Chapter 17

Preemption by Other Agencies

1. Introduction.
   When promulgating the Occupational Safety and Health Act of 1970 (OSH Act), Congress recognized that other federal agencies possess authority over safety and health matters in certain industries. To avoid a duplication of federal effort and to prevent conflict between different sets of regulations covering the same working condition, Congress specified, in Section 4(b)(1) of the Act, "Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under Section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." 29 U.S.C. 653(b)(1).

   The process of making a Section 4(b)(1) determination is fact-specific. The determination process involves a review of the other federal agencies’ regulations, policy statements, memoranda of understanding, and court and Occupational Safety and Health Review Commission (Commission) cases. All agencies continually create and amend their regulations. Policy statements can be amended or rescinded. Agencies may enter into new Memoranda of Understanding or issue interpretations and directives. Links to some of these resources are included in this document. A working condition that OSHA covered one day may end up being covered by another federal agency the next day. Because the federal regulatory universe is in a constant state of flux, this document does not comprehensively address the coverage of the OSH Act within each industry. Although it is useful to contact the field offices of the other agency, the guidance received from that field office is not necessarily determinative. The determination should be made after consultation with the Regional Solicitor’s Office.

2. Testing Exemptions.
   Generally speaking, there is a two-pronged test to determine whether or not working conditions are exempt from coverage by Section 4(b)(1) of the OSH Act: (1) Does the other federal agency possess the statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health, and (2) has the other federal agency "exercised" its statutory authority over the particular working condition? A "working condition" is generally a particular occupational hazard. Another agency’s requirement dealing with an occupational hazard preempts OSHA even if the requirement also protects public safety or health, unless the other agency’s requirement only incidentally affects occupational safety or health. It is important to note that the Commission and the courts have stated that OSHA cannot question the efficacy of another federal agency’s requirements. The mere fact that the other federal agency has exercised its statutory authority over the working condition is enough to preempt OSHA.

   In some cases, the other agency has formally decided that its regulations comprehensively address an entire area. In such cases, OSHA is preempted within the entire identified area. In other cases, an agency has formally decided that a particular hazard will not be regulated. In such a case, OSHA is preempted from citing for that hazard.

3. Statutory Exercise.
   The vast majority of the time, an "exercise" of statutory authority takes the form of a regulation in the Code of Federal Regulations. However, the Commission and the courts have recognized other agency actions as forms of this exercise of authority. For instance, safety and health requirements contained in a maintenance manual that has been reviewed and approved by the Federal Aviation Administration (FAA) have been deemed to be an exercise of statutory authority, thereby exempting working conditions covered by manual provisions from applicable OSHA requirements. Another example is a requirement on an EPA-approved label on a pesticide container.

   Section 4(b)(1) is not a "jurisdictional" issue. It is an affirmative defense to a citation. This means that an employer must prove that OSHA is preempted pursuant to Section 4(b)(1) in order to defeat the citation on those grounds. The employer must show that the other agency’s requirements are enforceable against that employer, not others who may be involved in the work. However, OSHA Area Offices must not issue a citation for a working condition preempted by another agency pursuant to Section 4(b)(1). Where there may be Section 4(b)(1) preemption, the Area Office must make an initial determination before a citation is issued.

   NOTE: Section 4(b)(1) does not preempt citations for violations of the Part 1904 recordkeeping regulations. Thus, citations can be issued for violations of Part 1904 without regard to Section 4(b)(1).

   State agencies do not preempt OSHA pursuant to Section 4(b)(1), with a few exceptions. Section 4(b)(1) expressly provides for preemption by state nuclear regulatory agencies with respect to materials regulated by the Nuclear Regulatory Commission. Also, when state agencies enforce federal regulations pursuant to a plan approved by another federal agency, those regulations trigger Section 4(b)(1) preemption; but state regulations merely compatible with federal regulations do not preempt OSHA. Examples of state agencies which enforce federal regulations are agencies that regulate natural gas pipelines and commercial motor vehicles.

   At times, OSHA State Plan officials may have questions about preemption by other federal agencies. Section 4(b)(1) does not apply to State Plan agencies. However, some state OSHA statutes have provisions the same as or similar to Section 4(b)(1). In those cases, Area Offices should consult with their Regional Solicitors. Also, the federal statutes establishing the other federal agencies may preempt the states directly. Thus, when State Plan officials ask questions about preemption by other federal agencies, they should be advised to consult with their attorneys and with the relevant federal agency.

4. Other Agencies that can Preempt OSHA.
   The following information is meant to help OSHA personnel determine jurisdiction. Should an instance arise where one or more federal agencies are at the scene of an inspection or investigation and authority is at issue, the Directorate of Enforcement Programs (DEP) should be contacted for additional guidance. DEP staff will work with National Office staff from other federal agencies to make the Section 4(b)(1) determination. The agencies that prompt the most Section 4(b)(1) questions arise are listed below along with their websites. This is not an exhaustive list of all agencies whose requirements may preempt OSHA. OSHA’s Memoranda of Understanding and Memoranda of Agreement with other agencies are at: https://www.osha.gov/laws-regs/mou/publicationdate
   1. Department of Transportation.
      The Department of Transportation (DOT) protects the safety and health of employees and the public under various federal transportation laws.
      1. Federal Aviation Administration.
         The Federal Aviation Administration (FAA) has the authority to develop regulations and minimum standards in the interest of safety in air commerce.

         The Commission has held that FAA-mandated maintenance manual provisions concerning safety instructions for aircraft maintenance personnel trigger Section 4(b)(1), preemption of OSHA requirements. The FAA has issued a policy statement stating that the FAA comprehensively regulates the working conditions of flight crew, except that OSHA can enforce its noise, hazard communication, and bloodborne pathogens standard to protect all cabin crewmembers other than flight deck crew. OSHA began this enforcement on March 26, 2014. https://www.faa.gov/

      2. Federal Motor Carrier Safety Administration.
         DOT’s Federal Motor Carrier Safety Administration (FMCSA) regulates commercial motor vehicles. The types of vehicles covered are listed in 49 U.S.C. 31132. FMCSA has issued extensive regulations related to commercial motor vehicle safety, including regulations to prevent the unintended movement of parked vehicles, regardless of their location. https://www.fmcsa.dot.gov/
      3. Pipeline and Hazardous Materials Safety Administration.
         The Pipeline and Hazardous Materials Safety Administration (PHMSA) prescribes safety requirements for natural gas and oil pipelines, liquefied natural gas facilities, and breakout tanks. These statutes reach only the owners and operators of pipelines and the other facilities mentioned above. Therefore, the employees of a contractor who is not the owner or operator of such a facility are covered by OSHA. States are authorized, by statute, to enforce PHMSA natural gas pipeline safety regulations. Such regulations, although enforced by a state agency, preempt OSHA.

         PHMSA also regulates the transportation of hazardous materials by vehicles. Because of a special provision in the hazardous materials transportation law, Section 4(b)(1) does not apply to this transportation. However, as matter of policy, OSHA does not issue citations regarding the design of, or materials used for, containers of hazardous materials. https://www.phmsa.dot.gov/. OSHA, however, does enforce the whistleblower provision of the Pipeline Safety Improvement Act (PSIA).

      4. Federal Railroad Administration.
         The Federal Railroad Administration (FRA) enforces a number of statutes covering railroad safety. FRA regulations comprehensively regulate the movement of equipment over the rails. The FRA generally does not regulate working conditions in railroad repair shops. FRA Policy Statement, 43 FR 10583 (March 14, 1978). The FRA also has fall protection regulations for railroad bridge workers. https://railroads.dot.gov/.
   2. Department of Labor, Mine Safety and Health Administration.
      The Mine Safety and Health Administration (MSHA) comprehensively regulates the safety and health of employees engaged in mining and mineral milling. To clarify where milling ends and OSHA authority begins, OSHA and MSHA entered into an extensive Memorandum of Understanding (MOU) that delineates respective agency authorities. https://www.msha.gov/.
   3. Environmental Protection Agency.
      The Environmental Protection Agency (EPA) administers the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Under that law, EPA requires pesticides to have labels containing instructions for the safe use of pesticides. Some of those labels incorporate EPA regulations for the protection of farmworkers. These label instructions related to occupational pesticide hazards preempt OSHA. https://www.epa.gov/pesticides.
   4. Nuclear Regulatory Commission.
      The Nuclear Regulatory Commission (NRC) is responsible for licensing and regulating nuclear facilities and materials. In 2013, OSHA and NRC entered into a revised MOU that identifies three kinds of hazards associated with NRC-licensed nuclear facilities, and designates which agency will be responsible for each kind of hazard. Generally, the NRC is responsible for the following hazards at NRC-licensed facilities: 1) radiation hazards produced by radioactive materials; 2) chemical hazards produced by radioactive materials; and 3) facility conditions that affect the safety of radioactive materials, such as fire and explosion hazards. At these facilities, OSHA has authority over facility conditions that do not involve the use of radioactive materials, such as toxic nonradioactive material, electrical, fall, confined space, and equipment energization hazards. https://www.nrc.gov/.
   5. Department of Energy.
      The Department of Energy (DOE) is responsible for the production of nuclear weapons, as well as the dismantling and cleanup of nuclear sites under the Atomic Energy Act. DOE has established and enforces a comprehensive set of occupational safety and health standards for the working conditions of contractor employees at its Government-Owned, Contractor-Operated (GOCO) facilities engaged in the Atomic Energy Act activities described above. Therefore, OSHA does not inspect the working conditions of these contactor employees. DOE’s statutory authority extends to construction, including new construction, on GOCO facilities. https://www.energy.gov.
   6. Department of Homeland Security, United States Coast Guard.
      The United States Coast Guard (USCG) promulgates and enforces safety and health regulations for U.S. flag vessels on the high seas and navigable waters of the United States. USCG has exercised its statutory authority over "inspected vessels" by issuing a comprehensive set of regulations. An inspected vessel is one for which the Coast Guard has issued a Certificate of Inspection (COI). The types of "inspected vessels’ are listed in 46 U.S.C. 3301 and exemptions in 46 U.S.C. 3302. OSHA and the USCG entered into a MOU acknowledging that, due to USCG’s extensive regulations, OSHA will not enforce the OSH Act with respect to the working conditions of seamen aboard inspected vessels. However, this prohibition does not apply to recordkeeping.

      Conversely, USCG has issued only a limited number of regulations applicable to "uninspected" vessels. To the extent USCG has not regulated a particular working condition on an uninspected vessel, OSHA can conduct enforcement activity.

      Under the Outer Continental Shelf Lands Act, the Coast Guard, along with the Bureau of Safety and Environmental Enforcement of the Interior Department (see below), has issued many safety and health regulations for offshore platforms—in particular, provisions designed to prevent fires and explosions. Enforcement Directive CPL 02-01-047, OSHA Authority Over Vessels and Facilities on or Adjacent to U.S. Navigable Waters and the Outer Continental Shelf (OCS), Feb. 22, 2010, addresses the issues in this paragraph. https://www.uscg.mil/

   7. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives.
      A law enforcement agency in the United States Department of Justice, the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) promulgates and enforces regulations relating to the illegal use and storage of explosives.

      OSHA directive CPL 02-01-053, Compliance Policy for Manufacture, Storage, Sale, Handling, Use and Display of Pyrotechnics, October 27, 2011, clarifies the interplay between OSHA’s Process Safety Management Standard, 29 CFR 1910.119, OSHA’s Explosives and Blasting Agents standard, 1910.109; and the BATFE regulations. https://www.atf.gov/.

   8. Department of Interior, Bureau of Safety and Environmental Enforcement.
      The Department of the Interior’s Bureau of Safety and Environmental Enforcement (BSEE), along with the Coast Guard (see above), promulgates and enforces safety regulations for offshore platforms on the Outer Continental Shelf—in particular, provisions designed to prevent fires and explosions. https://www.bsee.gov/.