Standard Interpretations - Table of Contents|
| Standard Number:||1975.1|
|MEMORANDUM FOR:||FRANK FRODYMA|
Acting Director of Policy
|FROM:R:||JOHN J. HYNAN|
Counsel for General Legal Advice
|SUBJECT:R:||Review of Policy on Section 4(b)(1) of the Act|
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 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.2. Review of Significant 4(b)(1) Case Law
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.
a. General Case LawOne 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.
b. Specific Case Law Relating to the OMCSThere 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).
________ 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.
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.
|Standard Interpretations - Table of Contents|
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