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REICH v. NELSON

January 5, 1994

ROBERT B. REICH, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR
v.
DOUGLAS NELSON, Individually and WEEKS MARINE, INCORPORATED



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 JOYNER, J.

 This miscellaneous matter has been brought before this court by Petition of the Secretary of Labor for Enforcement of certain subpoenas and subpoenas duces tecum addressed to the respondents, Douglas Nelson and his employer, Weeks Marine, Inc. and by the cross-motion/petition of those respondents to quash the Secretary's subpoenas and to enjoin the Occupational Safety and Health Administration (OSHA) from any further efforts to inspect or regulate working conditions upon Weeks Marine's dredge, the New York. Oral argument on this matter was held on December 15 and December 20, 1993 and the matter is now ripe for disposition.

 I. STATEMENT OF RELEVANT FACTS.

 The instant motions have their genesis in an accident which occurred on the dredge New York on October 29, 1993 while it was operating in the navigable waters of the Delaware River some 150 yards from shore off the BP Oil Company terminal in Marcus Hook, Pennsylvania. At approximately 4:25 p.m. on that date, the body of Adam T. Tarcelli, a Weeks Marine engineer, was found partially inside the base compartment area of the dredge's crane. Although there were no eyewitnesses to the accident, the coroner's and preliminary accident reports indicate that Mr. Tarcelli had suffered a fatal crushing injury to the back and right torso as a result of having been caught in the crane support while it was engaged in the process of clearing sediment from the bed of the Delaware River.

 Immediately after the accident, in addition to contacting the local police and emergency medical personnel, Weeks Marine notified the U.S. Coast Guard and a Coast Guard inspection team arrived approximately one hour later. At or about 8:00 p.m., Coast Guard CWO2 Andrew Gillie boarded the New York to conduct an investigation. CWO2 Gillie interviewed the other workers on the 3 to 11 p.m. shift that day, carefully inspected the interior and exterior of the vessel including the crane and the accident area, directed that the crane operator be tested for chemicals, drugs and alcohol and instructed Weeks Marine to file a USCG Form 2692, Report of Marine Accident, Injury or Death. The crane operator was then immediately tested as per instructions and the Form 2692 was completed and filed with the Coast Guard on November 2, 1993. Subsequently, however, it was determined by Officer Gillie that the New York was an uninspected, undocumented vessel and the Coast Guard therefore apparently concluded that the accident in question was subject to OSHA reporting requirements. Accordingly, on or about November 9, 1993, the Coast Guard having previously notified OSHA, it closed its file on the case.

 II. DISCUSSION.

 It is axiomatic that to properly enforce an administrative subpoena duces tecum, the following three factors must coalesce. First, the inquiry underlying the subpoena must be within the authority of the agency. Second, the demand for production must not be too indefinite and third, the information sought must be reasonably relevant to the authorized inquiry. Dole v. Trinity Industries, Inc., 904 F.2d 867, 871 (3rd Cir. 1990) citing U.S. v. Morton Salt Co., 338 U.S. 632, 652, 70 S. Ct. 357, 368-369, 94 L. Ed. 401 (1950). See Also: Doyle v. U.S. Postal Service, 771 F. Supp. 138, 139 (E.D.Va. 1991).

 In this case, Respondents have taken the position that OSHA has no jurisdiction or authority to act in this matter by virtue of the fact that under 14 U.S.C. § 2, Congress assigned to the Coast Guard the exclusive authority to promulgate and to enforce safety regulations on vessels operating on navigable waters in the United States. *fn1" They urge that this position is further bolstered by the provisions of 46 U.S.C. § 6301, et. seq. which dictate that the Secretary of the Department in which the Coast Guard is operating prescribe regulations calling for "the immediate investigation of marine casualties under this part to decide as closely as possible" among other things, the cause of the casualty and whether an act of misconduct, incompetence, negligence, etc. was committed which contributed to the cause of the casualty and by the "pre-emption" provision of the OSH Act, 29 U.S.C. § 653(b)(1), which provides that "nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 2021 of Title 42, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health."

 The Secretary of Labor, in contrast, essentially contends that insofar as the United States Coast Guard's responsibility for dredges is extremely limited, the Occupational Safety and Health Administration has the authority to inspect and investigate working conditions on these vessels by default. After carefully reviewing the relevant federal statutes and regulations and the modicum of caselaw addressing this issue, we are now constrained to agree with the government's position.

 It is the well-stated purpose of the Occupational Safety and Health Act that Congress, "through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources...by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under this chapter..." 29 U.S.C. § 651 (b)(3). The OSH Act is by its own terms very broad inasmuch as it applies with respect to employment performed in workplaces in any State, the District of Columbia and the various territories and protectorates of the United States and defines an employer as "a person engaged in a business affecting commerce who has employees" (except for the United States or any State or political subdivision of a State). Similarly, an "employee" is said to be "an employee of an employer who is employed in a business of his employer which affects commerce." 29 U.S.C. §§ 652(5),(6), 653(a). Thus, as respondents noted, except when other Federal agencies or State agencies acting under 42 U.S.C. § 2021 are empowered to prescribe and enforce standards and regulations governing occupational safety and health, OSHA applies. 29 U.S.C. § 653(b)(1).

 The provisions of Title 46, on the other hand, are far more specific and far less broad. It is true that under 46 U.S.C. § 6301, the Coast Guard is vested with jurisdiction to promulgate regulations for the immediate investigation of marine casualties and that under § 4.03-1, the term "marine casualty or accident" is defined as meaning "any casualty or accident involving any vessel other than public vessels if such casualty or accident occurs upon the navigable waters of the United States, its territories or possessions or any casualty or accident wherever such casualty or accident may occur involving any United States' vessel which is not a public vessel." Where an uninspected vessel *fn2" is found, however, the Coast Guard's authority and responsibilities are drastically curtailed. To be sure, although 46 U.S.C. § 4102 mandates that certain safety equipment be carried and maintained on uninspected vessels and § 4106 prescribes certain penalties for a failure to do so, it is patently unclear how or by what agency compliance with those requirements is to be ascertained.

 In summary then, while it appears that the Coast Guard has not assumed jurisdiction over and has not promulgated any regulations or standards affecting working conditions aboard uninspected vessels, it nevertheless has the authority to investigate so-called marine casualties aboard such vessels. It likewise appears that, in the absence of concurrent statutory authority by another Federal agency, OSHA has authority to inspect working conditions aboard uninspected vessels. See: 29 U.S.C. § 657(a). The threshhold inquiry thus becomes whether or not the Coast Guard's investigative ...


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