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On January 9, 2002, in Chao v. Mallard Bay Drilling, Inc., the United States Supreme Court concluded that the Occupational Safety and Health Administration's ("OSHA") authority to maintain workplace safety for "uninspected" vessels (such as offshore drilling rigs) is not pre-empted by the Coast Guard's power to control maritime operations. In 1997, OSHA had cited a drilling rig operator for three violations of the Occupational Safety and Health Act (the "Act"), following an explosion that killed four rig employees. Setting aside the citation, the Fifth Circuit Court of Appeals determined that OSHA's jurisdiction over the rig was displaced by the Coast Guard's authority to regulate "uninspected" vessels. Specifically, the appellate court cited Section 4 of the Act, which states that the Act will not apply when other federal agencies exercise authority to enforce their own occupational safety and health standards. The Supreme Court reversed and, in a unanimous decision authored by Justice John Paul Stevens, focused on the amount of regulatory authority necessary to displace OSHA's workplace rules. According to the Court, OSHA's ability to regulate safety is pre-empted only when another agency actively exercises its power to control workplace conditions. In turn, the Court concluded that the Coast Guard had not exercised the degree of authority necessary -- as to "uninspected" vessels -- to pre-empt OSHA. While the Coast Guard does regulate fire extinguishers, life preservers, and emergency locating equipment on "uninspected" vessels, Justice Stevens noted that these regulations fail to address overall safety and health. Rather, the Court determined that this "minimal exercise" of "some [regulatory] authority" could not pre-empt OSHA -- the Act makes it clear that OSHA's rules are displaced only if "the working conditions at issue" are regulated by another governmental agency. Because the Coast Guard did not affirmatively regulate working conditions, OSHA had properly exercised its jurisdiction over the "uninspected" drilling rig. By contrast, as OSHA conceded, "inspected" vessels (such as freight vessels, offshore supply ships, passenger vessels, seagoing barges, steam and tank vessels, seagoing motor vessels, and oil spill response ships) are sufficiently regulated by the Coast Guard as to pre-empt OSHA. As a result of the ruling, owners and managers of "uninspected" offshore vessels are regulated now by both the Coast Guard and OSHA. If you own such vessels, you should review their workplace safety policies to ensure that they meet, at a minimum, the applicable Coast Guard and OSHA requirements. If you have any questions or require additional information, please contact one of the authors listed at the top of the page, or your Haynes and Boone.

 

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