These two cases, which were placed together on the argument calendar, involve the same issue. That issue is whether Section 4(b)(1) of the Occupational Safety and Health Act of 1970, 84 Stat. 1590, 29 U.S.C. § 651, et seq., (OSHA) exempts the railroad industry from regulation thereunder. Section 4(b)(1) provides:
Petitioners assert two theories of exemption derived from this language. One is that by its own force the section exempts any industry subject to regulation by another agency; this is achieved by an ultimate equation of the statutory phrase "working conditions of employees" with the word "industries." The second theory focuses upon the word "exercise"; it assumes that this statutory condition has been met by any assertion of regulatory authority, no matter how limited, or indeed by any proposed, as distinct from an actually effective, exercise of such authority.
These precise contentions have hitherto been passed upon, and rejected, by two other circuits. Southern Ry. Co. v. Occupational Safety and Health Review Commission, 539 F.2d 335 (4th Cir. 1976), cert. denied, 1976, ___ U.S. ___, 97 S.Ct. 525, 50 L.Ed.2d 609; Southern Pacific Transportation Company v. Usery, 539 F.2d 386 (5th Cir. 1976). Finding ourselves in essential agreement with those decisions in circumstances
With respect to the first theory pressed upon us by petitioners, we note, as did Judge Gee, writing for the Fifth Circuit, that it rests mainly on a comparison between 4(b)(1) and another section of the Act, 24(a). Since the latter exempts "employments excluded by [Section 4]" from OSHA's statistical provisions, it is argued that the word "employments" means the same as "industries." Thus, by equating "employments" with "working conditions," the latter, as used in 4(b)(1), is, in petitioners' submission, to be taken without more to have accomplished an industry-wide exemption for any industry subject to regulation under other statutes than OSHA. We agree with Judge Gee's characterization of the effect of this argument as being "first to magnify a minimal ambiguity and then to resolve it by reference to a more ambiguous provision . . .."
It is clear that Congress attached great importance to the safety and health protections of employees afforded by OSHA and, in particular, to the desirability of bringing those protections to bear upon employees generally as fast as possible. The legislative scheme, in furtherance of this objective, was to apply OSHA forthwith across the board, but to provide that regulation might be preempted by other agencies with comparable authority over particular industries. This is too plainly apparent to warrant its frustration by as tortured a meaning as petitioners purport to draw from the face of 4(b)(1) alone.
For essentially the same reason, we, in common with the Fourth and Fifth Circuits, are unpersuaded by petitioners' second theory. The Congressional purpose just adverted to would surely be similarly set at naught by a construction of the word "exercise" to the effect that the actual imposition of regulatory controls in one or two respects by an agency possessed of broad authority over railroads forecloses OSHA regulation in all other respects, or that the mere initiation of proposed rulemaking fences off the subjects of that proposal from OSHA. As the discussion of legislative history by our sister circuits makes clear, there is really nothing of substance in that history to justify our attributing any such an intention to Congress.
Petitioners point to the fact that the Federal Railroad Administration on March 7, 1975 issued an Advance Notice of Proposed Rulemaking; and that, after reviewing the comments received in response thereto, concluded to move towards a comprehensive code of safety and health standards. The first of what is assertedly intended to be a series of steps to achieve this goal was taken by means of a Notice of Proposed Rulemaking issued July 15, 1976, covering General Provisions, Means of Egress, General Environmental Control, and Fire Protection. It is argued that the articulation of this purpose by FRA, and its seriousness as evidenced by this initial rulemaking proceeding, are enough to constitute an "exercise" within 4(b)(1) precluding further regulatory action under OSHA.
The Advance Notice of March 7, 1975 was pressed upon the Fourth and Fifth Circuits to the same effect, but without success.
If the Federal Railroad Administration wishes, in the fullest reach of its statutory authority, to assume the dominant role in determining the health and safety aspects of the working conditions of railroad employees, Congress has opened for it an avenue to that end. But Congress did not contemplate that there would be no regulation whatever while the FRA is still considering what road to take, nor does a single step down that road carry preemption further than that step itself.
It is unquestionably true that, as petitioners understandably lament, the Congressional scheme fixed upon in this instance is visibly pregnant with dangers of duplication and overlapping assertions of authority by competing federal agencies. An industry caught in the middle by this approach has, at the least, every right to expect that, until the final boundaries are defined, there will be sensible cooperation and mutual adjustment between the various agencies involved.
The petitions in Nos. 75-2163 and 75-2244 are
The Fifth Circuit's views were the same (at 392-93 of 539 F.2d):