February 2, 1993

(Name Withheld)

Dear (Name Withheld):

Please excuse the delay in responding to your letter to Mr. James F. Foster dated March 13, 1992, regarding the applicability of 29 CFR Section 1910.119 to situations where there is multiple Federal agency jurisdiction. In your letter, you requested clarification concerning the applicability of 29 CFR Section 1910.119 regulations (process safety management of highly hazardous chemicals) to Outer Continental Shelf production facilities and vessels regulated by the U.S. Coast Guard.

The Occupational Safety and Health Act (OSH Act) grants the Occupational Safety and Health Administration (OSHA) the authority to enforce its regulations at workplaces located on outer continental shelf (OCS) lands (29 U.S.C. 653(a)). However, in order to avoid duplication of effort, 4(b)(1) of the OSH Act states that "...nothing in the Act shall 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 Outer Continental Shelf Lands Act (OCSLA)(43 U.S.C. 1331 et. seq.) has conferred the U.S. Coast Guard, the Department of the Interior (Minerals Management Service), and OSHA with the statutory authority to promulgate regulations which address working conditions on offshore drilling platforms. However, 21(d) of the OCSLA contains language which has the same preemptive effect as 4(b)(1) of the OSH Act. Pursuant to the OCSLA, the Coast Guard and Interior Department issued an extensive array of regulations applicable to occupational safety and health on the OCS. Therefore, pursuant to 4(b)(1) of the OSH Act and 21(d) of OCSLA, OSHA cannot enforce its regulations if the working conditions are already regulated by another agency. The Department of the Interior regulates working conditions directly related to production platform activities and equipment, and the U.S. Coast Guard regulates production platform working conditions for safe access/egress, personal protective equipment, housekeeping, guarding of deck areas, lockout/tagout, lifesaving devices and equipment, lifeboats, firefighting equipment, fire extinguishers and systems, first-aid kits, emergency communications equipment, and commercial diving.

In addition to the above statutory proscription, the Process Safety Management (PSM) regulation does not apply to oil or gas well drilling or servicing operations (29 C.F.R. 1910.119(a)(2)(ii)). This exclusion would extend to those operations even if performed on an offshore platform. OSHA took this action because the agency has already undertaken rulemaking with regard to these activities (48 Federal Register 57202).

The extent of OSHA jurisdiction over the working conditions on maritime vessels depends upon whether the vessel has been classified and documented by the Coast Guard as "inspected" or "uninspected." Coast Guard regulations for uninspected vessels are limited and inspection responsibility is shared with OSHA. With regard to inspected vessels, the Coast Guard and OSHA entered into a Memorandum of Understanding (MOU) in 1983 in order to avoid a duplication of effort. The MOU states that OSHA will not enforce the OSH Act with respect to the working condition of seamen aboard inspected vessels. A seaman is an employee who has a more or less permanent connection with the vessel, and who contributes to the function of the vessel or to the accomplishment of its mission. To be a seaman one need not aid in navigation or contribute to the transportation of the vessel, but one must do the ship's work. Land-based maritime workers are not seamen (e.g., employee onboard to perform ship repair). With respect to the situations mentioned in your letter, the type of vessels which would be used for the production or transport of hazardous materials on the OCS would be classed and documented by the Coast Guard as inspected vessels. Therefore, the MOU proscription against OSHA inspection would apply.

Specific Coast Guard regulations addressing the production or transport of oil products and hazardous materials by vessels are set forth within Title 33 of the Code of Federal Regulations. This includes regulations with govern the handling of hazardous materials at waterfront facilities (33 C.F.R. Subchapter L). Given the comprehensive nature of these regulations, OSHA may be preempted from enforcing its PSM standard at waterfront facilities. OSHA is working with the Coast Guard in order to establish clear jurisdictional boundaries.

The final two paragraphs of your letter addressed the issue of duplication of safety and health regulations by federal agencies. As you correctly point out in your letter, the Federal Water Pollution Control Act (FWPCA), as amended by the Oil Pollution Act of 1990 (OPA) requires the Environmental Protection Agency, Coast Guard, and Interior Department to promulgate regulations relevant to oil and hazardous materials spills. The Coast Guard, on March 11, 1992, published an advance notice of proposed rulemaking (ANPRM) in the Federal Register concerning "Facility Response Plans." OSHA has written the Coast Guard and requested that any final rule reference OSHA's Process Safety Management regulation and Hazardous Waste Operation and Emergency Response Standard (HAZWOPER)(29 C.F.R. 1910.120). OSHA believes that such referencing would ensure that the proposed rule is consistent with other Federal requirements. To the extent that the other Federal agencies involved have no regulations in effect dealing with specific occupational hazards, OSHA will regulate those occupational safety and health hazards in accordance with the provisions of the Occupational Safety and Health Act of 1970.

[Correction 2/11/03. The Final Rule was published in Federal Register Volume 61, Number 41, pp. 7889-7939 on February 29, 1996, titled "Response Plans for Marine Transportation-Related Facilities," 33 C.F.R. 154.]

We hope that this response is helpful. Your interest in Occupational Safety and Health is appreciated.

Sincerely,



Roy F. Gurnham, Esq., P.E.
Director
[Directorate of Maritime Enforcement]

[Corrected 2/11/03]