Friday, June 1, 2012

Where Federal OSHA (or other agency) Jurisdiction Supersedes State OSHA

Most people associated with the field of occupational safety and health already know that states and territories of the United States of America have the option to implement their own “State Plan” OSHA program to regulate workplace safety within their boundaries. Approximately half the states and territories have opted to do just that. So affected employers in those states follow the state OSHA rules, display the state OSHA posters, report certain injuries and illnesses to state OSHA offices, and are subject to inspections by state OSHA personnel. However, you must make certain that you are aware that employers in certain workplaces located within the boundaries of state-plan OSHA states still fall under the jurisdiction of Federal OSHA, or in some cases, another quasi-OSHA organization.

The easiest way to determine which employers are covered by a certain state’s OSHA program and which remain under Federal OSHA (or other) coverage is to refer to the map at this link and click somewhere on the state in question. You will be directed to a page on the website that contains information about OSHA coverage within that specific state; including specific details about who is covered by what agency (refer to the paragraph on the page titled “Jurisdiction”).

What you’ll find, in general, is that Federal OSHA still retains jurisdiction over employers at workplaces such as the U.S. Post Offices and other federal installations in states operating a state-plan OSHA program, which seems logical. But I also learned (the hard way) a few years ago that in most state-plan states, Federal OSHA also retained jurisdiction over most Maritime operations, including workplaces such as but not limited to, ship and barge builders and repair facilities, long-shoring operations, and other privately-owned maritime operations situated on or along the navigable waters of the United States.

As an example of how complex the jurisdictional boundaries can be in the states that run their own OSHA program, consider the exceptions in the state of Iowa, as they are very specific:

"The Iowa State Plan applies to all public and private sector places of employment in the State with the exception of private sector maritime activities; marine terminals; longshoring; federal government-owned, contractor-operated military/munitions facilities; bridge construction projects spanning the Mississippi and Missouri Rivers between Iowa and other states; federal government employers and employees; and the United States Postal Service; which are subject to Federal OSHA jurisdiction. The U.S. Department of Labor, Employment Standards Administration exercises jurisdiction with respect to field sanitation and temporary labor camps."

So as you can see, jurudictional issues are not as simple as you may think, and can change from area to area within the state. (For further explaination, refer to the comment submitted (below) to this post by a retired OSHA Area Director).

Another area that caught my eye while doing research for this blog post is the Native American reservations. Many enterprises within these areas are usually not covered by state or federal OSHA. However, I was surprised to learn of an agency called Navajo Nation OSHA (NNOSHA), formed in 2000, that regulates employee safety at workplaces on their Tribe's land; I am not sure if other Tribes have their own organization to regulate work safety, but I did find this very interesting.

Are you aware of any other workplaces in state-plan OSHA states that are still regulated by Federal OSHA or some other agency? If you would like to share that information with our readers, or if you just want to make a comment about this blog post, please share your thoughts in the “comments” section below. And please, pass a link to this blog post along to others in your network who you think may benefit from this information.

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2 comments:

  1. A few points of clarification:
    Maritime jurisdiction is correct for everything on the water. In California Cal/OSHA have the dock operations. Ship repair Federal OSHA on the water, floating docks and dry docks. Cal/OSHA on the land for ship repair activities. In Hawaii for example, Federal OSHA has jurisdiction over maritime activities on land and the water. See the operational agreements in 29 CFR 1952.
    You stated neither Federal nor State OSHA programs has jurisdiction on Native American Land. That is not exactly true. Bureau of Indian Affairs publishes a list of Native American Trust lands each year in a federal register. Federal OSHA has jurisdiction on Native American Trust Lands with the exception intramural tribal activities. Intramural activities involve operations conducted by the tribe that would be similar in nature to those of a city or county. For example: Operation of schools, water districts, sewer districts, etc. Enterprises owned by the tribe, for example casinos, saw mills, etc. would be regulated by Federal OSHA. Contractor activities on tribal trust lands are regulated by Federal OSHA as well. There are a couple of 9th Circuit decisions that support this position and Federal OSHA conducts inspections on tribal trust lands on a routine basis. It also gets confusing where tribal lands are. At times the tribe may trade land for a partial of land in the middle of town so they can build a casino where gambling would not be authorized by the State. Federal OSHA also has jurisdiction over Federal employees working on tribal land.
    You mentioned military installations. Federal OSHA has jurisdiction over all Federal employees. The operations agreement (29 CFR 1952) for each State will specify jurisdiction as well. Jurisdiction over contractors on military bases usually depends on the type of ownership the Federal Government has. Exclusive jurisdiction and partial jurisdiction is regulated by Federal OSHA. If ownership of the land by the Federal Government is proprietary or concurrent the contractors would be regulated by the State OSHA program. You can contact the Federal OSHA area office or regional office for detailed information on where Federal OSHA has jurisdiction. For example, some bases may have part of the base covered by the State OSHA program and part by Federal OSHA. There are situations where a large building may be located on two jurisdictions. A State OSHA program can give up their jurisdiction over contractors on Federal lands. In Hawaii none of the military bases are located on exclusive or partial jurisdiction. The State Hawaii OSHA program had jurisdiction, they recently transferred this jurisdiction over to Federal OSHA. Another point is the National Guard. Some installations fall under Federal OSHA’s jurisdiction, for example: Camp Roberts is a National Guard Base. The property for everything located west of US 101 is regulated by Federal OSHA since the property is exclusive jurisdiction to the Federal Government. The property located east of US 101 is Cal/OSHA since that area is proprietary jurisdiction. Speaking of the National Guard, a fair amount of their full time workforce are military technicians under the control of the National Guard Bureau and they are exempted federal employees and fall under Federal OSHA’s jurisdiction.
    Van Howell, CSP, Retired Federal OSHA Area Director

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  2. Congress has two types of jurisdiction under which it can pass laws. The first is subject matter jurisdiction and the second is geographic. We know that nowhere in the US Constitution is Congress granted subject matter jurisdiction over workplace safety and health. Carrying out workplace safety and health functions is also not a power related to any of Congress' other delegated powers under the necessary and proper clause.

    When we turn to the text of the OSH Act we see clearly that the plain text of the Act limits the Act to areas over which Congress has exclusive legislative jurisdiction. The OSH Act is clearly written to be constitutional as its text is consistent with it being limited to Congressional geographic jurisdiction.

    From the 1970 Act: SEC. 3. Definitions For the purposes of this Act (7) The term "State" includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Trust Territory of the Pacific Islands.

    Using rules of statutory construction we see that all of the areas listed for a category (under the broad legal term includes) of areas over which Congress exercise exclusive legislative jurisdiction. The Act no where mentions the 50 states. There is no authority granted in the Act for OSHA to operate within the 50 states on land that belongs to the 50 states. There is no authority in the Act for the 50 states to operate a state plan as the 50 states are not included in the Act's definition of the term State.

    When constitutional do so Congress passes legislation that addressed the 50 states. Here is what definitions in federal law that apply to the 50 states of the Union look like:

    5 USC § 7103(18) “United States” means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.

    7 U.S.C. § 6202(15) State and United States The term - (A) "State" means each of the 50 States of the United States, the District of Columbia, and the Commonwealth of Puerto Rico; and (B) "United
    States" means the 50 States of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.

    26 USC § 4612(4) United States (A) In general The term “United States” means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, any possession of the United States, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands.

    49 USC § 13102(21) State.— The term “State” means the 50 States of the United States and the District of Columbia.

    In each case the 50 States are specifically called out. We may colloquially refer to the states of the Union as 'states of the United States' but in law they are not as they do not belong to the United States since they created the United States and are superior to it. A created entity cannot be greater than the creator.

    We also know from the Supreme Court that Congress has no police powers (general safety and health powers) like the states of the Union do, but only limited and well defined delegated powers from the states.

    The bottom line is that the OSHA Act is a federal territorial law which has been mal-applied to the 50 states in an unconstitutional manner. The governors of the 50 states are not authorized by the Act to apply for and run a state plan or receive funds to do so. These are all crimes which have been colluded upon by the states and federal government.

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