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
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 responsibilities effectively "preempt" OSHA's responsibility to inspect and investigate the working conditions aboard dredges such as the one at issue in this case.
It has for some time been the law in this Circuit that Section 4(b)(1), 29 U.S.C. § 653(b)(1) preemption requires a two-part showing; first, that a coordinate federal agency has "exercised" authority by promulgating regulations in the area and second, that these concurrent regulations cover the specific "working conditions" purportedly within OSHA's jurisdiction. "Working conditions" have been defined as the "environmental area in which an employee customarily goes about his daily tasks." Pennsylvania Electric Company v. Federal Mine Safety and Health Review Commission, 969 F.2d 1501, 1504 (3rd Cir. 1991); Columbia Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913, 916 (3rd Cir. 1980). What's more, the preempting agency must actually have promulgated regulations; the mere declaration of authority over the area is not enough. Id. at note 7.
Although the issue is one of first impression in the Third Circuit, both the District Court for the District of Columbia and the Court of Appeals for the Eleventh Circuit have had occasion to consider the interplay between the Coast Guard and OSHA regulations.
In Taylor Diving and Salvage Co. v. U.S. Department of Labor, 674 F. Supp. 30 (D.D.C. 1987), the plaintiff commercial diving companies and trade association argued that OSHA's Records Access Standard, which required employers to maintain employee medical records was pre-empted by the Coast Guard's regulations governing final marine occupational safety and health for commercial diving operations. In holding that OSHA's record-keeping regulations were not preempted, the Taylor court looked to the legislative history and plain language of the section 4(b)(1) exemption and, finding it to be quite narrow, observed that Congress intended specific agency regulations of working conditions to preempt only OSHA efforts to regulate those same working conditions and nothing more. The court further reasoned:
"Absent an actual attempt at regulation, merely creating the potential for regulating working conditions does not interfere with the Coast Guard's scheme. ... The signal feature of any pre-emption doctrine is that one rule of law can pre-empt another only if both serve the same purpose."
674 F. Supp. at 33, citing Baltimore and Ohio Railroad Co. v. Occupational Safety and Health Review Commission, 548 F.2d 1052, 1055 (D.C.Cir. 1976)(per curiam).
Similarly in In Re Inspection of Norfolk Dredging Company, 783 F.2d 1526 (11th Cir. 1986), the Eleventh Circuit Court of Appeals applied that same rationale to the identical question now facing this court: whether the Coast Guard's exercise of authority over maritime safety is sufficient to pre-empt OSHA of jurisdiction over working conditions aboard uninspected vessels. Answering that question firmly in the negative, the Norfolk court noted the distinct difference between inspected and uninspected vessels in the Coast Guard's regulatory scheme and held:
"The Coast Guard's regulation of safety aboard uninspected vessels does not encompass crane safety, the working condition at issue here. (citing 29 C.F.R. § 1926.550 (1985)) The Coast Guard also has not articulated a policy against regulation of crane equipment.