GEE, Circuit Judge:
These consolidated cases involve a single question of statutory interpretation: whether the petitioners, at the time the violations involved here occurred, were obliged to comply with safety standards promulgated by the Secretary of Labor (the Secretary) pursuant to the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq. (1970). In No. 74-3981, Southern Pacific Transportation Co. petitions for review of an order of the Occupational Safety and Health Review Commission (OSHRC) finding that it committed four nonserious violations of 29 U.S.C. § 654(a)(2) in connection with the June 1972 operation of a diesel service shop in Houston, Texas. In No. 75-1613, transferred to this court by the Eighth Circuit, Union Pacific Railroad Co. petitions for review of a similar order adjudicating three violations of the same statute occurring in September
These cases turn on the meaning of section 4(b)(1) of OSHA, 29 U.S.C. § 653(b)(1), which provides in Delphic terms:
The railroads' position is that this section means that any "exercise," be it never so partial, by the Department of Transportation (DOT), acting through the Federal Railroad Administration (FRA), of its statutory authority to regulate railroad safety exempts the railroad industry from OSHA regulations to the full extent of DOT's potential regulatory authority.
The railroads and the Secretary agree that the exemption provided by section 4(b)(1) is not activated by mere existence in the FRA of statutory authority to regulate railroad safety; some "exercise" of that authority is necessary to oust OSHA's pervasive regulatory scheme. Thus, the statute generates an anomalous relationship between the Secretary and agencies such as the FRA, decreeing the existence of overlapping authority to regulate railroad safety, with displacement of OSHA coverage by the FRA dependent on unilateral action by the FRA rather than on either a determination by some neutral agency or on consultation between the Secretary and the FRA. All parties likewise agree that the only exercises of FRA authority before the dates on which the cited violations occurred were promulgation of regulations for specific
The railroads suggest that the phrase "working conditions of employees" in section 4(b)(1) is equivalent to "industries." Building on a comparison between section 4(b)(1) and 29 U.S.C. § 673(a), which exempts "employments excluded by [section 4]" from OSHA's statistical provisions, they argue that "employments" is equivalent to "industries" and that section 4(b)(1) therefore creates an industry-wide exemption. The effect of this argument is first to magnify a minimal ambiguity and then to resolve it by reference to a more ambiguous provision.
The structure of section 4(b)(1), particularly its cross-reference to 42 U.S.C. § 2021 (1970), reinforces our conclusion that the FRA's pre-1975 regulatory activity did not displace the general OSHA regulatory scheme. Section 2021 deals with state regulation of the atomic energy industry. It provides a detailed system in which regulation for some purposes is explicitly left to the states, regulation of certain activities is reserved to the Atomic Energy Commission, and regulatory authority over certain materials is entrusted to the federal government subject to federal-state agreements to transfer this authority to a state. Such an arrangement is the antithesis of an industry-wide exemption. We think it most unlikely that section 4(b)(1) was intended to establish industry-wide exemptions for industries otherwise regulated by the federal government when the scope of its exemption for state regulation is so meticulously limited to specific topics.
We also find support for our conclusion in the legislative history of OSHA. The railroads offer a colloquy on the House floor as the definitive legislative history of section 4(b)(1).
Finally, the purpose of OSHA, announced in particularly expansive terms, is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources ...." 29 U.S.C. § 651(b). If this be the goal, it seems unlikely that Congress would wish the ubiquitous OSHA regulations in question here to be displaced by the FRA's limited operating-equipment and accident-reporting activity. Placed in this context, the railroads' interpretation of section 4(b)(1) as an industry-wide exemption becomes an assertion that a requirement of accident reporting displaces substantive standards designed to prevent accidents — an assertion inconsistent with such an announced statutory purpose.
Our rejection of the railroads' position does not constitute an acceptance of the theory that every OSHA regulation remains operative until the FRA adopts a regulation of its own on that specific subject. As we have noted, the statutory term "working conditions" embraces both "surroundings," such as the general problem of the use of toxic liquids, and physical "hazards," which can be expressed as a location (maintenance shop), a category (machinery), or a specific item (furnace). Neither OSHA itself nor the existence of OSHA regulations affects the ability of the primary regulatory agency, here the FRA, to articulate its regulations as it chooses. Much of their displacing effect will turn on that articulation. Section 4(b)(1) means that any FRA exercise directed at a working condition — defined either in terms of a "surrounding" or a "hazard" — displaces OSHA coverage of that working condition. Thus, comprehensive FRA treatment of the general problem of railroad fire protection will displace all OSHA regulations on fire protection, even if the FRA activity does not encompass every detail of the OSHA fire protection standards, but FRA regulation of portable fire extinguishers will not displace OSHA standards on fire alarm signaling systems.
We recognize that a regulatory exercise expressed in terms of a category of equipment or a generalized problem may raise questions about whether a given item is covered. Conversely, an exercise expressed in terms of a piece of equipment may create an issue about whether the FRA has regulated the entire category to which that piece belongs. In either situation, the scope of the exemption created by section 4(b)(1) is determined by the FRA's intent, as derived from its articulations.
We are sympathetic to the railroads' argument that regulatory duplication is undesirable because it makes it excessively difficult for the employer to know which standards he is required to obey and may create undue expense from successive compliance with different standards. But we think it clear that avoiding duplication was a secondary purpose of the OSHA/FRA scheme. OSHA was drafted in recognition of the possibility, since realized, that the FRA would fail to implement its authority before some OSHA regulations became effective. These unfortunate consequences, inherent in the nature of the beast, may be avoided or greatly minimized by a clear statement, in each instance of displacing regulation, of the FRA's position on these preexisting OSHA regulations which it seeks to oust.
Finally, the railroads contend that the FRA's March 1975 "Advance Notice of Proposed Rule-Making," inviting pre-proposal comment on numerous substantive regulations,
We have carefully considered the other maxims of statutory construction and aids to statutory interpretation marshalled by the parties, particularly the interaction between OSHA and the Federal Railroad Safety Act, 45 U.S.C. § 421 et seq. (1970), the Rail Passenger Service Act, 45 U.S.C. § 501 et seq. (1970), the Amtrak Improvement Act, 45 U.S.C. § 502 (Supp.1973), and the Rail Safety Improvement Act, 45 U.S.C. § 440 (Supp.1974). We find these additional considerations insufficiently persuasive on either side of the questions before us to require further discussion.
To summarize our view of section 4(b)(1), OSHA coverage is displaced by an "exercise" of DOT authority only for the "working condition" embraced by that exercise. Since DOT has not yet exercised its authority on the working conditions which are the subject of these OSHRC orders, the petitions for review are DENIED.
Id. at 22, Leg.Hist. at 162; U.S.Code Cong. & Admin.News 1970, p. 5199.