00-927 Chao v. Mallard Bay Drilling, Inc.

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Because the Guard has neither affirmatively regulated the working conditions at issue, nor asserted comprehensive regulatory jurisdiction over working conditions on uninspected vessels, it has not exercised its authority under sec. 4(b)(1). The OSH Act does not apply to working conditions as to which other federal agencies “exercise” statutory authority to prescribe or enforce occupational safety and health standards or regulations. sec. 4(b)(1), 29 U.S.C. 653(b)(1).

Congress’ use of “exercise” makes clear that mere possession by another federal agency of unexercised authority is insufficient to displace OSHA’s jurisdiction. Furthermore, another federal agency’s minimal exercise of some authority over certain vessel conditions does not result in complete pre-emption of OSHA jurisdiction. To determine whether Coast Guard regulations have pre-empted jurisdiction over Rig 52’s working conditions, it is thus necessary to examine the contours of the Guard’s exercise of its statutory authority. With respect to inspected vessels, the parties do not dispute that OSHA’s regulations have been pre-empted because the Coast Guard has exercised its broad statutory authority over workers’ occupational health and safety, 46 U.S.C. 3306. Indeed, OSHA and the Coast Guard signed a Memorandum of Understanding recognizing that the Guard has displaced OSHA’s jurisdiction over all working conditions on inspected vessels, including those not addressed by specific regulations. In contrast, the Guard’s regulatory authority over uninspected vessels is more limited. Its general maritime regulations do not address the occupational safety and health concerns faced by inland drilling operations on such vessels and, thus, do not pre-empt OSHA’s authority in this case. And, although the Guard has engaged in a limited exercise of its authority to regulate specific working conditions on certain types of uninspected vessels, respondent has not identified any specific regulations addressing the types of risk and vessel at issue here.

Local Effect: The issue has not previously been considered by the Seventh Circuit.

Certiorari to the United States Court of Appeals for the Fifth Circuit, 212 F.3d 898, reversed.