February 10, 2015

John Pertgen
International Association of Drilling Contractors
10370 Richmond Ave.,
Suite 760
Houston, Texas 77042

Dear Mr. Pertgen:

Thank you for your January 8, 2015, letter to the Occupational Safety and Health Administration (OSHA) regarding the recordkeeping requirements contained in 29 CFR Part 1904 - Recording and Reporting Occupational Injuries and Illnesses. Specifically, your letter requests clarification regarding the recordkeeping obligations for mobile offshore drilling units (MODUs) on the Outer Continental Shelf (OCS) based on the jurisdictional authority between OSHA and the United States Coast Guard (Coast Guard).

Scenario:
In 1983, OSHA and the Coast Guard entered into a Memorandum of Understanding (MOU) "concerning their authority to prescribe and enforce standards or regulations affecting the occupational safety and health of seamen aboard vessels inspected and certified by the United States Coast Guard." In part, the MOU states:

"OSHA and the Coast Guard will continue to discuss the extent of their respective jurisdictions to require owners of inspected vessels to keep records concerning occupational injuries and illnesses. This MOU does not resolve any issues concerning recordkeeping obligations."

In your letter, you state that since the MOU does not resolve any issues concerning recordkeeping obligations, you seek clarification, "which we believe should be agreed upon by both agencies," as to the recordkeeping and reporting obligations concerning inspected vessels on the OCS.

Response:
The authority of OSHA is limited to employment performed within the geographical limits covered by the Occupational Safety and Health Act of 1970 (OSH Act). See, Section 4(a), 29 U.S.C. 653(a)). Section 4(a), as modified by later agreements, provides that the OSH Act applies to employment performed in a workplace in a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, Outer Continental Shelf Lands defined in the Outer Continental Shelf Lands Act, and Johnston Island, and the Canal Zone. [Emphasis added]. The OCS is "... all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in section 1301 of this title, and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control..." See, 43 U.S.C. 1331(a). The area of lands beneath navigable waters extends three nautical miles seaward from the general coastline, except for the Gulf Coast of Florida, Texas, and Puerto Rico, where the area extends for nine nautical miles. 43 U.S.C. 1312. The OCS includes "...the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources..." 43 U.S.C. 1333(a)(1). The OCS does not include the waters above the OCS. 43 U.S.C. 1332 (2).

Thus, the Coast Guard has included the MODU in the term "OSC facility" only when it is "... in contact with the seabed of the OCS for exploration or exploitation of subsea resources." 33 CFR 140.10. Therefore, if an injury or illness occurs on a MODU when it is in the waters over the OCS (and not in contact with the seabed of the OCS), or when it is otherwise on the high seas beyond the three-nautical mile or nine-nautical mile mark noted above, the injury or illness does not relate to employment performed within the areas covered by section 4(a) of the OSH Act. Accordingly, OSHA's recording and reporting regulation at 29 CFR 1904 would not apply.

On the other hand, if the injury or illness occurs when the MODU is in contact with the seabed of the OCS for exploration or exploitation of subsea resources, it is within the geographical coverage of the OSH Act. Nevertheless, section 4(b)(1) of the OSH Act, 29 U.S.C. 653(b)(1), must be considered. In order to avoid duplication of effort, section 4(b)(1) of the OSH Act provides "Nothing in this 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." The Coast Guard and the U.S. Department of the Interior (Bureau of Ocean Energy Management, Regulation and Enforcement) have issued extensive regulations applicable to occupational safety and health on the OCS. Therefore, pursuant to section 4(b)(1) of the OSH Act, OSHA cannot enforce its requirements to working conditions if the working conditions are already regulated by another federal agency.

OSHA's longstanding position is that OSHA's recording and reporting requirements in 29 CFR Part 1904 are not subject to preemption because Section 4(b)(1) of the OSH Act applies to "working conditions of employees" and recording and reporting requirements do not regulate "working conditions." The U.S. Court of Appeals for the Ninth Circuit affirmed OSHA's position: "...[S]ection 4(b)(1) has no bearing on the extent of the Secretary's authority to require recordkeeping ... The Secretary's recordkeeping requirements do not regulate working conditions; rather, they merely serve to gather information." See, Herman v. Tidewater Pacific, Inc., 160 F.3d 1239, 1246-47 (9th Cir. 1998). Accordingly, any Coast Guard requirements for MODUs do not preempt OSHA's recording and reporting regulations in 29 CFR Part 1904. Thus, the OSHA recordkeeping regulations apply to all MODUs within OSHA's geographic limits.

Additionally, OSHA's regulation at 29 CFR 1904.3 states: "If you create records to comply with another government agency's injury and illness recordkeeping requirements, OSHA will consider those records as meeting OSHA's Part 1904 recordkeeping requirements if OSHA accepts the other agency's records under a memorandum of understanding with that agency, or if the other agency's records contain the same information as this Part 1904 requires you to record." As you note in your letter, the MOU between OSHA and the Coast Guard does not specify OSHA's acceptance of the Coast Guard records in lieu of the records required under Part 1904. Because the records required by the Coast Guard do not contain the same information as the Part 1904 records, MODUs operating within the areas covered by the OSH Act must maintain OSHA Forms 300, 301, and 300A.

We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in responses to new information. To keep appraised of such developments, you can consult OSHA's website at http://www.osha.gov.

Sincerely,

 

Francis Yebesi, Acting Director
Directorate of Evaluation and Analysis