 & Supp. IV 1998), include, 
for example, freight vessels, passenger vessels, sea- 
going 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). “Uninspected 
vessels” are vessels not subject to inspection under Sec- 
tion 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, al- 
teration, repair, and operation. 46 U.S.C. 3306 (1994 & 
Supp. IV 1998). The Coast Guard has exercised that 
authority on behalf of the Secretary by issuing com- 
prehensive regulations. See generally 46 C.F.R. Ch. I; 
49 U.S.C. 108(b) (Commandant of Coast Guard shall ex- 
ercise powers delegated by Secretary of Transporta- 
tion); 49 C.F.R. 1.46(b) (delegating authority to the 
Commandant). In contrast to its broad authority over 
inspected vessels, the Coast Guard’s statutory author- 
ity to issue regulations for uninspected vessels is 
limited to specific topics, including fire extinguishers, 
life preservers, flame arrestors or backfire traps, ven- 
tilation, and emergency locating equipment. 46 U.S.C. 
4102 (1994 & Supp. IV 1998). Coast Guard regulations 
therefore cover only a limited range of health and 
safety hazards on only certain uninspected vessels. See 
46 C.F.R. Pts. 24-26. The Coast Guard has not 

5 

regulated hazards related to oil drilling operations on 
uninspected vessels.1 

In light of those statutory and regulatory provisions, 
OSHA and the Coast Guard have entered into a memo- 
randum of understanding (MOU) that clarifies the 
division of authority over working conditions on ves- 
sels. 48 Fed. Reg. 11,365 (1983) (reprinted in App., 
infra, 62a-65a). The MOU explains that the Coast 
Guard generally has exclusive authority over the 
working conditions of seamen aboard inspected vessels. 
App., infra, 63a. The MOU specifically states that it 
does not apply to uninspected vessels. Id. at 62a. 
OSHA generally exercises authority over such vessels 
unless a Coast Guard regulation applies to the specific 
working condition at issue. See OSHA Instruction CPL 
2-1.20(R) at 14 (Nov. 8, 1996). 

2. a. Respondent Mallard Bay Drilling, Inc., conducts 
oil and gas drilling operations. App., infra, 10a. On 
June 16, 1997, four of respondent’s employees were 
killed and two others seriously injured in an explosion 
on a drilling barge located on Little Bayou Pigeon, a 
navigable waterway within the State of Louisiana. Id. 
at 2a. The drilling barge 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. 

1 The Coast Guard is also authorized to require reporting and 
to conduct investigations of marine casualties involving both 
inspected and uninspected vessels. 46 U.S.C. 6101-6104, 6301-6308 
(1994 & Supp. IV 1998). The Coast Guard has exercised that 
authority. See 46 C.F.R. Pt. 4. 

6 

The Coast Guard conducted a marine casualty inves- 
tigation of the incident. See note 1, supra. The Coast 
Guard determined that explosive concentrations of 
natural gas had spread throughout the barge as a result 
of the blowout. App., infra, 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 blowout control; that 
respondent’s supervisors had not followed respondent’s 
existing emergency procedures; and that they had not 
recognized the hazard of explosive gas accumulations 
on the rig and had not ordered the evacuation of on- 
duty personnel. Id. at 48a-50a. Because the Coast 
Guard lacked regulations governing those matters, it 
took no enforcement action and referred the matter to 
OSHA. Id. at 12a, 24a-25a. 

Based on the report and other information from the 
Coast Guard, OSHA cited respondent for three viola- 
tions of the OSH Act. App., infra, 2a. OSHA alleged 
that respondent had violated the Act’s general duty 
clause, 29 U.S.C. 654(a), by failing to evacuate employ- 
ees in a timely manner after the well blowout. App., 
infra, 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). App., infra, 9a. 

b. Respondent did not contest the merits of the 
citation but argued before the Occupational Safety and 
Health Review Commission (Commission) that respon- 
dent was not subject to the OSH Act for two reasons. 
First, respondent contended that the drilling barge was 

7 

not a “workplace in a State” under 29 U.S.C. 653(a); 
and, second, respondent argued that the Coast Guard 
regulatory scheme rendered the OSH Act inapplicable 
under 29 U.S.C. 653(b)(1). App., infra, 2a. 

The administrative law judge (ALJ) affirmed the 
citation. App., infra, 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 jurisdiction is preempted only as to those work- 
ing conditions actually covered by another agency’s 
regulations. App., infra, 14a-15a. Because respondent 
made no showing that any Coast Guard regulations 
address evacuation and emergency response to hazard- 
ous substance releases on uninspected vessels, id. at 
15a, 16a, the ALJ concluded that the Coast Guard had 
not exercised authority to regulate the working con- 
ditions at issue and that OSHA jurisdiction was there- 
fore not preempted under 29 U.S.C. 653(b)(1). App., 
infra, 18a. The Commission declined review, and the 
ALJ 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. App., infra, 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), App., infra, 3a, 7a, 
and therefore the court declined to address respon- 
dent’s contention that the barge was not a “workplace 
in a State” within the meaning of 29 U.S.C. 653(a), App., 
infra, 7a. 

The court noted that, under Fifth Circuit precedent, 
“OSHA regulations do not apply to working conditions 

8 

of seamen on vessels in navigation” because “the Coast 
Guard has exclusive authority over the working condi- 
tions of seamen.” App., infra, 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 OSHA’s con- 
tention that those cases were distinguishable because 
they involved inspected, rather than uninspected, ves- 
sels. App., infra, 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 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. 
App., infra, 5a-6a (citing 46 C.F.R. 25.01 et seq. and 46 
C.F.R. 26.01 et seq.). The court of appeals therefore 
reaffirmed its conclusion in Texaco that “the Coast 
Guard’s comprehensive regulation and supervision of 
seamen’s working conditions [creates] an industry-wide 
exemption [from OSHA] for seamen serving on vessels 
operating on navigable waters.” Id. at 6a (quoting 
Texaco, 720 F.2d at 826).3 

2 In fact, the vessel in Clary was a mobile offshore drilling unit 
operating on the outer continental 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 46 U.S.C. 395 (1976), the 
predecessor to 46 U.S.C. 3301(6). 

3 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). 

9 

REASONS FOR GRANTING THE PETITION 

The decision of the court of appeals that the 
Occupational Safety and Health Act does not apply to 
the working conditions of seamen aboard uninspected 
vessels squarely conflicts with the holdings of three 
other courts of appeals. More generally, the decision 
departs from the well-established 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 ex- 
ception to the Act’s coverage based on limited regula- 
tion of employees in that industry by another agency. 
The court of appeals’ erroneous interpretation of Sec- 
tion 4(b)(1) is inconsistent with its text, the history 
surrounding its enactment, its long-standing interpreta- 
tion by the Secretary, and the purpose of the OSH Act. 
Finally, the decision leaves thousands of crew members 
on uninspected vessels within the jurisdiction of the 
Fifth Circuit without protection from serious health 
and safety hazards. This Court’s review is therefore 
warranted. 

1. In holding that the OSH Act does not apply to the 
working conditions of employees on uninspected 
vessels, the Fifth Circuit has created a conflict with the 
decisions of the three other courts of appeals that have 
addressed the same question. The Second, Ninth, and 
Eleventh Circuits have each upheld OSHA regulation 
of working conditions on uninspected vessels. See 
Herman v. Tidewater Pac., Inc., 160 F.3d 1239, 1244- 
1245 (9th Cir. 1998); In re Inspection of Norfolk Dredg- 
ing 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). 

10 

In Red Star, the Second Circuit held that OSHA 
could regulate noise aboard an uninspected vessel 
because the noise was a working condition that was not 
regulated by the Coast Guard. 739 F.2d at 778-780. 
The court explained that “the Coast Guard’s regulation 
of uninspected vessels is limited to only a few areas,” 
and it is therefore not “exercising jurisdiction sufficient 
to regulate comprehensively the working conditions of 
employees aboard uninspected vessels.” Id. at 780. 
“Since the Coast Guard is not exercising statutory 
authority within the meaning of section 4(b)(1) of the 
OSH Act,” the court held, “OSHA may regulate noise 
hazards aboard uninspected vessels.” Ibid. Similarly, 
in Norfolk Dredging, the Eleventh Circuit held that 
“the Coast Guard’s regulation of safety aboard unin- 
spected vessels is so circumscribed that it does not 
preempt OSHA’s jurisdiction over crane safety aboard 
uninspected vessels.” 783 F.2d at 1531. The court 
explained that, under Section 4(b)(1), OSHA jurisdic- 
tion is displaced only when another agency “either 
promulgate[s] regulations governing the working 
condition at issue, or articulate[s] a policy that the 
condition not be regulated.” Id. at 1530. Finally, in 
Tidewater Pacific, the Ninth Circuit “agree[d] with the 
Secretary, the Commission, and the Second and Elev- 
enth Circuits that the Coast Guard regulation of unin- 
spected vessels does not preempt [OSHA] jurisdiction” 
(160 F.3d at 1245) in a case in which the “Coast Guard 
has not issued specific regulations governing the 
subjects of the [OSH Act] citation” (id. at 1243). 

Those decisions are applications of the more general 
understanding that Section 4(b)(1) does not authorize 
exemptions of entire industries from OSH Act coverage 
based on limited regulation by another agency. That 
view is shared not only by the Courts of Appeals for the 

11 

Second, Ninth, and Eleventh Circuits but also by the 
Courts of Appeals for the District of Columbia and 
Fourth Circuits. See Tidewater Pac., 160 F.3d at 1245; 
Norfolk Dredging, 783 F.2d at 1531; Red Star, 739 F.2d 
at 778; 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). As the Second Circuit has 
explained, those “decisions teach that section 4(b)(1) 
was not intended to create industry-wide exemptions 
based on isolated or narrow exercises of statutory 
authority.” Red Star, 739 F.2d at 778.4 

Fifteen years ago, the government opposed this 
Court’s review in Red Star and Norfolk Dredging be- 
cause there was not then a square conflict in the circuits 
regarding OSHA jurisdiction over uninspected vessels. 
See 86-28 Br. in Opp. at 10-11, 13 in Norfolk Dredging 
Co. v. Secretary of Labor, supra; 84-590 Br. in Opp. at 
10-11 in Red Star Marine Servs., Inc. v. Donovan, 
supra. At that time, the Fifth Circuit had already 
decided Clary v. Ocean Drilling & Exploration Co., 609 
F.2d 1120 (1980), and Donovan v. Texaco Inc., 720 F.2d 
825, 826 (1983), on which the court of appeals relied in 
this case. The Second and Eleventh Circuits had, how- 
ever, found that the facts of those cases were distin- 
guishable. See Norfolk Dredging, 783 F.2d at 1531; Red 
Star, 739 F.2d at 778-779. Moreover, because Clary and 
Texaco involved inspected vessels (see notes 2 & 3, 
supra), the government believed that those decisions 
spoke only to OSHA authority over working conditions 

4 Indeed, the Fifth Circuit itself espoused the same view 
nearly a quarter century ago in a case concerning the railway 
industry. See Southern Pac. Transp. Co. v. Usery, 539 F.2d 386, 
390 (1976), cert. denied, 434 U.S. 874 (1977). 

12 

on inspected vessels and did not address OSHA 
authority concerning uninspected vessels. See App., 
infra., 4a-5a. The Fifth Circuit, however, has now 
rejected any distinction of those cases based on the fact 
that they involved inspected vessels and has held that 
OSHA lacks authority over all working conditions of 
seamen on all vessels in navigation, including unin- 
spected vessels. See id. at 3a-6a; see also id. at 66a-67a 
(denying petition for rehearing en banc). As a result, it 
is now appropriate for this Court to resolve the conflict 
created by the Fifth Circuit’s decision. 

2. The Fifth Circuit’s decision is incorrect. The 
court’s holding that OSHA lacks authority over all 
working conditions of seamen on all vessels in naviga- 
tion, including uninspected vessels, rests on an inter- 
pretation of Section 4(b)(1) that is inconsistent with its 
text, the history surrounding its enactment, the Secre- 
tary of Labor’s long-standing interpretation of the 
Section, and the purpose of the OSH Act. 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 dis- 
placed when another agency actually has regulated the 
working conditions at issue or has articulated a policy 
that the working conditions should not be regulated. 
See, e.g., Norfolk Dredging, 783 F.2d at 1530.5 Because 

5 Such 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 statutory authority and has 
indicated that its exercise of that authority is sufficient. Thus, as 
explained in the MOU between the Coast Guard and OSHA, the 
Coast Guard’s exercise of its authority with respect to inspected 
vessels has displaced OSH Act coverage because the Coast Guard 
has promulgated “extensive specific regulations governing the 

13 

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. 

a. Section 4(b)(1) of the OSH Act provides that 
“[n]othing in this [Act] shall apply to working condi- 
tions of employees with respect to which other Federal 
agencies * * * exercise statutory authority to pre- 
scribe 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 actu- 
ally has “exercise[d]” its statutory authority to regulate 
occupational safety and health.6 Possession of statutory 
authority is necessary but not sufficient to oust OSHA 
jurisdiction. The other agency must also “exercise” 
that authority by prescribing or enforcing regulations 
or by articulating a policy that regulation is not war- 
ranted. See Association of Am. R.R. v. Department of 
Transp., 38 F.3d 582, 586 (D.C. Cir. 1994); Norfolk 
Dredging, 783 F.2d at 1530; Southern Pac. Transp. Co. 

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.” App., infra, 63a. 

6 See App., infra, 6a; Association of Am. R.R. v. Department of 
Transp., 38 F.3d 582, 586 (D.C. Cir. 1994); Norfolk Dredging, 783 
F.2d at 1530; Red Star, 739 F.2d at 778; 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; Southern Pac., 539 F.2d at 389. 

14 

v. Usery, 539 F.2d 386, 391-392 (5th Cir. 1976), cert. 
denied, 434 U.S. 874 (1977).7 
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. See Tidewater Pac., 160 F.3d at 
1245; Norfolk Dredging, 783 F.2d at 1531; Red Star, 
739 F.2d at 778; Baltimore & Ohio R.R., 548 F.2d at 
1053-1054; Southern Ry., 539 F.2d at 338; see also 
Southern Pac., 539 F.2d at 389-390. By its terms, the 
text limits preemption to “working conditions of em- 
ployees with respect to which” other federal agencies 
exercise authority. 29 U.S.C. 653(b)(1) (emphasis 
added). If Congress had intended to create industry- 
wide exceptions to OSH Act coverage, Congress could 
have provided that the Act would not apply to “indus- 
tries in which” other agencies regulate occupational 

7 The legislative history is equally clear on this point. Several 
bills under consideration would have precluded OSH Act enforce- 
ment 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 Staff of 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. (1970), as reported, 
§ 4(b)(1) (Leg. Hist. 237); H.R. 16785, 91st Cong., 2d Sess. (1970), as 
reported, § 22(b) (Leg. Hist. 975), as well as the text that was 
ultimately enacted, however, precluded OSH Act enforcement only 
when another agency “exercises” such authority. That point was 
also emphasized in a colloquy on the House floor. See Southern 
Ry., 539 F.2d at 337 (quoting Leg. Hist. 1019); 116 Cong. Rec. 
38,381 (1970). 

15 

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. But Congress chose not to do so. 

The bill initially passed by the House of Representa- 
tives did in fact provide for preemption of “working 
conditions of employees with respect to whom” other 
agencies exercise statutory authority to prescribe or 
enforce standards or regulations affecting occupational 
safety or health. See H.R. 16785, 91st Cong., 2d Sess. 
§ 25(b) (1970), reprinted in Staff of Senate Comm. on 
Labor and Public Welfare, 92d Cong., 1st Sess., Legis- 
lative History of the Occupational Safety and Health 
Act of 1970, at 1109 (Comm. Print 1971) (Leg. Hist.). 
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, 91st Cong., 2d Sess. § 4(b)(1), at 5 (1970) (Leg. 
Hist. 533). As the Senate Report explained, that lan- 
guage limited preemption to “particular working 
conditions regarding which another Federal agency 
exercises statutory authority.” S. Rep. No. 1282, 91st 
Cong., 2d Sess. 22 (1970) (emphasis added) (Leg. Hist. 
162). The Conference Committee recognized the differ- 
ence 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) 
(Leg. Hist. 1185-1186). Thus, “consideration 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 cover- 
age under Section 4(b)(1) depend on whether another 
federal agency has exercised statutory authority with 
respect to the “particular working conditions” at issue. 
S. Rep. No. 1282, supra, at 22. 

16 

That understanding of Section 4(b)(1) is also reflected 
in long-standing OSHA regulations. See 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 author- 
ity 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”); 29 C.F.R. 1975.3(c) 
(“Congress did not intend to grant any general exemp- 
tions 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.”). The Secretary of Labor also set forth 
that interpretation of the Act in 1980 in a report to Con- 
gress concerning coordination between the OSH Act 
and other federal laws. App., infra, 56a, 57a (“indus- 
tries as such are not preempted from OSHA; rather, 
the preemption rule of section 4(b)(1) applies only to 
particular hazards”). And that interpretation is 
reflected in three decades of citations for OSH Act 
violations that have been issued to employers operating 
in industries regulated in part by other federal 
agencies, as illustrated by the court of appeals decisions 
discussed above (see pp. 13-14, supra). See Martin v. 
OSHRC, 499 U.S. 144, 156-157 (1991) (courts must defer 
to reasonable regulatory interpretations embodied in 
OSHA citations). 

To reject that long-standing interpretation and in- 
stead to read Section 4(b)(1) as creating industry-wide 
exemptions from OSH Act coverage based on limited 
exercises of regulatory authority by other federal 
agencies not only is inconsistent with the statutory lan- 
guage and drafting history but also would undermine 

17 

the express purpose of the Act. As Congress explained 
in the text of the Act itself, the Act’s purpose is “to 
assure so far as possible every working man and woman 
in the Nation safe and healthful working conditions.” 29 
U.S.C. 651(b). That purpose would be frustrated if 
another federal agency’s limited regulation of a few 
working conditions of some employees in a particular 
industry displaced OSH Act coverage over all working 
conditions of all employees in that industry. See Red 
Star, 739 F.2d at 780; Baltimore & Ohio R.R., 548 F.2d 
at 1054; Southern Ry., 539 F.2d at 338. 

b. The court of appeals therefore erred in holding 
that there is “an industry-wide exemption [from the 
OSH Act] for seamen serving on vessels operating on 
navigable waters,” App., infra, 6a, including seamen 
serving on uninspected vessels, based on the Coast 
Guard’s regulation of some of their working conditions 
on certain vessels. Instead, as we have explained, 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 or health standards or has 
articulated a policy that the working conditions not be 
regulated. 

If the court of appeals had conducted that inquiry in 
this case, it would have concluded that Coast Guard 
action has not displaced the OSH Act. The Coast Guard 
has issued comprehensive standards and regulations 
concerning the working conditions of seamen aboard 
inspected vessels, and its comprehensive regulation of 
those working conditions has displaced OSH Act 
coverage of the working conditions of seamen on those 
vessels. See p. 4 & note 5, supra; App., infra., 63a. But 
the vessel at issue in this case is an uninspected vessel. 
See id. at 6a, 27a. The Coast Guard has authority to 

18 

regulate and has regulated only a few working 
conditions on uninspected vessels. See pp. 4-5, supra 
(discussing 46 U.S.C. 4102 (1994 & Supp. IV 1998) and 
46 C.F.R. Pts. 24-26); note 8, infra. In addition, the 
Coast Guard has not articulated, and has no statutory 
authority to articulate, a policy that other working 
conditions on uninspected vessels should be free from 
regulation. 

The working conditions at issue in this case are the 
conditions faced by employees on an uninspected vessel 
engaged in inland oil drilling operations—in particular, 
the risk of explosion caused by the presence of natural 
gas.8 Because the Coast Guard has not regulated (and 

8 Although the OSH Act does not define “working conditions,” 
the Secretary has long taken the view that the term means par- 
ticular hazards encountered by an employee in the course of his or 
her job activities. See, e.g., Southern Ry., 539 F.2d at 339 (describ- 
ing Secretary’s interpretation); App., infra, 56a, 57a (equating 
working conditions as used in Section 4(b)(1) with “particular 
hazards”). See also Corning Glass Works, 417 U.S. at 201-202 
(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 regularly encountered, their frequency, and the 
severity of injury they can cause”). Although some courts of 
appeals have adopted that definition of “working conditions,” see 
Red Star, 739 F.2d at 778-780 (2d Cir.); Norfolk Dredging, 783 F.2d 
at 1530-1531 (11th Cir.); PBR, Inc., 643 F.2d at 896 (1st Cir.), 
others have defined “working conditions” somewhat more broadly 
as “the environmental area in which an employee customarily goes 
about his daily tasks,” Southern Ry., 539 F.2d at 339 (4th Cir.); 
Columbia Gas, 636 F.2d at 916 (3d Cir.). 

Resolution of that disagreement is not, however, necessary to 
resolve the issue presented in this case. The Coast Guard neither 
regulates the particular hazard of explosion caused by the pres- 
ence of natural gas on an uninspected drilling rig nor otherwise 

19 

indeed could not regulate) those working conditions, it 
has not exercised any authority so as to displace OSH 
Act coverage of them. The court of appeals erred in 
concluding to the contrary. 

3. This Court should correct the erroneous decision 
of the court of appeals not only because that decision 
has created a conflict among the federal courts of 
appeals (see pp. 9-12, supra), but also because it puts at 
risk the safety and health of employees on thousands of 
uninspected vessels within the jurisdiction of the Fifth 
Circuit. According to data maintained by the Coast 
Guard, approximately 68,000 vessels nationwide—in- 
cluding barges, fishing vessels, tugboats, towing ves- 
sels, and other commercial vessels—are classified as 
“documented” but not “inspected.”9 Those vessels are 

regulates uninspected drilling barges so pervasively as to oust 
OSHA from enforcing its regulations in the affected “environ- 
mental area” on the vessel. As we have explained at pp. 4-5, 
supra, the Coast Guard’s statutory authority to regulate unin- 
spected vessels is limited to specific subjects, including fire extin- 
guishers, life preservers, flame arrestors or backfire traps, ventila- 
tion, and emergency locating equipment. 46 U.S.C. 4102 (1994 & 
Supp. IV 1998). As a result, Coast Guard regulations for unin- 
spected vessels cover only a very limited range of health and 
safety hazards and do not address any hazards relating to oil 
drilling operations. See 46 C.F.R. Pts. 24-26. Thus, even under 
“the Third and Fourth Circuits’ environmental 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.” Tidewater Pac., 160 F.3d at 1245-1246. 

9 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); 12102 (1994 & Supp. IV 1998) (require- 
ments). 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 

20 

now subject to OSHA regulation everywhere except 
within the Fifth Circuit. Although the Coast Guard 
does not maintain data on a State-by-State basis, 
OSHA and the Coast Guard estimate that the decision 
below will leave the crews of several thousand unin- 
spected vessels in the Fifth Circuit with no statutory 
protection from serious threats to their occupational 
safety and health, except for a few Coast Guard rules 
directed to a narrow range of hazards on only some 
vessels. According to Coast Guard marine casualty 
reporting records, an average of 100 deaths and 600 
injuries occur every year on uninspected vessels nation- 
wide, including more than two dozen deaths and 100 
injuries each year within the Fifth Circuit. 

10 In addi- 
tion, if the Fifth Circuit were to extend the rationale of 
its decision to permit industry-wide exemptions in 
other fields, its decision could affect employees in many 
other large industries, such as railroad and airline 
employees. 

Permitting the court of appeals’ decision to stand 
would also interfere with long-standing, settled deci- 
sions regarding the lawful and most effective division of 

neither inspected nor documented by the Coast Guard. As a 
result, the Coast Guard data understate the number of uninspected 
vessels. 

10 The Coast Guard defines a reportable injury as one “that 
requires professional medical treatment (treatment 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). The numbers 
included in the text are based on Coast Guard records for fiscal 
years 1996 through 2000. Not all marine casualties occur in cir- 
cumstances that would potentially subject the vessel to OSH Act 
coverage. For example, if an accident occurs while a vessel is on 
the high seas, it is generally beyond the geographical scope of the 
OSH Act. See 29 U.S.C. 653(a). 

21 

safety and health regulatory responsibilities between 
the Departments of Transportation and Labor. With 
the consent and active cooperation of the Coast Guard, 
OSHA historically has enforced the OSH Act nation- 
wide with respect to working conditions of employees 
on uninspected vessels (except in the rare case in which 
the Coast Guard has a regulation applicable to unin- 
spected vessels that addresses the same occupational 
safety or health hazard). OSHA inspects such vessels 
in response to employee complaints, fatalities, and 
referrals, and OSHA inspectors often accompany Coast 
Guard personnel responding to marine casualties. 
Because the Coast Guard lacks statutory authority to 
promulgate and enforce general occupational safety and 
health standards for uninspected vessels, the Fifth 
Circuit’s decision will leave thousands of employees 
unprotected from risks of death and serious injury, 
many of which (like the well blowout in this case) are 
not even specifically maritime in nature. 

22 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

HENRY L. SOLANO 

Solicitor of Labor 

ALLEN H. FELDMAN 

Associate Solicitor 

NATHANIEL I. SPILLER 

Deputy Associate Solicitor 

ELLEN L. BEARD 

Attorney 
Department of Labor 

ROSALIND A. KNAPP 

Acting General Counsel 

RADM JAMES S. CARMICHAEL 

Chief Counsel 
United States Coast Guard 
Department of 

Transportation 
SETH P. WAXMAN 

Solicitor General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

MATTHEW D. ROBERTS 

Assistant to the Solicitor 

General 

DECEMBER 2000 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 99-60124 

MALLARD BAY DRILLING, INC., PETITIONER 

v. 

ALEXIS HERMAN, SECRETARY OF LABOR, 
UNITED STATES DEPARTMENT OF LABOR, RESPONDENT 

June 2, 2000 

Before: POLITZ and DAVIS, Circuit Judges, and 
RESTANI,* Judge. 

W. EUGENE DAVIS, Circuit Judge: 

Mallard Bay Drilling, Inc. (“Mallard”) appeals the 
order of the Occupational Safety and Health Review 
Commission affirming a citation issued against it by the 
Occupational Safety and Health Administration 
(“OSHA”). The order affirmed the decision of the Ad- 
ministrative Law Judge, which found that Mallard’s 
drilling barge—the MR. BELDON—was a “workplace” 
within the meaning of the Occupational Safety and 

* Judge of the U.S. Court of International Trade, sitting by 
designation. 

(1a) 

2a 

Health Act (“OSH Act”)1 and that OSHA’s jurisdiction 
was not preempted by the Coast Guard’s regulatory 
authority over vessels. For the reasons that follow, we 
reverse. 

I. 

On June 16, 1997, four Mallard employees were killed 
and two others seriously injured in an explosion on the 

MR. BELDON, a Mallard drilling barge. On that date, 
the MR. BELDON was drilling an oil well on Little 
Bayou Pigeon, a navigable waterway within the territo- 
rial waters of Louisiana. The explosion occurred while 
crew members tried to regain control of the well after a 
blow out. The Coast Guard took the lead role in inves- 
tigating the explosion. Based on the information col- 
lected by the Coast Guard, OSHA issued a citation 
against Mallard charging three violations of the OSH 
Act. Mallard did not challenge the merits of the allega- 
tions; rather, it asserted that OSHA lacked authority to 
regulate working conditions aboard the MR. BELDON. 

It also argued that the MR. BELDON was not a 
“workplace” within the meaning of Section 4(a) of the 
OSH Act.2 

The ALJ affirmed the citation, finding that the MR. 
BELDON was a “workplace,” that Mallard’s employees 
were not seamen, and that OSHA’s jurisdiction was not 
preempted by the Coast Guard’s regulatory authority 
over vessels. Mallard then filed a Petition for Discre- 
tionary Review with the Occupational Safety and 
Health Review Commission, which was denied. 
Mallard now appeals. 

1 29 U.S.C. § 651 et seq. 

2 29 U.S.C. § 653(a). 

3a 

II. 

Mallard contends that the United States Coast Guard 
has exclusive jurisdiction over the regulation of 
working conditions of seamen aboard vessels such as 
the MR. BELDON, thus precluding OSHA’s regulation 
under Section 4(b)(1) of the OSH Act.3 As our dis- 
cussion below demonstrates, precedents from this 
Court compel us to agree. 

By its own terms, 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 regula- 
tions affecting occupational safety or health.”4 Under 14 
U.S.C. § 2, the Coast Guard “shall administer laws and 
promulgate and enforce regulations for the promotion 
of safety of life and property on and under the high seas 
and waters subject to the jurisdiction of the United 
States covering all matters not specifically delegated by 
law to some other executive department. . . .” 

It is uncontested that the Coast Guard had jurisdic- 
tion to investigate the marine casualty in this case, 
pursuant to 46 U.S.C. § 6301. The dispute concerns 
whether the Coast Guard’s jurisdiction is exclusive. 
Our case law is controlling on this point. Pursuant to 
the statutory grant of authority recited above, the 
Coast Guard has exclusive authority over the working 
conditions of seamen. See Clary v. Ocean Drilling and 
Exploration Co., 609 F.2d 1120 (5th Cir. 1980); Dono- 
van v. Texaco, Inc., 720 F.2d 825 (5th Cir. 1983). 
“OSHA regulations do not apply to working conditions 

3 29 U.S.C. § 653(b)(1). 

4 29 U.S.C. § 653(b)(1). 

4a 

of seamen on vessels in navigation.” Donovan, 720 F.2d 
at 826, 827 (emphasis added); see also Clary, 609 F.2d at 
1121. 

As in Clary, the “vessel” in this case is a drilling 
barge. The employees working on the MR. BELDON 

are “seamen” under our case law. See Colomb v. Tex- 
aco, Inc., 736 F.2d 218 (5th Cir. 1984); Producers Drill- 
ing Co. v. Gray, 361 F.2d 432 (5th Cir. 1966). The safety 
procedures at issue in this case relate to “working 
conditions” of seamen. 

In Clary, the plaintiff seaman brought suit for 
injuries sustained aboard a drilling barge on which he 
was working. 609 F.2d at 1121. He alleged that OSHA 
regulations were violated because the steel plate 
welded to the deck (which he tripped over) was not 
color coded yellow so as to make it more visible. Id. 
This Court ruled that the district court was correct in 
refusing to allow the plaintiff to introduce the OSHA 
regulations into evidence because “OSHA regulations 

. . . do not apply to working conditions of seamen on 
vessels in navigation. . . .” Id. at 1122. We reasoned 

that the Coast Guard was the federal agency with 
statutory authority over the working conditions of 
seamen, and that its regulations included standards 
governing the safety and health of persons working on 
vessels. Id. Because Clary is indistinguishable from 
the case at bar, its holding controls our decision. 

Respondent attempts to distinguish Clary by argu- 
ing that this Court, in ruling that OSHA lacked author- 
ity to regulate the working conditions of seamen, did 
not specifically consider whether its holding applied 
equally to uninspected and inspected vessels. Thus, 
respondent argues that Clary does not bind our 

5a 

decision as to the uninspected vessel at issue in today’s 
case. 

The vessel in Clary was a drilling barge—the same 
type of vessel at issue in this case—and there is no 
indication from Clary that the barge in that case was 
inspected. Further, the broad language of Clary does 
not turn on any such distinction. 5 

Furthermore, the Coast Guard is no stranger to 
uninspected vessels. It is expressly authorized to issue 
safety regulations for uninspected vessels for: (1) the 
number, type and size of fire extinguishers; (2) the type 
and number of life preservers; (3) flame arrestors, 
backfire traps; (4) ventilation of engine and fuel tank 
compartments; and (5) the number and types of alerting 
and locating equipment for vessels on the high seas. 46 
U.S.C. § 4102. Further, the Coast Guard has issued a 
number of safety regulations for uninspected vessels, 
including those related to: life preservers and other 
lifesaving equipment; emergency alerting and locating 
equipment; fire extinguishing equipment; backfire 
flame control; ventilation of tanks and engine spaces; 
cooking, heating, and lighting systems; safety orienta- 
tion and emergency instructions; action required after 
an accident; and signaling lights. See 46 C.F.R. §§ 25.01 
et seq; 46 C.F.R. §§ 26.01 et seq. Thus, the Coast Guard 
has authority to issue safety regulations for unin- 
spected vessels, as well as inspected vessels, and it has 

5 The additional finding in Clary that the OSHA regulations 
cited by the plaintiff did not apply to a special purpose vessel does 
not supplant Clary’s holding that the OSH Act “does not apply to 
the working conditions of seamen on vessels operating on the high 
seas,” which Clary described as the “one significant decision” made 
therein. 609 F.2d at 1121, 1122. 

6a 

in fact exercised this authority.6 The fact that the MR. 
BELDON is an uninspected vessel is therefore no basis 
upon which to distinguish Clary. 

In Donovan, this Court revisited the applicability of 
OSHA regulations to the working conditions of seamen. 
720 F.2d 825. Although Donovan’s facts are distin- 
guishable from the facts of this case, we made it per- 
fectly clear that we were reaffirming the principles we 
laid down in Clary. We stated that “[i]t is the law of 
this circuit that OSHA regulations do not apply to 
working conditions of seamen on vessels in navigation. 

. . .” Id. at 826. “Nothing in OSHA shall apply to 
working conditions of seamen on vessels.” Id. at 827. 
“[T]he Coast Guard’s comprehensive regulation and 
supervision of seamen’s working conditions [creates] an 
industry-wide exemption [from OSHA] for seamen 
serving on vessels operating on navigable waters.” Id. 
at 826. 

We gave a number of reasons in Donovan for our 
conclusion that the Coast Guard’s jurisdiction is exclu- 
sive in this area: 

“Section 4(b)(1) evidences a general Congressional 
intent to forbid overlapping regulation of working 
conditions in any given industry by multiple federal 
agencies. Such redundant control programs offer 
little except confusion, governmental proliferation, 

6 Because a drilling barge is not self-propelled, some of these 
regulations, by their nature, do not apply to the MR. BELDON. 

However, this does not change the fact that the Coast Guard has 
exercised its authority to issue safety regulations for uninspected, 
as well as inspected, vessels. 

7a 

and stultification of enterprise.” Donovan, 720 F.2d 
at 827. 

We explained that overlapping regulation “might 
well produce [the] . . . anomaly . . . of steaming 
in and out of OSHA coverage.” Donovan, 720 F.2d 
at 829. 

“[A] single, uniform set of rules should govern the 
maritime workplace. Because of OSHA’s geo- 
graphic limitations . . . this cannot be those of 
OSHA . . . . [thus] we conclude that it must be 

those of the Coast Guard.” Donovan, 720 F.2d at 
829. 

Because OSHA has no jurisdiction in this matter, we 
need not address Mallard’s contention that the MR. 
BELDON was not a “workplace” within the meaning of 
Section 4(a) of the OSH Act.7 

III. 

For the reasons stated above, we hold that OSHA 
lacked authority to regulate the working conditions of 
the employees aboard the MR. BELDON; rather, such 
authority rests solely with the United States Coast 
Guard. Our precedents are clear on this point and 
admit of no exception for this case. Thus, the citation 
OSHA issued against Mallard is VACATED, and the 
order of the Occupational Safety and Health Review 
Commission is REVERSED and judgment is REN- 
DERED in favor of Mallard. 

7 Under Section 4(a), the OSH Act applies “with respect to 
employment performed in a workplace in a State.” 29 U.S.C. 
§ 653(a). 

8a 

APPENDIX B 

[Seal Omitted] 

United States of America 

OCCUPATIONAL SAFETY AND HEALTH 

REVIEW COMMISSION 

1924 Building - Room 2R90, 100 Alabama Street, S.W. 
Atlanta, Georgia 30303-3104 

Phone: (404) 562-1640 
Fax: (404) 562-1650 

OSHRC Docket No. 97-1973 

SECRETARY OF LABOR, COMPLAINANT 

v. 

MALLARD BAY DRILLING, INC., RESPONDENT 

APPEARANCES 

Ernest A. Burford, Esq. 
Office of the Solicito, 
U.S. Department of Labor 
Dallas, Texas 
For Complainant 

Patrick J. Veters, Esq. 
Jones, Walker, Waechter, Poitevent, 
Carrere & Denegre, L.L.P. 

For Respondent 

Before: Administrative Law Judge Ken S. Welsch 

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DECISION AND ORDER 

Mallard Bay Drilling, Inc.1 (MBD), owns and operates 
drilling rigs and barges for oil and gas exploration from 
its place of business in New Iberia, Louisiana (Joint 
Exh. J-1). On June 16, 1997, a natural gas explosion 
occurred on Rig 52 (MR. BELDON), which resulted in 
death and serious injuries to employees and the total 
loss of the rig. The U.S. Coast Guard initiated an 
investigation on June 17, 1997. Also, at the same time, 
the Occupational Safety and Health Administration 
(OSHA) initiated its investigation. 

As a result of the OSHA investigation, MBD received 
a serious citation alleging violations of § 5(a)(1) of the 
Occupational Safety and Health Act (Act) for failing to 
timely evacuate employees on board the drilling rig; 29 
C.F.R. § 1910.120(q)(1) for failing to develop and imple- 
ment an emergency response plan to handle anticipated 
emergencies; and 29 C.F.R. § 1910.120(q)(6) for failing 
to train employees in emergency response. OSHA 
proposed a penalty of $6,300 for each alleged violation. 

The hearing was held on April 27, 1998, in New 
Orleans, Louisiana. MBD stipulated that it is an em- 
ployer engaged in a business affecting commerce within 
the meaning of the Act (Tr. 7). MBD also agrees that if 
OSHA’s jurisdiction is not preempted by the U.S. Coast 
Guard, MBD withdraws its contest to the alleged 
violations of § 5(a)(1) of the Act and 29 C.F.R. 
§§ 1910.120(q)(1) and 1910.120(q)(6) (Tr. 5-6). In ex- 
change, the Secretary amends the proposed penalties to 
$4,410 for each violation (Tr. 4). 

1 Subsequent to issuance of the citation, MBD changed its name 
to Mallard Bay Drilling, LLC (Tr. 120). 

10a 

MBD argues that OSHA lacks jurisdiction or its 
jurisdiction is preempted by the U.S. Coast Guard. 
Based on Review Commission precedent, OSHA’s juris- 
diction is not preempted. 

Background 

MBD is engaged in oil and gas drilling explorations in 
the United States, Africa and the Far East. In business 
since 1952, MBD’s principal place of business is in New 
Iberia, Louisiana (Joint Exh. J-l; Tr. 122). MBD owns 
and operates 170 marine units, including drilling 
barges, such as Rig 52, crew boats and various deck 
barges (Tr. 96). It employs approximately 1,200 employ- 
ees worldwide (Tr. 121). MBD’s business primarily 
involves a “work-over” operation, which is work done 
on a preexisting well to enhance its production capabili- 
ties (Tr. 104). 

MBD’s Rig 52, known as MR. BELDON, was a 
special purpose barge; one of ten classified deep drilling 
barges owned by MBD in the United States (Tr. 112). It 
was a non-self propelled barge which was moved to 
location by a tug boat (Tr. 121). The stern of the barge 
had a “key” slot to allow the barge to position the stem- 
mounted derrick directly over the well. Rig 52 had 
three decks. The lower deck was designed to allow it to 
be completely submerged while on location. The second 
deck was mostly enclosed with steel bulkheads and 
accommodated generators, mud tanks, mixing vats, 
mud pumps, parts storage space and the control room. 
The upper deck of the barge consisted of a large, 
completely enclosed house (forward) which was the 
living quarters, galley and office (Joint Exh. J-1; Exhs. 
C-4, C-5). 

11a 

Rig 52 was constructed in 1981. Construction plans 
were reviewed by the American Bureau of Shipping 
(ABS) (Exh. R-6; Tr. 19). Since initial construction, the 
rig has neither been classed nor reinspected by ABS. 
Rig 52 also received a Certificate of Documentation 
from the U.S. Coast Guard (Exh. R-6). The Coast 
Guard considered it an uninspected vessel which did 
not hold a U.S. Coast Guard issued certificate of in- 
spection nor was it required to be inspected by the 
Coast Guard (Exh. C-1; Tr. 28, 113, 122). Also see 
definition at 46 U.S.C. § 2101(43). 

On June 16, 1997, Rig 52 was operating in the Little 
Bayou Pigeon, a navigable body of water in the territo- 
rial waters of Louisiana. It was located approximately 
30 miles northwest of Morgan City, Louisiana (Tr. 27). 
Rig 52 was in the final stages of well completion, pur- 
suant to a drilling contract with Denbury Management, 
Inc., owner of the well (Joint Exh. J-l, Exh. C-1). The 
rig had been at the location for approximately 70 days, 
and the well was at a depth of 13,500 feet (Tr. 121). 
There were 22 employees on the rig (Tr. 33). 

During the final stages, Rig 52 was performing an 
operation called “reversing out,” which is the circula- 
tion and displacement of heavy drilling mud from the 
well. A calcium chloride solution is pumped into the 
well which displaces the mud. The mud is deposited in 
a shale shaker on the rig and pumped to an open hopper 
barge (Joint Exh. J-1). While reversing out, there were 
a blowout and an explosion which occurred at approxi- 
mately 9:00 p.m. (Exh. C-1; Tr. 33, 65). The explosion 
killed and injured several employees. 

The U.S. Coast Guard initiated its investigation on 
June 17, 1997 (Tr. 25). The U.S. Coast Guard estab- 

12a 

lished a command post, inspected the site and inter- 
viewed employees. The scope of the investigation was 
limited to vessel issues, including hazard recognition, 
written procedures, engineering, and overall crew 
competency (Tr. 26-27). As a result of its investigation, 
the Coast Guard made general recommendations, but 
no finding of violation by MBD (Exh. C-1). 

The OSHA investigation was conducted by com- 
pliance officer Michael Sophrer and was limited to the 
emergency response requirements of § 1920.120. Other 
than obtaining documents furnished to the U.S. Coast 
Guard, OSHA did not inspect the barge or interview 
employees (Tr. 67-68). 

Discussion 

OSHA has jurisdiction under § 4(a) of the Act. 

Section 4(a) of the Act provides in part that: 

This Act shall apply with respect to employment 
performed in a workplace in a State, the District of 
Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands, American Samoa, Guam, the Trust 
Territory of the Pacific Islands, Wake Island, 
Outer Continental Shelf lands defined in the Outer 
Continental Shelf Act, Johnson Island, and the 
Canal Zone. 

MBD argues that the Act’s jurisdiction does not 
extend to a vessel such as Rig 52 because it is not a 
“work place” as required by the Act. MBD cites Dono- 
van v. Texaco, Inc., 720 F.2d 825, 829 (5th Cir. 1983). 
The Texaco case involved a Coast Guard licensed engi- 
neer employed on Texaco’s deep sea fleet who com- 

13a 

plained of discrimination under § 11(c) of the Act. The 
Fifth Circuit concluded that the Act’s regulations do 
not apply to working conditions of seamen on vessels in 
navigation. 

MBD’s employees were not licensed nor had 
certificates from the U.S. Coast Guard (Tr. 108-109). 
The employees were not seamen as defined by the U.S. 
Coast Guard (Tr. 29-30). The employees were not 
performing navigational-related activities (Tr. 32). Rig 
52 was considered by the Coast Guard as an unin- 
spected vessel, although it was documented and had an 
official number (Tr. 28, 43). It was stationary and within 
the territorial boundaries of the State of Louisiana (Tr. 

30). To move from location to location, the rig needed 
to be towed by a tug boat (Tr. 43). 

In considering the application of § 4(a) of the Act, the 
Review Commission concluded that “OSHA has author- 
ity to enforce the OSH Act with respect to vessels that 
are located in U.S. territorial waters.” Tidewater 
Pacific, Inc., 17 BNA OSHC 1920, 1923 (No. 93-2529, 
1997). Rig 52 was a vessel within the territorial 
boundaries of Louisiana. It was a workplace. 

Section 4(a) of the Act is applicable. 

Application of § 4(b)(1) Preemption. 

Section 4(b)(1) provides that: 

Nothing in this Act shall apply to working con- 
ditions of employees with respect to which other 
Federal agencies, and State agencies acting under 
section 274 of the Atomic Energy Act of 1954, as 
amended (42 U.S.C. 2021), exercise statutory 

14a 

authority to prescribe or enforce standards or 
regulations affecting occupational safety and 
health. 

The U.S. Coast Guard conducted its investigation 
under the authority of 46 C.F.R., Part 4, as derived 
from 46 U.S.C. § 6301. The Coast Guard determined 
that the Rig 52 accident met the definition of a marine 
casualty or accident. See 46 C.F.R. § 4.03-1. The rig 
was a vessel in commercial service operating upon the 
navigable waters of the United States. (Joint Exh. J-1). 
It was designated by the Coast Guard as a serious 
marine incident because it involved one or more 
dealths, multiple injuries requiring medical attention, 
and there was damage to property in excess of $100,000 
(Exh. C-1; Tr. 26). 

To prove the affirmative defense that OSHA’s 
jurisdiction has been preempted under section 
4(b)(1), the employer must show that (1) the other 
federal agency has the statutory authority to 
regulate the cited working conditions, and (2) that 
agency has exercised that authority by issuing 
regulations having the force and effect of law. 

Rockwell International Corp., 17 BNA OSHC 1810, 
1803 (Nos. 93-45, 93-228, 93-233, 93-234, 1996). 

Where the employer claiming the exemption satisfies 
its burden of proving that another agency has exercised 
its authority, OSHA jurisdiction will be preempted only 
as to those working conditions actually covered by the 
agency regulations. Alaska Trawl Fisheries, Inc., 15 
BNA OSHC 1699, 1703-1704 (No. 89-1192, 1992). The 
term “exercise,” as used in § 4(b)(1), requires an actual 
assertion of regulatory authority as opposed to a mere 

15a 

possession of authority. OSHA jurisdiction will be 
preempted only as to those working conditions actually 
covered by the agency regulations. Id. at 1703-1704. 

In the Alaska Trawl case, the Commission found 
that, in the absence of relevant Coast Guard regula- 
tions, OSHA jurisdiction over work performed on unin- 
spected vessels was not preempted. There was no 
industry-wide exemption from OSHA regulations. The 
Commission dismissed as dictum the implication that 
Dillingham Tug & Barge Corp., 10 BNA OSHC 1859 
(No. 77-4143, 1982), created an industry-wide exemp- 
tion. Id. at 1704-1705. Absent an industry wide exemp- 
tion, OSHA jurisdiction is preempted only if the Coast 
Guard has specifically regulated the cited condition. 

Emergency Response 

The OSHA citation alleges that MBD failed to 
evacuate employees and failed to have an emergency 
response plan. MBD does not argue or identify any 
similar requirement enforced by the U.S. Coast Guard. 

In Tidewater Pacific, Inc., 17 BNA OSHC 1920, 1924 
(No. 93-2529, 1997), the Review Commission found that 
the Coast Guard only regulates uninspected vessels to a 
“minimum” degree. The Coast Guard filed an amicus 
brief in the Tidewater case disclaiming comprehensive 
regulation of uninspected vessels. The Coast Guard 
described its safety standards applicable to uninspected 
vessels as solely limited to those areas delineated in 46 
U.S.C. Chapter 41, which regulates the (a) number, 
type and size of fire extinguishers; (b) type and number 
of life preservers; (c) flame arresters, backfire traps, or 
similar devices on vessels with gasoline engines; (d) 
ventilation of engine and fuel tank compartments; and 

16a 

the (e) number and types of alerting and locating 
equipment for vessels on the high seas. Id. at 1924. 

Chief Warrant Officer John Grez of the U.S. Coast 
Guard, Marine Safety Office, who conducted the 
investigation into the Rig 52 explosion, testified that 
the scope of his investigation was limited to issues of 
hazard recognition, written procedures, engineering 
and overall crew competency (Tr. 26-27). He agreed 
that the Coast Guard regulations for uninspected ves- 
sels did not address the same concerns regarding em- 
ployees evacuation and emergency response as cited by 
OSHA (Tr. 35). 

MBD argues the Fifth Circuit case law concludes 
that Coast Guard statutory authority preempts OSHA. 
See Clary v. Ocean Drilling and Exploration Co., 609 
F.2d 1150 (5th Cir. 1980); Donovan v. Texaco, Inc., 720 
F.2d 825 (5th Cir. 1983). Generally, these cases hold 
that OSHA regulations do not apply to the working 
conditions of employees on vessels in navigation. 

However, the Review Commission in Tidewater 
analyzed the same Fifth Circuit case law relied upon by 
MBD. As stated in Tidewater: 

Nevertheless, with due respect to the court, we 
find that Clary and Donovan v. Texaco are suffi- 
ciently distinguishable from the case here pre- 
sented to have left undecided the precise question 
of OSH Act applicability to uninspected vessels. 

In neither of the cases considered by the court did 
it differentiate between the extensive degree to 
which the Coast Guard regulates inspected vessels 
and the minimal degree to which it regulates those 

17a 

that are uninspected. The vessel classifications in 
those cases were not identified, although the 
court’s consideration in Donovan v. Texaco of the 
MOU between the Coast Guard and OSHA sug- 
gests that the vessel there was inspected. 720 
F.2d at 827 n.3. Moreover, the court relied in both 
cases on Commission precedent, subsequently 
overruled, suggesting that OSHA lacks juris- 
diction over the working conditions of seamen. 
Most significantly in Clary, the court found that 
the cited OSHA construction and shipbuilding 
regulations did not, by their own terms, pertain to 
the special purpose drilling vessel on which the 
injured seaman worked. 609 F.2d at 1122. This 
fact alone would have been sufficient to decide the 
case. . . . Similarly, the court’s finding in Dono- 
van v. Texaco, that the Coast Guard’s regulations 
included protections “parallel” to those contained 
in section 11(c), would have been sufficient to 
dismiss the Secretary’s case. 

Inspected vessels subject to the MOU between 
OSHA and the Coast Guard are essentially regu- 
lated only by the Coast Guard and, consequently, 
would not steam in and out of OSHA coverage. As 
to the uninspected fleet, OSHA provides the only 
significant regulation of non-navigational working 
conditions for seamen employed on these vessels. 
Absent OSH Act coverage, these conditions would 
be completely unregulated. 

Id. at 1927. 

Also, MBD cites Perry v. Falcon Drilling Company, 
Inc., 1995 WL 273538 (E.D. La., 1995) which held that 
OSHA regulations on stairs and stairways did not apply 

18a 

to FALCON Rig 16, an uninspected vessel, because of 
the U.S. Coast Guard’s statutory authority. However, 
the decision in Perry is distinguishable from this case. 
The District Court found that the Coast Guard’s regula- 
tions applicable for stairs and stairways precluded 
application of the OSHA regulations. The court stated 
that “OSHA regulations simply should not apply to 
govern safety concerns on vessels which have unique 
problems and concerns best addressed by the Coast 
Guard.” In this case, there is no showing that the Coast 
Guard exercises authority to regulate employee 
evacuations and emergency response to hazardous 
substance releases during an explosion of a drilling rig. 

Therefore, pursuant to commission precedent, OSHA 
jurisdiction in this case is not preempted by the U.S. 
Coast Guard. 

FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 

The foregoing decision constitutes the findings of fact 
and conclusions of law in accordance with Rule 52(a) of 
the Federal Rules of Civil Procedure. 

ORDER 

Serious Citation No. 1 

1. Item 1, serious violation of § 5(a)(1) of the Act, 
is affirmed and a penalty of $4,410 is assessed. 

2. Item 2, serious violation of § 1910.120(q)(1), is 
affirmed and a penalty of $4,410 is assessed. 

19a 

3. Item 3, serious violation of § 1910.120(q)(6), is 
affirmed and a penalty of $4,410 is assessed. 

/s/ KEN S. WELSCH 

KEN S. WELSCH 

Judge 

20a 

APPENDIX C 

[Seal Omitted] 

United States of America 

OCCUPATIONAL SAFETY AND HEALTH 

REVIEW COMMISSION 

1120 20th Street, N.W., Ninth Floor 
Washington, DC 20036-3419 

Office of 

Phone: (202) 606-5400 

Executive Secretary 

Fax: (202) 606-5050 

OSHRC Docket No. 97-1973 

SECRETARY OF LABOR, COMPLAINANT 

v. 

MALLARD BAY DRILLING, INC., RESPONDENT 

NOTICE OF FINAL ORDER 

The petition for discretionary review filed by the 
Respondent in the above cited action was received by 
the Commission on December 17, 1998. The case was 
not directed for review. Therefore, the decision of the 
Administrative Law Judge became a final order of the 
Commission on December 28, 1998. Commission Rule 
90(d), 29 C.F.R. § 2200.90(d); Section 12(j) of the Occu- 
pational Safety and Health Act of 1970, 29 U.S.C. 
§ 661(j). 

ANY PERSON ADVERSELY AFFECTED OR AG- 
GRIEVED WHO WISHES TO OBTAIN REVIEW OF THE 

DECISION OF THE ADMINISTRATIVE LAW JUDGE 
MUST FILE A NOTICE OF APPEAL WITH THE AP- 
PROPRIATE FEDERAL COURT OF APPEALS WITHIN 

21a 

60 DAYS OF THE DATE OF THE ABOVE FINAL 

ORDER DATE. See Section 11 of the Occupational 
Safety and Health Act of 1970, 29 U.S.C. § 660. 

FOR THE COMMISSION 

Dated: January 6, 1999 

/s/ RAY H. DARLING, JR. 

RAY H. DARLING, JR. 
Executive Secretary 

NOTICE IS GIVEN TO THE FOLLOWING: 

Daniel J. Mick 
Counsel for Regional Trial Litigation 
Office of the Solicitor, U.S. DOL 
Room S4004 
200 Constitution Ave., N.W. 
Washington, D.C. 20210 

James E. White, Esq. 
Regional Solicitor 
Office of the Solicitor, U.S. DOL 
Suite 501 
525 S. Griffin Street 
Dallas, TX 75202 

Patrick J. Veters, Esq. 
Jones, Walker, Waechter, Poitevent, 

Carrere & Denegre, L.L.P. 
201 St. Charles Avenue 
New Orleans, LA 70170-5100 

Ken S. Welsch 
Occupational Safety and Health 

Review Commission 
100 Alabama Street, S.W. 
Building 1924, Room 2R90 
Atlanta, GA 30303-3104 

22a 

APPENDIX D 

MARINE CASUALTY NARRATIVE SUPPLEMENT 

MCNS 06JAN98 

CASE/MC97008193 

PORT/ MORMS 

SUBJECT/MALLARD RIG 52 

DATE/ 17 JUN 97 

TABLE OF CONTENTS: 

Executive Summary 
Authority 
Scope 
Preamble 

Equipment 
(1) Well 
(2) Mallard Rig 52 Description 

Incident 
(1) Blowout 
(2) Evacuation 
(3) Well Kill Attempt 
(4) Explosion 

Explosiion Damage 
Ignition Source 

Deaths 
(1) Yancy Duhon 
(2) Clifford Trahan 
(3) Francison Nunez 
(4) Mike McCarthy 

23a 

Injuries 
(1) Bobby Jordan 
(2) Johnny Chaddick 

Other Personnel on Rig 
(1) Dillon Trahan 
(2) Daryl Prejean 
(3) Paul Stanridge 
(4) Gilbert Martin 
(5) Aaron Strain 
(6) Joe Travino 

Issues 
(1) Evacuation Orders 
(2) Training & Qualifications 
(3) BlowOut Preventors 
(4) TIW Values 
(5) Gas Detection 
(6) Natural Gas Properties 

Other drilling rig accidents 
Conclusions (1-9) 
Recommendation 
List of Enclosures 

— COMMENTS — 

EXECUTIVE SUMMARY: On June 16, 1997, the Mal- 
lard Rig 52 was in the final stages of completing an oil & 
natural gas well in the Atchafalaya Basin, St. Martin 
Parish, Louisiana. During the completion operation, 
the well kicked, and control of the well was lost. The 
installed well shutdown system then failed. The off 
duty crew of the rig was evacuated to an standby tug, 
and the on duty crew stayed in the rig to attempt well 
kill operations. Approximately 35 min. after loosing 
control of the well, a natural gas explosion swept 

24a 

through the rig. The explosion resulted in the deaths of 
four rig workers on the second deck of the rig, and the 
injury of one rig worker on an adjacent work boat. A 
second rig worker was injured while evacuating from 
the rig after the explosion. As a result of the explosion 
and accompanying fire, the rig was declared a total con- 
structive loss. 

AUTHORITY: This investigation has been conducted 
under the Authority of 46 C.F.R. Part 4 as derived from 
authority contained in 46 U.S.C. 6301. This particular 
incident meets the definition of a Marine Casualty or 
Accident from 46 C.F.R. 4.03-1 in that the MALLARD 

RIG 52 was a vessel in commercial service operating 
upon the Navigable Waters of the United States. Fur- 
thermore, this Marine Casualty meets three of the five 
conditions for designation as a Serious Marine Incident 
in 46 C.F.R. 4.03-2 in that; One or more deaths did oc- 
cur; multiple injuries requiring medical attention did 
occur; damage to property was in excess of $100,000.00. 
This Marine Casualty also meets the definition of a Ma- 
jor Marine Casualty contained in COMDTINST 

16000.10, Coast Guard Marine Safety Manual Vol. V, 
Investigations, Chapter 3 in that property damage was 
initially estimated at more than $500,000.00. 

SCOPE: Coast Guard D8m decided to limit the scope of 
the investigation to purely vessel issues. This investi- 
gation does not examine the production related equip- 
ment including the drill string, its attachments or sub- 
surface equipment based on the scope as directed by 
D8m. The Coast Guard does not regulate mineral 
drilling operations in state waters, and does not have 
the expertise to adequately analyze all issues relating 
to the failure of an oil/natural gas well. This report acts 

25a 

to record the explosion and its resulting damage, and 
the issues of hazard recognition, written procedures, 
engineering, and overall crew competency. 

PREAMBLE: On 16 June, 1997, the MALLARD RIG 52 

was operating on location in Bayou Pigeon, Lake Chicot 
Oil and Gas Field, on an oil and natural gas well owned 
by Denbury Management, Inc. The rig had finished 
drilling Denbury’s well at that location approximately 
two weeks prior, and was in the final stages of the well 
completion operation. The operation being performed, 
called “reversing out”, was the circulation and dis- 
placement of heavy drilling mud (17.5 lb./gal) from the 
well bore (annulus). This was done by pumping a 
calcium chloride solution into the well annulus which 
displaced drilling mud from well through a five (5) inch 
drill pipe tool string. The mud was then deposited in a 
shale shaker on the rig and pumped to a open hopper 
(shale) barge moored along side of the rig. The term 
reversing out is used because normally, fluids are 
pumped through the tool string to accommodate 24 
hour operations on the rig. The night crew was up and 
working. The day crew was in the crew quarters 
sleeping. 

26a 

EQUIPMENT: 

(1) WELL EQUIPMENT IN USE: 

a. Outside preventors: The annular blow out pre- 
ventor stack (BOP) consisted of: (from top down) (See 

PHOTO # 1 & 2) 

1) Annular preventor (hydrill rubber) 

2) 5" Pipe ram 

3) Blind Ram 

4) 5" pipe Ram 

b. The tool string (inside preventor) consisted of two 
(2) Texas Iron Works (TIW) in line ball valves. TIW 

valves are designed and marketed as a fail safe high 
pressure emergency shut down in-line valve. The ad- 
vantage to a TIW valve is that it has a diameter similar 
to that of the tool string to which it is attached, allow- 
ing it to be lowered into the well with the tool string. 

(2) MALLARD RIG 52 DESCRIPTION: The MAL- 
LARD RIG 52 is a 190' X 50' X 12" posted drilling barge 
with three separate deck levels, see PHOTO #3, and encl 
(5). At the lowest deck, the barge deck, there is very 
little equipment other than hose racks and portable 
pump storage. The barge deck is completely open on all 
sides with no enclosures (PHOTO #4). The stern of the 
barge has a “key” slot to allow the barge to position the 
stern mounted derrick directly over a well. This deck is 
designed to allow it to be completely submerged while 
on location when the water depth exceeds the draft of 
the barge. 

27a 

The second deck is approximately 85% enclosed with 
steel bulkheads, it accommodates Generators, mud 
tanks, mixing vats, mud pumps, parts storage space, 
and the electrical SCR (silicone control rectifier) Con- 
trol Room (PHOTO #5). 

The upper deck consists of a large, completely enclosed 
house (forward) which was the living quarters with a 
helo deck on top. A pipe rack is located amidships. The 
stern is the raised rig floor supporting the derrick and 
rotary table. 

The rig was built in 1981. The construction plans were 
reviewed prior to construction by the American Bureau 
of Shipping (ABS), however, it cannot be verified if 
ABS actually oversaw the construction of this vessel. 
Since initial construction, the rig has neither been 
classed or re-inspected by ABS. 

The rig holds a Coast Guard issued Certificate of 
Documentation bearing the Vessel Name Mr. Beldon, 
Official Number #644167, homeported in New Orleans, 
LA. Gross Tonnage – 1482, net tonnage – 1482. It has 
never been inspected by the Coast Guard and is not re- 
quired to hold a Certificate of Inspection or be in- 
spected by the Coast Guard. 

There is no record that the rig has been classed or in- 
spected by any regulatory agency or recognized society 
during initial construction or at any time since. There 
was no requirement for any of the personnel working 
on the MALLARD RIG 52 to hold any kind of Coast 
Guard issued license or Merchant Mariners Document. 

28a 

INCIDENT: 

(1) BLOWOUT: Extending through the well bore, as 
well as through the rams and preventors, was a five (5) 
inch drill pipe tool string through which mud was being 
circulated from the well. At the head of the drill pipe 
tool string, were two TIW valves spaced approximately 
30 feet apart. The valves were installed to allow the 
drill pipe tool string to be shut off at the surface. 
Above the TIW valves, a swivel terminated the tool 
string. Above the swivel was the hook and traveling 
block of the rig derrick which was used to raise and 
lower the drill pipe tool string. A high pressure flexible 
hose led from the swivel to the shale shakers through 
which the mud traveled after being displaced from the 
well. 

At approximately 21:15, Mr. Paul Standridge, floor 
Hand working at the shale shakers noticed a sudden 
increase in mud flow from the well and a slight amount 
of natural gas in the mud flow. He immediately re- 
ported this, over the rig’s intercom system, to Mr. 
Daryl Prejean, the driller onboard the rig. Shortly 
thereafter, Mr. Prejean noticed a stream of mud leaking 
from the swivel, he also noticed a sharp increase in 
pump pressure, from approximately 900 PSI to 1700 
PSI. At that time, the rig supervisor (Tool Pusher), Mr. 
Dillon Trahan, and the representative of Denburry 
Management, Mr. Johnny Chaddick ran from the tool 
pusher office in the crew quarters to the rig floor. Mr. 
Trahan shut the pipe rams, and Mr. Mike McCarthy, 
mud engineer for Batron, ordered the shutdown of the 
mud pumps. 

29a 

Mr. Karl Primeaux was in the tool pushers office when 
the initial upset occurred. After Mr. Trahan and Mr. 
Chaddick left the office for the rig floor, Mr. Primeaux, 
upon his own initiative, rousted out the day crew and 
directed them to prepare for immediate evacuation to a 
tug boat tied to the rig. When Mr. Trahan came back to 
the tool pushers office after leaving the rig floor, he saw 
the day crew departing for the tug boat and mentally 
accounted for all evacuated personnel. 

When the well was ordered shut in, Mr. Prejean turned 
off the mud pump, and with the assistance of Mr. Dillon 
Trahan, Tool Pusher, and person in charge-of-rig, at- 
tempted to close the lower of the two TIW valves 
(PHOTO #6). The valve was located approximately 10 
ft. above the rig floor and was only accessible by ladder. 
In order to close the TIW valve, a removable wrench 
handle approximately 24" in length was inserted into 
the side of the valve (PHOTO #7). When the first at- 
tempt to close the valve was unsuccessful, Mr. Dillon 
Trahan lowered the traveling block and brought the 
TIW valve down to a height of approximately four feet 
from the rig floor. The TIW wrench was once again 
placed in the valve and a “cheater” bar (used to gain 
additional leverage), approximately .10 feet in length, 
was placed on the wrench handle (PHOTO #8). 6-7 rig 
personnel then attempted, unsuccessfully, to close the 
valves. They did succeed in bending the wrench handle. 

At that time it was decided that it was impractical to 
lower the tool string any further to gain access to the 
upper TIW valve. A short while later the pressure in 
the well finished blowing out the remaining drilling 
mud, and the calcium chloride solution used to displace 

30a 

the mud, along with natural gas started blowing from 
the well in the form of a finely atomized white mist. 

Mr. Chaddick, in the mean time, went back to the Tool 
Pushers office and made a telephone call to Mr. Carry 
Redman, the Project Engineer for Denburry Manage- 
ment. According to Mr. Chaddick, Mr. Redman recom- 
mended that mud be pumped back into the well in a 
well kill attempt, but if the danger was too great, 
evacuate the rig. 

When it became apparent that the well could not be 
shut in by the TIW valves, Mr. Dillon Trahan ordered 
the rig floor cleared and the crew assembled in quar- 
ters. He then proceeded to his office in the crews quar- 
ters. The remainder of the rig personnel assembled in 
the changing room adjacent to the Tool Pushers Office. 

Mr. Trahan then had a telephone conversation with Mr. 
Leroy Broussard of Mallard Drilling. Mr. Broussard 
recommended that Mr. Trahan take any actions he 
deemed necessary, and use his own judgment in any 
decision to evacuate the rig. Mr. Trahan then went 
back to the rig floor and turned the pump back on to 
continue pumping calcium chloride into the well. The 
pump remained on throughout the remainder of the 
evolution. Mr. Trahan then returned to the tool pusher 
office. 

(2) EVACUATION OF NON ESSENTIAL PERSON- 
NEL: As stated earlier, when it became evident that a 
blowout had occurred, Mr. Karl Primeaux took it upon 
himself to evacuate nonessential personnel from the rig. 
Personnel were awakened from their quarters and 

31a 

evacuated to a tug boat which was standing by at the 
rig. The following personnel were evacuated: 

Sean Savage 
Shane Redwing 
Brian Miller 
Karl Primeaux 
Shane Vincent 
Nicholas Jimenez 
John Griffin 
Leslie Rainer 
Robert Davis 
Clint Sonnier 

(3) WELL KILL ATTEMPT: After a short consulta- 
tion with the company man, Mr. Trahan ordered the 
crew to rig portable pumps and hoses to pump mud 
from the adjacent shale barge to the rigs slugging pit on 
the second deck. Then pump the mud from the pit into 
the well in a dynamic kill attempt. Mr. Trahan then 
went to the second deck to assist in rigging pumps. 
Once a portable pump was running, he went into the 
generator room and closed the door on the aft bulkhead 
(PHOTO #9). He then proceeded to the tool pushers 
office to cleanup. Mr. Chaddick also went to the second 
deck and checked on the progress of the pumps, once he 
saw that one was running, he went to the rig floor and 
to the shale shakers to see if personnel were still in 
those locations. He then went back to the tool pusher 
office to make another telephone call. 

The theory behind a dynamic kill attempt is to fill the 
entire well annulus, and tool string, with a heavy 
weight drilling mud. The hydraulic pressure of column 
of mud in the well will overcome the gas or fluid pres- 

32a 

sure present in the well formation and stop the flow. 
Large quantities of mud under very high pressure must 
be pumped into the well to achieve this hydraulic 
pressure overbalance. In order to calculate the weight 
of mud needed and the pumping pressure necessary, 
the Tool Pusher called the MISS DEE DEE (crew boat) 
and requested that the mud engineer, Mr. McCarthy, 
who had already been evacuated, return to the rig. 

All of the mud pits on the second deck had previously 
been cleaned and contained no mud. The slugging pit 
had a piping configuration which allowed mud to be 
pumped from the pit directly into the well annulus. 
Large quantities of mud were needed and available in 
the shale barge adjacent to the rig. 

Personnel were attempting to rig portable pumps and 
hoses to pump mud from the barge into the slugging 
pit. In order to rig the necessary pumps, hoses, and air 
lines (to power the pumps); personnel were moving be- 
tween the barge deck level and the second deck level. 
After successfully starting the operation of one por- 
table pump, personnel were dispatched from the second 
deck to the shale barge to tend the suction line. Addi- 
tional personnel started rigging a second pump (PHOTO 
#10). This is the operation which was in progress when 
the explosion occurred. 

(4) EXPLOSION: At approximately 21:45, a natural 
gas explosion occurred. Natural gas from the leaking 
well, over a time period of approximately 30-40 min. 
spread in explosive concentrations throughout the rig. 
The explosion most likely originated in the aft portion 
of the second deck. From there, the explosion quickly 

33a 

spread, either in a series of secondary explosions, or in 
one continuous explosion, to other portions of the rig. 

EXPLOSION DAMAGE: As a result of the explosion(s), 
the forward bulkhead of the generator room was 
displaced forward (PHOTO #11), and the aft bulkhead of 
the generator room was displaced aft (PHOTO #12 & 

13). A hatch plate in the generator room overhead was 
propelled upward and clear of the rig. It was not 
located during the investigation (PHOTO #14). Just 
forward of the generator room, was the pump room. 
The starboard mud pump showed evidence of an inter- 
nal explosion. A steel access plate to the motor was 
violently pushed out and deformed (PHOTO #15 & 16), a 
shaft guard on the port side of the pump was misaligned 
(PHOTO #17), and there were cracks in the welds 
holding the guard in place (PHOTO #18). From the 
pump room forward, for a distance of approximately 73 
feet, the bulkheads were 1/2 height from the deck to a 
height of approximately four (4) feet (PHOTO #5). The 
upper portion was open and allowed air circulation. In 
this area, the lower portion of the starboard bulkhead 
was buckled outward, but was intact (PHOTO #19). The 
major force of the explosion in this area appears to have 
diffused through the open, upper half of the bulkhead. 
Two persons working in the vicinity of the mud tanks 
and pits in this area were propelled forward to the bow 
of the rig by the force of the explosion. Forward of 
that, the bulkheads enclose, forward, port & starboard, 
the remainder of the second deck. The majority of the 
damage from the explosion is contained to this area. In 
this area the deck was displaced downward 
approximately 2-4" (PHOTO #20-24). The overhead was 
displaced upward up to 8" (PHOTO #25 & 26). The 

34a 

entire forward and port bulkheads, as well as the 
majority of the starboard bulkhead were opened out- 
ward (PHOTO #27-33). In this enclosed area, there was 
also major damage to equipment. 

IGNITION SOURCE: From the explosion damage 
noted above, and interviews with Mallard Electricians, 
Mr. Jerry L. Dennis of U.S. Treasury Department, 
Bureau of Alcohol, Tobacco & Firearms. The most 
likely area of the source of ignition on the MALLARD 
RIG 52 was the pump room. This report does not con- 
clusively identify the actual source of ignition. 

According to Mr. Dennis, after examining photographs 
of the rig and the rig plans, the explosion most likely 
originated in the pump room. This is evidenced by the 
outward displacement of the aft bulkhead of the gen- 
erator room (PHOTO #12 & 13), which was located just 
aft the pump room; by the outward displacement of the 
starboard bulkhead in the pump room and in the vicin- 
ity of the mud pits (PHOTO #19). Perhaps the most 
compelling reason to suspect that the explosion occur- 
red in the pump room was the locations of the bodies of 
Mr. Duhon and Trahan who were both propelled 
forward along the second deck. In order for that to 
have occurred, the explosion must have originated aft 
of their last known location, the mud pits. 

The damage to the wire mesh screening along the for- 
ward bulkhead of the generator room is believed to 
have occurred from a negative pressure vacuum fol- 
lowing the initial explosion (PHOTO #11). This vacuum 
would also account for the door to the SCR Room which 
was found in the generator room (PHOTOS #34 & 35). 
The amount of damage in the generator room and SCR 

35a 

Room does not support the explosion initiating in these 
areas. 

Mr. Bobby Jordan, in his interview, stated that the mud 
pumps in the pump room were powered by electrical 
traction motors. These motors produced sparks while 
operating. The starboard mud pump was operating at 
the time of the explosion pumping calcium chloride so- 
lution into the well annulus. This was verified by Mr. 
Dillon Trahan. As stated earlier, the starboard mud 
pump shows evidence of an internal explosion in that an 
electrical access plate on the motor housing was dam- 
aged. The plate was both concaved and pushed out- 
ward. Two bolt holes at the top of the plate were elon- 
gated and torn where they were pushed loose from 
their retaining bolts. The bottom two retaining bolts on 
the plate held the bottom edge of the plate in place 
(PHOTOS #15 & 16). This starboard pump most likely 
the source of ignition for the larger explosion(s) which 
occurred on the MALLARD RIG 52. 

DEATHS: There were four (4) deaths as a direct re- 
sult of this explosion. 

When the explosion swept forward on the 2nd deck, 
both Yancy Duhon and Clifford Trahan were reportedly 
in the vicinity of the mud pits. This was just aft of the 
location of the worst damage on the rig. Both were 
propelled forward along the second deck and through 
the now opened forward bulkhead (PHOTO #27) which 
had been ripped outward, and clear of the rig. 

Mr. Frank Nunez was in charge of the Crew Boat MISS 
DEE DEE which was assigned to the rig. After the tug 
had left the rig, he was sent, in the crew boat, back to 

36a 

the tug, to retrieve Mr. Mike McCarthy to assist in the 
well kill operation. Mr. Nunez and Mr. McCarthy were 
last seen standing on the bow of the second deck. Dur- 
ing the explosion, the forward bulkhead of the second 
deck was blasted outward and across the location where 
they stood (PHOTO #27). 

(1) YANCY DUHON: The body of Mr. Yancy Duhon 
was located directly forward of the bow of the rig rest- 
ing on the bank, a distance of approximately 100 ft. Ac- 
cordingly to Officers with the St. Martin Parish Sheriff 
Office who located the body, there was apparent dam- 
age to trees approximately 10 feet upon the area where 
Mr. Duhan was found, indicating that he struck the 
trees before coming to rest on the ground. 

An autopsy was conducted on the body of Yancy Duhon 
by the St Martin Parish, Louisiana coroner, Dr. Kim 
Edward LeBlanc, MD. In the Coroner’s report, the 
cause of death is listed as ACCIDENTAL, with a final 
diagnosis of: “Fatal intracranial open basilar skull frac- 
ture.” 

Post Mortem drug testing of Mr. Duhon was negative. 
Post-Mortem blood alcohol testing of Mr. Duhon indi- 
cated a Ethyl Alcohol BAC of 0.02% W/V. A notation 
on the a Laboratory report on Mr. Nunez from 
Acadiana medical Laboratories, LTD, the same 
laboratory which performed Post-Mortem alcohol 
testing on Mr. Duhon indicated that a similar level of 
Ethyl Alcohol may be present as the result of Post- 
Mortem Decomposition. 

37a 

(2) CLIFFORD TRAHAN: The body of Mr. Clifford 
Trahan was located directly forward of the bow of the 
rig, in the water. 

An autopsy was conducted on the body of Clifford Tra- 
han by the St. Martin Parish, Louisiana coroner, Dr 
Kim Edward LeBlanc, MD. In the Coroner’s report, 
the cause of death is listed as ACCIDENTAL, with a fi- 
nal diagnosis of: “Fatal intrathoracic rupture of heart 
and intra abdominal rupture of abdominal aorta.” 

Post Mortem drug and alcohol samples were taken 
during the autopsy performed on Mr. Trahan. The re- 
sults of those tests are not yet available. 

(3) FRANCISCO NUNEZ: The body of Mr. Francisco 
Nunez was located in the water on the starboard side, 
amidships, of the rig by a body drag. 

An autopsy was conducted on the body of Francisco 
Nunez by the St. Martin Parish, Louisiana coroner, Dr. 
Kim Edward LeBlanc, MD. In the Coroner’s report, 
the cause of death is listed as ACCIDENTAL, with a fi- 
nal diagnosis of: “Fatal intracrainal open basilar skull 
fracture and intrathoracic laceration of ascending aorta 
and avulsion of left lung and hemothorax and 
intraabdominal liver/spleen/kidney rupture.” 

Post Mortem drug testing of Mr. Nunez was negative. 
Post Mortem blood alcohol testing of Mr. Nunez indi- 
cated a Ethyl Alcohol BAC of 0.01% W/V. A notation 
on the a Laboratory report on Mr. Nunez from Acadi- 
ana medical Laboratories,LTD, indicated that this level 
of Ethyl Alcohol may be present as the result of Post- 
Mortem Decomposition. 

38a 

(4) MIKE McCARTHY: Mr. Mike McCarthy appears 
to have been trapped between the forward bulkhead of 
the second deck, and a hand railing. When the explo- 
sion occurred, the forward bulkhead of the second deck 
pushed him against the hand railing. Part of Mr. 
McCarthy’s body was located in the water approxi- 
mately 50 feet from the starboard stern of the rig. The 
remaining portion of Mr. McCarthy’s body was located 
in the water forward of the bow of the rig by a body 
drag. 

INJURIES: There were two injuries associated with 
the explosion. 

(1 ) BOBBY JORDAN, the rig electrician, was 
awakened, presumably by Mr. Primeaux. Since he was 
wearing ear plugs, he did not hear any evacuation or- 
der. He took the time to get dressed, and when he 
came out of his room, learned that a well blowout had 
occurred. He went to the door, and saw personnel 
working on the rig floor. Becoming concerned, he went 
to wake up the day crew and found them gone. At that 
time, he went to the bow of the rig and saw the tug boat 
backing away from the rig (evacuating the day crew). 
He then want back aft in the quarters and saw Mr. Tra- 
han, Mr. Chaddick, and the night crew. He decided to 
stay out of the way and went back to his room to gather 
his possessions. From there he went to the aft door of 
the quarters and saw a “white mist” in the vicinity of 
the shale shakers. He became concerned about the pos- 
sible presence of natural gas and went to the second 
deck to find Mr. Dillon Trahan. Once on the second 
deck, he did not find Mr. Dillon Trahan, but did observe 
other persons working on the pumps. He then went 
down the stairs on the bow of the rig, and went to the 

39a 

Crew Boat MISS DEE DEE (PHOTOS #36-38) to get 
some ear plugs. He was standing on the back of the 

MISS DEE DEE when the explosion occurred. He 
received a blow to the head from an unknown object, 
was knocked to the deck, and had a piece of steel deck 
grating land on top of his body. He received injuries to 
his shoulder, head, neck, and back; twisted his ankle, 
and sustained broken ribs. 

(2) JOHNNY CHADDICK was in the tool pushers of- 
fice dialing the telephone when the explosion occurred. 
After the explosion occurred, he entered the main fore 
& aft passageway in the quarters house and attempted 
to exit at the forward door. His vision was obscured by 
smoke, and he encountered an unknown obstruction 
which prevented him from exiting at the bow. He then 
turned around and proceeded to the aft door. Upon ex- 
iting the quarters, he encountered heavy smoke and 
heat. He attempted to go down the ladder on the port 
side to the second deck, but was blocked by smoke. He 
then proceeded forward along the port side of the crew 
quarters along an overhanging catwalk (PHOTO #39). 
About 2/3 of the way forward along the crew quarters, 
he became trapped and could go no further forward. 
Smoke and heat prevented him from going aft. At that 
time, he saw a barge moored along the port side of the 
rig below his position, and decided to jump. When he 
landed, he was injured too badly to move. At that time, 
he saw the Crew Boat MISS DEE DEE leaving the vi- 
cinity of the rig. He found a life jacket close by and 
waved it, catching the attention of Mr. Aaron Stran on 
the boat, which turned around and picked him up. As a 
result of the fall, he received two broken ankles, a com- 
pression fracture of a vertebra, two bulging discs, a 
bruise on his arm, and persistent leg pain. 

40a 

OTHER PERSONNEL ON RIG: At the time of the 
explosion, personnel were in the following locations on 
the rig: 

(1) DILLON TRAHAN had just entered his quarters 
to clean up. He was having trouble seeing because of 
the well fluids on his glasses. He changed his shirt and 
was starting out of the door from his room into the Tool 
Pushers Office when the explosion occurred. He fol- 
lowed Mr. Chaddick, who was also in the office, forward 
along the center hallway of the quarters until they 
came to an obstruction. Mr. Trahan did not remember 
smoke in the passageway, but rather darkness. He 
then turned and went aft in the hallway to the aft door 
of the quarters. Upon exiting the quarters, he turned 
to his left, and went down the ladder to the second 
deck. From there, he proceeded forward to the bow. 
Once on the bow, he jumped from the second deck on to 
the aft deck of the MISS DEE DEE. 

(2) DARYL PREJEAN: After rigging pumps on sec- 
ond deck, was ordered to the barge deck to tend the 
portable pump suction line. When the explosion oc- 
curred he was on the shale barge. He immediately pro- 
ceeded to the MISS DEE DEE for evacuation. 

(3) PAUL STANRIDGE: After assisting with pumps 
on the second deck, he was ordered to the barge deck to 
help rig a second pump. He was knocked to the deck by 
the force of the explosion, got up, and went to the MISS 
DEE DEE. 

(4) GILBERT MARTIN: Working between the barge 
deck and the 2nd deck assisting in the rigging of air 
pumps. He happened to be on the barge deck when the 

41a 

explosion occurred. He was knocked to the deck by the 
explosion, got up and proceeded to the MISS DEE DEE. 

(5) AARON STRAIN: After helping to try and close 
the TIW valve, he went with the rest of the crew to 
quarters to await instructions. After being instructed 
to rig pumps, he proceeded to the second deck. After a 
few minutes on the second deck, his eyes started to 
burn from the “white mist” filling the deck in the vicin- 
ity of the pumps. At that time, he proceeded to the 

MISS DEE DEE. He was in the forward cabin of the 

MISS DEE DEE when the explosion occurred. 

(6) JOE TRAVINO: No interview conducted. 

ISSUES: 

(1) EVACATION ORDERS: Mallard Drilling, upon 
request, submitted a complete copy of their company 
safety manual. Mallard Drilling does not have a sepa- 
rate and specific manual written for each of it’s drilling 
rigs. There are no written procedures available for rig 
evacuation to be followed in the event of a well blowout. 
Mallard Drilling, however, does provide a “FIRE AND 
ABANDON PLATFORM DRILL” section in their safety 
manual (page A-14). It states that “all drills should be 
conducted in accordance to the posted station bill”, and 
provides the following specifics (paraphrased). 

a) Should be conducted “once a hitch” and include all 
personnel 

b) Should be pre-planned and emphasize key points. 

c) Alarm should be sounded as posted on station bill. 
Drill announcement should be made on PA system. 

42a 

d) All personnel should report promptly to their as- 
signed station unless excused to continue operations. 

e) communications should be tested by notifying 
shorebase and standby boat. 

f) All personnel wear PFD. 

g) Document drill on IADC report. 

I received a copy of a STATION BILL which was re- 
portedly posted in the Tool Pushers Office aboard the 

MILLARD RIG 52. The bill addresseS procedures for: 
Fire and Emergency, Man Overboard, and Abandon 
Rig. The bill specifies that the rig general alarm sys- 
tem be activated immediately during any emergency 
evolution, and then goes on to delineate general respon- 
sibilities by position. It does not specifically address 
the occurrence of a blowout. 

Records of emergency drills conducted aboard the 

MALLARD RIG 52 were obtained from Mallard Drilling 
during the course of this investigation. The records 
show that on average, emergency drills were conducted 
aboard the rig weekly. The drill sheet specifies that a 
muster of personnel be taken immediately during all 
drills. During this actual emergency, no formal muster 
was ever completed. 

On page C-2 of the Mallard Drilling Safety manual, 
Paragraph 19 states that attendance at weekly safety 
meetings and participation in drills is mandatory. 

According to the statement of Mr. Dillion Trahan and 
all other rig workers, with the single exception of Mr. 
Chaddick, at no time during the emergency did anyone 
sound the rig general alarm system. Nor did Mr. Dillon 
Trahan order an evacuation. Mr. Trahan was aware 

43a 

that an evacuation of nonessential personnel had oc- 
curred, and distinctly remembered taking a quick men- 
tal accounting of personnel when he saw them leaving 
the rig. 

Mr. Chaddick, in his interview, was adamant in his con- 
tention that Mr. Trahan sounded the rig alarm system. 
All other personnel interviewed consistently stated 
that no alarms were sounded. I cannot account for this 
discrepancy in statements. 

No general evacuation of the on duty crew of the rig 
was ever conducted. At the time of the explosion, the 
decision to stay and kill the well had already been made 
by Mr. Trahan. This decision was made based on Mr. 
Trahan’s assumptions that: 

a) The natural gas blowing from the well was lighter 
than air and would not settle onto the rig. 

b) The well could be brought under control in a rea- 
sonable amount of time. 

c) Adequate equipment and supplies were available 
on scene to bring the well under control. 

As stated earlier, Mr. Trahan had called his supervisor, 
Mr. Leroy Broussard, who recommended that Mr. Tra- 
han use his own judgment to evacuate or control the 
well. Based on his own training and experience, Mr. 
Trahan decided to control the well. In retrospect, it has 
been shown that all of Mr. Trahan’s assumptions were 
incorrect. 

(2) TRAINING AND QUALIFICATION: Mr. Dillon 
Trahan, the Tool Pusher on the MALLARD RIG 52 had 
attended an U.S. Department of Interior, Minerals 

44a 

Management Service (MMS) approved WELL CON- 
TROL FOR DRILLING/COMPLETION & WORKOVER 
SUPERVISOR School in April, 1997. The course was 
instructed by Randy Smith Drilling Schools. A review 
of the course curriculum showed that the course is bro- 
ken down into standards. Each standard then has per- 
formance criteria which must be met. The course fo- 
cuses in recognizing early well control problems, devel- 
oping a plan of action, and executing the plan. In a con- 
versation with Mr. Jay O’Conner, Instructor for Randy 
Smith Drilling Schools, I found that the course does not 
address major failure of well control equipment, or 
when it is safer to abandon the rig then control the well. 
No class discussion was held on the topic of abandon- 
ment, and no case studies were presented in class which 
involved abandonment. Rig abandonment and total loss 
of well control are not covered by the MMS require- 
ments for this course. Since this course is developed 
and approved by MMS, it is only required for operators 
of offshore drilling rigs. 

Mr. Trahan also attended a OSHA approved CON- 
FINED SPACE ENTRY & WORK ACTIVITIES AND 
THE DUTIES AND RESPONSIBILITIES OF THE 
OSHA DESIGNATED COMPETENT PERSON. This 
course of instructions covers the monitoring of confined 
spaces for the presence of flammable and oxygen defi- 
cient atmospheres. It does not address the monitoring 
of ambient air for the presence of flammable gases. 

I received no other information regarding the training 
and qualification of Mr. Trahan. Mr. Trahan does have 
approximately 30 years of experience in oil field related 
work. 

45a 

(3) BLOW OUT PREVENTORS: The installed outer 
(annulus) Blow Out Preventor stack (BOP’s) are not at 
issue in this investigation. The BOP’s were capable of 
sealing the well annulus, not a drill pipe or tool string. 
The annular preventor places a relatively low pressure 
(5000 PSI) rubber seal around the outside circumfer- 
ence of the pipe. The 5" pipe rams likewise place a seal 
around the pipe, but a higher pressure seal. Pipe rams 
are also capable of holding the pipe string from falling 
back into the well when disconnected from the travel- 
ing block. The blind ram can only be actuated when 
there is no pipe extending through the well bore. It 
consists of two interlocking, flat faced plates which, 
when fitted together, seal off the well bore. In this 
case, the only type of BOP which would have helped 
would have been a shear ram. A shear ram has two in- 
terlocking plates with cutting edges, which when 
closed, would have been capable of shearing through 
the well string, then sealing in the same manor as a 
blind ram. No shear rams were installed on this well, 
nor is it common practice to have them installed on in- 
land drilling projects. 

(4) TIW VALVES: The TIW valves in use may also be 
considered a BOP device. While it is evident that the 
lower TIW valve failed to operate as expected, the 
cause of that failure has not been pursued as part of this 
investigation. Reportedly, both TIW valves from the 

MALLARD RIG 52 were removed, boxed, and placed in 
storage after the rig was taken off location. No analysis 
or visual surveys of the valves have been conducted to 
determine the cause of their failure. 

(5) GAS DETECTION: A fixed gas detection system 
was installed in the vicinity of the Shale Shakers on the 

46a 

MALLARD RIG 52. This gas detection system was 
meant only to detect gas in the drilling mud. This sys- 
tem had installed audible alarms at the shale shakers, 
drillers console, and in the tool pushers office. Rig per- 
sonnel all stated that they had heard the alarm the pre- 
vious week, but could not tell if it was sounding when 
the well was flowing out of control due to the back- 
ground noise level of the blowout. There is some indi- 
cation that this system may have been turned off prior 
to the blowout. Mr. Chaddick stated that after mud 
wad pumped into the well and the packers in the well 
were set. The system was turned off. 

The tool pusher also had at his disposal a “MSA 

WATCHMAN MULTIGAS DETECTOR”. This piece of 
equipment is a portable explosive gas meter which 
measures flammable gases in % of lower explosive limit 
(LEL). The meter was typically kept on the tool push- 
ers desk in his office. The meter was not available for 
my inspection as it was destroyed during the explosion 
and fire. The main use of the meter onboard the rig 
was to test enclosed spaces prior to entry. At no time, 
during the 30-40 min immediately proceeding the explo- 
sion, when the well was out of control did Mr. Trahan 
test the atmosphere at any location on the rig for the 
presence of explosive or flammable gases. When asked 
why, Mr. Trahan replied “I didn’t smell gas”. 

(6) NATURAL GAS PROPERTIES: According to THE 
MERCK INDEX, NINTH EDITION, natural gas has the 
following properties: 

Composed of: about 85% methane, 9% ethane, 3% pro- 
pane, 2% nitrogen, and 1% butane. 

47a 

With methane being the major component of natural 
gas, methane has the following properties: colorless, 
odorless, non-poisonous, flammable gas. Specific grav- 
ity (in air) 0.554. Forms explosive mixtures in air. 
Most explosive at 1 part methane/10 part air concentra- 
tion. A 14% methane concentration in air burns without 
noise. 

(7) Greenhill Petroleum, Timbalier Bay, October 1992. 

In early October, 1992, the crew aboard an inland drill- 
ing rig (Posted Barge) was conducting a back surge op- 
eration under the supervision of a hired toolpusher 
when they lost control of the well. A blowout occurred, 
and approximately 42 1/2 hours later, the well ignited. 
The incident resulted in one injury, total constructive 
loss of the rig, and a total discharge of approximately 
400,000 gallons of crude oil. 

(8) Henry Production, Intracoastal City, July 1994. 

A workover barge was conducting a well perforation 
operation on an existing well for Henry Production. 
During the operation, the well kicked, and became un- 
controllable. During the second day of the blowout, the 
well ignited while well control teams were working in 
the vicinity, killing two persons, and injuring four oth- 
ers. Approximately 12,000 gallons of light crude oil was 
discharged from the well. 

48a 

(9) Parker & Parsley Petroleum, Meyette Point, No- 
vember 1996 

While conducting workover operation on existing well 
with an inland drilling rig, the well kicked. When the 
annular blow out preventor (BOP) was shut in, a gasket 
on a flange below the BOP failed. After several at- 
tempts were made to secure the well, the rig was shut 
down and moved off location. No injuries or deaths. 
Approximately 15,000 barrels of light crude oil conden- 
sate discharged. 

CONCLUSIONS: 

1. A well upset occurred at approximately 2115, 16 
June 97. 

2. Personnel on the MALLARD RIG 52 were not able 
to bring the well back under control through the use of 
installed safety devices. 

3. Natural Gas started blowing from the well shortly 
after the initial well upset and continued to blow from 
the well through the time the explosion occurred. 

4. Natural gas spread, in explosive concentrations 
throughout the MALLARD RIG 52 except for ho- 
tel/office spaces located on the third deck. 

5. Personnel in supervisory positions on the MAL- 
LARD RIG 52 did not recognize the hazard of an explo- 
sive natural gas/air mixture forming on the rig. 

6. Personnel on the rig had a portable flammable gas 
detection device which they failed to use. There was no 

49a 

written direction to use a portable gas detection device 
during well control operations. 

7. Emergency and evacuation drills were conducted 
weekly on the MALLARD RIG 52 and documented in 
written reports. 

8. Since a well control operation was being attempted, 
the available SCR shutdown switches were not used to 
de-energize the electrical systems on the MALLARD 
RIG 52. 

9. When the well upset occurred, the established pro- 
cedure of sounding a fire & emergency signal on the 

MALLARD RIG 52 general alarm system did not occur. 

10. When the off duty crew was evacuated from the 

MALLARD RIG 52, the established procedure of 
sounding a abandon rig signal on the rigs general alarm 
system did not occur. 

11. When the well upset occurred, the established pro- 
cedure of mustering personnel and assigning tasks on 
the rig did not occur. 

12. Mr. Trahan’s responsibility was to direct emer- 
gency operations on the MALLARD RIG 52. Mr. Trahan 
did not direct the attempt to kill the well. Mr. Trahan 
did not direct the evacuation of any of the rigs person- 
nel. 

13. Mr. Chaddick’s responsibility was to standby the 
telephone and radio on the rig and contact boats for 
evacuation. Mr. Chaddick did not stay in the tool 
pusher’s office to carry out this responsibility. 

50a 

14. The off duty driller, Mr. Karl Primeaux carried out 
his responsibility in clearing persons from the living 
quarters as per established procedures. 

15. The off duty crew, with the exception of Mr. Bobby 
Jordan, evacuated from the rig IAW established proce- 
dures. 

16. The Tool Pusher called his company office for in- 
structions regarding whether to control the well or 
evacuate the rig. 

17. The Company Man, Mr. Chaddick called his office 
for instructions regarding whether to control the well 
or evacuate the rig. 

18. No specific company direction existed for blowout 
control. 

19. Numerous sources of ignition existed on the MAL- 
LARD RIG 52. The actual source of ignition on the rig 
remains unknown. 

RECOMMENDATION: 

1. That state governments conduct regulatory over- 
sight and enforcement of all Energy drilling and work- 
over operations within state waters. 

51a 

ENCLOSURES: 

(1) Photographs 1-39 
(2) Mallard Drilling, Safety Policy Manual, Pages A- 
14 & C-2 
(3) Well Blowout Report as submitted to Louisiana 

Department of Natural Resources by Denbury 
Management, Inc. 
(4) Mallard Rig 52 Station Bill 
(5) Mallard Rig 52 plan 
(6) Mallard Rig 52 Fire Control Plan 
(7) Mqllard Rig 52 Certificate of Documentation 
(8) Crew Boat Miss Dee Dee Certificate of Documen- 
tation 
(9) Map showing Mallard Rig 52 on the well location 

52a 

APPENDIX E 

U.S. DEPARTMENT OF LABOR 

OFFICE OF THE SECRETARY 
WASHINGTON, D.C. 
20210 

[DEC 23, 1980] 

Honorable Walter F. Mondale 
President of the Senate 
Washington, D.C. 20510 

Dear Mr. President: 

This is to transmit to you a report pursuant to section 
4(b)(3) of the Occupational Safety and Health Act of 
1970. 

Respectfully submitted, 

/s/ RAY MARSHALL 

Secretary of Labor 

Enclosure 

53a 

U.S. DEPARTMENT OF LABOR 

OFFICE OF THE SECRETARY 
WASHINGTON, D.C. 
20210 

[DEC 23, 1980] 

Honorable Thomas P. O’Neill, Jr. 
Speaker of the House of Representatives 
Washington, D.C. 20515 

Dear Mr. Speaker: 

This is to transmit to you a report pursuant to section 
4(b)(3) of the Occupational Safety and Health Act of 
1970. 

Respectfully submitted, 

/s/ RAY MARSHALL 

Secretary of Labor 

Enclosure 

54a 

U.S. DEPARTMENT OF LABOR 

OFFICE OF THE SECRETARY 
WASHINGTON, D.C. 
20210 

[DEC 23, 1980] 

TO THE CONGRESS OF THE UNITED STATES; 

I am submiting the enclosed report pursuant to section 
4(b)(3) of the Occupational Safety and Health Act, 
which requires that the “Secretary of Labor shall, 
within three years after the effective date of the Act, 
report to the Congress his recommendations for 
legislation to avoid unnecessary duplication and to 
achieve coordination between this Act and other 
Federal laws.” 

Views within the Executive Branch on this matter have 
not been coordinated. Accordingly, this report reflects 
only the views of the Department of Labor. It is our 
view that there is at this time no need for legislation on 
this subject. 

Respectfully submitted, 

/s/ RAY MARSHALL 

Secretary of Labor 

55a 

REPORT OF THE SECRETARY OF LABOR TO 
CONGRESS PURSUANT TO SECTION 4(b)(3) OF THE 
OCCUPATIONAL SAFETY AND HEALTH ACT OF 
1970, ON THE SUBJECT OF COORDINATION IN THE 
ADMINISTRATION AND ENFORCEMENT OF THIS 

ACT AND OTHER FEDERAL LAWS AFFECTING 
OCCUPATIONAL SAFETY AND HEALTH 

I. Introduction 

This report by the Secretary of Labor is submitted to 
Congress pursuant to section 4(b)(3) of the 
Occupational Safety and Health Act of 1970, which 
provides: 

The Secretary shall, within three years after the 
effective date of this Act, report to the Congress his 
recommendations for legislation to avoid unneces- 
sary duplication and to achieve coordination be- 
tween this Act and other Federal laws. 

II. Background 

The Occupational Safety and Health Act of 1970 is a 
comprehensive statute covering all employers who are 
engaged in a business affecting commerce and who have 
one or more employees and was designed to “. . . 
ensure so far as possible every working man and 
woman in the Nation safe and healthful working condi- 
tions. . . .” In enacting this comprehensive statute, 

Congress also took into account those provisions of 
other Federal laws which, to various degrees, deal with 

56a 

worker safety and health issues. Section 4(b)(1) states, 
in pertinent part, that: 

Nothing in this Act shall apply to working condi- 
tions with respect to which other Federal agencies 

. . . exercise statutory authority to prescribed or 
enforce standards or regulations affecting occupa- 
tional safety and health. 

Generally speaking, this language means that the OSH 
Act’s protections apply only where there exist no 
legally enforceable standards or regulations of another 
Federal agency addressing a particular hazard. Under 
this framework, gaps in employee protections are 
avoided while at the same time the regulatory activity 
of the other agencies is not affected; viewed in this 
light, section 4(b)(1) places a limit only on the authority 
of the Department of Labor. 

The OSH Act contains a detailed framework of 
enforcement and educational activities, including nu- 
merous employee rights, designed to achieve employee 
protection. Even where the OSH Act is preempted 
under section 4(b)(1), there is still an understandable 
expectation on the part of many employees and their 
representatives that the quality of protection and the 
range of rights afforded by the OSH Act would be 
provided for all workers and in all hazardous working 
conditions. The Department recognizes this concern 
and has taken steps to promote a coordinated approach 
to occupational safety and health programs throughout 
the Government by means of interagency agreements. 

57a 

III. Court and Review Commission Interpretation of 
Section 4(b)(1) 

A number of decisions of the Occupational Safety and 
Health Review Commission (OSHRC) and the courts of 
appeals have interpreted section 4(b)(1). Several courts 
have ruled that workers may not be denied protection 
under the OSH Act for all hazards they face because 
their industry happens to be regulated in part by 
another federal agency which has issued rules for some 
worker hazards. 

In other words, these courts hold that industries as 
such are not preempted from OSHA; rather, the pre- 
emption rule of section 4(b)(1) applies only to particular 
hazards. The courts have also held that in order for 
preemption to take place, the standard or regulation of 
the other agency must be in a final rule, not simply a 
notice of proposed rulemaking or an advance notice of 
proposed rulemaking.1 At the same time, the evolving 
section 4(b)(1) law indicates that this preemption of 
OSHA does not depend on the efficacy of other agency’s 
standards or its enforcement mechanisms.2 

These and other cases are shaping current federal 
policies for worker safety and health. To be sure, there 
are remaining issues to be decided by the courts which 

1 See Southern Pacific Transportation Co. v. Usery, 539 F.2d 
386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); Baltimore and 
Ohio R.R. Co. v. OSHRC, 548 F.2d 1052 (D.C. Cir. 1976); Southern 
Railway v. OSHRC, 539 F.2d 335 (4th Cir. 1976), cert. denied, 429 
U.S. 999 (1976). 

2 See Mushroom Transportation Co., OSHRC Docket No. 1588, 
1973-74 CCH OSHD ¶ 16,881 (R.C. 1973), appeal dismissed (3rd 
Cir. 1974); Pennsuco Cement and Aggregates, Inc., OSHRC 
Docket No. 15462, 1980 OSHD ¶ 24,478 (R.C. 1980). 

58a 

will help further define the roles of the OSH Act and 
other federal laws in protecting workers. We are 
satisfied, however, that current case law in general has 
adequately preserved the primary intent of section 
4(b)(1), which is to provide maximum worker protection 
contemplated by Congress in enacting the comprehen- 
sive OSH Act and at the same time to avoid duplication 
of effort by Federal agencies. 

IV. Quality of Procession 

There are only two federal agencies that deal 
exclusively with occupational safety and health and 
both of these are in the Department of Labor: the 
Occupational Safety and Health Administration and the 
Mine Safety and Health Administration. No other 
federal agencies have as their exclusive purpose the 
protection of workers from on-the-job injuries and 
illnesses. The statutes administered by other agencies 
that have an occupational safety and health role are 
designed primarily or in significant part to protect the 
public or equipment. Agencies of the Department of 
Transportation, for example, have as major purposes 
protecting the public and transportation equipment: 

i.e., the safe operation of trains (Federal Railroad Ad- 
ministration), aircraft (Federal Aviation Admini- 
stration), certain vessels (Coast Guard), and certain 
trucks and buses (Bureau of Motor Carrier Safety). 
Because those agencies have other statutory functions, 
they cannot devote exclusive attention and resources to 
employee protection. 

The absence of this primary focus on occupational 
safety and health has at times resulted in criticism of 
other agencies by employees, their representatives, and 
Congress concerning their programs. These criticisms 

59a 

have related primarily to the efficacy of their enforce- 
ment activities. 

In a recent example, a General Accounting Office Re- 
port, dated July 21, 1980, pointed out that the Depart- 
ment of Energy has not been properly implementing its 
safety and health programs for employees at its 
contractor-operated uranium enrichment plants. In 
another recent instance, flight attendants contended in 
Congressional hearings that the Federal Aviation 
Administration has no effective enforcement program 
for in-flight occupational hazards even though the FAA 
has maintained that it has full statutory authority over 
such hazards. In another example, the Coast Guard 
was criticized by Congress for failure to protect mer- 
chant seamen from the hazards of asbestos. 

In addition to these criticisms that stem from 
multiple agency functions, many workers have voiced 
concern about the statutory mechanisms of some of the 
other agency programs as they relate to occupational 
safety and health. A number of the other Federal 
statutes under which workers are covered lack certain 
important provisions contained in the OSH Act which 
this Department has repeatedly stated are essential to 
strong occupational safety and health programs. These 
include: 

- the right of employees to file anonymous com- 
plaints about alleged hazards and the respon- 
sibility of the agency to respond to those com- 
plaints; 

- the right of employee representatives to ac- 
company a federal inspector during investiga- 
tions of working conditions; 

60a 

- authority of the agency to propose monetary 
penalties as an incentive for employers to com- 
ply voluntarily with safety and health stan- 
dards; 

- authority to seek injunctions to protect em- 
ployees in imminently dangerous situations; 
and 

- authority to compel the prompt abatement of 
hazardous working conditions. 

In addition, certain industry groups have on occasion 
complained of duplication and overlap by OSHA and 
other agencies in regulating and enforcing occupational 
safety and health concerns. 

Numerous actions have been taken to deal with these 
concerns. Agreements between OSHA and other 
agencies have led to increased understanding, coopera- 
tion, reduction of overlap, elimination of recordkeeping 
duplication and consequent reductions in employers’ 
paperwork burdens, use of OSHA standards by other 
agencies, and sharing of technical information and 
enforcement resources. A list of these Memoranda of 
Understanding is attached. Furthermore, OSHA has 
cooperated with other agencies in the formulation of 
legislative proposals dealing with occupational safety 
and health issues, such as trucking safety, that include 
compliance provisions parallel to those in the OSH Act. 

V. Conclusions and Recommendations 

Preventing duplication of effort and achieving coor- 
dination between the OSH Act and other Federal 
statutes is, in the Department’s opinion, being ade- 
quately addressed under existing authority. As the 

61a 

courts continue to refine the interpretation of section 
4(b)(1) of the OSH Act, an even clearer picture of each 
Federal agency’s role for worker safety and health will 
emerge. Federal policies will continue to be adjusted to 
conform to the court’s interpretations. In addition, 
cooperative efforts between Federal agencies will 
continue to expand. The Department sees no need for, 
and therefore does not recommend, legislation on the 
subject of occupational safety and health jurisdiction. 

62a 

APPENDIX F 

DEPARTMENT OF TRANSPORTATION 

Coast Guard 

DEPARTMENT OF LABOR 

Occupational Safety and Health Administration 

Authority To Prescribe and Enforce Standards or 
Regulations Affecting Occupational Safety and Health 
of Seamen Aboard Vessels Inspected and Certificated 
by the United States Coast Guard; Memorandum of 
Understanding 

Thursday, March 17, 1983 

Purpose 

It is the purpose of this memorandum of under- 
standing (MOU) to set forth clearly the boundaries of 
the authority of the United States Coast Guard (Coast 
Guard) of the U.S. Department of Transportation and 
the Occupational Safety and Health Administration 
(OSHA) of the U.S. Department of Labor in prescribing 
and enforcing standards or regulations affecting the 
occupational safety and health of seamen aboard vessels 
inspected and certificated by the Coast guard (herein- 
after “inspected vessels”). This MOU is intended to 
eliminate confusion among members of the public with 
regard to the relative authorities of the two agencies. 
Nothing in this MOU pertains to uninspected vessels. 
The Coast Guard and OSHA agree to work together to 
fulfill their respective authorities. 

63a 

Authority of the Coast Guard 

The Coast Guard is the dominant federal agency with 
the statutory authority to prescribe and enforce stan- 
dards or regulations affecting the occupational safety 
and health of seamen aboard inspected vessels. Under 
the vessel Inspection Laws of the United States, the 
Coast Guard has issued comprehensive standards and 
regulations concerning the working conditions of sea- 
men aboard inspected vessels. 

These comprehensive 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 condi- 
tions that are not addressed by the specific regulations. 
These standards and regulations are generally set forth 
at 46 CFR Chapter I, and in the Coast Guard’s Marine 
Safety Manual and its Navigation and Vessel Inspec- 
tion Circulars. 

OSHA has a general statutory authority to assure 
safe and healthful working conditions for working men 
and women under the Occupational Safety and Health 
(OSH) Act of 1970. Section 4(b)(1) of the OSH Act 
defines the relationship between OSHA and the other 
federal agencies whose exercise of statutory respon- 
sibilities may affect occupational safety and health. 
Based on OSHA’s interpretation of section 4(b)(1), and 
as a result of the Coast Guard’s exercise of its author- 
ity, described above, OSHA has concluded that it may 
not enforce the OSH Act with respect to the working 
conditions of seamen aboard inspected vessels. None- 
theless, OSHA retains the following responsibilities. 

64a 

OSHA retains its authority under section 11(c) of the 
OSH Act, which forbids discrimination in any manner 
against employees who have exercised any right 
afforded them under the OSH Act. Pursuant to this 
provision, OSHA has the authority to require vessel 
owners to post a notice that informs employees of their 
right to complain about working conditions to the Coast 
Guard, OSHA, or the employer and to be free from 
retaliatory discrimination. OSHA has concluded that 
its exercise of authority under section 11(c) is not 
precluded by the scope of section 4(b)(1) of the OSH 
Act. 

OSHA agrees to refer to the Coast Guard, for its 
consideration, any complaints, other than section 11(c) 
discrimination complaints, OSHA receives from seamen 
working aboard inspected vessels. However, the Coast 
Guard, consistent with the statement of its authority 
above, has the sole discretion to determine, under its 
applicable standards and regulations, whether the 
events complained of constitute hazardous conditions 
and the extent of any remedy that may be required. 

Recordkeeping 

OSHA and the Coast Guard will continue to discuss 
the extent of their respective jurisdictions to require 
owners of inspected vessels to keep records concerning 
occupational injuries and illnesses. This MOU does not 
resolve any issues concerning recordkeeping obliga- 
tions. 

65a 

Effective Date and Publication 

This MOU shall take effect upon signature by the 
parties. It shall be promptly published in the Federal 
Register. 

Dated: March 8, 1983. 

James S. Garcey, 
Commandant, United States Coast 

Guard, Department of Transportation 

Dated: March 4, 1983. 

Thorne G. Auchter, 
Assistant Secretary for Occupational 

Safety and Health, Department of Labor 

66a 

APPENDIX G 

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 99-60124 

MALLARD BAY DRILLING, INC., PETITIONER 

v. 

ALEXIS HERMAN, SECRETARY OF LABOR, 
UNITED STATES DEPARTMENT OF LABOR, RESPONDENT 

Petition for Review of an Order of the 
Occupational Safety and Health Review Commission 

[Filed: Aug 8, 2000] 

ON PETITION FOR REHEARING EN BANC 

Before: POLITZ and DAVIS, Circuit Judges, and 
RESTANI, Judge.* 

PER CURIAM: 

(3 ) 
Treating the Petition for Rehearing En Banc as a 

Petition for Panel Rehearing, the Petition for Panel 
Rehearing is DENIED. No member of the panel nor 
judge in regular active service of the court having 

* Judge of the U.S. Court of International Trade, sitting by 
designation. 

67a 

requested that the court be polled on Rehearing En 
Banc (FED. R. APP. P. and 5TH CIR. R. 35), the Petition 
for Rehearing En Banc is DENIED. 

( ) 
Treating the Petition for Rehearing En Banc as a 

Petition for Panel Rehearing, the Petition for Panel 
Rehearing is DENIED. The court having been polled at 
the request of one of the members of the court and a 
majority of the judges who are in regular active service 
not having voted in favor (FED. R. APP.P. and 5TH CIR. 
R. 35), the Petition for Rehearing En Banc is DENIED. 

ENTERED FOR THE COURT: 

/s/ W. EUGENE DAVIS 

United States Circuit Judge