United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1120 20th Street, N.W., 9th Floor 

Washington, DC 20036-3457 

Secretary of Labor, 

Complainant, 

OSHRC Docket No. 18-0680 

v. 

Henry Marine Service, Inc., 

Respondent. 

Attorneys and Law Firms: 

Melanie L. Paul, Esq., U.S. Department of Labor, Office of the Solicitor, Atlanta, 

Georgia, for Complainant 

William G. Chason, Esq. and Brian P. McCarthy, Esq., McDowell Knight Roedder & Sledge, 

LLC, for Respondent 

JUDGE: Administrative Law Judge Heather A. Joys 

DECISION AND ORDER 

This proceeding is before the Occupational Safety and Health Review Commission 

pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651- 678 (the 

Act). Respondent, Henry Marine Service, Inc. (Henry Marine), is towboat operator on the Mobile River 

in Bucks, Alabama. On October 7, 2017, a fatal accident occurred on its tugboat, the M/V JAMIE H 

(JAMIE H), prompting an inspection by the Occupational Safety and Health Administration (OSHA) 

Mobile Area Office. As a result of that inspection, the Secretary of labor, on March 27, 2018, issued 

Henry Marine a Citation and Notification of Penalty alleging ten serious and two other than 

serious violations of the Act and regulations thereunder. The Secretary proposed a total penalty 

of $51,739.00 for the Citation. Henry Marine timely contested the Citation. Prior to the filing 

of dispositive motions, the Secretary withdrew all but Items 1a and 7a, Citation 1. 

The parties each filed dispositive motions pursuant to Rule 56 of the Federal Rules of Civil 

Procedure. Remaining in dispute are two citations alleging serious violations of the general industry 

standards at 29 C.F.R. §§ 1910.22(c) (Item 1a, Citation 1) and 1910.132(a) (Item 7a, Citation 1). In its 

motion, Henry Marine contends the cited standards are preempted under § 4(b)(1) of the Act, 29 U.S.C. § 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

653(b)(1), by regulations promulgated and enforced by the Coast Guard. Henry Marine argues, 

alternatively, the Secretary cannot meet his burden with regard to the alleged violation of § 1910.22(c). 

The Secretary responds, at the time of the alleged violations, the Coast Guard had not exercised its 

authority over the cited conditions such that preemption under § 4(b)(1) does not apply. In his motion the 

Secretary contends there are no material facts in dispute as to all elements of his prima facie case and 

Henry Marine cannot meet its burden of proof on its affirmative defenses. Both parties filed responses to 

the opposing parties’ motion. For the reasons that follow, Henry Marine’s Motion for Summary 

Judgment is GRANTED on the ground the Secretary lacked jurisdiction to issue the citations. 

Accordingly, Items 1a and 7a, Citation 1 are VACATED. 

FACTUAL BACKGROUND 

The JAMIE H is a tugboat owned and operated by Henry Marine. On October 7, 2017, an 

employee of Henry Marine was found dead in the water surrounding the JAMIE H. The decedent had 

been returning after his normal shift to stay on the vessel during Hurricane Nate which was predicted to 

make landfall in the area that night.1 The decedent did not return to the JAMIE H in a timely manner and 

was found in the water near the vessel by the captain. No one witnessed the decedent fall into the water. 

At the relevant time, Henry Marine was using the JAMIE H to move barges carrying coal under a 

contract with Alabama Power at the Barry Steam Plan near Mobile, Alabama. The barges were owned by 

a third party. Henry Marine used the JAMIE H to move the barges to an area where Alabama Power 

employees could unload them. The JAMIE H’s crew consisted of a captain, a crane operator, a skid steer 

operator, and two deckhands. Deckhands were not involved in any of the loading or unloading operations 

and performed work only on the barges or the JAMIE H. The decedent was one of the deckhands. 

When not in use, the JAMIE H was moored at a dock owned by Alabama Power near the Barry 

Steam Plant. Henry Marine had used the dock to moor the JAMIE H since 2005. Crew members 

accessed the JAMIE H from the dock in one of two ways, depending on water level. When the water 

level was such the fleet (or upper) deck of the JAMIE H was level with the dock, the crew would open a 

swing gage and step over the gap between the dock and the vessel onto the fleet deck. If the fleet deck 

and dock were not level, the crew would open the swing gate and use a ladder, affixed to the dock, to 

climb to the vessel’s main (or lower) deck. Either method required stepping over the gap between the 

dock and the JAMIE H. Since 2005, Henry Marine has provided its employees no other equipment or 

method to access the JAMIE H from the dock. 

1 The undersigned takes judicial notice Hurricane Nate made landfall at the mouth of the Mississippi River at 

approximately 7 p.m. on October 7, 2017. It made a second landfall west of Biloxi, Mississippi, after midnight on 

October 8, 2017, according to reports of the National Weather Service. https://www.weather.gov/mob.nate. Neither 

party disputes Hurricane Nate had an impact on the sited worksite on the evening of October 7, 2017. 

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On October 12, 2017, upon notification of the Secretary of the fatal accident, Compliance Safety 

and Health Officer (CSHO) Stephen Yeend of the Mobile Area OSHA Office conducted an inspection of 

the worksite. CSHO Yeend measured the distance from the dock to the fleet deck to be 43 inches; the 

distance from the ladder to the main deck to be 41 inches; and the distance from the fleet deck to the 

water below to be 9 feet, 6 inches. CSHO Yeend concluded employees accessing the JAMIE H by either 

method were exposed to the hazard of hitting objects while falling to the water below. Based on this 

conclusion, CSHO Yeend recommended citations be issued to Henry Marine for failure to provide a safe 

means of access to a working surface in violation of § 1910.22(c) and for failure to provide personal 

protective equipment in the form of a personal flotation device to employees in violation of § 

1910.132(a). Respondent timely contested. At the completion of formal discovery, the parties each filed 

a motion for summary judgment on both citation items. 

ANALYSIS 

Standard on Summary Judgment 

Summary judgment is properly granted only where there are no genuine issues of material fact 

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The party moving for 

summary judgment has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). When 

determining if there is a genuine factual dispute, the fact finder must resolve all ambiguities and draw all 

reasonable inferences in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 

(1962). 

In Ford Motor Company—Buffalo Stamping Plant, 23 BNA OSHC 1593 (No. 10-1483, 2011), 

the Commission reversed the ALJ’s order granting summary judgment to the employer and remanded the 

case to the ALJ for further proceedings. In doing so, the Commission set forth the standards for judges 

considering summary judgment motions: 

In reviewing a motion for summary judgment, a judge is not to decide factual disputes. . . 

Rather, the role of the judge is to determine whether any such disputes exist. . . When 

determining if there is a genuine factual dispute, the fact finder must resolve all 

ambiguities and draw all reasonable inferences in favor of the non-moving party. . . Thus, 

not only must there be no genuine dispute as to the evidentiary facts, but there must also 

be no controversy as to the inferences to be drawn from them. 

Id. (citations and footnote omitted.) 

Requirements for Preemption Under § 4(b)(1) 

Section 4(b)(1) of the Act provides that the Act does not apply to “working condition of 

employees with respect to which other Federal agencies...exercise statutory authority to prescribe or 

enforce standards or regulations affecting occupational safety and health.” 29 U.S.C. § 653(b)(1). 

Congress included § 4(b)(1) in recognition of the authority of other federal agencies over specific 

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industries. Under Commission precedent, for preemption to apply, three conditions must be met. A 

federal agency must “possess the statutory authority to regulate the cited condition and must also have 

taken some action to exercise that authority by promulgating standards or regulations having the force and 

effect of law.” Tidewater Pacific Inc., 17 BNA OSHC 1920, 1923 (No. 93-2529, 1997), citing Alaska 

Trawl Fisheries, Inc., 15 BNA OSHC 1699, 1703 (No. 89-1192, 1992); and Northwest Airlines, Inc., 8 

BNA OSHC 1982, 1989-91 (No. 13649, 1980). Having satisfied these first two elements, an employer 

claiming preemption must also establish the other federal agency’s regulations cover the cited working 

conditions. Id. “In effect, OSHA’s jurisdiction over the workplace as a whole is preserved, while the 

redundant regulation of particular working conditions proscribed by section 4(b)(1) is avoided.” Id., 

citing Southern Pacific Transportation Co. v, Usery, 539 F.2d 386, 391-92 (5th Cir. 1976); and Northwest 

Airlines, Inc. 8 BNA OSHC at 1989-90. In Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 241 (2002), 

the Supreme Court adopted the same interpretation of § 4(b)(1). The party claiming preemption under § 

4(b)(1) of the Act has the burden to establish its applicability. 

Coast Guard Regulation of Towing Vessels 

The Coast Guard’s governing statute requires the Coast Guard to 

administer laws and promulgate and enforce regulations for the promotion of safety of 

life and property on and under the high seas and waters subject to the jurisdiction of the 

United States, covering all matters not specifically delegated by law to some other 

executive department 

14 U.S.C. § 2(3) (2000). Congress further delineated that authority by dividing vessels into two 

categories: “inspected vessels” and “uninspected vessels.” The Coast Guard has broad statutory authority 

to regulate the occupational health and safety of seamen aboard these listed vessels. See 46 U.S.C. § 3306 

(1994). Prior to 2004, 46 U.S.C. § 3301 (1994) contained a list of 14 vessels subject to inspection by the 

Coast Guard. In 2004, Congress enacted the Coast Guard Maritime Transportation Act of 2004 in 

which it added to the list of inspected vessels “towing vessels.” 46 U.S.C. § 3301(15) (2004). Under 46 

U.S.C. § 3306(j) Congress gave the Coast Guard authority to “establish by regulation a safety 

management system appropriate for the characteristics, methods of operation, and nature of service of 

towing vessels.” 

In 2009, prior to the formal promulgation of regulations applicable to the inspection of towing 

vessels, the Coast Guard instituted its “Towing Vessel Bridging Program” (TVBP) (see Exhibit 12 of 

Respondent’s Motion for Summary Judgment). The purpose of the TVBP was to “ease the transition and 

ensure that both the Coast Guard and the towing vessel industry are informed and prepared to meet the 

new requirements to be finalized in Subchapter M [of the Coast Guard regulations].” The intent of the 

Coast Guard under the program was to “examine every uninspected towing vessel (UTV) that will be 

inspected under Subchapter M.” These examinations were to verify compliance with Subchapter B and C 

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regulations that were applicable to towing vessels at the time. Once compliance with these regulations 

was verified, the towing vessel was issued a decal. The JAMIE H received a decal under this program in 

December 2012 (Exhibit 13 of Respondent’s Motion for Summary Judgment). 

On August 11, 2011, the Coast Guard issued a Notice of Proposed Rule Making proposing 

regulations specifically applicable to towing vessels. 76 Fed. Reg. 49,976 (August 11, 2011). After a 

period of notice and comment, the Coast Guard issued the final Subchapter M regulations June 20, 2016. 2 

Inspection of Towing Vessels; Final Rule, 81 Fed. Reg. 40,004 (June 20, 2016). The regulations took 

effect on July 20, 2016. Under these regulations, the Coast Guard will conduct inspections and issue 

certificates of inspection (COIs) for compliant towing vessels. A vessel operator requests an inspection to 

obtain a COI pursuant to the requirements of 46 C.F.R. § 136.210. The regulations set out a “phase in” 

period for obtaining COIs. 46 C.F.R. § 136.202. For operators of more than one towing vessel, the 

regulation sets out dates by which an increasing percentage of the operator’s fleet must have a COI. 

Operators of only one towing vessel were required to have a COI by July 20, 2020. 46 C.F.R. § 

136.202(b). All new towing vessels were required to have a COI before entering service. 46 C.F.R. § 

136.202(c). Prior to obtaining a COI, a towing vessel is to remain compliant with all regulations to which 

it was subject as an uninspected vessel until July 20, 2018, or the date upon which it obtains a COI, 

whichever is later. 46 C.F.R. § 136.172. According to the preamble to the regulation, this provision was 

added “[i]n response to comments regarding the cost of requirements in parts 140 through 144, and 

concern about being able to meet those requirements soon after the rule is make effective...” 81 Fed. 

Reg. at 40,021. Section 136.172 was added “to ensure that we do not leave a gap after the rule becomes 

effective but before most requirements in parts 140 through 144 are implemented.” Id. 

The Secretary does not dispute the JAMIE H was a towing vessel as that term is defined in the 

Coast Guard Maritime Transportation Act, subject to the Coast Guard’s Subchapter M regulations.3 The 

Secretary does not dispute the measurements and configuration of the JAMIE H contained in its 

Certificate of Documentation (Exhibit 14 to Respondent’s Motion for Summary Judgment). There is no 

factual dispute regarding the work being performed by the JAMIE H and its crew. Nor does the Secretary 

contend the JAMIE H fell within any of the exceptions to applicability of the Coast Guard’s towing vessel 

inspection regulations. Henry Marine concedes the JAMIE H did not have a COI at the time of the fatal 

accident or the OSHA inspection. 

2 The final regulations appear at 46 C.F.R. §§1, 2, 15, 136, 137, 138, 139, 140, 141, 143, 144, and 199. 

3 The statute defines a towing vessel as “A commercial vessel engaged in or intending to engage in the service of 

pulling, pushing, or hauling alongside, or any combination of pulling, pushing, or hauling alongside another vessel.” 

46 U.S.C. § 2101(50). 

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Preemption of OSHA Jurisdiction Over the Cited Conditions 

The Coast Guard has the statutory authority to regulate inspected vessels. See Mallard Bay 

Drilling, 534 U.S. at 242. In 1983, the Secretary of Labor formally recognized the preemption of OSHA 

jurisdiction by the Coast Guard with regard to inspected vessels when it entered into a memorandum of 

understanding (MOU) setting forth the boundaries of the authority of both agencies. Under the MOU, 

The Coast Guard is the dominant federal agency with the statutory authority to prescribe 

and enforce standards or regulations affecting the occupational safety and health of 

seamen aboard inspected vessels. Under the Vessel Inspection Laws of the United States, 

the Coast Guard has issued comprehensive standards and regulations concerning the 

working conditions of seamen abroad inspected vessels. 

MOU Between the U.S. Coast Guard and OSHA Concerning the Health and Safety of Seamen on 

Inspected Vessels, 48 Fed. Reg. 11,366 (March 17, 1983). In 2004, towing vessels were added to those 

vessels subject to Coast Guard inspection. 46 U.S.C. § 3301(15). There is no dispute the Coast Guard 

has had the statutory authority to regulate the health and safety of seamen on towing vessels since 2004. 

Henry Marine contends the third element necessary to establish preemption has also been met. 

To meet this element of preemption, Coast Guard regulations applicable to towing vessels must address 

the same working conditions addressed in the OSHA citations. Tidewater Pacific, Inc., 17 BNA OSHC 

1920, 1923 (No. 93-2529, 1997), citing Alaska Trawl Fisheries, 15 BNA OSHC at 1703 (the working 

conditions at issue must be “actually covered by the agency regulations.”). Henry Marine points to § 

140.425 of the Subchapter M regulations as covering the working conditions addressed in the citations at 

issue. This regulation address “fall overboard prevention” and states: 

(a) The owner or managing operator of a towing vessel must establish procedures to 

address fall overboard prevention and recovery of persons in the water, including, but not 

limited to: 

(1) Personal protective equipment; 

(2) Safely working on the tow; 

(3) Safety while line handling; 

(4) Safely moving between the vessel and a tow, pier, structure, or other vessel; 

and 

(5) Use of retrieval equipment. 

46 C.F.R. § 140.425. Henry Marine also points to § 140.430(a) which requires “Personnel dispatched 

from the vessel or that are working in an area on the exterior of the vessel without rails and guards must 

wear a lifejacket...” 46 C.F.R. § 140.430(a). The Secretary did not raise any dispute regarding the 

applicability of these regulations to the cited working conditions. Nor does the court find any. 

Item 1a, Citation 1, alleges a violation of 29 C.F.R. § 1910.22(c). That standard requires the 

employer to “provide, and ensure each employee uses, a safe means of access and egress to and from 

walking-working surfaces.” The Secretary alleges Henry Marine violated the standard when it failed to 

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“ensure a safe means of access was used when boarding and leaving the Jamie H which exposed an 

employee to injures associated with striking inanimate objects while falling up to approximately 9 feet 6 

inches to the water below.” The Subchapter M regulation at 46 C.F.R. § 140.425(a)(4) specifically 

addresses the same working condition cited – the movement between vessel and dock – and the same 

hazard – falling overboard – as the citation. 

This is equally true regarding 46 C.F.R. § 140.430(a) and Item 7a, Citation 1. That citation item 

alleges a violation of 29 C.F.R. § 1910.132(a) which requires employers to provide protective equipment 

to employees “wherever it is necessary by reason of hazards of processes or environment, chemical 

hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury 

or impairment in the function of any part of the body through absorption, inhalation or physical contact.” 

The Secretary alleges Henry Marine violated the standard by not providing the decedent with a personal 

flotation device “while stepping between the dock platform and the fleet deck of the Jamie H...” The 

Secretary makes clear in his response to Respondent’s motion the specific hazard addressed by Item 7a is 

falling into the water while moving between vessel and dock. The Coast Guard regulation at 46 C.F.R. § 

140.430 specifically addresses the need for personal flotation devices when working in an area where 

there is the possibility of falling into the water below. The Coast Guard Subchapter M regulations cover 

the working conditions and hazards addressed in Items 1a and 7a of the citation. 

Where the parties differ is whether, at the time of the alleged violations, the Coast Guard had 

exercised its authority to regulate towing vessels. Henry Marine contends the Coast Guard exercised its 

authority to regulate the health and safety of seamen working on towing vessels upon promulgation of the 

Subchapter M regulations, the effective date of which predated the alleged violations. The Secretary 

points to § 136.172 of the Subchapter M regulations, noting because the JAMIE H did not have a COI 

prior to the fatal accident, it was not required to comply with those regulations until July 20, 2018, after 

the fatal accident. See also 46 C.F.R. § 140.105(a) (specifically addressing the § 140 regulations 

referenced herein). The Secretary argues, on the date of the alleged violation, the Coast Guard had not 

yet exercised its authority to regulate the working conditions of seamen on towing vessels because the 

Subchapter M regulations did not have the “force and effect of law” until July 20, 2018. There is no 

factual dispute the JAMIE H had not received a COI prior to the fatal accident. The issue to be resolved is 

whether the Coast Guard’s promulgation of regulations for which it explicitly delayed implementation 

constitutes an exercise of its authority as that term is used in § 4(b)(1) of the Act. This is a question of law 

for which no material facts are in dispute. It is appropriate for resolution on summary judgment. 

An agency’s promulgation of final regulations under its statutory grant of authority constitutes an 

exercise of that authority under § 4(b)(1) of the Act. The Commission has held it is no less an exercise of 

statutory authority to take the formal position that a hazard will not be the subject of regulation. 

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Consolidated Rail Corp., 10 BNA OSHC 1577, 1580 (No. 79-1277, 1982) citing Southern Pacific 

Transportation, 539 F.2d at 392. In Consolidated Rail Corp., the Commission found the Federal Railroad 

Administration’s (FRA) policy announcement that it would not issue final regulations applicable to 

certain hazards constituted an exercise of authority by the expert agency in railroad safety sufficient to 

preempt the applicability of OSHA regulations. Id. In contrast, the Commission and the courts have 

found an announcement of the intent to regulate or issuance of a notice of proposed rulemaking to be an 

insufficient exercise of authority. Southern Pacific Transportation, 539 F.2d at 391-92; Baltimore and 

Ohio Railroad Co. v. OSHRC, 584 F.2d 1052 (D.C. Cir. 1976); Alaska Trawl Fisheries Inc., 15 BNA 

OSHC at 1704 (“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)”). The Commission has not directly addressed the issue presented here – whether an agency has 

exercised its authority upon issuance of a final regulation where that regulation sets out a delayed 

implementation schedule. 

The issue presented here must be considered in light of the well-settled Commission precedent 

that “any oversight of the adequacy of another agency’s enforcement activities is beyond the scope of 

permissible inquiry under section 4(b)(1).” Pennsuco Cement and Aggregates, Inc., 8 BNA OSHC 1378, 

1381 (No. 15462, 1980) citing Mushroom Transportation Co., 1 BNA OSHC 1390, 1392 (No. 1588, 

1974). In Pennsuco Cement, the question presented was whether OSHA lacked authority to inspect a kiln 

operated by Pennsuco Cement. During the time of the inspection, the Mining Enforcement and Safety 

Administration (MESA), which had authority to and had promulgated regulations applicable to kilns, had 

suspended its inspections of them. The Commission found the fact MESA had “ceased its inspections of 

kilns does not alter the fact that MESA had exercised its authority to regulate the safety and health of 

Pennsuco’s employees.” Id. 

The Commission reached a similar result in Daniel Construction Co., 12 BNA OSHC 1748 (No. 

82-668, 1986).4 There was no dispute in Daniel Construction the Mine Safety and Health Administration 

(MSHA) regulations applied to Daniel Construction and its operations at a surface mine. At the time of 

the OSHA inspection, MSHA had suspended all enforcement activities pursuant to a temporary 

emergency appropriations bill that prohibited the agency from expending any funds on enforcement. The 

Commission found MSHA had exercised its authority in promulgating regulations applicable to the 

working conditions. Preemption applied even though MSHA was not enforcing its regulations because to 

do so would constitute an impermissible inquiry into the agency’s level of enforcement. This was true 

4 The Commission issued a decision adopting the Judge’s decision as its own. 

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even though it was Congress and not the expert agency that had mandated the cessation of enforcement. 

Id. at 1752. 

Here too, the Secretary seeks to have the court inquire into the manner in which the Coast Guard 

has chosen to enforce its regulations applicable to towing vessels. The undersigned declines to do so. 

The Commission has recognized the Coast Guard as the agency with “special expertise in maritime 

hazards.” Dillingham Tug and Barge Corp., 10 BNA OSHC 1859, 1862 (No. 77-4143, 1982). The MOU 

between the Secretary and the Coast Guard 

recognizes that the exercise of the Coast Guard’s authority – and hence the displacement 

of OSHA jurisdiction – extends not only to those working conditions on inspected vessels 

specifically discussed by Coast Guard regulations, but to all working conditions on 

inspected vessels, including those “not addressed by specific regulations.” [48 Fed. Reg. 

11365] Thus, as OSHA recognized in the MOU, another agency may “exercise” its 

authority within the meaning of § 4(b)(1) of the OSH Act either by promulgating specific 

regulations or by asserting comprehensive regulatory authority over a certain category of 

vessels. 

Mallard Bay Drilling, 534 U.S. at 243. Towing vessels have fallen within the category of inspected 

vessels under the Coast Guard’s enabling legislation since 2004. In 2009, the Coast Guard developed and 

implemented its TVBP under which it inspected towing vessels for compliance with existing regulations 

and issued decals to those compliant vessels. Since July 20, 2016, the Coast Guard has had in effect 

comprehensive regulations applicable to towing vessels. By these actions, the Coast Guard has asserted 

“comprehensive regulatory authority” over towing vessels. Recognizing the history of limited regulation 

of towing vessels and the difficulty and cost of coming into compliance with new regulations, the Coast 

Guard chose to delay implementation of some of its Subchapter M regulations. This was formal action of 

the part of the Coast Guard under its statutory authority to regulate towing vessels. See Consolidated Rail 

Corp., 10 BNA OSHC at 1580. Doing so constituted a decision regarding the manner in which the 

regulations would be enforced by the dominant agency in the area of maritime safety. As such it is not a 

proper area of inquiry under § 4(b)(1) of the Act. Pennsuco Cement, 8 BNA OSHC at 1381. The Coast 

Guard’s promulgation of its Subchapter M regulations prior to the date of the alleged violations was a 

sufficient exercise of its statutory authority to regulate the cited working conditions to preempt OSHA 

jurisdiction. 

To hold otherwise would lead to anomalous results. A towing vessel operator must request an 

inspection under 46 C.F.R. § 136.210. It must be in compliance with the Subchapter M regulations at that 

time in order to pass the inspection and receive his COI. Under the Secretary’s theory, if this occurs 

before July 20, 2018, that same towing vessel operator would have to be simultaneously in compliance 

with applicable OSHA regulations. Such overlapping of federal regulation is what Congress intended to 

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avoid when enacting § 4(b)(1). Mallard Bay Drilling, 534 U.S. at 241; see also Dillingham Tug & Barge, 

10 BNA OSHC at 1862-63. 

CONCLUSION 

The Coast Guard has exercised its authority to regulate the working conditions cited in the 

violations at issue. Under § 4(b)(1) of the Act, the OSH Act does not apply to those working conditions. 

Respondent’s Motion for Summary Judgment is GRANTED. Items 1a and 7a, Citation 1, are 

VACATED. 

/s/ 

Dated: March 12, 2019 Judge Heather A. Joys 

1120 20th Street, N.W., 9th Floor 

Washington, DC 20036-3457 

Phone: (404) 562-1640 Fax: (404) 562-1650 

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