March 6, 2019

John Pertgen
International Association of Drilling Contractors
3657 Briarpark Drive, Suite 200
Houston, Texas 77042

Dear Mr. Pertgen:

Thank you for your letter to the Occupational Safety and Health Administration (OSHA) regarding 29 CFR Part 1904, Recording and Reporting Occupational Injuries and Illnesses. Specifically, you ask OSHA to confirm that the agency’s recordkeeping regulations do not apply to foreign-flag vessels, especially mobile offshore drilling units (MODUs) that operate on the U.S. Outer Continental Shelf (OCS) or in waters subject to the jurisdiction of the United States.

The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (OSH Act) does not apply to the operators of foreign-flag MODUs operating on the OCS or United States territorial waters with respect to their crews. This interpretation is based on the Supreme Court decision in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963). In that decision, the Court held that the National Labor Relations Act (NLRA) did not apply to foreign-flag vessels operating in U.S. waters because neither the text nor the legislative history of the NLRA expressly applied to foreign-flag vessels and had to be construed not to violate the law of nations. Under international law as a general rule only the law of the flag state governs the internal affairs of a ship. Similarly, neither the text nor the legislative history of the OSH Act expressly applies to foreign – flagged vessels and thus construing the OSH Act in accordance with the same principle of law applied in the NLRA contact, the OSH Act does not apply to the operators of foreign-flag MODUs with respect their crews.¹

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.

Sincerely,

Amanda L. Edens, Director
Directorate of Technical Support and Emergency Management

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¹Case law under the NLRA is relevant to the interpretation of the OSH Act because both acts are labor statutes which, if applied, would affect the internal management of a vessel with respect to its crew. OSH Act decisions relying on NLRA case law include Secretary, U.S. Dept. of Labor v. Lear Corp., Eads and Interiors. 822 F.3d 556, 561 (11th Cir. 2016) (test for determining liability for retaliatory lawsuits); StarTran, Inc. v. OSHRC, 608 F.3d 312, 314-15 (5th Cir. 2010) (test for the political subdivision exemption under both statutes the same); Brock v. Chicago Zoological Soc., 820 F.2d 909, 910 (7th Cir. 1987) (same).