Donovan v. Red Star Marine Services, Inc.

• Decision Date: 10 July 1984
• Docket Number: Nos. 727,D,728,s. 727
• Citation: 739 F.2d 774
• Parties: , 11 O.S.H. Cas.(BNA) 2049, 1984-1985 O.S.H.D. ( 26,981 Raymond J. DONOVAN, Secretary of Labor, Petitioner/Cross-Respondent, v. RED STAR MARINE SERVICES, INC., Respondent/Cross-Petitioner. Cal.ockets 83-4158, 83-4168.
• Court: U.S. Court of Appeals — Second Circuit

Page 774

739 F.2d 774

1985 A.M.C. 46, 11 O.S.H. Cas.(BNA) 2049,

1984-1985 O.S.H.D. ( 26,981

Raymond J. DONOVAN, Secretary of Labor, Petitioner/Cross-Respondent, v. RED STAR MARINE SERVICES, INC., Respondent/Cross-Petitioner.

Cal. Nos. 727, 728, Dockets 83-4158, 83-4168.

United States Court of Appeals, Second Circuit.

Argued Feb. 9, 1984.

Decided July 10, 1984.

James E. Culp, Atty. U.S. Dept. of Labor, Washington, D.C. (Francis X. Lilly, Deputy Sol. of Labor, Frank A. White, Associate Sol., for Occupational Safety and Health, Dennis K. Kade, Counsel for Appellate Litigation; Shelley D. Hayes, Atty., Washington, D.C., of counsel), for petitioner/cross-respondent.

James M. Kenny, New York City (McHugh, Leonard & O'Conor, New York City, of counsel), for respondent/cross-petitioner.

Before VAN GRAAFEILAND and TIMBERS, Circuit Judges, and RE, Chief Judge ^*.

RE, Chief Judge:

By cross-petitions, both parties appeal from a final order of the Occupational Safety and Health Review Commission (Commission) which held that, although the Occupational Safety and Health Administration (OSHA) obtained a valid ex parte warrant, it did not have jurisdiction over the working conditions of "seamen" aboard an "uninspected vessel." In general terms, this case presents a jurisdictional conflict between two federal agencies, OSHA and the Coast Guard.

The two questions presented are: (1) whether OSHA has jurisdiction over the "working conditions" of employees aboard uninspected vessels ¹ operating on navigable waters, or whether the Coast Guard, a sister federal agency, had "actually exercised" its authority over the working conditions of employees aboard uninspected vessels operating on navigable waters; and (2) whether the ex parte warrants obtained by OSHA in this case were valid.

Since we hold that OSHA has jurisdiction over the working conditions of employees aboard uninspected vessels, and that the ex parte warrants were valid, we remand the case for further proceedings consistent with this opinion.

The Facts

Red Star Marine Services, Inc. (Red Star) operates a tugboat and marine towing service along the eastern seaboard of the United States. Its fleet includes the tugboat "STAMFORD," which was inspected by an OSHA Compliance Officer on the 27th and 29th of May, 1980. The inspection, prompted by an employee complaint, was conducted pursuant to an ex parte warrant issued by a United States Magistrate after Red Star had refused the Compliance Officer's request to inspect the tugboat for safety and health violations. As a result of that inspection, the Secretary of Labor, the statutory head of OSHA, cited Red Star with violations of the Occupational Safety and Health Act of 1970, 84 Stat. 1590, 29 U.S.C. Sec. 651 et seq., (1982) (OSH Act). In particular, the Secretary alleged violation of 29 C.F.R. Sec. 1910.95, in that, Red Star had failed to provide protection against excessive noise levels, and had failed to administer a continuing hearing conservation program.

The Administrative Proceedings

Red Star contested the Secretary's allegations and pursued the available administrative remedies. Subsequent to the first hearing, in a decision dated July 13, 1982, the OSHA Administrative Law Judge (ALJ) upheld the Secretary's actions, and rejected Red Star's contentions that OSHA lacked jurisdiction, and that the warrants were invalid. Red Star petitioned the Commission for discretionary review. On review, the Commission upheld the validity of the warrants, and remanded, for reconsideration by the ALJ, the question of jurisdiction in light of Dillingham Tug & Barge Corp., ____ OSAHRC ______, 10 O.S.H.Cas. (BNA) 1859, 1982 O.S.H.Dec. (CCH) p 26,166 (1982). In Dillingham, the Commission found that "the Coast Guard has prescribed, and it enforces, regulations that govern the working conditions of seamen aboard both inspected and uninspected vessels operating on navigable waters." Id. at ______, 10 O.S.H.Cas. (BNA) at 1861, 1982 O.S.H.Dec. (CCH) at 32,996. Hence, since "section 4(b)(1) precludes the Secretary from enforcing the OSH Act with respect to [the] working conditions" of "seamen" aboard vessels operating on the navigable waters, the Commission held that the Coast Guard had exclusive jurisdiction. Id. at ______, 10 O.S.H.Cas. (BNA) at 1860, 1982 O.S.H.Dec. (CCH) at 32,995.

Pursuant to the remand order, a second hearing, which consisted largely of the testimony of a Coast Guard officer, was held on February 9, 1983. Based upon that testimony, the regulations found in 46 C.F.R., Chapter I, and the Commission's decision in Dillingham, the ALJ reversed his prior decision, and held that since the Coast Guard had jurisdiction, OSHA could not enforce its regulations in this case. Since the Commission did not act upon the Secretary's petition for discretionary review of the decision on remand, on June 23, 1983, by operation of section 12(j) of the OSH Act, 29 U.S.C. Sec. 661(i), the ALJ's decision became a final order of the Commission.

Pursuant to sections 11(a) & (b) of the OSH Act, 29 U.S.C. Secs. 660(a) & (b) (1982), the Secretary seeks judicial review of the determination that OSHA does not have jurisdiction over the working conditions of "seamen" aboard uninspected vessels. Red Star, by cross-petition, seeks review of that part of the Commission decision which upheld the validity of the ex parte warrant.

Standard of Review

The OSH Act applies to all employment performed in workplaces located within the several states; the District of Columbia; Puerto Rico; the Virgin Islands; Samoa, Guam, Wake and Johnston Islands; the Trust Territory of the Pacific Islands; and on the Outer Continental Shelf lands. Section 4(a), 29 U.S.C. Sec. 653(a). Unless engaged in the field of nuclear or atomic energy, a private employer is not exempt from the OSH Act. The only exception is when a sister federal agency is vested with the statutory authority to prescribe or regulate occupational safety or health matters within its purview. Section 4(b)(1), 29 U.S.C. Sec. 653(b)(1).

In this case, the Commission vacated OSHA's citation of the STAMFORD for noncompliance with its occupational noise regulation, on the ground that the Coast Guard comprehensively regulates the working conditions of employees aboard uninspected vessels on navigable waters. In Marshall v. Northwest Orient Airlines, Inc., 574 F.2d 119 (2d Cir.1978), this Court considered the question of the exemption pursuant to section 4(b)(1), and held that it is a mixed question of "law and fact." Id. at 122.

The applicable standard of review for questions of fact is specified in section 11(a) of the OSH Act, 29 U.S.C. Sec. 660(a), which provides that the findings of the Commission "if supported by substantial evidence on the record considered as a whole, shall be conclusive." Id. As to questions of law, however, the court is free to determine whether the Commission's legal conclusion is "in accordance with law." 5 U.S.C. Sec. 706(2)(a). It is, of course, the function of the court to ascertain the meaning of the pertinent legislation, and to give effect to the legislative purpose. Nevertheless, judicial authority teaches that, even in cases of statutory interpretation and application, appropriate weight must be given to the interpretation of a statute by the agency charged with its administration. Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1965). Accord Tyson v. Maher, 523 F.2d 972, 974 (2d Cir.1975). This standard has been followed by other circuits in an occupational health and safety context. See Dunlop v. Rockwell International, 540 F.2d 1283, 1289-90 (6th Cir.1976) (deferring to the Commission's construction of the Act despite the Secretary's contrary view). Accord GAF Corp. v. OSHRC, 561 F.2d 913, 915 (D.C.Cir.1977) (deferring to administrative interpretation of OSHA regulations when the Secretary and the Commission agreed).

Jurisdiction

The first question presented requires the interpretation of section 4(b)(1) of the OSH Act, 29 U.S.C. Sec. 653(b)(1) (1982). This section 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.

Id.

The Commission agrees that a correct interpretation of section 4(b)(1) requires an actual exercise of delegated statutory authority. We differ with the Commission, however, on the issue of whether the Coast Guard has actually exercised the authority conferred. Thus, the question presented does not involve an ordinary question of fact, but rather, the interpretation and application of the statutes and regulations applicable to the authority and responsibilities of the Coast Guard.

It is undisputed by the parties that the Coast Guard possesses extensive statutory authority, and is the agency primarily responsible for maritime safety. Section 2 of Title 14 provides that 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 ...." Id. Numerous sections of Title 46 of the United States Code also grant specific authority to the Coast Guard. See, e.g., 46 U.S.C. Secs. 3301-18 (governing inspection of vessels). The proposition that Congress intended the Coast Guard to be primarily responsible in the area of maritime safety is supported by the legislative history of the recent amendments to Title 46. H.R.Rep. No. 338, 98th Cong., 1st Sess., reprinted in 1983 U.S.Code Cong. & Ad.News 924.

It is equally clear, however, and also undisputed by the parties, that the Coast Guard does not exercise and has not exercised any statutory...