Herman v. Tidewater Pacific, Inc.

• Decision Date: 24 November 1998
• Docket Number: 97-71105,Nos. 97-70664,s. 97-70664
• Citation: 160 F.3d 1239
• Parties: , 18 O.S.H. Cas. (BNA) 1545, 1998 O.S.H.D. (CCH) P 31,703, 98 Daily Journal D.A.R. 11,970 Alexis M. HERMAN, Secretary of Labor, U.S. Department of Labor, Petitioner, v. TIDEWATER PACIFIC, INC.; Occupational Safety & Health Review Commission, Respondents. TIDEWATER PACIFIC, INC., Petitioner, v. Alexis M. HERMAN, Secretary of Labor, U.S. Department of Labor; Occupational Safety & Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1239

160 F.3d 1239

1999 A.M.C. 236, 18 O.S.H. Cas. (BNA) 1545,

1998 O.S.H.D. (CCH) P 31,703,

98 Daily Journal D.A.R. 11,970

Alexis M. HERMAN, Secretary of Labor, U.S. Department of

Labor, Petitioner, v. TIDEWATER PACIFIC, INC.; Occupational Safety & Health

Review Commission, Respondents.

TIDEWATER PACIFIC, INC., Petitioner, v. Alexis M. HERMAN, Secretary of Labor, U.S. Department of

Labor; Occupational Safety & Health Review

Commission, Respondents.

Nos. 97-70664, 97-71105.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 15, 1998.

Decided Nov. 24, 1998.

Ann Rosenthal and Ronald J. Gottlieb, United States Department of Labor, Washington, D.C., for the petitioner-cross-respondent.

Thomas H. Kiggans, Phelps Dunbar, Baton Rouge, Louisiana, for the respondent-cross-petitioner.

Petitions for Review of a Final Order of the Occupational Safety and Health Review Commission. OSHRC No. 93-2529.

Before: WALLACE and KOZINSKI, Circuit Judges, EZRA, ^* District Judge.

WALLACE, Circuit Judge:

The Secretary of Labor (Secretary) petitions for review of an Occupational Safety and Health Review Commission (Commission) order vacating in part a recordkeeping citation issued by the Secretary against Tidewater Pacific (Tidewater). Tidewater also petitions for review of the order, challenging the portion of the order that upheld a citation for substantive violations and the second part of the recordkeeping citation. The Commission had jurisdiction pursuant to 29 U.S.C. § 659(c). We have jurisdiction to hear the Secretary's timely filed petition pursuant to 29 U.S.C. § 660(b). Tidewater's timely filed petition was properly transferred to us by the Fifth Circuit pursuant to 28 U.S.C. § 2112, and we have jurisdiction pursuant to 29 U.S.C. § 660(a). We grant the Secretary's petition and deny Tidewater's.

I

This case presents us with the issue of the extent of the Secretary's jurisdiction to enforce regulations, promulgated by the Occupational Safety and Health Administration (OSHA) pursuant to the Occupational Safety and Health Act (Act), on board "uninspected" vessels regulated by the Coast Guard.

Following an inspection of the M/V Dr. Jack, the Secretary issued two citations for violations of the Act and its implementing regulations. The Dr. Jack is an oceangoing tug operated by Tidewater. At the time the citations were issued, it was working within United States territorial waters off the coast of Alaska. The first citation was for substantive safety violations regarding confined space entry procedures, machine guarding, and blood-borne pathogen exposure control plans. See 29 C.F.R. §§ 1910.146(c)(4), 1910.215(a)(4), 1910.1030(c)(1)(i). The other citation concerned Tidewater's failure to keep a log of injuries and illnesses as required by 29 C.F.R. § 1904.2(a).

Tidewater contested the citations, asserting that the Act is preempted by Coast Guard regulation of vessels such as the Dr. Jack. The administrative law judge (ALJ) disagreed and upheld the citations. The parties then entered into a stipulation that gave consent to the entry of a final order by the ALJ, reserved the parties' rights to appeal, set forth the amount of fines to be paid, and required Tidewater to post certain materials. Tidewater appealed the ALJ's decision to the Commission.

Before the Commission, the Coast Guard filed an amicus brief in which it, in the Commission's words, "unequivocally disclaims comprehensive regulation of uninspected vessels generally, regulation of the cited conditions, and statutory authority to promulgate such regulations." With this before it, the Commission affirmed with one exception: it agreed with Tidewater that the Secretary lacked jurisdiction to issue the recordkeeping citation with respect to injuries. The Commission, therefore, vacated that citation with respect to injury recording and reduced the $450 penalty by one half. Tidewater paid this reduced penalty and complied with the posting requirements in the parties' stipulation.

"We must uphold a decision of the [Commission] unless it is arbitrary and capricious, not in accordance with the law, or in excess of the authority granted by [the Act]." Loomis Cabinet Co. v. Occupational Safety & Health Review Comm'n, 20 F.3d 938, 941 (9th Cir.1994). While the proper interpretation of a statute is a question of law reviewed de novo, Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065, 1069 (9th Cir.1997), the court must give deference to the agency's interpretation of statutes that it administers, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Where the interpretations of the Secretary and the Commission are in conflict, however, we must defer to the Secretary's reasonable interpretation. Martin v. Occupational Safety and Health Review Com'n, 499 U.S. 144, 157-58, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (Martin ).

II

The Act gives the Secretary jurisdiction to regulate occupational health and safety standards "with respect to employment performed in a workplace in a State." 29 U.S.C. § 653(a). This jurisdiction is limited, however, by section 4(b)(1) of the Act, which provides that the Act does not "apply to working conditions of employees with respect to which other Federal agencies ... exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." 29 U.S.C. § 653(b)(1). The initial question for both citations, therefore, is whether an uninspected vessel operating in United States territorial waters is a "workplace in a State." If this is answered affirmatively, the specific question for the substantive citation is whether the Coast Guard has "exercised" statutory authority over the "working conditions" on board uninspected vessels.

With respect to the Secretary's recordkeeping requirements, section 8(d) of the Act requires that "[u]nnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasible." 29 U.S.C. § 657(d). The issue as to this citation, therefore, is whether the Secretary's recordkeeping authority is limited either because Coast Guard recordkeeping regulations are an exercise of authority over working conditions or because it produces an "unnecessary duplication of efforts."

Therefore, we must analyze whether the Secretary has jurisdiction to issue both citations and whether the recordkeeping requirement produces an "unnecessary duplication of efforts."

III

We must first examine the Coast Guard's regulation of uninspected vessels. The Coast Guard has the general authority to "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." 14 U.S.C. § 2. For purposes of this regulation, there are two types of vessels: "inspected" and "uninspected." 46 U.S.C. §§ 2101(43), 3301. Inspected vessels are subject to comprehensive regulation, see, e.g., 46 U.S.C. § 3306, and the Coast Guard regularly inspects such vessels to ensure compliance, 46 U.S.C. §§ 3305, 3307, 3308.

The Dr. Jack, however, is an uninspected vessel. While not subject to the regulations specific to inspected vessels, uninspected vessels are nonetheless subject to a number of Coast Guard safety-related regulations. In particular, 46 U.S.C. §§ 4101-4106 and 46 C.F.R. pts. 24-28 deal specifically with uninspected vessels. Among other things, these provisions enumerate certain required safety equipment such as fire extinguishers, lifesaving equipment, emergency radio beacons, and ventilation for tanks and engine spaces. See 46 U.S.C. § 4102; 46 C.F.R. pt. 25.

Uninspected vessels are also subject to other requirements generally applicable to the type of vessel they are. For example, the Dr. Jack is a "vessel of the United States" and a "towing vessel." See 46 U.S.C. §§ 2101(40), 2101(46). It is therefore subject to the seaworthiness provisions of 46 U.S.C. §§ 10901-10908. These provisions apply to the vessel's "crew, hull, equipment, tackle, machinery, apparel, furniture, [and] provisions of food or water." 46 U.S.C. § 10902(a)(1). The statutes create a means of quasi-self-regulation: members of the crew are empowered to initiate a court-supervised inspection of conditions they believe are unfit. See id. Three court-appointed marine surveyors complete this inspection, and the district court determines whether the vessel is fit for voyage. 46 U.S.C. § 10903. In addition, the doctrine of seaworthiness gives a private right of action to a seaman who is injured by equipment that is not fit for its intended use. Ribitzki v. Canmar Reading & Bates, Ltd., 111 F.3d 658, 664 (9th Cir.1997).

Additionally, an uninspected vessel's status as a United States flag vessel may subject it to further regulation depending on the type of service in which it engages. Uninspected vessels may therefore be subject to Coast Guard regulations concerning load lines, marine engineering, electrical engineering, and dangerous cargoes. 46 C.F.R. ch. I, subchs. E, F, J, N. For example, as a towing vessel, the Dr. Jack is subject to the load line regulations.

Not only are uninspected vessels subject to these specific and general regulations, in this case the entire crew was subject to licensing and certification. See 46 U.S.C. §§ 7101-7114; 46 C.F.R. pts. 10-16. The certification requirements for uninspected towing vessels prescribe that crew members be proficient in certain safety-related tasks such as fire fighting and first aid. See 46 C.F.R. § 10.203, Table 10.203. At the time the Secretary issued the citations in this case, the Dr. Jack was operating in Valdez, Alaska and was subject to inspection by the Coast Guard Marine Safety Office in Valdez for compliance with these and other general regulations.

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