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July 10, 1989



Acting Director of Policy
Counsel for General Legal Advice
SUBJECT:R: Review of Policy on Section 4(b)(1) of the Act


This is in response to your memorandum of May 25, 1989, requesting review of the Department of Transportation's (DOT) Motor Carrier Safety Act and related statutes, a review of OSHA case law relating to truck drivers, and a summary of applicable 4(b)(1) case law.

The Occupational Safety and Health Act (OSH Act) covers every employer engaged in a business affecting interstate commerce who has one or more employees. This is very broad coverage under the Commerce Clause of the Constitution. However, to avoid duplication in enforcement in the occupational safety and health area, Congress, in section 4(b)(1), took into account the other Federal agencies which in the exercise of their statutory responsibilities may issue regulations or standards which affect occupational safety and health issues. Section 4(b)(1) provides, in pertinent part:




Nothing in this Act shall apply to working conditions with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health.

1. Office of Motor Carrier Safety (OMCS)

The Secretary of Transportation, acting through the Office of Motor Carrier Safety (OMCS), exercises statutory authority over the operation of motor vehicles engaged in interstate or foreign commerce. OMCS authority is found in title 49 of the United States Code in the following sections: 3101 et seq.; 2301 et seq. (known popularly as the Surface Transportation Assistance Act); 1801 et seq., dealing with the transportation of hazardous materials; and 2501 et seq. (known popularly as the Motor Carrier Safety Act of 1984).

The last mentioned statute, the Motor Carrier Safety Act of 1984, contains statutory definitions which may serve as descriptions of the jurisdiction of the OMCS. For example, a "commercial motor vehicle" is defined as meaning "any self-propelled or towed vehicle used on highways in interstate commerce to transport passengers or property." That definition goes on to state that the vehicle must weigh 10,001 lbs. or more to be regulated by the OMCS and must, if it is a bus, transport more than 15 passengers, including the driver. The term "commercial motor vehicle" also includes a vehicle used to transport materials found by the Secretary of Transportation to be hazardous and in a quantity requiring placarding under the Secretary of Transportation's regulation therein (49 U.S.C. sec. 2503).

If the vehicle in question does not come within the above definitions, then OSHA, under its broad residual jurisdiction, would have jurisdiction over the working conditions involving the vehicle.

For our more immediate purposes, the definitions of the terms "employee" and "employer" in the Motor Carrier Safety Act are also controlling in deciding jurisdictional questions between OSHA and the OMCS. The Motor Carrier Safety Act defines the term "employee" as meaning, "(a) an operator of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle); (b) a mechanic; (c) a freight handler; and any individual other than an employer . . . ." A person in one of the above categories is an "employee" under the Motor Carriers Safety act if he or she is also one "who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety . . . ," but the definition excludes Federal, State, and local government employees.

This definition of "employee" helps in understanding the jurisdiction of the OMCS; that is, this definition indicates that the OMCS jurisdiction is not confined to highways as a locale, as is commonly believed. While the OMCS' focus is on transportation over the highways, the interest, and hence jurisdiction, of the Office is on the safety of the vehicles even off the highways when, for example, the vehicles are being repaired (definition's use of the term "mechanic"), or loaded (definition's use of the term "freight handler"), and involve any other individual other than an employer where such individual's employment directly affects commercial motor vehicle safety.

The term "employer" under the Motor Carriers Safety Act of 1984 means ". . . any person engaged in a business affecting commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it," but such term does not include Federal, State, and local governments. Thus, in the case of the term "employer" under the Motor Vehicle Safety Act we see once again a limitation on the OMCS jurisdiction. If, in any factual circumstances involving a section 4(b) (1) controversy' between OSHA and the OMCS, the employer does not come within the Motor Carrier Safety Act's definition of the term "employer," then OSHA would have jurisdiction over the employer's working conditions.

Further, Congress made clear in the legislative history that its main concern in this motor-carrier legislation is public safety and health. Following is an excerpt from Senate Report 98-424, May 2, 1984, Committee on Commerce, Science, and Transportation. The report accompanies S.2174.

The Committee believes it is important to clarify the respective roles of the various Federal agencies in ensuring the safety of commercial motor vehicle operations and the health of operators.

The Secretary of Transportation has the responsibility of protecting the public from unsafe commercial motor vehicles and assuring that commercial motor vehicles are safely maintained, equipped, loaded, and operated, and, therefore, is responsible for related matters insofar as failure to observe pertinent regulations would adversely affect the safety of the public or the health and safety of operators of commercial motor vehicles. However, the Secretary of Transportation is not responsible for protecting employees from asbestos fibers, and toxic fumes involved in the course of properly repairing a brake, nor for the protection of employees from slippery walking surfaces or from inadequately braked forklift trucks, which activities continue to be the responsibility of the Department of Labor.

2. Review of Significant 4(b)(1) Case Law

a. General Case Law

One of the earliest and significant Review Commission decisions pertaining to Section 4(b)(1) was Fineberg Packing Co., 1 OSHC 1598, 1973-74 OSHD 17,518 (1974), in which the Commission held that OSHA's standards applicable to the handling and processing of meat products was not preempted under Section 4(b)(1) of the OSH Act because the purpose of the other agency's statutory authority, the Wholesome Meat Act, was not to protect workers but to protect consumers. This broad interpretation of Section 4(b)(1) was successfully applied to other activities; that is, to gas-pipeline operations in Texas Eastern Transmission Corp., 3 OSHC 1601, 1975-76 OSHD 20,092 (1975); and to contractors with the Federal Government (Ensign-Bickford Co. v. OSHRC 717 F.2d 1419 (D.C. Cir. 1983), cert. den. 466 U.S. 937, 104 S.Ct. 1909, 80 L.Ed. 2d 458 (1984)). The Fineberg line of cases is still relied on and is of particular use as the beginning point of any analysis of an issue involving section 4(b)(1). The reason for this is that Fineberg constitutes an analysis of the underlying statutory authority of the other Federal agency which, of course, is actually the first step in the analysis of a Section 4(b)(1) issue.

Most OSHA cases involving Section 4(b)(1) of the OSH Act, however, are not as simple as the Fineberg-type situation.

The most common type of circumstances involving section 4(b)(1) of the OSH Act is where there is a statute whose primary purpose is to protect the public and transportation equipment but which also protects employees in the sense that in the effort to protect the public, the employees are also protected. Examples of this type of legislation are most of the statutes administered and enforced by the Department of Transportation (DOT). A practical example is the Federal Aviation Administration (FAA) In FAA's efforts to protect the flying public and air transport cargo, the crew of the aircraft are necessarily protected at the same time by the same FAA regulations.

Whenever a Section 4(b)(1) issue is presented in the context of a DOT statute which is designed to protect the public, transportation equipment, or cargo, the issue is usually of the type that is known popularly as the "gap theory," or "hazard-by-hazard" approach. That is, the question is whether the other agency has an enforceable regulation which, if that agency chooses to enforce that regulation, would reduce or eliminate the workplace hazard in question. If the other agency has no such regulation applicable to the hazard, then there exists a "gap" in worker protection which is filled by the residual jurisdiction of the OSH Act with its very broad coverage intended by Congress as the means for assuring ". . . . every working man and woman in the Nation safe and healthful working conditions." Sec. 2(b), OSH Act, P.L. 91-596; see also, Northwest Airlines, Inc., 8 OSHC 1982, 1980 OSHD 24,751 (1980), petition for review dismissed, Nos. 80-4218, 80-4222 (2d Cir. 1981).

The so called "gap theory" has also been upheld by the courts. In the courts' decision, however, this same issue is cast in terms of' the Section 4(b)(1) term "working conditions." In general, it can be stated that the following line of appellate court decisions affirm the "hazard-by-hazard" approach even though the courts sometimes have chosen different words which have to be explained and understood in context. For example, in Southern Railway v. OSHRC, 539 F.2d 335 (4th Cir. 1976) cert. denied 429 U.S. 999, 97 S.Ct. 525, the Fourth Circuit defined the term "working conditions" in Section 4(b)(1) as meaning "the environmental area in which an employee customarily goes about his daily tasks." That phrase of the court's decision seems to extend the term "working conditions" beyond hazards, but the phrase is not clear because while geographically, so to speak, the environmental area is broad under that decision, the "area" has no meaning if not viewed in terms of the regulations and hazards present in that area.

A far better articulation of the "hazard-by-hazard" approach is found in a Fifth Circuit case; that is, in Southern Pacific v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. denied 434 U.S. 874, 98 S.Ct. 222. In this case, the Fifth Circuit defined the term "working conditions" in Section 4(b)(1) to mean to include "surroundings" or "hazards" which the court stated could be a location, a grouping of items, or a single item. In Southern Railway in the Fourth Circuit and the Fifth Circuit's Southern Pacific definitions, we see, when viewed together, a narrowing of the term "working conditions." The most recent decisions even more clearly articulate the scope of Section 4(b)(1); that is, if the other agency's regulation (or the lack of one) does not cover the hazard in question, then the OSH Act's requirements are not preempted. For example, in Donovan v. Red Star Marine Services Inc., 739 F.2d 774 (2d Cir. 1984), cert. denied 470 U.S. 1003, 105 S.Ct. 1355, the Second Circuit did not preempt OSHA's regulation of noise aboard an inspected vessel because, while the Coast Guard generally covered such vessels, the Coast Guard confined its regulation to life saving and fire-fighting equipment and had issued no noise abatement regulation. The Eleventh Circuit also analyzed a Section 4(b)(1) issue in the same way. In re Inspection of Norfolk Dredging Co., 783 F.2d 1526 (11th Cir. 1986), reh. denied, 790 F.2d 88 (11th Cir. 1986), cert. denied 107 S.Ct. 271 (1986), the Eleventh Circuit did not preempt OSHA application to crane operations because the Coast Guard simply did not have regulations addressing crane hazards. The Eleventh Circuit in Norfolk Dredging stated that, "the effect of Section 4(b)(1) turns upon the precise working conditions at issue . . ."

b. Specific Case Law Relating to the OMCS

There is no industry-wide exemption for motor vehicle common carriers, Greyhound Lines. Inc., 5 OSHC 1132, 1977-78 OSHD 21,610 (1977), nor is there any industry-wide exemption for over-the-road truckers, Lee way Motor Freight. Inc., 4 OSHC 1968, 1976-77 OSHD 21,464 (1977).

However, as discussed previously in the analysis of the term "working conditions" or the "gap theory," if OMCS has a regulation addressing a certain working condition (or hazard), then OSHA would be preempted from applying its standards to that hazard. The lead OSHA case on this issue under Section 4(b)(1) in the context of OMCS' jurisdiction is Mushroom Transportation Co., Docket No. 1588, 1973-74, CCH OSHD 16,881 (R.C. 1973). Mushroom involved the hazard of possible movement of trucks while they were being loaded or unloaded with the use of powered industrial trucks. Both OSHA and OMCS had regulations dealing with brakes as well as other methods of preventing unwanted movement of a truck during loading and unloading operations. The Commission held that because the OMCS had such a regulation covering the same hazard as the OSHA standard, the OSH Act's standard was held inapplicable pursuant to the provisions of section 4(b)(1) of the OSH Act.(1)

Footnote(1) There have been OSHA cases in the courts of appeals dealing with OSHA
enforcement actions applicable to motor carriers, but they were not included
in the main text of the memorandum because those cases at the appeal level
did not involve section 4 (b)(1) of the OSH Act.  The cases are Greyhound
Lines-West v. Marshall 575 F.2d 759 (1978), and Lee Way Motor Freight. Inc.
v. Secretary of Labor, 511 F.2d 864 (1975).  These cases are, however,
examples of OSHA jurisdiction being exercised in connection with repair work
involving. trucks and buses.


Mushroom also stands for the proposition that the other agency's regulation need not be as stringent as the OSHA standard to effectuate preemption of the OSH standard. The Review Commission stated:


Once another Federal agency exercises its authority over specific working conditions, OSHA cannot enforce its own regulations covering the same conditions. Section 4(b)(1) does not require that another agency exercise its authority in the same manner or in an equally stringent manner. [Footnote omitted; emphasis supplied.] Mushroom, supra, 16,881 at 21,491.

To our knowledge, there have been no decisions of OSHRC or the courts since Mushroom specifically involving truck or bus operators. Citations have been issued, but these were mainly for alleged violations in loading areas and maintenance and repair shops.

Your memorandum also requested a discussion of what is commonly referred to as the "negative exercise of authority;" that is, in a rulemaking, the agency proposing the rule requires certain safe work practices in some circumstances and the rule is either silent as to other circumstances or it expressly provides that the rule's requirements shall not apply to the other circumstances. This raises the question of whether an omission, express or otherwise, in another agency's rule is an "exercise of statutory authority" within the meaning of Section 4(b)(1) of the OSH Act, and thus sufficient under that provision to preempt the application of the OSH Act.

The leading case on this particular issue is Velasquez v. Southern Pacific Transportation Co., 734 F.2d 216 (5th Cir. 1984). In that case, a policy statement of the Federal Railroad Administration (DOT), which was separately issued by that agency and not included in any rule, was held by the Court to be controlling over the OSHA standard. It is important to note, however, that Velasquez was not a case involving OSHA enforcement; OSHA was not a party in that case. Velasquez arose under the Federal Employers' Liability Act (FELA) and the issue in the case on appeal was whether the OSHA standard established a "standard of care," as that term is used in liability cases, to which the railroad company was to be held, even though the FRA had not implemented specific regulations for the areas in question (railroad bridges and walkways along railroad tracks). The court of appeals held that in light of the FRA policy statement, which stated, in effect, that FRA, not OSHA, jurisdiction extended to railroad bridges and walkways along the tracks, it was error for the District Court below to instruct the jury that OSHA regulations as to hazards involving bridges and walkways established a standard of care in an action brought under the FELA.

There are two OSH Review Commission cases both dealing with the FRA policy statement but each coming to an opposite conclusion. In Consolidated Rail Corp., 9 BNA OSHC 1258 (R.C. 1981) (referred to popularly as Conrail I), a divided Commission stated that the FRA policy statement was not a sufficient exercise of authority within the meaning of section 4(b)(1) of the OSH Act to preempt OSHA authority over the specific railroad working conditions at issue. One Commissioner (Cleary) dissented stating that the FRA, by formally articulating that certain working conditions in the railroad industry should be unregulated, had preempted OSHA's authority to enforce its standards with respect to those working conditions.

However, another OSH Review Commission decision called Conrail II, adopted the Cleary dissent discussed above. In Consolidated Rail Corporation, 10 BNA 1577 (R.C. 1982), the Commission held that the FRA policy statement's position that railroad car inspection pits should go unregulated was an exercise of authority within the meaning of section 4(b)(1) of the OSH Act. Thus, the Commission vacated OSHA citations for violation of OSHA perimeter guarding standards.

There are no "negative exercise" decisions of the OSH Review Commission or of the courts applicable specifically to OMCS jurisdiction.

In conclusion, as we can see from the cases, there are three main principles in 4(b)(1) situations: (1) OSHA cannot enforce its authority with respect to working conditions over which another Federal agency has exercised its authority even if the other agency's standards are not as stringent or as stringently enforced as OSHA's; (2) if a Federal agency fails to exercise its authority with respect to working conditions, OSHA has jurisdiction to inspect and to cite for violations of standards; and (3) a negative exercise of authority can oust OSHA from jurisdiction. It must be noted, however, that 4(b)(1) situations must be considered on a case by case basis and deference given to a sister agency's interpretation of its authority.