Alaska Trawl Fisheries, Inc.

Plain-English summary

Alaska Trawl Fisheries and Golden Age Fisheries operated vessels that caught and processed fish near Dutch Harbor, Alaska. OSHA cited machine guarding, passageway, recordkeeping, welding-gas storage, and hazard-communication conditions aboard the vessels. The companies stipulated to the violations and penalties but argued that the Coast Guard had exclusive jurisdiction. The Commission held that the Commercial Fishing Industry Vessel Safety Act did not expressly displace OSHA and that, when the citations issued, the Coast Guard had not exercised authority over the cited fish-processing working conditions. It affirmed OSHA's jurisdiction and the stipulated citations, with total proposed penalties of $2,280 for Alaska Trawl and $500 for Golden Age. After remand to address abatement in light of later Coast Guard regulations, the parties stipulated that all violations had already been abated, and the judge approved their agreements.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1903.2(a)(1), 1904.2(a), 1904.5(a), 1910.22(b)(1), 1910.212(a)(1), 1910.215(a)(4), 1910.215(b)(9), 1910.219(d)(1), 1910.219(e)(1)(i), 1910.219(f)(3), 1910.243(c)(3), 1910.252(a)(2)(iv)(c), 1910.1200(e)(1), 1910.1200(g)(1), and 1910.1200(h)(1)
• Outcome: OSHA jurisdiction and the stipulated citations were affirmed; $2,780 in total penalties remained, and later settlement stipulations resolved abatement.
• Key point: Another agency's statutory authority does not preempt OSHA unless that agency has actually exercised the authority over the cited working conditions.

Full text (OSHRC public release)

Docket No. 89-1017 89-1192

SECRETARY OF LABOR,

Complainant,

v.

ALASKA TRAWL FISHERIES, INC.,

Respondent.

OSHRC Docket No. 89-1017 & 89-1192

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA,
Commissioners.

BY THE COMMISSION:

The respondents, Alaska Trawl Fisheries, Inc.
("Alaska Trawl"), and Golden Age Fisheries, a partnership ("Golden
Age"), operate fishing and fish processing vessels.  Two of these vessels, one
belonging to each company, were inspected by the Occupational Safety and Health
Administration ("OSHA") of the Department of Labor.  As a result of these
inspections, the Secretary of Labor issued citations to each company alleging violations
of the Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651-678 ("the
Act" or "the OSH Act"), and of standards promulgated pursuant to that
statute.[[1]]  Both companies timely contested the citations, and the cases were
assigned to an administrative law judge of this Commission.

The two cases were consolidated and submitted to the
judge on stipulations.  The only issue remaining in dispute between the parties was
whether OSHA had jurisdiction over the cited working conditions.[[2]]  The judge held
that OSHA had jurisdiction, and the companies petitioned to have the judge's decision
reviewed by the Commission.  The judge's decision was directed for review pursuant to
section 12(j) of the Act, 29 U.S.C. � 661(j).

I. INTRODUCTION

At the time of the inspections and issuance of the
citations, both companies were engaged in fishing and fish processing activities in and
around Dutch Harbor, Alaska.  These activities included cleaning, processing,
freezing, and packaging fish products for shipment to destinations in Alaska and outside
of that state.  Alaska Trawl operated the F/T Endurance; Golden Age operated the F/T
Browns Point.  The ships in question were classified by the Coast Guard as
"uninspected vessels," meaning that, at the time of OSHA's inspections and the
issuance of the citations, they were subject to limited regulation by the Coast Guard. See
46 U.S.C. �� 4101-4116. [[3]]

In September 1988, the Commercial Fishing Industry
Vessel Safety Act of 1988, 46 U.S.C. �� 4501-4508 ("CFIVSA"), which requires
the Coast Guard to regulate the operation of fishing trawlers such as the two vessels
cited here, was enacted into law.  At the time OSHA conducted its inspections of the
two vessels in February 1989, the Coast Guard had not yet taken any official action to
follow that mandate.  The citations were issued in March of 1989, and the judge
issued his decision in these consolidated cases in November 1989.  The following
year, in April 1990, the Coast Guard issued a notice of proposed rulemaking to adopt
standards under the new statute.[[4]]

Review was directed on the following issue: 
Whether OSHA had jurisdiction over the cited working conditions.  The respondents
make two arguments in support of their claim that OSHA had no jurisdiction, each based on
a different statute.  Their first argument is premised on their contention that
Congress intended in CFIVSA to vest the Coast Guard with exclusive jurisdiction over all
safety matters aboard commercial fishing vessels.  Thus, they argue that, under the
rules of statutory construction, if the provisions of CFIVSA conflict with those of the
OSH Act, CFIVSA must prevail because it is a subsequent statute that more specifically
addresses the conditions in question than does the earlier, more general OSH Act.  
The respondents' second argument is that OSHA was preempted, under the provisions of
section 4(b)(1) of the Act, 29 U.S.C. � 653(b)(1),[[5]] because the United States Coast
Guard has acted to regulate the cited working conditions.[[6]]

Having examined the two statutes in question and the
applicable regulations in effect when the citations were issued and considered the
arguments of the parties and the amicus curiae, we conclude that the judge correctly
decided the issue.  We affirm his decision for the reasons set forth below.

II. ISSUES

A. PREEMPTION BASED ON CONFLICT BETWEEN THE TWO STATUTES

Alaska Trawl and Golden Age assert that the central issue in this case is one of statutory
interpretation and Congressional intent, namely whether CFIVSA grants the Coast Guard
exclusive jurisdiction over all safety matters aboard the cited vessels.  According
to the respondents, there is a conflict between the two statutes because Congress intended
to vest the Coast Guard with exclusive jurisdiction over all aspects of safety on
commercial fishing vessels, thereby depriving OSHA of any jurisdiction.  The judge
concluded that there was no such conflict because CFIVSA was intended to govern
navigational safety, the traditional area of Coast Guard expertise, not safety in the fish
processing activities aboard factory ships such as those cited here.  He found that
the operation of a ship in navigation and the processing of the fish were separate and
distinct operations.

The respondents do not assert that the Act never
governed activities aboard uninspected vessels such as the ones cited here.  Prior to
the enactment of CFIVSA, OSHA clearly had the statutory authority to regulate the working
conditions of employees aboard uninspected vessels.  Donovan v. Red Star Marine
Servs., 739 F.2d 774, 780 (2d Cir. 1984), cert. denied, 470 U.S. 1003 (1985).  
Therefore, OSHA's authority continues unless some specific provision in CFIVSA or another
more-recently-enacted statute has preempted it.

The respondents assert that nothing in CFIVSA limits
the Coast Guard's authority under that statute to purely navigational matters.  The
respondents argue that this failure to limit the Coast Guard's authority demonstrates
Congress' clear intent for the Coast Guard to develop a comprehensive program for
establishing safe working conditions for the crews of commercial fishing vessels and fish
processing vessels.  The respondents further assert that, if there is any ambiguity
as to the intent of Congress, it is resolved by examining the legislative history of
CFIVSA, citing references in the legislative history.

The respondents' arguments state correct legal
tenets. The basic principles for interpreting two statutes in pari materia (dealing with
the same subject) are:

It is assumed that whenever the legislature enacts a
provision it has in mind previous statutes relating to the same subject matter.  In
the absence of any express repeal or amendment, the new provision is presumed in accord
with the legislative policy embodied in those prior statutes.  Thus, they all should
be construed together....

When two statutes are involved each of which by its
terms applies to the facts before the court, the statute which is the more recent of the
two irreconcilably conflicting statutes prevails.  Where a conflict exists the more
specific statute controls over the more general one....

Provisions in one act which are omitted in another on
the same subject matter will be applied when the purposes of the two acts are consistent.
  Prior statutes relating to the same subject matter are compared with the new
provision; if it is possible by reasonable construction, both are construed so that effect
is given to every provision in all of them. . .

Statutes for the same subject, although in apparent
conflict, are construed to be in harmony if reasonably possible. However, it has been held
where two statutes deal with the same subject matter, the more recent enactment prevails
as the latest expression of legislative will.  If there is an irreconcilable conflict
between the new provision and the prior statutes, the new provision will control as it is
the later expression of the legislature.

2B N. Singer, Sutherland on Statutory Construction �
51.02 (5th ed., rev. 1992).

These principles of statutory construction apply,
however, only if there is uncertainty as to the meaning of language used in one of the
statutes.   When the terms of a statute are not ambiguous, there is no need for
further inquiry.  Howe v. Smith, 452 U.S. 473, 483 (1981), Caminetti v. United
States, 242 U.S. 470, 485 (1917) (where the language is plain and admits of no more than
one meaning, the duty of interpretation does not arise and rules which are to aid doubtful
meanings need no discussion); McCord v. Bailey, 636 F.2d 606, 614-15 (D.C. Cir.
1980).  We may therefore look to the legislative history only if there is ambiguous
language in the statute itself which suggests, but does not explicitly state, that the
Coast Guard is to have exclusive jurisdiction.  TVA v. Hill, 437 U.S. 153, 184 n.29
(1978) (citing Ex parte Collett, 337 U.S. 55, 61 (1949) and cases cited therein) (when
statute is unambiguous on its face, a court should not look to legislative history for its
meaning).   We therefore conclude that, if the statute does not suggest on its face
that the intent of Congress was to exclude OSHA from all regulatory activities in this
field, it is neither necessary nor proper to look to secondary sources.

Having examined CFIVSA, we find nothing to indicate
that Congress intended to vest exclusive jurisdiction over working conditions aboard
commercial fishing vessels to the Coast Guard so as to preempt OSHA from regulating those
conditions.   Congress vested the Coast Guard with authority to regulate safety
aboard such vessels, but there is nothing in the statute that excludes other federal
agencies from regulating matters that come under their jurisdiction. [[7]] In fact, we
note that, in its amicus curiae brief, the Coast Guard has disputed the respondents'
assertion that the two statutes are in conflict.  The Coast Guard states that, after
CFIVSA was enacted, an amendment to another bill was introduced in Congress that would
have specified that the Coast Guard was the agency responsible for all aspects of safety
aboard fishing and fish processing vessels and that this amendment was rejected.

The Coast Guard argues that CFIVSA does not expressly
provide that the Coast Guard has exclusive jurisdiction and that it cannot be interpreted
to say that the Act no longer applies to fishing vessels. In contrast, the Coast Guard
argues, CFIVSA clearly delineates the areas that the Coast Guard has authority to
regulate, areas which are limited to traditional maritime safety items, not factory
conditions. The Coast Guard concludes that there is no basis in CFIVSA or its legislative
history to support the limits on OSHA's jurisdiction put forth by the respondents.

The Secretary of Labor also contends that there is no
conflict between CFIVSA and the Act.

When federal agencies assert that they do or do not
have statutory authority to regulate particular working conditions, the Commission gives
considerable weight to the agency's representations.  See Northwest Airlines, Inc., 8
BNA OSHC 1982, 1988, 1980 CCH OSHD � 24,751, p. 30,487 (No. 13649, 1980).  While
such statements by a federal agency are not controlling, the Commission will limit its
inquiry to determining whether the statute reasonably supports the agency's assertions.
  Id.  Accordingly, while we give considerable weight to the assertions of the
Department of Transportation and the Department of Labor that the provisions of CFIVSA and
the Act are not in conflict, we have independently reviewed the provisions of both
statutes and reached a similar conclusion.

Although Alaska Trawl and Golden Age assert that
there is a conflict between the statutes and that the intent of Congress was for the Coast
Guard to have exclusive jurisdiction, we find no support for either of these contentions.
Nowhere in their brief or their reply brief have the companies pointed to any specific
language in the statute that indicates that Congress intended the Coast Guard to have
exclusive jurisdiction over the working conditions aboard commercial fishing vessels that
would preempt the jurisdiction OSHA exercises under the Act.  Without a clear
expression by Congress that its intent was to preempt OSHA's jurisdiction over the cited
working conditions, we are unwilling to infer such an intent.

B. PREEMPTION UNDER SECTION 4(b)(1)

The next question is whether OSHA's jurisdiction over the cited working conditions is
precluded by the provisions of section 4(b)(1) of the Act designed to prevent regulatory
duplication.

The fact that another federal agency possesses the
statutory authority to regulate the cited working conditions does not constitute the
exercise of statutory authority meant by section 4(b)(1); under that section, the other
agency must have taken some action to exercise that authority.  E.g., In re
Inspection of Norfolk Dredging Co., 783 F.2d 1526 (11th Cir.), cert. denied, 449 U.S. 834
(1986); Columbia Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913 (3d Cir. 1980);
Southern Pac. Transp. Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S.
874 (1977); Southern Ry. v. OSHRC, 539 F.2d 335 (4th Cir.), cert. denied, 429 U.S. 999
(1976); Baltimore & O.R.R v. OSHRC, 548 F.2d 1052 (D.C. Cir. 1976); Organized Migrants
in Community Action, Inc. v. Brennan 520 F.2d 1161 (D.C. Cir. 1975); Indiana Harbor Belt
R.R., 4 BNA OSHC 2006,1976-77 CCH OSHD � 21,473 (No. 12420, 1977).  We must
therefore determine whether the Coast Guard has exercised its statutory authority by
promulgating standards or regulations having the force and effect of law that govern the
cited working conditions.  Northwest Airlines, Inc., 8 BNA OSHC at 1989-91, 1980 CCH
OSHD at pp. 30,487-89.  Both the Coast Guard and the Secretary of Labor assert that
the Coast Guard had not exercised its statutory authority over the cited working
conditions at the time the citations in these cases were issued, while the companies
assert that it had.

When another federal agency has the statutory
authority to regulate the safety and health of employees, an exemption under section
4(b)(1) exists only as to those working conditions that the other federal agency has
exercised its statutory authority to regulate; and the employer claiming the exemption has
the burden of proving that the agency has exercised its authority to regulate the working
conditions in question.  Puget Sound Tug & Barge, 9 BNA OSHC 1764, 1774, 1981 CCH
OSHD � 25,373, p. 31,594 (No. 76-4905,1981).

In support of their claim to an exemption, Alaska
Trawl and Golden Age assert that each of the working conditions for which they were
cited[[8]] is sufficiently subject to the Coast Guard's exercise of authority to exempt
those conditions under section 4(b)(1).  Citing Dunlop v. Burlington Northern R.R.,
395 F.Supp. 203 (D. Mont. 1975), a decision of the federal district court in Montana, they
also assert that the Coast Guard's issuance of draft regulations subsequent to the
issuance of the citation constitutes sufficient exercise of authority to create an
exemption, because CFIVSA required the Coast Guard to follow a lengthy procedure before it
could issue them.  The companies cite a statement in Dillingham Tug & Barge
Corp., 10 BNA OSHC 1859, 1982 CCH OSHD � 26,166 (No. 77-4143, 1982), that, in certain
circumstances, section 4(b)(1) can create an industry-wide exemption.  They claim
that the Coast Guard's activity in regulating the maritime industry generally, and the
commercial fishing industry in particular, create such an industry- wide exemption for the
fishing industry.

The companies' arguments place considerable reliance
on events that occurred after the citations were issued, particularly the Coast Guard's
April 1990 notice of proposed rulemaking.  Our inquiry, however, is limited to
determining whether the Coast Guard took sufficient action to regulate the cited working
conditions before the citations were issued to have exempted the companies from OSHA's
jurisdiction under Consolidated Rail Corp., 10 BNA OSHC 1851, 1982 CCH OSHD � 26,165 (No.
78-238, 1982).  See also Southern Pac. Transp. Co. v. Usery (proposing future
regulations not sufficient to create exemption).

We conclude that the actions taken by the Coast Guard
in this case were not sufficient to give rise to an exemption from OSHA's jurisdiction.
  Under Consolidated Rail Corp., the issuance of proposed regulations does not, as a
matter of law, constitute an exercise of statutory authority to prescribe or enforce
standards or regulations within the meaning of section 4(b)(1).  Even if we were to
hold that the issuance of proposed regulations, by itself, was sufficient action to
preempt OSHA, we would not find preemption on these facts.  At the time the citations
were issued, the Coast Guard had not yet issued even proposed regulations, much less
promulgated final regulations having the force and effect of law.  Thus, because the
proposed regulations did not have the force and effect of law, we need not look at the
proposed regulations to determine whether they would, as the companies assert, govern each
of the cited working conditions.  Northwest Airlines, Inc., 8 BNA OSHC at 1990, 1980
CCH OSHD at p. 30,488.

III. RELATED ISSUES

There are two remaining issues that require the Commission's attention.

First, there is a controversy as to the effect of the Commission's decision in Dillingham
Tug & Barge in the section 4(b)(1) issue.  The Secretary urges us to overrule
that decision; the companies assert that it controls the situation here. We believe,
however, that the Commission did not hold in Dillingham that an industry-wide exemption
had been created.  The Commission observed that, under certain circumstances, such a
situation could exist, but its disposition of the case was based on a finding that the
Coast Guard had, in fact, exercised its statutory authority to regulate the working
conditions that were the subject of the Secretary's citation, the hazard of a seaman's
falling into the water while engaged in navigational, docking, or mooring activities.[[9]]
  Because the Coast Guard had already regulated the general hazard addressed by
OSHA's citation, the same result would have been found under the existing case law, and it
was unnecessary for the majority in Dillingham to go as far as it did.  To the extent
that the discussion in Dillingham went beyond what was strictly necessary to adjudicate
the issues presented by that case, it constituted obiter dictum (remarks not necessary to
decide the case) and therefore is not controlling here.[[10]]

Second, the Secretary filed a letter on December
2,1991, which raises several possible problems.  The letter states that on September
15, 1991, after this case had been directed for review, the Coast Guard acted to exercise
its statutory authority by adopting regulations to govern certain of the cited working
conditions and that, as a result of the Coast Guard's action, the Secretary withdraws the
abatement orders for some of the items covered by the citations.  Our first
reservation about the Secretary's action is that we are not at all confident that the
Commission has the authority under the Act to find a violation (other than a de minimis
violation) and not require it to be abated.[[11]] Assuming that the Commission does have
that authority, would the assessment of the penalties stipulated to by the parties without
requiring abatement of the violative conditions, as the Secretary seeks in her letter,
make the Commission's order penal rather than remedial?  If so, would the Commission
have to follow the requirements for a criminal proceeding?  These cases were
submitted to the judge on a stipulated record.  We are uncertain of the admissibility
of any admissions by the companies if adequate criminal procedural safeguards were not
followed.

Another factor that troubles the Commission is that
the Secretary appears to be attempting, by letter, to alter the terms of the stipulations
agreed to by all parties and submitted to the judge.  The companies have objected to
the filing of the letter, although not on this specific ground.  We are therefore
unwilling to act on the Secretary's letter without affording the parties an opportunity to
address the questions it raises.  Accordingly, we will remand these cases to the
administrative law judge for him to rule on the arguments the parties address to these
questions.

Before the judge, the parties may also wish to
address the question of whether it is appropriate for them to enter into an agreement
requiring the companies to abate the violations but providing that compliance with the new
Coast Guard regulations will be deemed to constitute abatement for the purposes of these
cases.

IV. CONCLUSION

For the reasons set out above, we find that the administrative law judge did not err
in denying the companies' motions to dismiss.  We affirm the judge's decision finding
that OSHA had jurisdiction over the cited working conditions and affirming the citations
on the basis of the parties' stipulations.  We do, however, remand these cases for
the parties to address before the judge the questions raised by the letter filed by the
Secretary on December 2, 1991.

Accordingly, these cases are remanded for further
proceedings consistent with this decision.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: June 18, 1992

FINAL ORDER

The Stipulation of the Parties on Remand and the Settlement Agreements are approved.

Sidney J. Goldstein Judge, OSHRC

Dated: October 2, 1992

LYNN MARTIN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR,

Complainant, v. ALASKA TRAWL FISHERIES, INCORPORATED, Respondent.

OSHRC DOCKET NO. NO. 89-1017

LYNN MARTIN, SECRETARY OF LABOR, U.S. DEPARTMENT OF
LABOR, Complainant, v.

GOLDEN AGE FISHERIES, Respondent.

OSHRC DOCKET NO. 89-1192

STIPULATION OF THE PARTIES ON REMAND

Come now the parties, by and through their
undersigned counsel of record, and in response to the Decision entered herein on June 18,
1992, and remanding this consolidated proceeding, do represent, agree and stipulate as
follows:

Whereas, the Decision has raised questions relating
to the abatement of the alleged violations at issue herein and to the nature and content
of any prospective abatement order to be entered as well as to the authority of the Review
Commission in this regard, and

Whereas, each of the alleged violations at issue herein has been abated in accordance with
the applicable cited OSHA safety and health standards prior to September 15, 1991 (the
date upon which certain U.S. Coast Guard occupational safety and health standards became
effective), as set forth in the two Settlement Agreements and Stipulations for Entry of
Final Order previously filed in each of the individually docketed proceedings.

1. The parties stipulate and agree that all questions
   relating to the abatement of the alleged violations at issue herein have been resolved
   between the parties prior to September 15, 1991;

2. No controversy or dispute warranting resolution, order or any further action by the
   Review Commission currently exists between the parties with respect to any matters of
   abatement; and

3. This matter may be concluded upon entry of a further final order in accordance with the
   agreement of the parties as set forth in the aforesaid Settlement Agreements and
   Stipulations for Entry of a Final Order filed herein.

Marshall J. Breger

Solicitor of Labor

Daniel W. Teehan

Regional Solicitor

Robert A. Friel

Associate Regional Solicitor

William W. Kates

Attorney

U.S. DEPARTMENT OF LABOR

Attorneys for Complainant

Dated September 3, 1992.

ALASKA TRAWL FISHERIES, INC. GOLDEN AGE FISHERIES

James P. Walsh, of,

Davis Wright Tremaine

Attorneys for Respondent

Dated September 11, 1992.

William W.Tattles

U.S. DEPARTMENT OF LABOR Attorneys for Complainant

Dated September 11, 1992.

FOOTNOTES:

[[1]] Alaska Trawl Fisheries was issued two
citations. One citation alleged that the company had committed two violations of section
5(a)(1) of the Act, 29 U.S.C. � 654(a)(1), and serious violations of a number of
standards promulgated by OSHA, including 29 C.F.R. �� 1910.212(a)(1), 1910.215(a)(4),
1910.215(b)(9), 1910.219(d)(1), 1910.219(e)(1)(i), 1910.219(f)(3), and
1910.243(c)(3).  The other citation alleged a number of other-than-serious violations
of OSHA standards, including 29 C.F.R. �� 1903.2(a)(1), 1910.22(b)(1), 1910.1200(e)(1),
1910.1200(g)(1), and 1200(h)(1).   The Secretary proposed that Alaska Trawl Fisheries
pay a total of $2280 in penalties.

Golden Age was cited for serious violations of 29
C.F.R. �� 1910.215(a)(4), 1910.215(b)(9), and 1910.243(c)(3), and other-than-serious
violations of 29 C.F.R. �� 1904.2(a), 1904.5(a), 1910.22(b)(1), 1910.252(a)(2)(iv)(c),
1910.1200(e)(1), 1910.1200(g)(1), and 1910.1200(h)(1), with a total penalty of $500
proposed.

[[2]] The parties have stipulated that, if the
working conditions cited are not exempt from OSHA's jurisdiction, both companies were in
violation of the Act as alleged.  The companies also stipulated to the
appropriateness of the penalties.

[[3]] For the provisions governing inspected vessels,
see 46 U.S.C. �� 3301-3318 and the standards in Parts 90-96 of 46 C.F.R.

[[4]] The Coast Guard has adopted regulations that
went into effect on September 15, 1991, while this case was on review.  On December
2, 1991, the Secretary filed a letter informing the Commission of that fact and making
certain other representations.  The respondents have objected to the filing of that
letter, arguing that it contains legal argument and therefore constitutes a brief filed in
violation of Rule 93(b)(3) of the Commission's Rules of Procedure, 29 C.F.R. �
2200.93(b)(3).  The respondents have filed a motion asking for the alternative
remedies of returning the letter to the Secretary or allowing the respondents to file a
brief in response to cure the Secretary's violation of the rules.  We deny the
remedies requested.  The Commission will, however, afford a remedy not requested in
respondents' motion. Specifically, the Commissioners have not considered any
representations or arguments contained in the Secretary's letter during the Commission's
deliberations on the issue directed for review, namely whether OSHA had jurisdiction to
regulate the cited working conditions.

[[5]] Section 4(b)(1) provides:

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.

[[6]] The Coast Guard has filed an amicus curiae
brief presenting arguments contrary to those made by the companies.

[[7]] While we do not refer to the legislative
history of CFlVSA for assistance in making our decision on this issue, we note with
interest that respondents' brief states that nowhere in that document or in the
legislative history of a 1984 statute dealing with commercial fishing vessels is there any
discussion of OSHA.

[[8]] The citations involved the guarding of
machines, belts, and pulleys, clearance in passageways, recordkeeping, storage of
combustible gases used in welding, and violations of the hazard communication standard.

[[9]] In Dillingham, a crewman on a tugboat climbed
onto a mooring buoy to fasten a line while the tug was assisting a tanker mooring at an
offshore anchorage.  He was injured when he fell into the water and was caught
between the buoy and the tug.  While the Coast Guard's regulations did not address
the specific facts of this accident, they addressed the broader situation.  It is
well-established that, when another federal agency has acted to regulate specific working
condition, it is not necessary that it act in the same manner or in an equally stringent
manner as OSHA in order for an exemption to arise under section 4(b)(1).  Northwest
Airlines, Inc., 8 BNA OSHC at 1990, 1980 CCH OSHD at p. 30,489; Pennsuco Cement &
Aggregates, Inc., 8 BNA OSHC 1378, 1980 CCH OSHD � 24,478 (No. 15462, 1980); Mushroom
Transp. Co., 1 BNA OSHC 1390, 1392, 1973-74 CCH OSHD � 16,881 at p. 21,591 (No. 1588,
1973).

[[10]] Even if the discussion in Dillingham were not
dictum, that case is distinguishable from the one before us.  The employee in
Dillingham was a sailor engaged in the operation of the ship, the traditional area of
Coast Guard expertise. The vessels involved here are called "factory ships"
because they perform the same function at sea that a canning factory performs ashore.
  The operations cited here were all activities involving fish processing and
required neither knowledge nor skills of seamanship.  The Coast Guard has stated that
the working conditions cited are outside its area of expertise and that, when these cases
arose, it had taken no steps to regulate them.  We could therefore find that the
policy reasons underlying section 4(b)(1), to avoid the duplication of regulation which
subjects employers to unnecessary and confusing requirements and wastes government
resources, would not require that an exemption be found here.  The Coast Guard claims
no expertise in regulating the conditions of factory workers, whether ashore or afloat,
while OSHA does.  To find an exemption here would not further the purposes of
workplace safety, which is, after all, the object of both CFIVSA and the Act.

[[11]] Section 9(a) of the Act requires the citation
to fix a reasonable time for the abatement of the violation.  Section 10(c) of the
Act gives the Commission jurisdiction over employee contests of the reasonableness of the
abatement period, which clearly demonstrates that the Commission may establish a different
abatement date.  The Commission also has the authority to find that there was a
violation but that abatement is not required when it finds that a violation is de minimis.
  The question that has not been answered is whether the Commission can find a
violation that is not de minimis and hold that abatement is not required.  It is not
at all clear that the provision in section 10(c) of the Act empowering the Commission to
grant "other appropriate relief" would cover this situation.