February 9, 1994

Mr. Frank A. White
McDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006-2296

Dear Mr. White:

Thank you for your letter of December 7, regarding a request for an opinion on the scope an application of 29 C.F.R. 1910.147, OSHA's standard governing the Control of Hazardous Energy Sources (Lockout/Tagout), to the maintenance of equipment on board fishing vessels which are subject to 46 C.F.R. Part 28.

OSHA's Lockout/Tagout standard is not applicable to maritime employment per 29 C.F.R. 1910.147(a)(ii)(A). It is our position that 29 C.F.R. Part 1915, Standards for Shipyard Employment, apply to the maintenance of equipment on board all commercial vessels. Section 1915.2(a) specifies that, "except where otherwise provided, the provisions of this part shall apply to all ship repairing, shipbuilding, and shipbreaking employments and related employments." Sections 1910.13(b)(1) and 1915.4(j) define "ship repair" as including the maintenance of equipment on board a vessel. Since ship repair is maritime employment (cf., 29 C.F.R. 1952.244(b) describing the term "maritime employment" in the Alaska state plan regulations), OSHA's Lockout/Tagout standard does not apply to the maintenance of equipment on board fishing vessels.

Please note that as requested, this position only addresses the coverage of OSHA's Lockout/Tagout standards to vessels, and does not address issues related to whether OSHA is preempted by the U.S. Coast Guard under Section 4(b)(1) of the OSHA Act.

We hope that this response satisfactorily clarifies your inquiry. If you have additional questions regarding this matter, please do not hesitate to contact us.

Sincerely,



Roger A. Clark
Director
Directorate of Compliance Programs




December 7, 1993

Mr. Joseph A. Dear
Assistant Secretary
Occupational Safety and
Health Administration
Room S-2315
200 Constitution Avenue, N.W.
Washington, D.C. 20210

OSHA CCU #9204714

Re: Request for Opinion on the Application of 29 C.F.R. S 1910.147 to Maintenance of Equipment On Board Fishing Vessels

Dear Mr. Dear:

Arctic Alaska Fisheries Corporation, an affiliate of Tyson Foods, Inc., requests an opinion on the scope and application of 29 C.F.R. 1910.147, OSHA's standard governing the Control of Hazardous Energy Sources (Lockout/Tagout) in general industry. Specifically, the issue is whether the Lockout/Tagout standard applies to the maintenance and repair of machinery and equipment on board commercial fishing/fish processing vessels. Arctic Alaska has developed and implemented a comprehensive and effective lockout/tagout program but seeks a clear expression from the agency on the company's particular compliance obligations in these circumstances.

In responding to this inquiry, you should assume that the vessels are subject to 46 C.F.R. Part 28 and that the maintenance or repair activity may occur either while the vessel is engaged in fishing operations or while in port. However, the company is not seeking an opinion concerning whether Part 28 (or any other rules, regulations or requirements of the U.S. Coast Guard) "preempt" OSHA under section 4(b)(1) of the Occupational Safety and Health Act, 29 U.S.C. 653(b)(1), from exercising authority over lockout/tagout issues affecting commercial fishing/fish processing vessels. The only issue being raised is the coverage of the Lockout/Tagout standard itself.

To assist you in your response, we offer the following analysis of the issue and ask you to provide your views on the proposed conclusions. Section 1910.147(a)(1)(ii)(A) states that the Lockout/Tagout standard "does not cover . . . maritime employment . . . ." The preamble to the final standard discusses this and other exemptions in some detail:

OSHA has determined that the Final Rule will cover General Industry, but will not be expanded to cover construction, maritime and agriculture at this time. The Agency has inadequate information at this time on both the hazards of lockout or tagout and the appropriateness of this standard's approach in those industry sectors. . . .

. . . . OSHA's shipyard and marine terminal standards (29 C.F.R. parts 1915 and 1917, respectively) include many provisions which address deenergization of equipment during servicing of equipment on vessels and in marine terminals (e.g., 1915.162-.165, 1915.181, 1917.48(i), 1917.151(b).

Based on its experience in regulating construction and maritime employment, OSHA believes that a generic energy control standard would likely be applied quite differently in these areas than in general industry.

54 Fed. Reg. 36657 (September 1, 1989).

The term "maritime employment" is not defined in the standard itself or in any other generally applicable OSHA regulation. Neither is the full scope of the term defined in the preamble, which merely references other OSHA standards covering some maritime industry sectors, i.e., shipyards, marine terminals and longshoring.

The only generally applicable (and most comprehensive) OSHA definition of the maritime industry of which we are aware appears in OSHA's directive on the scheduling of programmed inspections, OSHA Instruction CPL 2.25H. In Appendix B of the directive, OSHA states that "[t]he maritime industry is not contained within any one specific SIC code, but includes water-related activities within several industry codes." Report B-3 of the directive states that "[m]aritime activities are included in, but not limited to the following SIC codes:

              0912-0913-0919      Commercial Fishing

              . . . .

              2092                Fresh or Frozen Packaged
                                    Fish and Sea foods (On
                                    Water)

              3731-3732           Ship and Boat Building and
                                    Repairing"

This reference establishes clear and appropriate parameters for the term "maritime employment" as that term is used in the Lockout/Tagout standard, particularly in the absence either of a definition that is expressly applicable to the standard or of any indication in the standard that the meaning of the term was intended to be more limited.

OSHA's description of the maritime industry in CPL 2.25H reveals clearly that commercial fishing and on-water fish processing operations are included therein, as is the repair of boats and ships. Further, under sections 1910.13(b)(1) and 1915.4(j), "ship repair" is defined to include "any repair of a vessel, including . . . maintenance work." Repair and maintenance of a vessel's machinery and equipment constitutes one aspect of "ship repair," as evidenced by the numerous provisions of Part 1915 that apply to such activity. Thus, OSHA has determined that maritime employment encompasses both the on-water processing of fish and the repair and maintenance of vessels, including on board machinery and equipment.

The conclusion that emerges from this review of OSHA standards, directives and supporting references is that the servicing and maintenance of machinery and equipment on board a fishing/fish processing vessel are aspects of "maritime employment" and thus are not covered by the Lockout/Tagout standard.

We would appreciate a response to this opinion request at your earliest convenience. If you need additional information or would like to discuss the issues raised, please do not hesitate to call.

Sincerely,



Frank A. White