Petition for Writ of Certiorari — Chao v. Mallard Bay Drilling, Inc.

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Supreme Court, U.S.

( \ FILED

~~”

O00 927 DEC - 6200

No. price OF JHE CLER¥

Jn the Supreme Court of the United States

ALEXIS M. HERMAN, SECRETARY OF LAROR,

PETITIONER

MALLARD BAY DRILLING, INC.

ON PETITION FOR A WRIT OF CERTIORARI

LOTHE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SETH PP. WAXMAN

Solicitor General

HENRY L. SOLANO Counsel of Record

Solicitor of Lahon EDWIN S. KNEEDLER

ALLEN H. FULDMAN Deputy Soticitor Geneval

Associate Solicitor

MATHEW D. Ropenrs

NATHANIEL [. SPILLER Assistant to the Solicitor

Deputy Associate Solicitor General

kK | iN | BE \RD Lh prrntiite vtoft Justice

itorney Washington, D.C. 20520-0001

Lh parti vt ot Lahor (202) 14-221,

Washington, DC. 20210

ROSALIND A. KNAPP

Acting General Counsel

RADM JAMESS. CARMICHAEL

Chief Counsel

United States Coast Guard

Department of

Transportation

Washington, D.C. 20590

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the United States Coast Guard has “exer-

cise(d] statutory authority to prescribe or enforce

standards or regulations affecting occupational safety

or health” concerning the “working conditions of em-

ployees” (29 U.S.C. 653(b)(1)) on “uninspected vessels”

(46 U.S.C. 2101(43)) so as to displace application of the

Occupational Safety and Health Act of 1970, 29 U.S.C.

651 et seq.

(I)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction 1

Statutory provision involved 2

Statement 2

Reasons for granting the petition i)

Conclusion 22

Appendix A la

Appendix B Na

Pf -_ 20a

| Piscmnsensenmssneesnenes 22a

Pf 52a

RORY enna (i2a

RERTREES cece 66a

TABLE OF AUTHORITIES

Cases:

Association of Am. R.R. v. Department of Transp.,

SB FB GEB (D.C. Cit. 19B4) .....cccrccccrerssesecseserersossssssosessssosees 13

Baltmore & Ohio R.R. v. OSHRC, 548 F 2d 1052

GEA. Gap. SIGED cccnszenscscssvensnsnsnzsnscsnesassensscscinensesensncnnenens 11, 14,17

Clary v. Ocean Drilling & Exploration Co.:

429 F. Supp. 906 (W.D. Lia, 1977) ........ccccccccssssssesesssesssssesees 8

GOD F.2d 1120 (Gth Cir, 19D) ........ccccccscscecesseseressesssenseseenees 8,11

Columbia Gas of Pa., Inc. v. Marshall, 636 F 2d

TN 13, 18

Corning Glass Works v. Brennan, 417 U.S. 188

GEG cccnssscnssnsnssnssnsensensesssnvsnsnsmscsnssessssnsssnssessesnasnsenennanenssesees 15, 18

Donovan v. Red Star Marine Servs., Inc.,

739 F.2d 774 (2d Cir. 1984), cert. denied, 470

CTI 9, 10, 11, 13, 14, 17, 18

Donovan v. Teraco, Inc.:

535 F. Supp. 641 (E.D. Tex. 1982) ........cccccssseeeeerereensnenes x

Se a a re Ga. TED ccencsnesssszscncsncezszscssensccesscesessssens 8,11

(IIT)

Cases—Continued: Page

Herman v. Tidewater Pac., Inc., 160 F 3d 1239

(9th Cir. 1998) ...... 9, 10, 11, 14, 19

Inspection of Norfolk Dredging Co., In re, 733 F 2d

1526 (11th Cir), cert. denied, 479 U.S. 888

(1I8G) .cccecees %, 10, 11, 12, 18, 14, 18

Martin v. OSHRC, 499 U.S. 144 (1991) once ccccccceceeeeenenee 16

PBR, Inc. v. Secretary of Labor, 643 F 2d 890

ET siieiniiniiineesii 13, 18

Southern Pac. Transp. Co. v. Usery, 589 F.2d 386

(Sth Cir. 1976), cert. denied, 434 U.S. 874 (1977) ............. 11,

13-14

Southern Ry. v. OSHRC, 539 F 2d 385 (4th Cird,

cert. denied, 429 U.S. 999 (1976)... 11, 13, 14, 17, 18

Statutes and regulations:

Occupational Safety and Health Act of 1970,

I cciiticissstrnnticinnciadiiiiiaiiidiabidaieiatis 2

OE hee 2,17

I ciaticisttieninitiiaciiniais 2, 7, 20

29 U.S.C. GEA 1) (8 SDI D)) ..ccccccccccescccersccsesscesesees passim

Oe 6

BP ie GED ccnccensseemsnsstenenenensneneies 2

Ua GD cen - 2

I cccstinnicsnsinsintiiiitnnrrtinmntnariiiaaiiiasaianrinsitaitaincies 7

o)) 4 aa 4

GER. Gee cee x

BGA. Ge EGE. exc 4

46 U.S.C, 2101 (1994 & Supp. TV 1908) ............cccccccecsseseeeceees 4

CO _ 19

46 U.S.C. 2101(48) _ 4

46 U.S.C. 3301 (1994 & Supp. TV 1998) . 4,19

46 U.S.C. 33016) «0.0.0.0... x

46 U.S.C. 3306 (1994 & Supp. TV 1998) 4

46 U.S.C, 4102 (1994 & Supp. TV 1998) 8, 18,19

46 U.S.C. 6101-6104 (1994 & Supp. IV 1998) 5

46 U.S.C. 6301-6308 (1994 & Supp. TV 1998) ...ccccccceee 5

Statutues and regulations—Continued: Page

46 U.S.C. 12102 (1994 & Supp. IV 1998) 19

49 U.S.C. 108(b) 4

29 C.F.R.:

Section 1910.120(q)(1) 6

Section 1910.120(q\6) 6

Section 1975.1(b) 3, 16

Section 1975.3(c) 3, 16

46 C.F.R. Ch. I 4

Pt. 4 5

Section 4.05-1(a)(6) 20

Pts. 24-26 4, 18, 19

ee GND nen -

Ge OND) ccna x

49 C.F.R. 1.46(b) 4

Miscellaneous:

116 Cong. Rec. 38,381 (1970) 14

48 Fed. Reg. 11,365 (1983) ammnununen 5

65 Fed. Reg. 50,017 (2000) 2

H.R. 843, 91st Cong., Ist Sess. (1969) 14

H.R. 4294, 91st Cong., Ist Sess. (1969) 14

H.R. 13373, 91st Cong., Ist Sess. (1969) 14

H.R. 16785, 91st Cong., Ist Sess. (1970) 14, 15

H.R. Conf. Rep. No. 1765, 91st Cong., 2d Sess.

(1970) 15

OSHA Instruction CPL 2-1.20(R) (Nov. 8, 1996)... 5

S. 2788, 91st Cong., Ist Sess. (1969) ' 14

S. 2193, 91st Cong., 2d Sess. (1970) 14, 15

S. Rep. No. 1282, 91st Cong., 2d Sess. (1970) 15

Staff of Senate Comm. on Labor and Public Welfare,

92d Cong., Ist Sess., Legislative History of the

Occupational Safety and Health Act of 1970

(Comm. Print 1971) 14, 15

In the Supreme Court of the United States

No.

ALEXIS M. HERMAN, SECRETARY OF LABOR,

PETITIONER

MALLARD BAY DRILLING, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Secretary of

Labor, respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la-

7a) is reported at 212 F.3d 898. The decision of the

Occupational Safety and Health Review Commission

(App., infra, 8a-21a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 2, 2000. A petition for rehearing was denied on

August 8, 2000 (App., infra, 66a-67a). On October 27,

2000, Justice Scalia extended the time within which to

(1)

file a petition for a writ of certiorari to and including

December 6, 2000. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Section 4(b)(1) of the Occupational Safety and Health

Act of 1970, 29 U.S.C. 653(b)(1), provides, in relevant

part:

Nothing in this [Act] shall apply to working

conditions of employees with respect to which other

Federal agencies * * * exercise statutory

authority to prescribe or enforce standards or

regulations affecting occupational safety or health.

STATEMENT

1. a. The Occupational Safety and Health Act of 1970

(OSH Act or Act), 29 U.S.C. 651 et seqg., was enacted “to

assure so far as possible every working man and woman

in the Nation safe and healthful working conditions.”

29 U.S.C. 651(b). Each employer covered by the Act

has a “general duty” to provide to “each of his em-

ployees employment and a place of employment which

are free from recognized hazards that are causing or

are likely to cause death or serious physical harm to his

employees.” 29 U.S.C. 654(a)(1). Each employer must

also comply with applicable occupational safety and

health standards promulgated by the Secretary of

Labor. 29 U.S.C. 654(a)(2). The Secretary has dele-

gated her authority under the OSH Act t~ the Assis-

tant Secretary for Occupational Safety and Health, who

heads the Occupational Safety and Health Admini-

stration (OSHA). See 65 Fed. Reg. 50,017 (20009.

The OSH Act applies to “employment performed in a

workplace in a State,” as well as in specified territories

and “Outer Continental Shelf lands.” 29 U.S.C. 653(a).

When the Act was passed, certain federal agencies

already had statutory authority to regulate the occupa-

tional safety and health of employees in particular

fields, such as transportation and mining. To avoid

duplication of effort, Congress provided in Section

4(b)(1) of the Act that “[nJothing in this [Act] shall

apply to working conditions of employees with respect

to which other Federal agencies * * * exercise

statutory authority to prescribe or enforce standards or

regulations affecting occupational safety or health.”

29 U.S.C. 653(b)(1).

OSHA regulations explain that:

Section 4(b)(1) of the Act provides that the statute

shall be inapplicable to working conditions to the

extent they are subject to another Federal agency’s

exercise of different statutory authority affecting

the occupational safety and health aspects of those

conditions. Therefore, a person may be considered

an employer covered by the Act, and yet standards

issued under the Act respecting certain working

conditions would not be applicable to the extent

those conditions were subject to another agency’s

authority.

29 C.F.R. 1975.1(b). The regulations further explain

that “Congress did not intend to grant any general

exemptions under the Act; its sole purpose was to avoid

duplication of effort by Federal agencies in establishing

a national policy of occupational safety and health

protection.” 29 C.F.R. 1975.3(c).

b. The United States Coast Guard “administer|s]

laws and promulgate|s] and enforce[s] regulations for

the promotion of safety of life and property on and

under the high seas and waters subject to the juris-

diction of the United States covering all matters not

specifically delegated by law to some other executive

department.” 14 U.S.C. 2. The extent of the Coast

Guard’s statutory authority over a vessel depends in

large part on whether the vessel is “inspected” or

“uninspected.” See generally 46 U.S.C. 2101 et seq.,

Subtit. II (vessels and seamen). “Inspected” vessels,

listed in 46 U.S.C. 3301 (1994 & Supp. IV 1998), include,

for example, freight vessels, passenger vessels, sea-

going motor vessels, tank vessels and certain types of

barges. See also 46 U.S.C. 2101 (1994 & Supp. IV 1998)

(definitions of different vessel types). “Uninspected

vessels” are vessels not subject to inspection under Sec-

tion 3301 that are not recreational vessels. 46 U.S.C.

2101(43).

“(To secure the safety of individuals and property on

board” inspected vessels, the Secretary of Transporta-

tion has comprehensive rulemaking authority over

those vessels, including their design, construction, al-

teration, repair, and operation. 46 U.S.C. 3306 (1994 &

Supp. IV 1998). The Coast Guard has exercised that

authority on behalf of the Secretary by issuing com-

prehensive regulations. See generally 46 C.F.R. Ch. I;

49 U.S.C. 108(b) (Commandant of Coast Guard shall ex-

ercise powers delegated by Secretary of Transporta-

tion); 49 C.F.R. 1.46(b) (delegating authority to the

Commandant). In contrast to its broad authority over

inspected vessels, the Coast Guard’s statutory author-

ity to issue regulations for uninspected vessels is

limited to specific topics, including fire extinguishers,

life preservers, flame arrestors or backfire traps, ven-

tilation, and emergency locating equipment. 46 U.S.C.

4102 (1994 & Supp. IV 1998). Coast Guard regulations

therefore cover only a limited range of health and

safety hazards on only certain uninspected vessels. See

46 C.F.R. Pts. 24-26. The Coast Guard has not

»)

regulated hazards related to oil drilling operations on

uninspected vessels.

In light of those statutory and regulatory provisions,

OSHA and the Coast Guard have entered into a memo-

randum of understanding (MOU) that clarifies the

division of authority over working conditions on ves-

sels. 48 Fed. Reg. 11,365 (1983) (reprinted in App.,

infra, 62a-65a). The MOU explains that the Coast

Guard generally has exclusive authority over the

working conditions of seamen aboard inspected vessels.

App., infra, 68a. The MOU specifically states that it

does not apply to uninspected vessels. /d. at 62a.

OSHA generally exercises authority over such vessels

unless a Coast Guard regulation applies to the specific

working condition at issue. See OSHA Instruction CPL

2-1.20(R) at 14 (Nov. 8, 1996). 4

2. a. Respondent Mallard Bay Drilling, Inc., conducts

oil and gas drilling operations. App., infra, 10a. On

June 16, 1997, four of respondent’s employees were

killed and two others seriously injured in an explosion

on a drilling barge located on Little Bayou Pigeon, a

navigable waterway within the State of Louisiana. /d.

at 2a. The drilling barge was classified by the Coast

Guard as an uninspected vessel. /d. at 6a, 27a. Near

the end of the drilling operation, the well blew out. /d.

at lla. The off-duty crew evacuated, but the on-duty

crew stayed aboard in an unsuccessful attempt to

regain control of the well. /d. at 23a. Thirty to forty

minutes later, the explosion occurred. /d. at 32a.

' The Coast Guard is also authorized to require reporting and

to conduct investigations of marine casualties involving beth

inspected and uninspected vessels. 46 U.S.C. 6101-6104, 6501-6508

(1994 & Supp. IV 1998). The Coast Guard has exercised that

authority. See 46 C.F.R. Pt. 4.

The Coast Guard conducted a marine casualty inves-

tigation of the incident. See note 1, supra. The Coast

Guard determined that explosive concentrations of

natural gas had spread throughout the barge as a result

of the blowout. App., iufra, 32a. It found that the

explosion most likely originated in the pump room,

where a motor was operating that could have produced

sparks to ignite the natural gas. /d. at 34a-35a. The

Coast Guard concluded that respondent had not issued

any specific directions regarding blowout control; that

respondent's supervisors had not followed respondent's

existing emergency procedures; and that they had not

recognized the hazard of explosive gas accumulations

on the rig and had not ordered the evacuation of on-

duty personnel. /d. at 48a-50a. Because the Coast

Guard lacked regulations governing those matters, it

took no enforcement action and referred the matter to

OSHA. /d. at 12a, 24a-25a.

Based on the report and other information from the

Coast Guard, OSHA cited respondent for three viola-

tions of the OSH Act. App., infra, 2a. OSHA alleged

that respondent had violated the Act’s general duty

clause, 29 U.S.C. 654(a), by failing to evacuate @mploy-

ees in a timely manner after the well blowout. App.,

infra, 9a. OSHA also alleged that respondent had vio-

lated particular OSHA standards by failing to develop

and to implement an emergency response plan, as

required by 29 C.F.R. 1910.120(q)(1), and by failing to

train employees in emergency response, as required by

29 C.F.R. 1910.120(q)6). App., dafra, 9a.

b. Respondent did not contest the merits of the

citation but argued before the Occupational Safety and

Health Review Commission (Commission) that respon-

dent was not subject to the OSH Act for two reasons.

First, respondent contended that the drilling barge was

not a “workplace in a State” under 29 U.S.C. 653(a);

and, second, respondent argued that the Coast Guard

regulatory scheme rendered the OSH Act inapplicable

under 29 U.S.C. 653(b)1). App., infra, 2a.

4 1e administrative law judge (ALJ) affirmed the

citation. App., infra, 8a-19a. The ALJ held that the

barge was a “workplace in a State” because it was

located within the territorial boundaries of Louisiana.

Id. at 12a-13a. With respect to preemption of OSHA

authority under 29 U.S.C. 653(b)(1), the ALJ held that

OSHA jurisdiction is preempted only as to those work-

ing conditions actually covered by another agency's

regulations. App., infra, l4a-15a. Because respondent

made no showing that any Coast Guard regulations

address evacuation and emergency response to hazard-

ous substance releases on uninspected vessels, id. at

15a, 16a, the ALJ concluded that the Coast Guard had

not exercised authority to regulate the working con-

ditions at issue and that OSHA jurisdiction was there-

fore not preempted under 29 U.S.C. 653(b)(1). App.,

infra, 18a. The Commission declined review, and the

ALJ decision became final agency action. /d. at 20a-2la

(citing 29 U.S.C. 661(j)).

ce. Respondent sought review of the Commission's

decision in the United States Court of Appeals for the

Fifth Circuit, which reversed. App., infra, la-7a. The

court of appeals held that OSHA lacks authority to

regulate the working conditions of respondent's em-

ployees under 29 U.S.C. 653(b)(1), App., infra, 3a, Ta,

and therefore the court declined to address respon-

dent’s contention that the barge was not a “workplace

in a State” within the meaning of 29 U.S.C. 653(a), App..

infra, Ta.

The court noted that, under Fifth Circuit precedent,

“OSHA regulations do not apply to working conditions

of seamen on vessels in navigation” because “the Coast

Guard has exclusive authority over the working condi-

tions of seamen.” App., iufra, 3a-4a (citing Donovan v.

Tevaco Inc., 720 F.2d 825, 826 (5th Cir. 1983), and Clary

v. Ocean Drilling & Exploration Co., 609 F.2d 1120,

1121 (5th Cir. 1980)). The court rejected OSHA’s con-

tention that those cases were distinguishable because

they involved inspected, rather than uninspected, ves-

sels. App., infra, 4a-6a. The court found “no indication

from Clary that the barge in that case was inspected,”

and the court emphasized that “the broad language of

Clary does not turn on any such distinction.” /d. at 5a©

The court noted that the Coast Cuard is expressly

authorized by 46 U.S.C. 4102 (1994 & Supp. IV 1998) to

issue certain safety regulations for uninspected vessels

and that the Coast Guard has exercised that authority.

App., infra, 5a-6a (citing 46 C.F.R. 25.01 et seq. and 46

C.F.R. 26.01 et seq.). The court of appeals therefore

reaffirmed its conclusion in Texaco that “the Coast

Guard’s comprehensive regulation and supervision of

seamen’s working conditions [creates] an industry-wide

exemption [from OSHA] for seamen serving on vessels

operating on navigable waters.” /d. at 6a (quoting

Texaco, 720 F.2d at 826)."

= In fact, the vessel in Clary was a mobile offshore drilling unit

operating on the outer continental shelf. Clary v. Ocean Drilling

& Exploration Co., 429 F. Supp. 905, 906 (W.D. La. 1977), aff'd, 609

F.2d 1120, 1122 (Sth Cir. 1980). As such, it was a “seagoing

barge(]"” subject to inspection under 46 U.S.C. 395 (1976), the

predecessor to 46 U.S.C. 3501(6).

* Texaco also involved a vessel (an oil tanker) subject to Coast

Guard inspection. See Donovan v. Texaco, Inc., 535 F. Supp. 641,

(42 (E.D. Tex. 1982), aff'd, 720 F.2d 825 (Sth Cir. 1983).

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals that the

Occupational Safety and Health Act does not apply to

the working conditions of seamen aboard uninspected

vessels squarely conflicts with the holdings of three

other courts of appeals. More generally, the decision

departs from the well-established consensus of other

courts of appeals that Section 4(b)(1) of the OSH Act, 29

U.S.C. 653(b)(1), does not confer an industry-wide ex-

ception to the Act’s coverage based on limited regula-

tion of employees in that industry by another agency.

The court of appeals’ erroneous interpretation of Sec-

tion 4(b)(1) is inconsistent with its text, the history

surrounding its enactment, its long-standing interpreta-

tion by the Secretary, and the purpose of the OSH Act.

Finally, the decision leaves thousands of crew members

on uninspected vessels within the jurisdiction of the

Fifth Circuit without protection from serious health

and safety hazards. This Court’s review is therefore

warranted.

1. In holding that the OSH Act does not apply to the

working conditions of employees on uninspected

vessels, the Fifth Circuit has created a conflict with the

decisions of the three other courts of appeals that have

addressed the same question. The Second, Ninth, and

Eleventh Circuits have each upheld OSHA regulation

of working conditions on uninspected vessels. See

Herman v. Tidewater Pac., Inc., 160 F.3d 1239, 1244-

1245 (9th Cir. 1998); In re Inspection of Norfolk Dredg-

ing Co., 783 F.2d 1526, 1531 (11th Cir.), cert. denied, 479

U.S. 883 (1986); Donovan v- Red Star Marine Serrs.,

Inc., 739 F.2d 774, 780 (2d Cir. 1984), cert. denied, 470

U.S. 1003 (1985).

In Red Star, the Second Circuit held that OSHA

could regulate noise aboard an uninspected vessel

because the noise was a working condition that was not

regulated by the Coast Guard. 739 F.2d at 778-780.

The court explained that “the Coast Guard's regulation

of uninspected vessels is limited to only a few areas,”

and it is therefore not “exercising jurisdiction sufficient

to regulate comprehensively the working conditions of

employees aboard uninspected vessels.” /d. at 780.

“Since the Coast Guard is not exercising statutory

authority within the meaning of section 4(b)(1) of the

OSH Act,” the court held, “OSHA may regulate noise

hazards aboard uninspected vessels.” Jbid. Similarly,

in Norfolk Dredging, the Eleventh Circuit held that

“the Coast Guard’s regulation of safety aboard unin-

spected vessels is so circumscribed that it does not

preempt OSHA’s jurisdiction over crane safety aboard

uninspected vessels.” 783 F.2d at 1531. The court

explained that, under Section 4(b)(1), OSHA jurisdic-

tion is displaced only when another agency “either

promulgate|s] regulations governing the working

condition at issue, or articulate[s] a policy that the

condition not be regulated.” Jd. at 1530. Finally, in

Tidewater Pacific, the Ninth Circuit “agree{d] with the

Secretary, the Commission, and the Second and Elev-

enth Circuits that the Coast Guard regulation of unin-

spected vessels does not preempt [OSHA] jurisdiction”

(160 F.3d at 1245) in a case in which the “Coast Guard

has not issued specific regulations governing the

subjects of the [OSH Act] citation” (id. at 1243).

Those decisions are applications of the more general

understanding that Section 4(b)(1) does not authorize

exemptions of entire industries from OSH Aci coverage

based on limited regulation by another agency. That

view is shared not only by the Courts of Appeals for the

Second, Ninth, and Eleventh Circuits but also by the

Courts of Appeals for the District of Columbia and

Fourth Circuits. See Tidewater Pac., 160 F.3d at 1245;

Norfolk Dredging, 783 F.2d at 1531; Red Star, 739 F.2d

at 778; Baltimore & Ohio R.R. v. OSHRC, 548 F.2d

1052, 1053-1054 (D.C. Cir. 1976) (per curiam); Southern

Ry. v. OSHRC, 539 F.2d 335, 338 (4th Cir.), cert.

denied, 429 U.S. 999 (1976). As the Second Circuit has

explained, those “decisions teach that section 4(b)(1)

was not intended to create industry-wide exemptions

based on isolated or narrow exercises of statutory

authority.” Red Star, 739 F.2d at 778."

Fifteen years ago, the government opposed this

Court’s review in Red Star and Norfolk Dredging be-

cause there was not then a square conflict in the circuits

regarding OSHA jurisdiction over uninspected vessels.

See 86-28 Br. in Opp. at 10-11, 13 in Norfolk Dredging

Co. v. Secretary of Labor, supra; 84-590 Br. in Opp. at

10-11 in Red Star Marine Servs., Inc. v. Donovan,

supra. At that time, the Fifth Circuit had already

decided Clary v. Ocean Drilling & Exploration Co., 609

F.2d 1120 (1980), and Donovan v. Texaco Inc., 720 F.2d

825, 826 (1983), on which the court of appeals relied in

this case. The Second and Eleventh Gircuits had, how-

ever, found that the facts of those cases were <istin-

guishable. See Norfolk Dredging, 783 F 2d at 1531; Red

Star, (39 F.2d at 778-779. Moreover, because C/ary and

Texaco involved inspected vessels (see notes 2 & 3,

supra), the government believed that those decisions

spoke only to OSHA authority over working conditions

4 Indeed, the Fifth Circuit itself espoused the same view

nearly a quarter century ago in a case concerning the railway

industry. See Southern Pac. Transp. Co. v. Userg, 5380 F 2d 386,

390 (1976), cert. denied, 434 U.S. 874 (1977).

on inspected vessels and did not address OSHA

authority concerning uninspected vessels. See App.,

infra., da-Sa. The Fifth Circuit, however, has now

rejected any distinction of those cases based on the fact

that they involved inspected vessels and has held that

OSHA lacks authority over all working conditions of

seamen on ail vessels in navigation, including unin-

spected vessels. See id. at Sa~5a; see also id. at 66a-67a

(denying petition for rehearing en banc). As a result, it

is now appropriate for this Court to resolve the conflict

created by the Fifth Circuit's decision.

2. The Fifth Circuit’s decision is incorrect. The

court’s holding that OSHA lacks authority over all

working conditions of seamen on all vessels in naviga-

tion, including uninspected vessels, rests on an inter-

pretation of Section 4(b)(1) that is inconsistent with its

text, the history surrounding its enactment, the Secre-

tary of Labor’s long-standing interpretation of the

Section, and the purpose of the OSH Act. Contrary to

the view of the Fifth Circuit, Section 4(b)(1) does not

create industry-wide exemptions from the OSH Act

based on limited exercises of regulatory authority by

other federal agencies. Rather, the OSH Act is dis-

placed when another agency actually has regulated the

working conditions at issue or has articulated a policy

that the working conditions should not be regulated.

See, e.g., Norfolk Dredging, 783 F.2d at 1530." Because

* Such displacement can occur with regard to either a specific

working condition or a set of working conditions with respect to

which an agency has comprehensive statutory authority and has

indicated that its exercise of that authority is sufficient. Thus, as

explained in the MOU between the Coast Guard and OSHA, the

Coast Guard's exercise of its authority with respect to inspected

vessels has displaced OSH Act coverage because the Coast Guard

has promulgated “extensive specific regulations governing the

the Coast Guard has neither regulated the working

conditions at issue here nor articulated a policy that

they should not be regulated, the OSH Act continues to

apply.

a. Section 4(b)(1) of the OSH Act provides that

“{njothing in this [Act] shall apply to working condi-

tions of employees with respect to which other Federal

agencies * * * exercise statutory authority to pre-

scribe or enforce standards or regulations affecting

occupational safety or health.” 29 U.S.C. 653(b)(1). As

all the courts of appeals (including the Fifth Circuit)

agree, that language expressly provides that OSH Act

coverage is displaced only when another agency actu-

ally has “exercise{d]” its statutory authority to regulate

occupational safety and health.” Possession of statutory

authority is necessary but not sufficient to oust OSHA

jurisdiction. The other agency must also “exercise”

that authority by prescribing cr enforcing regulations

or by articulating a policy that regulation is not war-

ranted. See Association of Am. R.R. v. Department of

Transp., 38 F.3d 582, 586 (D.C. Cir. 1994); Norfolk

Dredging, 783 F.2d at 1530; Sonthern Pac. Transp. Co.

working conditions of seamen aboard inspected vessels ax well ax

ample general authority regulations to cover these seamen with

respect to all other working conditions that are not addressed by

the specific regulations.” App., infra, @a.

® See App., infra, 6a; Association of Am. R.R. v. Department of

Transp., 38 F 3d 582, 586 (D.C, Cir. 1994); Norfolk Dredging, 7™

F.2d at 1530; Red Star, 7239 F.2d at 778; PBR, Inc. v. Secretary of

Labor, 643 F 2d 890, 896 (Ist Cir. 1981); Columbia Gas of Pa. Lne.

v. Marshall, 636 F 2d 913, 915 (3d Cir. 1980); Southern Ry, 39

F.2d at 336-337; Southern Pac., 539 F 2d at 389.

v. Usery, 539 F.2d 386, 391-392 (Sth Cir. 1976), cert.

denied, 454 U.S. 874 (1977).

The text of Section 4(b)(1) also makes clear that a

federal agency's exercise of authority to regulate some

working conditions of some employees within an indus-

try dees not create an industry-wide exemption from

OSH Act coverage. See Tidewater Pac., 160 F.3d at

1245; Norfolk Dredging, 783 F.2d at 1531; Red Star,

739 F.2d at 778; Baltimore & Ohio R.R., 548 F.2d at

1055-1054; Southern Ry., 539 F.2d at 338: see also

Southern Pac., 539 F 2d at 389-390. By its terms, the

‘text limits preemption to “working conditions of em-

ployees with respect to which” other federal agencies

exercise authority. 29 U.S.C. 653(b)(1) (emphasis

added). If Congress had intended to create industry-

wide exceptions to OSH Act coverage, Congress could

have provided that the Act would not apply to “indus-

tries in which” other agencies regulate occupational

‘ The legislative history is equally clear on this point. Several

bills under consideration would have precluded OSH Act enforce-

ment whenever another agency “has” statutory authority. See S.

Z7sK, WIst Cong., Ist Sess. $ 15, at 32 (1969); H.R. 843, 91st Cong.,

Ist Sess. § 1%, ut 22 (10%); H.R. 4294, Gist Cong., Ist Sess. § 13, at

13 (16%); H.R. 13574, 91st Cong., Ist Sess. § 15, at 32 (1969)

reprinted in Staff of Senate Comm. on Labor and Publie Welfare

tad Cong., Ist Sess.. Legislative History of the Occupational

Safety aud Health Act of 1970, at 62, 620, 671, 710 (Comm. Print

1971) (Leg. Hist.). The versions reported in both the House and

Senate, see S. 21%, Vist Cong., 2d Sess. (1970), as reported

§ bx 1) (Ley. Mist. 237); H.R. 167%5, 91st Cong., 2d Sess. (1970), as

reported, § 22(b) (Leg. Hist. 975), as well as the text that was

ultimately enacted, however, precluded OSH Act enforcement only

when another agency “exercises” such authority. That point was

7 poy ee in a colloquy on the House floor. See Southern

y., FY F.2d at 337 (quoti . Hist. 19); 116 C

peed K juoting Leg 101%); 116 Cong. Ree.

safety and health. Or Congress could have displaced

OSH Act coverage of “working conditions of employees

with respect to whom” other agencies exercise such

authority. But Congress chose not to do so.

The bill initially passed by the House of Representa-

tives did in fact provide for preemption of “working

conditions of employees with respect to whom” other

agencies exercise statutory authority to prescribe or

enforce standards or regulations affecting occupational

safety or health. See H.R. 16785, 91st Cong., 2d Sess.

§ 25(b) (1970), reprinted in Staff of Senate Comm. on

Labor and Public Welfare, 92d Cong., Ist Sess., Legis-

lative History of the Occupational Safety and Health

Act of 1970, at 1109 (Comm. Print 1971) (Leg. Hist.).

Congress, however, did not adopt the language in the

House bill; instead Congress chose the language in the

Senate bill, which used “which” instead of “whom.” See

S. 2193, 91st Cong., 2d Sess. § 4(b)(1), at 5 (1970) (Leg.

Hist. 533). As the Senate Report explained, that lan-

guage limited preemption to “particular working

conditions regarding which another Federal agency

exercises statutory authority.” S. Rep. No. 1282, 91st

Cong., 2d Sess. 22 (1970) (emphasis added) (Leg. Hist.

162). The Conference Committee recognized the differ-

ence in the language between the House and Senate

versions and chose the Senate language. See H.R.

Conf. Rep. No. 1765, 91st Cong., 2d Sess. 32-33 (1970)

(Leg. Hist. 1185-1186). Thus, “consideration of the way

in which Congress arrived at the statutory language,”

Corning Glass Works v. Brennan, 417 U.S. 188, 198

(1974), confirms that exemptions from OSH Act cover-

age under Section 4(b)(1) depend on whether another

federal agency has exercised statutory authority with

respect to the “particular working conditions” at issue.

S. Rep. No. 1282, supra, at 22.

That understanding of Section 4(5)(1) is also reflected

in long-standing OSHA regulations. See 29 C.F.R.

1975.1(b) (because the Act is “inapplicable to working

conditions to the extent they are subject to another

Federal agency's exercise of different statutory author-

ity affecting the occupational safety and health aspects

of those conditions,” “standards issued under the Act

respecting certain working conditions would not be

upplicable to the extent those conditions were subject

tu another agency’s authority”); 29 C.F.R. 1975.3(¢)

(“Congress did not intend to grant any general exemp-

tions under the Act; its sole purpose was to avoid

duplication of effort by Federal agencies in establishing

a national policy of occupational safety and health

protection.”). The Secretary of Labor also set forth

that interpretation of the Act in 1980 in a report to Con-

gress concerning coordination between the OSH Act

and other federal laws. App., infra, 56a, 57a (“indus-

tries as such are not preempted from OSHA; rather,

the preemption rule of section 4(b)(1) applies only to

particular hazards”). And that interpretation is

reflected in three decades of citations for OSH Act

violations that have been issued to employers operating

in industries regulated in part by other federal

agencies, as illustrated by the court of appeals decisions

discussed above (see pp. 13-14, supra). See Martin v.

OSHRC, 499 U.S. 144, 156-157 (1991) (courts must defer

to reasonable regulatory interpretations embodied in

OSHA citations).

To reject that long-standing interpretation and in-

stead to read Section 4(b)(1) as creating industry-wide

exemptions from OSH Act coverage based on limited

exercises of regulatory authority by other federal

agencies not only is inconsistent with the statutory lan-

guage and drafting history but also would undermine

the express purpose of the Act. As Congress explained

in the text of the Act itself, the Act’s purpose is “to

assure so far as possible every working man and woman

in the Nation safe and healthful working conditions.” 29

U.S.C. 651(b). That purpose would be frustrated if

another federal agency's limited regulation of a few

working conditions of some employees in a particular

industry displaced OSH Act coverage over all working

conditions of all employees in that industry. See led

Star, 739 F.2d at 780; Baltimore & Ohio IR. 548 F 2d

at 1054; Southern Ry., 589 F.2d at 338.

b. The court of appeals therefore erred in holding

that there is “an industry-wide exemption [from the

OSH Act] for seamen serving on vessels operating on

navigable waters,” App., iufra, 6a, including seamen

serving on uninspected vessels, based on the Coast

Guard's regulation of some of their working conditions

on certain vessels. Instead, as we have explained, the

proper inquiry under Section 4(b)(1) is whether the

Coast Guard has regulated the particular working

conditions with respect to which OSHA seeks to

enforce its own safety or health standards or has

articulated a policy that the working conditions not be

regulated.

If the court of appeals had conducted that inquiry in

this case, it would have concluded that Coast Guard

action has not displaced the OSH Act. The Coast Guard

has issued comprehensive standards and regulations

concerning the working conditions of seamen aboard

inspected vessels, and its comprehensive regulation of

those working conditions has displaced OSH Act

coverage of the working conditions of seamen on those

vessels. See p. 4 & note 5, supra; App., iufra., Ba. But

the vessel at issue in this case is an wiiuspected vessel.

See id. at 6a, 27a. The Coast Guard has authority to

regulate and has regulated only a few working

conditions on uninspected vessels. See pp. 4-5, supra

(discussing 46 U.S.C. 4102 (1994 & Supp. IV 1998) and

46 C.F.R. Pts. 24-26); note 8, infra. In addition, the

Coast Guard has not articulated, and has no statutory

authority to articulate, a policy that other working

conditions on uninspected vessels should be free from

regulation.

The working conditions at issue in this case are the

conditions faced by employees on an uninspected vessel

engaged in inland oil drilling operations—in particular,

the risk of explosion caused by the presence of natural

gas. Because the Coast Guard has not regulated (and

* Although the OSH Act does not define “working conditions,”

the Secretary_has long taken the view that the term means par-

ticular hazards encountered by an employee in the course of his or

her job activities. See, e.g., Southern Ry., 539 F.2d at 339 (deserib-

ing Secretary’s interpretation); App., infra, 56a, 57a (equating

vorking conditions as used in Section 4(b)(1) with “particular

hazards”). See also Corning Glass Works, 417 U.S. at 201-202

(technical meaning of “working conditions” in the language of

industrial relations is a worker’s “surroundings”—"“the elements,

such as toxic chemicals or fumes, regularly encountered by a

worker, their intensity, and their frequency”—and “hazards”—

“physical hazards regularly encountered, their frequency, and the

severity of injury they can cause”). Although some courts of

appeals have adopted that definition of “working conditions,” see

Red Star, 729 F.2d at 778-780 (2d Cir.); Norfolk Dredging, 783 F.2d

at 1530-1531 (11th Cir.); PBR, Inc., 643 F.2d at 896 (1st Cir.),

others have defined “working conditions” somewhat more broa*ly

as “the environmental area in which an employee customarily goes

about his daily tasks,” Southern Ry., 539 F.2d at 339 (4th Cir.);

Columbia Gas, 636 F.2d at 916 (3d Cir.).

Resolution of that disagreement is not, however, necessary to

resolve the issue presented in this case. The Coast Guard neither

regulates the particular hazard of explosion caused by the pres-

ence of natural gas on an uninspected drilling rig nor otherwise

indeed could not regulate) those working conditions, it

has not exercised any authority so as to displace OSH

Act coverage of them. The court of appeals erred in

concluding to the contrary.

3. This Court should correct the erroneous decision

of the court of appeals not enly because that decision

has created a conflict among the federal courts of

appeals (see pp. 9-12, supra), but also because it puts at

risk the safety and health of employees on thousands of

uninspected vessels within the jurisdiction of the Fifth

Circuit. According to data maintained by the Coast

Guard, approximately 68,000 vessels nationwide—in-

cluding barges, fishing vessels, tugboats, towing ves-

sels, and other commercial vessels—are classified as

“documented” but not “inspected.” Those vessels are

regulates uninspected drilling barges so pervasively as to oust

OSHA from enforcing its regulations in the affected “environ-

mental area” on the vessel. As we have explained at pp. 4-5,

supra, the Coast Guard’s statutory authority to regulate unin-

spected vessels is limited to specific subjects, including fire extin-

guishers, life preservers, flame arrestors or backfire traps, ventila-

tion, and emergency locating equipment. 46 U.S.C. 4102 (1994 &

Supp. IV 1998). As a result, Coast Guard regulations for unin-

spected vessels cover only a very limited range of health and

safety hazards and do not address any hazards relating to oil

drilling operations. See 46 C.F.R. Pts. 24-26. Thus, even under

“the Third and Fourth Circuits’ environmental definition, it is

apparent that the Coast Guard regulation of uninspected vessels is

not so pervasive as to preempt the Secretary’s jurisdiction as to

any particular portion of such vessels nor as to such vessels in

whole.” Tidewater Pac., 160 F.3d at 1245-1246.

* To be eligible for documentation, a vessel must be at least five

net tons and meet certain other statutory requirements. See 46

U.S.C. 2101(10) (definition); 12102 (1994 & Supp. IV 1998) (require-

ments). To be subject to inspection, a vessel must fall into one of

the categories listed in 46 U.S.C. 3301 (1994 & Supp. IV 1998).

Some vessels, such as fishing vessels smaller than five net tons, are

now subject to OSHA regulation everywhere except

within the Fifth Circuit. Although the Coast Guard

does not maintain data on a State-by-State basis,

OSHA and the Coast Guard estimate that the decision

below will leave the crews of several thousand unin-

spected vessels in the Fifth Circuit with no statutory

protection from serious threats to their occupational

safety and health, except for a few Coast Guard rules

directed to a narrow range of hazards on only some

vessels. According to Coast Guard marine casualty

reporting records, an average of 100 deaths and 600

injuries occur every year on uninspected vessels nation-

wide, including more than two dozen deaths and 100

injuries each year within the Fifth Circuit." In addi-

tion, if the Fifth Circuit were to extend the rationaie of

its decision to permit industry-wide exemptions in

other fields, its decision could affect employees in many

other large industries, such as railroad and airline

employees.

Permitting the court of appeals’ decision to stand

would also interfere with long-standing, settled deci-

sions regarding the lawful and most effective division of

neither inspected nor documented by the Coast Guard. As a

result, the Coast Guard data understate the number of uninspected

vessels.

! The Coast Guard defines a reportable injury as one “that

requires professional medical treatment (treatment beyond first

aid) and, if the person is engaged or employed on board a vessel in

commercial service, that renders the individual unfit to perform his

or her routine duties.” 46 C.F.R. 4.05-1(a)(6). The numbers

included in the text are based on Coast Guard records for fiscal

years 1996 through 2000. Not all marine casualties occur in cir-

cumstances that would potentially subject the vessel to OSH Act

coverage. For example, if an accident occurs while a vessei is on

the high seas, it is generally beyond the geographical scope of the

OSH Act. See 29 U.S.C. 653(a).

safety and health regulatory responsibilities between

the Departments of Transportation and Labor. With

the consent and active cooperation of the Coast Guard,

OSHA historically has enforced the OSH Act nation-

wide with respect to working conditions of employees

on uninspected vessels (except in the rare case in which

the Coast Guard has a regulation applicable to unin-

spected vessels that addresses the same occupational

safety or health hazard). OSHA inspects such vessels

in response to employee complaints, fatalities, and

referrals, and OSHA inspectors often accompany Coast

Guard personnel responding to marine casualties.

Because the Coast Guard lacks statutory authority to

promulgate and enforce general occupational safety and

health standards for uninspected vessels, the Fifth

Circuit’s decision will leave thousands of employees

unprotected from risks of death and serious injury,

many of which (like the well blowout in this case) are

not even specifically maritime in nature.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

HENRY L. SOLANO

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

NATHANIEL IL. SPILLER

Deputy Associate Solicitor

ELLEN L. BEARD

Attorney

Department of Labor

ROSALIND A. KNAPP

Acting General Counsel

RADM JAMESS. CARMICHAEL

Chief Counsel

United States Coast Guard

Department of

Transportation

DECEMBER 2000

SETH P. WAXMAN

Solicitor General

EDWIN S. KNEEDLER

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Solicitor

General

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-60124

MALLARD BAY DRILLING, INC., PETITIONER

Vv.

ALEXIS HERMAN, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR, RESPONDENT

June 2, 2000

Before: POLITZ and DAvis, Circuit Judges, and

RESTANI,” Judge.

W. EUGENE DAVIS, Circuit Judge:

Mallard Bay Drilling, Inc. (“Mallard”) appeals the

order of the Occupational Safety and Health Review

Commission affirming a citation issued against it by the

Occupational Safety and Health Administration

(“OSHA”). The order affirmed the decision of the Ad-

_ministrative Law Judge, which found that Mallard’s

drilling barge—the MR. BELDON—was a “workplace”

within the meaning of the Occupational Safety and

. Judge of the U.S. Court of International Trade, sitting by

designation.

(la)

Health Act (“OSH Act”)' and that OSHA’s jurisdiction

was not preempted by the Coast Guard’s regulatory

authority over vessels. For the reasons that follow, we

reverse.

On June 16, 1997, four Mallard employees were killed

and two others seriously injured in an explosion on the

MR. BELDON, a Mallard drilling barge. On that date,

the MR. BELDON was drilling an oil well on Little

Bayou Pigeon, a navigable waterway within the territo-

rial waters of Louisiana. The explosion occurred while

crew members tried to regain control of the well after a

blow out. The Coast Guard took the lead role in inves-

tigating the explosion. Based on the information col-

lected by the Coast Guard, OSHA issued a citation

against Mallard charging three violations of the OSH

Act. Mallard did not challenge the merits of the allega-

tions; rather, it asserted that OSHA lacked authority to

regulate working conditions aboard the MR. BELDON.

It also argued that the MR. BELDON was not a

“workplace” within the meaning of Section 4(a) of the

OSH Act.”

The ALJ affirmed the citation, finding that the MR.

BELDON was a “workplace,” that Mallard’s employees

were not seamen, and that OSHA’s jurisdiction was not

preempted by the Coast Guard’s regulatory authority

over vessels. Mallard then filed a Petition for Discre-

tionary Review with the Occupational Safety and

Health Review Commission, which was denied.

Mallard now appeals.

! 29 U.S.C, § 651 et seq.

= 29 U.S.C. § 653(a).

Mallard contends that the United States Coast Guard

has exclusive jurisdiction over the regulation of

working conditions of seamen aboard vessels such as

the MR. BELDON, thus precluding OSHA’s regulation

under Section 4(b)(1) of the OSH Act.’ As our dis-

cussion below demonstrates, precedents from this

Court compel us to agree.

By its own terms, the OSH Act does not apply to

“working conditions of employees with respect to which

other Federal agencies . . . exercise statutory

authority to prescribe or enforce standards or regula-

tions affecting occupational safety or health.’ Under 14

U.S.C. § 2, the Coast Guard “shall administer laws and

promulgate and enforce regulations for the promotion

of safety of life and property on and under the high seas

and waters subject to the jurisdiction of the United

States covering all matters not specifically delegated by

law to some other executive department. . . .”

It is uncontested that the Coast Guard had jurisdic-

tion to investigate the marine casualty in this case,

pursuant to 46 U.S.C. § 6301. The dispute concerns

whether the Coast Guard’s jurisdiction is exclusive.

Our case law is controlling on this point. Pursuant to

the statutory grant of authority recited above, the

Coast Guard has exclusive authority over the working

conditions of seamen. See Clary v. Ocean Drilling and

Exploration Co., 609 F.2d 1120 (5th Cir. 1980); Dono-

van v. Texaco, Inc., 720. F.2d 825 (5th Cir. 1983).

“OSHA regulations do not apply to working conditions

% 29 U.S.C. § 653(b)(1).

* 29 U.S.C. § 653(5)\(1).

of seamen on vessels in navigation.” Donovan, 720 F.2d

at 826, 827 (emphasis added); see also Clary, 609 F.2d at

1121.

As in Clary, the “vessel” in this case is a drilling

barge. The employees working on the MR. BELDON

are “seamen” under our case law. See Colomb v. Tex-

aco, Inc., 736 F.2d 218 (5th Cir. 1984); Producers Drill-

ing Co. v. Gray, 361 F.2d 432 (5th Cir. 1966). The safety

procedures at issue in this case relate to “working

conditions” of seamen.

In Clary, the plaintiff seaman brought suit for

injuries sustained aboard a drilling barge on which he

was working. 609 F.2d at 1121. He alleged that OSHA

regulations were violated because the steel plate

welded to the deck (which he tripped over) was not

color coded yellow so as to make it more visible. /d.

This Court ruled that the district court was correct in

refusing to allow the plaintiff to introduce the OSHA

regulations into evidence because “OSHA regulations

. do not apply to working conditions of seamen on

vessels in navigation. . . .” Id. at 1122. We reasoned

that the Coast Guard was the federal agency with

statutory authority over the working conditions of

seamen, and that its regulations included standards

governing the safety and health of persons working on

vessels. Jd. Because Clary is indistinguishable from

the case at bar, its holding controls our decision.

Respondent attempts to distinguish Clary by argu-

ing that this Court, in ruling that OSHA lacked author-

ity to regulate the working conditions of seamen, did

not specifically consider whether its holding applied

equally to uninspected and inspected vessels. Thus,

respondent argues that Clary does not bind our

decision as to the uninspected vessel at issue in today’s

case. .

The vessel in Clary was a drilling barge—the same

type of vessel at issue in this case—and there is no

indication from Clary that the barge in that case was

inspected. Further, the broad language of Clary does

not turn on any such distinction. °

Furthermore, the Coast Guard is no stranger to

uninspected vessels. It is expressly authorized to issue

safety regulations for uninspected vessels for: (1) the

number, type and size of fire extinguishers; (2) the type

and number of life preservers; (3) flame arrestors,

backfire traps; (4) ventilation of engine and fuel tank

compartments; and (5) the number and types of alerting

and locating equipment for vessels on the high seas. 46

U.S.C. § 4102. Further, the Coast Guard has issued a

number of safety regulations for uninspected vessels,

including those related to: life preservers and other

lifesaving equipment; emergency alerting and locating

equipment; fire extinguishing equipment; backfire

flame control; ventilation of tanks and engine spaces;

cooking, heating, and lighting systems; safety orienta-

tion and emergency instructions; action required after

an accident; and signaling lights. See 46 C.F.R. §§ 25.01

et seq; 46 C.F.R. §§ 26.01 et seg. Thus, the Coast Guard

has authority to issue safety regulations for unin-

spected vessels, as well as inspected vessels, and it has

® The additional finding in Clary that the OSHA regulations

cited by the plaintiff did not apply to a special purpose vessel does

not supplant Clary’s holding that the OSH Act “does not apply to

the working conditions of seamen on vessels operating on the high

seas,” which Clary described as the “one significant decision” made

therein. 609 F.2d at 1121, 1122.

in fact exercised this authority.’ The fact that the MR.

BELDON is an uninspected vessel is therefore no basis

upon which to distinguish Clary.

In Donovan, this Court revisited the applicability of

OSHA regulations to the working conditions of seamen.

720 F.2d 825. Although Donovan’s facts are distin-

guishable from the facts of this case, we made it per-

fectly clear that we were reaffirming the principles we

laid down in Clary. We stated that “i]t is the law of

this circuit that OSHA regulations do not apply to

working conditions of seamen on vessels in navigation.

.” Id. at 826. “Nothing in OSHA shall apply to

working conditions of seamen on vessels.” /d. at 827.

“(T|he Coast Guard’s comprehensive regulation and

supervision of seamen’s working conditions [creates] an

industry-wide exemption [from OSHA] for seamen

serving on vessels operating on navigable waters.” /d.

at 826. :

We gave a number of reasons in Donovan for our

conclusion that the Coast Guard’s jurisdiction is exclu-

sive in this area

“Section 4(b)(1) evidences a general Congressional

intent to forbid overlapping regulation of working

conditions in any given industry by multiple federal

agencies. Such redundant control programs offer

little except confusion, governmental proliferation,

“ Because a drilling barge is not self-propelled, some of these

regulations, by their nature, do not apply to the MR. BELDON.

However, this does not change the fact that the Coast Guard has

exercised its authority to issue safety regulations for uninspected,

as well as inspected, vessels.

‘ 7a

and stultification of enterprise.” Donovan, 720 F.2d

at 827.

We explained that overlapping regulation “might

well produce [the] . . . anomaly . . . of steaming

in and out of OSHA coverage.” Donovan, 720 F.2d

at 829.

“(A] single, uniform set of rules should govern the

maritime workplace. Because of OSHA’s geo-

graphic limitations . . . this cannot be those of

OSHA. . . . [thus] we conclude that it must be

those of the Coast Guard.” Donovan, 720 F.2d at

829.

Because OSHA has no jurisdiction in this matter, we

need not address Mallard’s contention that the MR.

BELDON was not a “workplace” within the meaning of

Section 4(a) of the OSH Act.’

For the reasons stated above, we hold that OSHA

lacked authority to regulate the working conditions of

the employees aboard the MR. BELDON; rather, such

authority rests solely with the United States Coast

Guard. Our precedents are clear on this point and

admit of no exception for this case. Thus, the citation

OSHA issued against Mallard is VACATED, and the

order of the Occupational Safety and Health Review

Commission is REVERSED and judgment is REN-

DERED in favor of Mallard.

7 Under Section 4(a), the OSH Act applies “with respect to

employment performed in a workplace in a State.” 29 U.S.C.

§ 653(a).

APPENDIX B

{Seal Omitted]

United States of America

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Phone: (404) 562-1640 Fax: (404) 562-1650

OSHRC Docket No. 97-1973

SECRETARY OF LABOR, COMPLAINANT

Vv.

MALLARD BAY DRILLING, INC., RESPONDENT

APPEARANCES

Ernest A. Burford, Esq.

Office of the Solicito,

U.S. Department of Labor

Dallas, Texas

For Complainant

Patrick J. Veters, Esq.

Jones, Walker, Waechter, Poitevent,

Carrere & Denegre, L.L.P.

For Respondent

Before: Administrative Law Judge Ken S. Welsch

DECISION AND ORDER

Mallard Bay Drilling, Inc.' (MBD), owns and operates

drilling rigs and barges for oil and gas expioration from

its place of business in New Iberia, Louisiana (Joint

Exh. J-1). On June 16, 1997, a natural gas explosion

occurred on Rig 52 (MR. BELDON), which resulted in

death and serious injuries to employees and the total

loss of the rig. The U.S. Coast Guard initiated an

investigation on June 17, 1997. Also, at the same time,

the Occupational Safety and Health Administration

(OSHA) initiated its investigation.

As a result of the OSHA investigation, MBD received

a serious citation alleging violations of § 5(a)(1) of the

Occupational Safety and Health Act (Act) for failing to

timely evacuate employees on board the drilling rig; 29

C.F.R. § 1910.120(q)(1) for failing to develop and imple-

ment an emergency response plan to handle anticipated

emergencies; and 29 C.F.R. § 1910.120(q)(6) for failing

to train employees in emergency response. OSHA

proposed a penalty of $6,300 for each alleged violation.

The hearing was held on April 27, 1998, in New

Orleans, Louisiana. MBD stipulated that it is an em-

ployer engaged in a business affecting commerce within

the meaning of the Act (Tr. 7). MBD also agrees that if

OSHA’s jurisdiction is not preempted by the U.S. Coast

Guard, MBD withdraws its contest to the alleged

violations of § 5(a)(1) of the Act and 29 C.F.R.

$§ 1910.120(q)(1) and 1910.12U(q)(6) (Tr. 5-6). In ex-

change, the Secretary amends the proposed penalties to

$4,410 for each violation (Tr. 4).

' Subsequent to issuance of the citation, MBD changed its name

to Mallard Bay Drilling, LLC (Tr. 120).

10a

MBD argues that OSHA lacks jurisdiction or its

jurisdiction is preempted by the U.S. Coast Guard.

Based on Review Commission precedent, OSHA’s juris-

diction is not preempted.

Background

MBD is engaged in oil and gas drilling explorations in

the United States, Africa and the Far East. In business

since 1952, MBD’s principal place of business is in New

Iberia, Louisiana (Joint Exh. J-l; Tr. 122). MBD owns

and operates 170 marine units, including drilling

barges, such as Rig 52, crew boats and various deck

barges (Tr. 96). It employs approximately 1,200 employ-

ees worldwide (Tr. 121). MBD’s business primarily

involves a “work-over” operation, which is work done

on a preexisting well to enhance its production capabili-

ties (Tr. 104).

MBD’s Rig 52, known as MR. BELDON, was a

special purpose barge; one of ten classified deep drilling

barges owned by MBD in the United States (Tr. 112). It

was a non-self propelled barge which was moved to

location by a tug boat (Tr. 121). The stern of the barge

had a “key” slot to allow the barge to position the stem-

mounted derrick directly over the well. Rig 52 had

three decks. The lower deck was designed to allow it to

be completely submerged while on location. The second

deck was mostly enclosed with steel bulkheads and

accommodated generators, mud tanks, mixing vats,

mud pumps, parts storage space and the control room.

The upper deck of the barge consisted of a large,

completely enclosed house (forward) which was the

living quarters, galley and office (Joint Exh. J-1; Exhs.

C-4, C-5).

lla

Rig 52 was constructed in 1981. Construction plans

were reviewed by the American Bureau of Shipping

(ABS) (Exh. R-6; Tr. 19). Since initial construction, the

rig has neither been classed nor reinspected by ABS.

Rig 52 also received a Certificate of Documentation

from the U.S. Coast Guard (Exh. R-6). The Coast

Guard considered it an uninspected vessel which did

not hold a U.S. Coast Guard issued certificate of in-

spection nor was it required to be inspected by the

Coast Guard (Exh. C-1; Tr. 28, 113, 122). Also see

definition at 46 U.S.C. § 2101(43).

On June 16, 1997, Rig 52 was operating in the Little

Bayou Pigeon, a navigable body of water in the territo-

rial waters of Louisiana. It was located approximately

30 miles northwest of Morgan City, Louisiana (Tr. 27).

Rig 52 was in the final stages of well completion, pur-

suant to a drilling contract with Denbury Management,

Inc., owner of the well (Joint Exh. J-l, Exh. C-1). The

rig had been at the location for approximately 70 days,

and the well was at a depth of 13,500 feet (Tr. 121).

There were 22 employees on the rig (Tr. 33).

During the final stages, Rig 52 was performing an

operation called “reversing out,” which is the circula-

tion and displacement of heavy drilling mud from the

well. A calcium chloride solution is pumped into the

well which displaces the mud. The mud is deposited in

a shale shaker on the rig and pumped to an open hopper

barge (Joint Exh.J-1). While reversing out, there were

a blowout and an explosion which occurred at approxi-

mately 9:00 p.m. (Exh. C-1; Tr. 33, 65). The explosion

killed and injured several employees.

The U.S. Coast Guard initiated its investigation on

June 17, 1997 (Tr. 25). The U.S. Coast Guard estab-

12a

lished a command post, inspected the site and inter-

viewed employees. The scope of the investigation was

limited to vessel issues, including hazard recognition,

written procedures, engineering, and overall crew

competency (Tr. 26-27). As a result of its investigation,

the Coast Guard made general recommendations, but

no finding of violation by MBD (Exh. C-1).

The OSHA investigation was conducted by com-

pliance officer Michael Sophrer and was limited to the

emergency response requirements of § 1920.120. Other

than obtaining documents furnished to the U.S. Coast

Guard, OSHA did not inspect the barge or interview

employees (Tr. 67-68).

Discussion

OSHA has iurisdicti ler § 4(a) of the Act

Section 4(a) of the Act provides in part that:

This Act shall apply with respect to employment

performed in a workplace in a State, the District of

Columbia, the Commonwealth of Puerto Rico, the

Virgin Islands, American Samoa, Guam, the Trust

Territory of the Pacific Islands, Wake Island,

Outer Continental Shelf lands defined in the Outer

Continental Shelf Act, Johnson Island, and the

Canal Zone.

MBD argues that the Act’s jurisdiction does not

extend to a vessel such as Rig 52 because it is not a

“work place” as required by the Act. MBD cites Dono-

van v. Texaco, Inc., 720 F.2d 825, 829 (5th Cir. 1983).

The Texaco case involved a Coast Guard licensed engi-

neer employed on Texaco’s deep sea fleet who com-

13a

plained of discrimination under § 11(c) of the Act. The

Fifth Circuit concluded that the Act’s regulations do

not apply to working conditions of seamen on vessels in

navigation.

MBD’s employees were not licensed nor had

certificates from the U.S. Coast Guard (Tr. 108-109).

The employees were not seamen as defined by the U.S.

Coast Guard (Tr. 29-30). The employees were not

performing navigational-related activities (Tr. 32). Rig

52 was considered by the Coast Guard as an unin-

spected vessel, although it was documented and had an

official number (Tr. 28, 43). It was stationary and within

the territorial boundaries of the State of Louisiana (Tr.

30). To move from location to location, the rig needed

to be towed by a tug boat (Tr. 43).

In considering the application of § 4(a) of the Act, the

Review Commission concluded that “OSHA has author-

ity to enforce the OSH Act with respect to vessels that

are located in U.S. territorial waters.” Tidewater

Pacific, Inc., 17 BNA OSHC 1920, 1923 (No. 93-2529,

1997). Rig 52 was a vessel within the territorial

boundaries of Louisiana. It was a workplace.

Section 4(a) of the Act is applicable.

\ pplication of § 4(b\(1) P '

Section 4(b)(1) provides that:

Nothing in this Act shall apply to working con-

ditions of employees with respect to which other

Federal agencies, and State agencies acting under

section 274 of the Atomic Energy Act of 1954, as

amended (42 U.S.C. 2021), exercise statutory

l4a

authority to prescribe or enforce standards or

regulations affecting occupational safety and

health.

The U.S. Coast Guard conducted its investigation

under the authority of 46 C.F.R., Part 4, as derived

from 46 U.S.C. § 6301. The Coast Guard determined

that the Rig 52 accident met the definition of a‘marine

casualty or accident. See 46 C.F.R. § 4.03-1. The rig

was a vessel in commercial service operating upon the

navigable waters of the United States. (Joint Exh. J-1).

It was designated by the Coast Guard as a serious

marine incident because it involved one or more

dealths, multiple injuries requiring medical attention,

and there was damage to property in excess of $100,000

(Exh. C-1; Tr. 26).

To prove the affirmative defense that OSHA’s

jurisdiction has been preempted under section

4(b)(1), the employer must show that (1) the other

federal agency has the statutory. authority to

regulate the cited working conditions, and (2) that

agency has exercised that authority by issuing

regulations having the force and effect of law.

Rockwell International Corp., 17 BNA OSHC 1810,

1803 (Nos. 93-45, 93-228, 93-233, 93-234, 1996).

Where the employer claiming the exemption satisfies

its burden of proving that another agency has exercised

its authority, OSHA jurisdiction will be preempted only

as to those working conditions actually covered by the

agency regulations. Alaska Trawl Fisheries, Inc., 15

BNA OSHC 1699, 1703-1704 (No. 89-1192, 1992). The

term “exercise,” as used in § 4(b)(1), requires an actual

assertion of regulatory authority as opposed to a mere

15a

possession of authority. OSHA jurisdiction will be

preempted only as to those working conditions actually

covered by the agency regulations. Jd. at 1703-1704.

In the Alaska Trawl case, the Commission found

that, in the absence of relevant Coast Guard regula-

tions, OSHA jurisdiction over work performed on unin-

spected vessels was not preempted. There was no

industry-wide exemption from OSHA regulations. The

Commission dismissed as dictum the implication that

Dillingham Tug & Barge Corp., 10 BNA OSHC 1859

(No. 77-4143, 1982), created an industry-wide exemp-

tion. /d. at 1704-1705. Absent an industry wide exemp-

tion, OSHA jurisdiction is preempted only if the Coast

Guard has specifically regulated the cited condition.

Emergency Response

The OSHA citation alleges that MBD failed to

evacuate employees and failed to have an emergency

response plan. MBD does not argue or identify any

similar requirement enforced by the U.S. Coast Guard.

In Tidewater Pacific, Inc., 17 BNA OSHC 1920, 1924

(No. 93-2529, 1997), the Review Commission found that

the Coast Guard only regulates uninspected vessels to a

“minimum” degree. The Coast Guard filed an amicus

brief in the Tidewater case disclaiming comprehensive

regulation of uninspected vessels. The Coast Guard

described its safety standards applicable to uninspected

vessels as solely limited to those areas delineated in 46

U.S.C. Chapter 41, which regulates the (a) number,

type and size of fire extinguishers; (b) type and number

of life preservers; (c) flame arresters, backfire traps, or

similar devices on vessels with gasoline engines; (d)

- ventilation of engine and fuel tank compartments; and

l6a

the (e) number and types of alerting and locating

equipment for vessels on the high seas. /d. at 1924.

Chief Warrant Officer John Grez of the U.S. Coast

Guard, Marine Safety Office, who conducted the

investigation into the Rig 52 explosion, testified that

the scope of his investigation was limited to issues of

hazard recognition, written procedures, engineering

and overall crew competency (Tr. 26-27), He agreed

that the Coast Guard regulations for uninspected ves-

sels did not address the same concerns regarding em-

ployees evacuation and emergency response as cited by

OSHA (Tr. 35),

MBD argues the Fifth Circuit case law concludes

that Coast Guard statutory authority preempts OSHA.

See Clary v. Ocean Drilling and Exploration Co., 609

F.2d 1150 (5th Cir. 1980); Donovan v. Texaco, Inc., 720

F.2d 825 (5th Cir. 1983). Generally, these cases hold

that OSHA regulations do not apply to the working

conditions of employees on vessels in navigation.

However, the Review Commission in Tidewater

analyzed the same Fifth Circuit case law relied upon by

MBD. As stated in Tidewater:

Nevertheless, with due respect to the court, we

find that Clary and Donovan v. Texaco are suffi-

ciently distinguishable from the case here pre-

sented to have left undecided the precise question

of OSH Act applicability to uninspected vessels.

In neither of the cases considered by the court did

it differentiate between the extensive degree to

which the Coast Guard regulates inspected vessels

and the minimal degree to which it regulates those

17a

that are uninspected. The vessel classifications in

, those cases were not identified, although the

court’s consideration in Donovan v. Texaco of the

MOU between the Coast Guard and OSHA sug-

gests that the vessel there was inspected. 720

F.2d at 827 n.3. Moreover, the court relied in both

cases on Commission precedent, subsequently

overruled, suggesting that OSHA lacks juris-

diction over the working conditions of seamen.

Most significantly in Clary, the court found that

the cited OSHA construction and shipbuilding

regulations did not, by their own terms, pertain to

the special purpose drilling vessel on which the

injured seaman worked. 609 F.2d at 1122. This

fact alone would have been sufficient to decide the

case. . . . Similarly, the court’s finding in Dono-

van v. Texaco, that the Coast Guard’s regulations

included protections “parallel” to those contained

in section 11(c), would have been sufficient to

dismiss the Secretary's case.

Inspected vessels subject to the MOU between

OSHA and the Coast Guard are essentially regu-

lated only by the Coast Guard and, consequently,

would not steam in and out of OSHA coverage. As

to the uninspected fleet, OSHA provides the only

significant regulation of non-navigational working

conditions for seamen employed on these vessels.

Absent OSH Act coverage, these conditions would

be completely unregulated.

Id. at 1927.

Also, MBD cites Perry v. Falcon Drilling Company,

Inc., 1995 WL 273538 (E.D. La., 1995) which held that

OSHA regulations on stairs and stairways did not apply

18a 19a

to FALCON Rig 16, an uninspected vessel, because of

the U.S. Coast Guard’s statutory authority. However, 3. Item 3, serious violation of § 1910.120(q)(6), is

the decision in Perry is distinguishable from this case. : affirmed and a penalty of $4,410 is assessed.

The District Court found that the Coast Guard’s regula- .

tions applicable for stairs and stairways precluded /s/ -

application of the OSHA regulations. The court stated KEN S. WELSCH

that “OSHA regulations simply should not apply to Judge

govern safety concerns on vessels which have unique

problems and concerns best addressed by the Coast |

Guard.” In this case, there is no showing that the Coast |

Guard exercises authority to regulate employee |

evacuations and emergency response to hazardous

substance releases during an explosion of a drilling rig.

Therefore, pursuant to commission precedent, OSHA

jurisdiction in this case is not preempted by the U.S.

Coast Guard.

FINDINGS OF FACT AND

The foregoing decision constitutes the findings of fact

and conclusions of law in accordance with Rule 52(a) of

the Federal Rules of Civil Procedure.

ORDER

Serious Citation No. }

1. Item 1, serious violation of § 5(a)(1) of the Act,

is affirmed and a penalty of $4,410 is assessed.

2. Item 2, serious violation of § 1910.120(q)(1), is

affirmed and a penalty of $4,410 is assessed.

20a

APPENDIX C

[Seal Omitted]

United States of America

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3419

Office of Phone: (202) 606-5400

Executive Secretary Fax: (202) 606-5050

OSHRC Docket No. 97-1973

SECRETARY OF LABOR, COMPLAINANT

Vv.

MALLARD BAY DRILLING, INC., RESPONDENT

NOTICE OF FINAL ORDER

The petition for discretionary review filed by the

Respondent in the above cited action was received by

the Commission on December 17, 1998. The case was

not directed for review. Therefore, the decision of the

Administrative Law Judge became a final order of the

Commission on December 28, 1998. Commission Rule

90(d), 29 C.F.R. § 2200.90(d); Section 12(j) of the Occu-

pational Safety and Health Act of 1970, 29 U.S.C.

§ 661(j).

ANY PERSON ADVERSELY AFFECTED OR AG-

GRIEVED WHO WISHES TO OBTAIN REVIEW OF THE

DECISION OF THE ADMINISTRATIVE LAW JUDGE

MUST FILE A NOTICE OF APPEAL WITH THE AP-

PROPRIATE FEDERAL COURT OF APPEALS WITHIN

2la

60 DAYS OF THE DATE OF THE ABOVE FINAL

ORDER DATE. See Section 11 of the Occupational

Safety and Health Act of 1970, 29 U.S.C. § 660.

FOR THE COMMISSION

Dated: January 6,1999 /s/ RAY H. DARLING, JR.

Ray H. DARLING, JR.

Executive Secretary

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick

Counsel for Regional Trial Litigation

Office of the Solicitor, U.S. DOL

Room $4004

200 Constitution Ave., N.W.

Washington, D.C. 20210

James E. White, Esq.

Regional Solicitor

Office of the Solicitor, U.S. DOL

Suite 501

525 S. Griffin Street

Dallas, TX 75202

Patrick J. Veters, Esq.

Jones, Walker, Waechter, Poitevent,

Carrere & Denegre, L.L.P.

201 St. Charles Avenue

New Orleans, LA 70170-5100

Ken S. Welsch

Occupational Safety and Health

Review Commission

100 Alabama Street, S.W.

Building 1924, Room 2R90

Atlanta, GA 30303-3104

22a 23a

Injuries

APPENDIX D (1) > Jo

MARINE CASUALTY NARRATIVE SUPPLEMENT (2) Johnny Chaddick

Other Personnel on Rig

MCNS 06J AN98 (1) Dillon Trahan

(2) Daryl Prejean

CASE/MC97008193 (3) Paul Stanridge

PORT/ MORMS (4) Gilbert Martin

SUBJECT/MALLARD RIG 52

DATE/ 17JUN 97

TABLE OF CONTENTS:

Executive Summary

(5) Aaron Strain

(6) Joe Travino

Issues

(1) Evacuation Orders

(2) Training & Qualifications

Authority (3) BlowOut Preventors

Scope (4) TIW Values

Preamble (5) Gas Detection

Equipment (6) Natural Gas Properties a

(1) Well Other drilling rig accidents i

(2) Mallard Rig 52 Description Conclusions (1-9)

" Recommendation

- , , — List of Enclosures

(2) Evacuation —_ COMMENTS —

(3) Well Kill Attempt

(4) Explosion

EXECUTIVE SUMMARY: On June 16, 1997, the Mal-

Explosiion Damage lard Rig 52 was in the final stages of completing an oil &

Ignition Source natural gas well in the Atchafalaya Basin, St. Martin

Deaths Parish, Louisiana. During the completion operation,

(1) Yancey Duhon

(2) Clifford Trahan

(3) Francison Nunez

(4) Mike McCarthy

the well kicked, and control of the well was lost. The

installed well shutdown system then failed. The off

duty crew of the rig was evacuated to an standby tug,

and the on duty crew stayed in the rig to attempt well

kill operations. Approximately 35 min. after loosing

control of the well, a natural gas explosion swept

24a

through the rig. The explosion resulted in the deaths of

four rig workers on the second deck of the rig, and the

injury of one rig worker on an adjacent work boat. A

second rig worker was injured while evacuating from

the rig after the explosion. As a result of the explosion

and accompanying fire, the rig was declared a total con-

structive loss.

AUTHORITY: This investigation has been conducted

under the Authority of 46 C.F.R. Part 4 as derived from

authority contained in 46 U S.C. 6301. This particular

incident meets the definition of a Marine Casualty or

Accident from 46 C.F.R. 4.03-1 in that the MALLARD

RIG 52 was a vessel in commercial service operating

upon the Navigable Waters of the United States. Fur-

thermore, this Marine Casualty meets three of the five

conditions for designation as a Serious Marine Incident

in 46 C.F.R. 4.03-2 in that; One or more deaths did oc-

cur; multiple injuries requiring medical attention did

occur; damage to property was in excess of $100,000.00.

This Marine Casualty also meets the definition of a Ma-

_jor Marine Casualty contained in COMDTINST

16000.10, Coast Guard Marine Safety Manual Vol. V,

Investigations, Chapter 3 in that property damage was

initially estimated at more than $500,000.00.

SCOPE: Coast Guard D8m decided to limit the scope of

the investigation to purely vessel issues. This investi-

gation does not examine the production related equip-

ment including the drill string, its attachments or sub-

surface equipment based on the scope as directed by

D8m. The Coast Guard does not regulate mineral

drilling operations in state waters, and does not have

the expertise to adequately analyze all issues relating

to the failure of an oil/natural gas well. This report acts

25a

to record the explosion and its resulting damage, and

the issues of hazard recognition, written procedures,

engineering, and overall crew competency.

PREAMBLE: On 16 June, 1997, the MALLARD RIG 52

was operating on location in Bayou Pigeon, Lake Chicot

Oil and Gas Field, on an oil and natural gas well owned

by Denbury Management, Inc. The rig had finished

drilling Denbury’s well at that location approximately

two weeks prior, and was in the final stages of the well

completion operation. The operation being performed,

called “reversing out”, was the circulation and dis-

placement of heavy drilling mud (17.5 lb./gal) from the

well bore (annulus). This was done by pumping a

calcium chloride solution into the well annulus which

displaced drilling mud from well through a five (5) inch

drill pipe tool string. The mud was then deposited in a

shale shaker on the rig and pumped to a open hopper

(shale) barge moored along side of the rig. The term

reversing out is used because normally, fluids are

pumped through the tool string to accommodate 24

hour operations on the rig. The night crew was up and

working. The day crew was in the crew quarters

sleeping.

EQUIPMENT:

(1) WELL EQUIPMENT IN USE:

a. Outside preventors: The annular blow out pre-

ventor stack (BOP) consisted of: (from top down) (See

PHOTO # 1 & 2)

1) Annular preventor (hydrill rubber)

2) 5" Pipe ram

3) Blind Ram

4) 5" pipe Ram

b. The tool string (inside preventor) consisted of two

(2) Texas Iron Works (TIW) in line ball valves. TIW

valves are designed and marketed as a fail safe high

pressure emergency shut down in-line valve. The ad-

vantage to a TIW valve is that it has a diameter similar

to that of the tool string to which it is attached, allow-

ing it to be lowered into the well with the tool string.

(2) MALLARD RIG 52 DESCRIPTION: The MAL-

LARD RIG 52 is a 190' X 50' X 12" posted drilling barge

with three separate deck levels, see PHOTO #3, and encl

(5). At the lowest deck, the barge deck, there is very

little equipment other than hose racks and portable

pump storage. The barge deck is completely open on all

sides with no enclosures (PHOTO #4). The stern of the

barge has a “key” slot to allow the barge to position the

stern mounted derrick directly over a well. This deck is

designed to allow it to be completely submerged while

on location when the water depth exceeds the draft of

the barge.

27a

The second deck is approximately 85% enclosed with

steel bulkheads, it accommodates Generators, mud

tanks, mixing vats, mud pumps, parts storage space,

and the electrical SCR (silicone control rectifier) Con-

trol Room (PHOTO #5).

The upper deck consists of a large, completely enclosed

house (forward) which was the living quarters with a

helo deck on top. A pipe rack is located amidships. The

stern is the raised rig floor supporting the derrick and

rotary table.

The rig was built in 1981. The construction plans were

reviewed prior to construction by the American Bureau

of Shipping (ABS), however, it cannot be verified if

ABS actually oversaw the construction of this vessel.

Since initial construction, the rig has neither been

classed or re-inspected by ABS.

The rig holds a Coast Guard issued Certificate of

Documentation bearing the Vessel Name Mr. Beldon,

Official Number #644167, homeported in New Orleans,

LA. Gross Tonnage - 1482, net tonnage - 1482. It has

never been inspected by the Coast Guard and is not re-

quired to hold a Certificate of Inspection or be in-

spected by the Coast Guard.

There is no record that the rig has been classed or in-

spected by any regulatory agency or recognized society

during initial construction or at any time since. There

was no requirement for any of the personnel working

on the MALLARD RIG 52 to hold any kind of Coast

Guard issued license or Merchant Mariners Document.

INCIDENT:

(1) BLOWOUT: Extending through the well bore, as

well as through the rams and preventors, was a five (5)

inch drill pipe tool string through which mud was being

circulated from the well. At the head of the drill pipe

tool string, were two TIW valves spaced approximately

30 feet apart. The valves were installed to allow the

drill pipe tool string to be shut off at the surface.

Above the TIW valves, a swivel terminated the tool

string. Above the swivel was the hook and traveling

block of the rig derrick which was used to raise and

lower the drill pipe tool string. A high pressure flexible

hose led from the swivel to the shale shakers through

which the mud traveled after being displaced from the

well.

At approximately 21:15, Mr. Paul Standridge, floor

Hand working at the shale shakers noticed a sudden

increase in mud flow from the well and a slight amount

of natural gas in the mud flow. He immediately re-

ported this, over the rig’s intercom system, to Mr.

Daryl Prejean, the driller onboard the rig. Shortly

thereafter, Mr. Prejean noticed a stream of mud leaking

from the swivel, he also noticed a sharp increase in

pump pressure, from approximately 900 PSI to 1700

PSI. At that time, the rig supervisor (Tool Pusher), Mr.

Dillon Trahan, and the representative of Denburry

Management, Mr. Johnny Chaddick ran from the tool

pusher office in the crew quarters to the rig floor. Mr.

Trahan shut the pipe rams, and Mr. Mike McCarthy,

mud engineer for Batron, ordered the shutdown of the

mud pumps.

29a

Mr. Kar] Primeaux was in the tool pushers office when

the initial upset occurred. After Mr. Trahan and Mr.

Chaddick left the office for the rig floor, Mr. Primeaux,

upon his own initiative, rousted out the day crew and

directed them to prepare for immediate evacuation to a

tug boat tied to the rig. When Mr. Trahan came back to

the tool pushers office after leaving the rig floor, he saw

the day crew departing for the tug boat and mentally

accounted for all evacuated personnel.

When the well was ordered shut in, Mr. Prejean turned

off the mud pump, and with the assistance of Mr. Dillon

Trahan, Tool Pusher, and person in charge-of-rig, at-

tempted to close the lower of the two TIW valves

(PHOTO #6). The valve was located approximately 10

ft. above the rig floor and was only accessible by ladder.

In order to close the TIW valve, a removable wrench

handle approximately 24" in length was inserted into

the side of the valve (PHOTO #7). When the first at-

tempt to close the valve was unsuccessful, Mr. Dillon

Trahan lowered the traveling block and brought the

TIW valve down to a height of approximately four feet

from the rig floor. The TIW wrench was once again

placed in the valve and a “cheater” bar (used to gain

additional leverage), approximately .10 feet in length,

was placed on the wrench handle (PHOTO #8). 6-7 rig

personnel then attempted, unsuccessfully, to close the

valves. They did succeed in bending the wrench handle.

At that time it was decided that it was impractical to

lower the tool string any further to gain access to the

upper TIW valve. A short while later the pressure in

the well finished blowing out the remaining drilling

mud, and the calcium chloride solution used to displace

30a

the mud, along with natural gas started blowing from

the well in the form of a finely atomized white mist.

Mr. Chaddick, in the mean time, went back to the Tool

Pushers office and made a telephone call to Mr. Carry

Redman, the Project Engineer for Denburry Manage-

ment. According to Mr. Chaddick, Mr. Redman recom-

mended that mud be pumped back into the well in a

well kill attempt, but if the danger was too great,

evacuate the rig.

When it became apparent that the well could not be

shut in by the TIW valves, Mr. Dillon Trahan ordered

the rig floor cleared and the crew assembled in quar-

ters. He then proceeded to his office in the crews quar-

ters. The remainder of the rig personnel assembled in

the changing room adjacent to the Tool Pushers Office.

Mr. Trahan then had a telephone conversation with Mr.

Leroy Broussard of Mallard Drilling. Mr. Broussard

recommended that Mr. Trahan take any actions he

deemed necessary, and use his own judgment in any

decision to evacuate the rig. Mr. Trahan then went

back to the rig floor and turned the pump back on to

continue pumping calcium chloride into the well. The

pump remained on throughout the remainder of the

evolution. Mr. Trahan then returned to the tool pusher

office.

(2) EVACUATION OF NON ESSENTIAL PERSON-

NEL: As stated earlier, when it became evident that a

blowout had occurred, Mr. Karl Primeaux took it upon

himself to evacuate nonessential personnel from the rig.

Personnel were awakened from their quarters and

3la

evacuated to a tug boat which was standing by at the

rig. The following personnel were evacuated:

Sean Savage

Shane Redwing

Brian Miller

Karl Primeaux

Shane Vincent

Nicholas Jimenez

John Griffin

Leslie Rainer

Robert Davis

Clint Sonnier

(3) WELL KILL ATTEMPT: After a short consulta-

tion with the company man, Mr. Trahan ordered the

crew to rig portable pumps and hoses to pump mud

from the adjacent shale barge to the rigs slugging pit on

the second deck. Then pump the mud from the pit into

the well in a dynamic kill attempt. Mr. Trahan then

went to the second deck to assist in rigging pumps.

Once a portable pump was running, he went into the

generator room and closed the door on the aft bulkhead

(PHOTO #9). He then proceeded to the tool pushers

office to cleanup. Mr. Chaddick also went to the second

deck and checked on the progress of the pumps, once he

saw that one was running, he went to the rig floor and

to the shale shakers to see if personnel were still in

those locations. He then went back to the tool pusher

office to make another telephone call.

The theory behind a dynamic kill attempt is to fill the

entire well annulus, and tool string, with a heavy

weight drilling mud. The hydraulic pressure of column

of mud in the well will overcome the gas or fluid pres-

32a

sure present in the well formation and stop the flow.

Large quantities of mud under very high pressure must

be pumped into the well to achieve this hydraulic

pressure overbalance. In order to calculate the weight

of mud needed and the pumping pressure necessary,

the Tool Pusher called the MISS DEE DEE (crew boat)

and requested that the mud engineer, Mr. McCarthy,

who had already been evacuated, return to the rig.

All of the mud pits on the second deck had previously

been cleaned and contained no mud. The slugging pit

had a piping configuration which allowed mud to be

pumped from the pit directly into the well annulus.

Large quantities of mud were needed and available in

the shale barge adjacent to the rig.

Personnel were attempting to rig portable pumps and

hoses to pump mud from the barge into the slugging

pit. In order to rig the necessary pumps, hoses, and air

lines (to power the pumps); personnel were moving be-

tween the barge deck level and the second deck level.

After successfully starting the operation of one por-

table pump, personnel were dispatched from the second

deck to the shale barge to tend the suction line. Addi-

tional personnel started rigging a second pump (PHOTO

#10). This is the operation which was in progress when

the explosion occurred.

(4) EXPLOSION: At approximately 21:45, a natural

gas explosion occurred. Natural gas from the leaking

well, over a time period of approximately 30-40 min.

spread in explosive concentrations throughout the rig.

The explosion most likely originated in the aft portion

of the second deck. From there, the explosion quickly

spread, either in a series of secondary explosions, or in

one continuous explosion, to other portions of the rig.

EXPLOSION DAMAGE: As a result of the explosion(s),

the forward bulkhead of the generator room was

displaced forward (PHOTO #11), and the aft bulkhead of

the generator room was displaced aft (PHOTO #12 &

13). A hatch plate in the generator room overhead was

propelled upward and clear of the rig. It was not

located during the investigation (PHOTO #14). Just

forward of the generator room, was the pump room.

The starboard mud pump showed evidence of an inter-

nal explosion. A steel access plate to the motor was

violently pushed out and deformed (PHOTO #15 & 16), a

shaft guard on the port side of the pump was misaligned

(PHOTO #17), and there were cracks in the welds

holding the guard in place (PHOTO #18). From the

pump room forward, for a distance of approximately 73

feet, the bulkheads were 1/2 height from the deck to a

height of approximately four (4) feet (PHOTO #5). The

upper portion was open and allowed air circulation. In

this area, the lower portion of the starboard bulkhead

was buckled outward, but was intact (PHOTO #19). The

major force of the explosion in this area appears to have

diffused through the open, upper half of the bulkhead.

Two persons working in the vicinity of the mud tanks

and pits in this area were propelled forward to the bow

of the rig by the force of the explosion. Forward of

that, the bulkheads enclose, forward, port & starboard,

the remainder of the second deck. The majority of the

damage from the explosion is contained to this area. In

this area the deck was displaced downward

approximately 2-4" (PHOTO #20-24). The overhead was

displaced upward up to 8" (PHOTO #25 & 26). The

34a

entire forward and port bulkheads, as well as the

majority of the starboard bulkhead were opened out-

ward (PHOTO #27-33). In this enclosed area, there was

also major damage to equipment.

IGNITION SOURCE: From the explosion damage

noted above, and interviews with Mallard Electricians,

Mr. Jerry L. Dennis of U.S. Treasury Department,

Bureau of Alcohol, Tobacco & Firearms. The most

likely area of the source of ignition on the MALLARD

RIG 52 was the pump room. This report does not con-

clusively identify the actual sour:e of ignition.

According to Mr. Dennis, after examining photographs

of the rig and the rig plans, the explosion most likely

originated in the pump room. This is evidenced by the

outward displacement of the aft bulkhead of the gen-

erator room (PHOTO #12 & 13), which was located just

aft the pump room; by the outward displacement of the

starboard bulkhead in the pump room and in the vicin-

ity of the mud pits (PHOTO #19). Perhaps the most

compelling reason to suspect that the explosion occur-

red in the pump room was the locations of the bodies of

Mr. Duhon and Trahan who were both propelled

forward along the second deck. In order for that to

have occurred, the explosion must have originated aft

of their last known location, the mud pits.

The damage to the wire mesh screening along the for-

ward bulkhead of the generator room is believed to

have occurred from a negative pressure vacuum fol-

lowing the initial explosion (PHOTO #11). This vacuum

would also account for the door to the SCR Room which

was found in the generator room (PHOTOS #34 & 35).

The amount of damage in the generator room and SCR

35a

Room does not support the explosion initiating in these

Mr. Bobby Jordan, in his interview, stated that the mud

pumps in the pump room were powered by electrical

traction motors. These motors produced sparks while

operating. The starboard mud pump was operating at

the time of the explosion pumping calcium chloride so-

lution into the well annulus. This was verified by Mr.

Dillon Trahan. As stated earlier, the starboard mud

pump shows evidence of an internal explosion in that an

electrical access plate on the motor housing was dam-

aged. The plate was both concaved and pushed out-

ward. Two bolt holes at the top of the plate were elon-

gated and torn where they were pushed loose from

their retaining bolts. The bottom two retaining bolts on

the plate held the bottom edge of the plate in place

(PHOTOS #15 & 16). This starboard pump most likely

the source of ignition for the larger explosion(s) which

occurred on the MALLARD RIG 52.

DEATHS: There were four (4) deaths as a direct re-

sult of this explosion.

When the explosion swept forward on the 2nd deck,

both Yancy Duhon and Clifford Trahan were reportedly

in the vicinity of the mud pits. This was just aft of the

location of the worst damage on the rig. Both were

propelled forward along the second deck and through

the now opened forward bulkhead (PHOTO #27) which

had been ripped outward, and clear of the rig.

Mr. Frank Nunez was in charge of the Crew Boat MISS

DEE DEE which was assigned to the rig. After the tug

had left the rig, he was sent, in the crew boat, back to

36a

the tug, to retrieve Mr. Mike McCarthy to assist in the

well kill operation. Mr. Nunez and Mr. McCarthy were

last seen standing on the bow of the second deck. Dur-

ing the explosion, the forward bulkhead of the second

deck was blasted outward and across the location where

they stood (PHOTO #27).

(1) YANCY DUHON: The body of Mr. Yancy Duhon

was located directly forward of the bow of the rig rest-

ing on the bank, a distance of approximately 100 ft. Ac-

cordingly to Officers with the St. Martin Parish Sheriff

Office who located the body, there was apparent dam-

age to trees approximately 10 feet upon the area where

Mr. Duhan was found, indicating that he struck the

trees before coming to rest on the ground.

An autopsy was conducted on the body of Yancy Duhon

by the St Martin Parish, Louisiana coroner, Dr. Kim

Edward LeBlanc, MD. In the Coroner’s report, the

cause of death is listed as ACCIDENTAL, with a final

diagnosis of: “Fata! intracranial open basilar skull frac-

ture.”

Post Mortem drug testing of Mr. Duhon was negative.

Post-Mortem blood alcohol testing of Mr. Duhon indi-

cated a Ethyl Alcohol BAC of 0.02% W/V. A notation

on the a Laboratory report on Mr. Nunez from

Acadiana medical Laboratories, LTD, the same

laboratory which performed Post-Mortem alcohol

testing on Mr. Duhon indicated that a similar level of

Ethyl Alcohol may be present as the result of Post-

Mortem Decomposition.

37a

(2) CLIFFORD TRAHAN: The body-of Mr. Clifford

Trahan was located directly forward of the bow of the

rig, in the water.

An autopsy was conducted on the body of Clifford Tra-

han by the St. Martin Parish, Louisiana coroner, Dr

Kim Edward LeBlanc, MD. In the Coroner’s report,

the cause of death is listed as ACCIDENTAL, with a fi-

nal diagnosis of: “Fatal intrathoracic rupture of heart

and intra abdominal rupture of abdominal aorta.”

Post Mortem drug and alcohol samples were taken

during the autopsy performed on Mr. Trahan. The re-

sults of those tests are not yet available.

(3) FRANCISCO NUNEZ: The body of Mr. Francisco

Nunez was located in the water on the starboard side,

amidships, of the rig by a body drag.

An autopsy was conducted on the body of Francisco

Nunez by the St. Martin Parish, Louisiana coroner, Dr.

Kim Edward LeBlanc, MD. In the Coroner’s report,

the cause of death is listed as ACCIDENTAL, with a fi-

nal diagnosis of: “Fatal intracrainal open basilar skull

fracture and intrathoracic laceration of ascending aorta

and avulsion of left lung and hemothorax and

intraabdominal liver/spleen/kidney rupture.”

Post Mortem drug testing of Mr. Nunez was negative.

Post Mortem blood alcohol testing of Mr. Nunez indi-

cated a Ethyl Alcohol BAC of 0.01% W/V. A notation

on the a Laboratory report on Mr. Nunez from Acadi-

ana medical Laboratories,LTD, indicated that this level

of Ethyl Alcohol may be present as the result of Post-

Mortem Decomposition.

38a

(4) MIKE McCARTHY: Mr. Mike McCarthy appears

to have been trapped between the forward bulkhead of

the second deck, and a hand railing. When the explo-

sion occurred, the forward bulkhead of the second deck

pushed him against the hand railing. Part of Mr.

McCarthy’s body was located in the water approxi-

mately 50 feet from the starboard stern of the rig. The

remaining portion of Mr. McCarthy’s body was located

in the water forward of the bow of the rig by a body

drag.

INJURIES: There were two injuries associated with

the explosion.

(1) BOBBY JORDAN, the rig electrician, was

awakened, presumably by Mr. Primeaux. Since he was

wearing ear plugs, he did not hear any evacuation or-

der. He took the time to get dressed, and when he

came out of his room, learned that a well blowout had

occurred. He went to the door, and saw personnel

working on the rig floor. Becoming concerned, he went

to wake up the day crew and found them gone. At that

time, he went to the bow of the rig and saw the tug boat

backing away from the rig (evacuating the day crew).

He then want back aft in the quarters and saw Mr. Tra-

han, Mr. Chaddick, and the night crew. He decided to

stay out of the way and went back to his room to gather

his possessions. From there he went to the aft door of

the quarters and saw a “white mist” in the vicinity of

the shale shakers. He became concerned about the pos-

sible presence of natural gas and went to the second

deck to find Mr. Dillon Trahan. Once on the second

deck, he did not find Mr. Dillon Trahan, but did observe

other persons working on the pumps. He then went

down the stairs on the bow of the rig, and went to the

39a

Crew Boat MISS DEE DEE (PHOTOS #86-38) to get

some ear plugs. He was standing on the back of the

MISS DEE DEE when the explosion occurred. He

received a blow to the head from an unknown object,

was knocked to the deck, and had a piece of steel deck

grating land on top of his body. He received injuries to

his shoulder, head, neck, and back; twisted his ankle,

and sustained broken ribs.

(2) JOHNNY CHADDICK was in the tool pushers of-

fice dialing the telephone when the explosion occurred.

After the explosion occurred, he entered the main fore

& aft passageway in the quarters house and attempted

to exit at the forward door. His vision was obscured by

smoke, and he encountered an unknown obstruction

which prevented him from exiting at the bow. He then

turned around and proceeded to the aft door. Upon ex-

iting the quarters, he encountered heavy smoke and

heat. He attempted to go down the ladder on the port

side to the second deck, but was blocked by smoke. He

then proceeded forward along the port side of the crew

quarters along an overhanging catwalk (PHOTO #89).

About 2/3 of the way forward along the crew quarters,

he became trapped and could go no further forward.

Smoke and heat prevented him from going aft. At that

time, he saw a barge moored along the port side of the

rig below his position, and decided to jump. When he

landed, he was injured too badly to move. At that time,

he saw the Crew Boat MISS DEE DEE leaving the vi-

cinity of the rig. He found a life jacket close by and

waved it, catching the attention of Mr. Aaron Stran on

the boat, which turned around and picked him up. As a

result of the fall, he received two broken ankles, a com-

pression fracture of a vertebra, two bulging discs, a

bruise on his arm, and persistent leg pain.

ae as a hhc

40a

OTHER PERSONNEL ON RIG: At the time of the

explosion, personnel were in the following locations on

the rig:

(1) DILLON TRAHAN had just entered his quarters

to clean up. He was having trouble seeing because of

the well fluids on his glasses. He changed his shirt and

was starting out of the door from his room into the Tool

Pushers Office when the explosion occurred. He fol-

lowed Mr. Chaddick, who was also in the office, forward

along the center hallway of the quarters until they

came to an obstruction. Mr. Trahan did not remember

smoke in the passageway, but rather darkness. He

then turned and went aft in the hallway to the aft door

of the quarters. Upon exiting the quarters, he turned

to his left, and went down the ladder to the second

deck. From there, he proceeded forward to the bow.

Once on the bow, he jumped from the second deck on to

the aft deck of the MISS DEE DEE.

(2) DARYL PREJEAN: After rigging pumps on sec-

ond deck, was ordered to the barge deck to tend the

portable pump suction line. When the explosion oc-

curred he was on the shale barge. He immediately pro-

ceeded to the MISS DEE DEE for evacuation.

(3) PAUL STANRIDGE: After assisting with pumps

on the second deck, he was ordered to the barge deck to

help rig a second pump. He was knocked to the deck by

the force of the explosion, got up, and went to the MISS

DEE DEE.

(4) GILBERT MARTIN: Working between the barge

deck and the 2nd deck assisting in the rigging of air

pumps. He happened to be on the barge deck when the

4la

explosion occurred. He was knocked to the deck by the

explosion, got up and proceeded to the MISS DEE DEE.

(5) AARON STRAIN: After helping to try and close

the TIW valve, he went with the rest of the crew to

quarters to await instructions. After being instructed

to rig pumps, he proceeded to the second deck. After a

few minutes on the second deck, his eyes started to

burn from the “white mist” filling the deck in the vicin-

ity of the pumps. At that time, he proceeded to the

MISS DEE DEE. He was in the forward cabin of the

MISS DEE DEE when the explosion occurred.

(6) JOE TRAVINO: No interview conducted.

ISSUES:

(1) EVACATION ORDERS: Mallard Drilling, upon

request, submitted a complete copy of their company

safety manual. Mallard Drilling does not have a sepa-

rate and specific manual written for-each of it’s drilling

rigs. There are no written procedures available for rig

evacuation to be followed in the event of a well blowout.

Mallard Drilling, however, does provide a “FIRE AND

ABANDON PLATFORM DRILL” section in their safety

manual (page A-14). It states that “all drills should be

conducted in accordance to the posted station bill”,

provides the following specifics (paraphrased).

a) Should be conducted “once a hitch” and include all

personnel

b) Should be pre-planned and emphasize key points.

c) Alarm should be sounded as posted on station bill.

Drill announcement should be made on PA system.

are

ies

- 2s > te Tee

42a

d) ll personnel should report promptly to their as-

signed station unless excused to continue operations.

e) communications should be tested by notifying

shorebase and standby boat.

f) All personnel wear PFD.

g) Document drill on [ADC report.

I received a copy of a STATION BILL which was re-

portedly posted in the Tool Pushers Office aboard the

MILLARD RIG 52. The bill addresseS procedures for:

Fire and Emergency, Man Overboard, and Abandon

Rig. The bill specifies that the rig general alarm sys-

tem be activated immediately during any emergency

evolution, and then goes on to delineate general respon-

sibilities by position. It does not specifically address

the occurrence of a blowout.

Records of emergency drills conducted aboard the

MALLARD RIG 52 were obtained from Mallard Drilling

during the course of this investigation. The records

show that on average, emergency drills were conducted

aboard the rig weekly. The drill sheet specifies that a

muster of personnel be taken immediately during all

drills. During this actual emergency, no formal muster

was ever completed.

On page C-2 of the Mallard Drilling Safety manual,

Paragraph 19 states that attendance at weekly safety

meetings and participation in drills is mandatory.

According to the statement of Mr. Dillion Trahan and

all other rig workers, with the single exception of Mr.

Chaddick, at no time during the emergency did anyone

sound the rig general alarm system. Nor did Mr. Dillon

Trahan order an evacuation. Mr. Trahan was aware

43a

that an evacuation of nonessential personnel had oc-

curred, and distinctly remembered taking a quick men-

tal accounting of personnel when he saw them leaving

the rig.

Mr. Chaddick, in his interview, was adamant in his con-

tention that Mr. Trahan sounded the rig alarm system.

All other personnel interviewed consistently stated

that no alarms were sounded. I cannot account for this

discrepancy in statements.

No general evacuation of the on duty crew of the rig

was ever conducted. At the time of the explosion, the

decision to stay and kill the well had already been made

by Mr. Trahan. This decision was made based on Mr.

Trahan’s assumptions that:

a) The natural gas blowing from the well was lighter

than air and would not settle onto the rig.

b) The well could be brought under control in a rea-

sonable amount of time.

c) Adequate equipment and supplies were available

on scene to bring the well under control.

As stated earlier, Mr. Trahan had called his supervisor,

Mr. Leroy Broussard, who recommended that Mr. Tra-

han use his own judgment to evacuate or control the

well. Based on his own training and experience, Mr.

Trahan decided to control the well. In retrospect, it has

been shown that all of Mr. Trahan’s assumptions were

incorrect.

(2) TRAINING AND QUALIFICATION: Mr. Dillon

Trahan, the Tool Pusher on the MALLARD RIG 52 had

attended an U.S. Department of Interior, Minerals

44a

Management Service (MMS) approved WELL CON-

TROL FOR DRILLING/COMPLETION & WORKOVER

SUPERVISOR School in April, 1997. The course was

instructed by Randy Smith Drilling Schools. A review

of the course curriculum showed that the course is bro-

ken down into standards. Each standard then has per-

formance criteria which must be met. The course fo-

cuses in recognizing early well control problems, devel-

oping a plan of action, and executing the plan. In a con-

versation with Mr. Jay O’Conner, Instructor for Randy

Smith Drilling Schools, I found that the course does not

address major failure of well control equipment, or

when it is safer to abandon the rig then control the well.

No class discussion was held on the topic of abandon-

ment, and no case studies were presented in class which

involved abandonment. Rig abandonment and total loss

of well control are not covered by the MMS require-

ments for this course. Since this course is developed

and approved by MMS, it is only required for operators

of offshore drilling rigs.

Mr. Trahan also attended a OSHA approved CON-

FINED SPACE ENTRY & WORK ACTIVITIES AND

THE DUTIES AND RESPONSIBILITIES OF THE

OSHA DESIGNATED COMPETENT PERSON. This

course of instructions covers the monitoring of confined

spaces for the presence of flammable and oxygen defi-

cient atmospheres. It does not address the monitoring

of ambient air for the presence of flammable gases.

I received no other information regarding the training

and qualification of Mr. Trahan. Mr. Trahan does have

approximately 30 years of experience in oil field related

work.

45a

(3) BLOW OUT PREVENTORS: The installed outer

(annulus) Blow Out Preventor stack (BOP’s) are not at

issue in this investigation. The BOP’s were capable of

sealing the well annulus, not a drill pipe or tool string.

The annular preventor places a relatively low pressure

(5000 PSI) rubber seal around the outside circumfer-

ence of the pipe. The 5" pipe rams likewise place a seal

around the pipe, but a higher pressure seal. Pipe rams

are also capable of holding the pipe string from falling

back into the well when disconnected from the travel-

ing block. The blind ram can only be actuated when

there is no pipe extending through the well bore. It

consists of two interlocking, flat faced plates which,

when fitted together, seal off the well bore. In this

case, the only type of BOP which would have helped

would have been a shear ram. A shear ram has two in-

terlocking plates with cutting edges, which when

closed, would have been capable of shearing through

the well string, then sealing in the same manor as a

blind ram. No shear rams were installed on this well,

nor is it common practice to have them installed on in-

land drilling projects.

(4) TIW VALVES: The TIW valves in use may also be

considered a BOP device. While it is evident that the

lower TIW valve failed to operate as expected, the

cause of that failure has not been pursued as part of this

investigation. Reportedly, both TIW valves from the

MALLARD RIG 52 were removed, boxed, and placed in

storage after the rig was taken off location. No analysis

or visual surveys of the valves have been conducted to

determine the cause of their failure. re

(5) GAS DETECTION: A fixed gas detection system

was installed in the vicinity of the Shale Shakers on the

46a

MALLARD RIG 52. This gas detection system was

meant only to detect gas in the drilling mud. This sys-

tem had installed audible alarms at the shale shakers,

drillers console, and in the tool pushers office. Rig per-

sonnel all stated that they had heard the alarm the pre-

vious week, but could not tell if it was sounding when

the well was flowing out of control due to the back-

ground noise level of the blowout. There is some indi-

cation that this system may have been turned off prior

to the blowout. Mr. Chaddick stated that after mud

wad pumped into the well and the packers in the well

were set. The system was turned off.

The tool pusher also had at his disposal a “MSA

WATCHMAN MULTIGAS DETECTOR”. This piece of

equipment is a portable explosive gas meter which

measures flammable gases in % of lower explosive limit

(LEL). The meter was typically kept on the tool push-

ers desk in his office. The meter was not available for

my inspection as it was destroyed during the explosion

and fire. The main use of the meter onboard the rig

was to test enclosed spaces prior to entry. At no time,

during the 30-40 min immediately proceeding the explo-

sion, when the well was out of control did Mr. Trahan

test the atmosphere at any location on the rig for the

presence of explosive or flammable gases. When asked

why, Mr. Trahan replied “I didn’t smell gas”.

(6) NATURAL GAS PROPERTIES: According to THE

MERCK INDEX, NINTH EDITION, natural gas has the

following properties:

Composed of: about 85% methane, 9% ethane, 3% pro-

pane, 2% nitrogen, and 1% butane.

47a

With methane being the major component of natura

ity (in air) 0.554. Forms explosive mixtures in sir.

Most explosive at 1 part methane/10 part air concentra-

tion. A 14% methane concentration in air burns without

noise.

(7) Greenhill Petroleum, Timbalier Bay, October 1992.

In early October, 1992, the crew aboard an inland drill-

ing rig (Posted Barge) was conducting a back surge op-

eration under the supervision of a hired toolpusher

when they lost control of the well. A blowout occurred,

and approximately 42 1/2 hours later, the well ignited.

The incident resulted in one injury, total constructive

loss of the rig, and a total discharge of approximately

400,000 gallons of crude oil.

(8) Henry Production, Intracoastal City, July 1994.

A workover barge was conducting a well perforation

operation on an existing well for Henry Production.

During the operation, the well kicked, and became un-

controllable. During the second day of the blowout, the

well ignited while well control teams were working in

the vicinity, killing two persons, and injuring four oth-

ers. Approximately 12,000 gallons of light crude oil was

discharged from the well.

48a

(9) Parker & Parsley Petroleum, Meyette Point, No-

vember 1996

While conducting workover operation on existing well

with an inland drilling rig, the well kicked. When the

annular blow out preventor (BOP) was shut in, a gasket

on a flange below the BOP failed. After several at-

tempts were made to secure the well, the rig was shut

down and moved off location. No injuries or deaths.

Approximately 15,000 barrels of light crude oil conden-

sate discharged.

CONCLUSIONS:

1. A well upset occurred at approximately 2115, 16

June 97.

2. Personnel on the MALLARD RIG 52 were not able |

to bring the well back under controt through the use of

installed safety devices.

3. Natural Gas started blowing from the well shortly

after the initial well upset and continued to blow from

the well through the time the explosion occurred.

4. Natural gas spread, in explosive concentrations

throughout the MALLARD RIG 52 except for ho-

tel/office spaces located on the third deck.

5. Personnel in supervisory positions on the MAL-

LARD RIG 52 did not recognize the hazard of an explo-

sive natural gas/air mixture forming on the rig.

6. Personnel on the rig had a portable flammable gas

detection device which they failed to use. There was no

written direction to use a portable gas detection device

during well control »perations. if

7. Emergency and evacuation drills were conducted

weekly on the MALLARD RIG 52 and documented in

written reports.

8. Since a well control operation was being attempted,

the available SCR shutdown switches were not used to

de-energize the electrical systems on the MALLARD

RIG 52. inh

9. When the well upset occurred, the established pro-

cedure of sounding a fire & emergency signal on the

MALLARD RIG 52 general alarm system did not occur.

10. When the off duty crew was evacuated from the

MALLARD RIG 52, the established procedure of

sounding a abandon rig signal on the rigs general alarm

system did not occur.

11. When the well upset occurred, the established pro-

cedure of mustering personnel and assigning tasks on

the rig did not occur.

12. Mr. Trahan’s responsibility was to direct emer-

gency operations on the MALLARD RIG 52. Mr. Trahan

did not direct the attempt to kill the well. Mr. Trahan

did not direct the evacuation of any of the rigs person-

nel.

13. Mr. Chaddick’s responsibility was to s:-ndby the

telephone and radio on the rig and contact boats for

evacuation. Mr. Chaddick did not stay in the tool

pusher’s office to carry out this responsibility. —

50a

14. The off duty driller, Mr. Karl Primeaux carried out

his responsibility in clearing persons from the living

quarters as per established procedures.

15. The off duty crew, with the exception of Mr. Bobby

Jordan, evacuated from the rig IAW established proce-

dures.

16. The Tool Pusher called his company office for in-

structions regarding whether to control the well or

evacuate the rig.

17. The Company Man, Mr. Chaddick called his office

for instructions regarding whether to control the well

or evacuate the rig. —_——_—

18. No specific company direction existed for blowout

control.

19. Numerous sources of ignition existed on the MAL-

LAPD RIG 52. The actual source of ignition on the rig

remains unknown.

RECOMMENDATION:

1. That state governments conduct regulatory over-

sight and enforcement of all Energy drilling and work-

over operations within state waters.

ENCLOSURES:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

5la

Photographs 1-39

Mallard Drilling, Safety Policy Manual, Pages A-

14 & C-2

Well Blowout Report as submitted to Louisiana

Department of Natural Resources by Denbury

Management, Inc.

Mallard Rig 52 Station Bill

Mallard Rig 52 plan

Mallard Rig 52 Fire Control Plan

Mallard Rig 52 Certificate of Documentation

Crew Boat Miss Dee Dee Certificate of Documen-

tation

Map showing Mallard Rig 52 on the well location

52a

APPENDIX E

U.S. DEPARTMENT OF LABOR

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

20210

[DEC 23, 1980]

Honorable Walter F. Mondale

President of the Senate

Washington, D.C. 20510

_ Dear Mr. President:

This is to transmit to you a report pursuant to section

4(b)(3) of the Occupational Safety and Health Act of

1970.

Respectfully submitted,

/s/ RAY MARSHALL

Secretary of Labor

Enclosure

53a

U.S. DEPARTMENT OF LABOR

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

20210

[DEC 23, 1980]

Honorable Thomas P. O’Neill, Jr.

Speaker of the House of Representatives

Washington, D.C. 20515

Dear Mr. Speaker:

This is to transmit to you a report pursuant to section

4(b)(3) of the Occupational Safety and Health Act of

1970.

Respectfully submitted,

/s) RAY MARSHALL

Secretary of Labor

Enclosure

54a

U.S. DEPARTMENT OF LABOR

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

20210

[DEC 23, 1980]

TO THE CONGRESS OF THE UNITED STATES;

I am submiting the enclosed report pursuant to section

4(b)(3) of the Occupational Safety and Health Act,

which requires that the “Secretary of Labor shall,

within three years after the effective date of the Act,

report to the Congress his recommendations for

legislation to avoid unnecessary duplication and to

achieve coordination between this Act and other

Federal laws.”

Views within the Executive Branch on this matter have

not been coordinated. Accordingly, this report reflects

only the views of the Department of Labor. It is our

view that there is at this time no need for legislation on

this subject.

Respectfully submitted,

/s/) RAY MARSHALL

Secretary of Labor

55a

REPORT OF THE SECRETARY OF LABOR TO

CONGRESS PURSUANT TO SECTION 4(b\3) OF THE

OCCUPATIONAL SAFETY AND HEALTH ACT OF

1970, ON THE SUBJECT OF COORDINATION IN THE

ADMINISTRATION AND ENFORCEMENT OF THIS

ACT AND OTHER FEDERAL LAWS AFFECTING

OCCUPATIONAL SAFETY AND HEALTH

I. Introduction

This report by the Secretary of Labor is submitted to

Congress pursuant to section 4(b)(3) of the

Occupational Safety and Health Act of 1970, which

provides:

The Secretary shall, within three years after the

effective date of this Act, report to the Congress his

recommendations for legislation to avoid unneces-

sary duplication and to achieve coordination be-

tween this Act and other Federal laws.

Il. Background

The Occupational Safety and Health Act of 1970 is a

comprehensive statute covering all employers who are

engaged in a business affecting commerce and who have

one or more employees and was designed to “.

ensure so far as possible every working man and

woman in the Nation safe and healthful working condi-

tions. . . .” In enacting this comprehensive statute,

Congress also took into account those provisions of

other Federal laws which, to various degrees, deal with

56a

worker safety and health issues. Section 4(b)(1) states,

in pertinent part, that:

Nothing in this Act shall apply to working condi-

tions with respect to which other Federal agencies

. exercise statutory authority to prescribed or

enforce standards or regulations affecting occupa-

tional safety and health.

Generally speaking, this language means that the OSH

Act’s protections apply only where there exist no

legally enforceable standards or regulations of another

Federal agency addressing a particular hazard. Under

this framework, gaps in employee protections are

avoided while at the Same time the regulatory activity

of the other agencies is not affected; viewed in this

light, section 4(b)(1) places a limit only on the authority

of the Department of Labor.

The OSH Act contains a detailed framework of

enforcement and educational activities, including nu-

merous employee rights, designed to achieve employee_

protection. Even where the OSH Act is preempted

under section 4(b)(1), there is still an understandable

expectation on the part of many employees and their

representatives that the quality of protection and the

range of rights afforded by the OSH Act would be

provided for all workers and in all hazardous working

conditions. The Department recognizes this concern

and has taken steps to promote a coordinated approach

to occupational safety and health programs throughout

the Government by means of interagency agreements.

57a

III. Court and Review Commission Interpretation of

A number of decisions of the Occupational Safety and

Health Review Commission (OSHRC) and the courts of

appeals have interpreted section 4(b)(1). Several courts

have ruled that workers may not be denied protection

under the OSH Act for all hazards they face because

their industry happens to be regulated in part by

another federal agency which has issued rules for some

worker hazards.

In other words, these courts hold that industries as

such are not preempted from OSHA; rather, the pre-

emption rule of section 4(b)(1) applies only to particular

hazards. The courts have also held that in order for

preemption to take place, the standard or regulation of

the other agency must be in a final rule, not simply a

notice of proposed rulemaking or an advance notice of

proposed rulemaking.’ At the same time, the evolving

section 4(b)(1) law indicates that this preemption of

OSHA does not depend on the efficacy of other agency’s

standards or its enforcement mechanisms.”

These and other cases are shaping current federal

policies for worker safety and health. To be sure, there

are remaining issues to be decided by the courts which

! See Southern Pacific Transportation Co. v. Usery, 539 F.2d

386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); Baltimore and

Ohio R.R. Co. v. OSHRC, 548 F.2d 1052 (D.C. Cir. 1976); Southern

Railway v. OSHRC, 539 F.2d 335 (4th Cir. 1976), cert. denied, 429

U.S. 999 (1976).

* See Mushroom Transportation Co., OSHRC Docket No. 1588,

1973-74 CCH OSHD 4 16,881 (R.C. 1973), appeal dismissed (3rd

Cir. 1974); Pennsuco Cement and Aggregates, Inc., OSHRC

Docket No. 15462, 1980 OSHD 4 24,478 (R.C. 1980).

will help further define the roles of the OSH Act and

other federal laws in protecting workers. We are

satisfied, however, that current case law in general has

adequately preserved the primary intent of section

4(b)(1), which is to provide maximum worker protection

contemplated by Congress in enacting the comprehen-

sive OSH Act and at the same time to avoid duplication

of effort by Federal agencies.

IV. Quality of Procession

There are only two federal agencies that deal

exclusively with occupational safety and health and

both of these are in the Department of Labor: the

Occupational Safety and Health Administration and the

Mine Safety and Health Administration. No other

federal agencies have as their exclusive purpose the

protection of workers from on-the-job injuries and

illnesses. The statutes administered by other agencies

that have an occupational safety and health role are

designed primarily or in significant part to protect the

public or equipment. Agencies of the Department of

Transportation, for example, have as major purposes

protecting the public and transportation equipment:

i.e., the safe operation of trains (Federal Railroad Ad-

ministration), aircraft (Federal Aviation Admini-

stration), certain vessels (Coast Guard), and certain

trucks and buses (Bureau of Motor Carrier Safety).

Because those agencies have other statutory functions,

they cannot devote exclusive attention and resources to

employee protection.

The absence of this primary focus on occupational

safety and health has at times resulted in criticism of

other agencies by employees, their representatives, and

Congress concerning their programs. These criticisms

59a

have related primarily to the efficacy of their enforce-

ment activities.

In a recent example, a General Accounting Office Re-

port, dated July 21, 1980, pointed out that the Depart-

ment of Energy has not been properly implementing its

safety and health programs for employees at its

contractor-operated uranium enrichment plants. In

another recent instance, flight attendants contended in

Congressional hearings that the Federal Aviation

Administration has no effective enforcement program

for in-flight occupational hazards even though the FAA

has maintained that it has full statutory authority over

such hazards. In another example, the Coast Guard

was criticized by Congress for failure to protect mer-

chant seamen from the hazards of asbestos.

In addition to these criticisms that stem from

multiple agency functions, many workers have voiced

concern about the statutory mechanisms of some of the

other agency programs as they relate to occupational

safety and health. A number of the other Federal

statutes under which workers are covered lack certain

important provisions contained in the OSH Act which

this Department has repeatedly stated are essential to

strong occupational safety and health programs. These

include:

- the right of employees to file anonymous com-

plaints about alleged hazards and the respon-

sibility of the agency to respond to those com-

plaints;

- the right of employee representatives to ac-

company a federal inspector during investiga-

tions of working conditions;

60a

- authority of the agency to propose monetary

penalties as an incentive for employers to com-

ply voluntarily with safety and health stan-

dards;

- authority to seek injunctions to protect em-

ployees in imminently dangerous situations;

and

- authority to compel the prompt abatement of

hazardous working conditions.

In addition, certain industry groups have on occasion

complained of duplication and overlap by OSHA and

other agencies in regulating and enforcing occupational

safety and health concerns.

Numerous actions have been taken to deal with these

concerns. Agreements between OSHA and other

agencies have led to increased understanding, coopera-

tion, reduction of overlap, elimination of recordkeeping

duplication and consequent reductions in employers’

paperwork burdens, use of OSHA standards by other

agencies, and sharing of technical information and

enforcement resources. A list of these Memoranda of

Understanding is attached. Furthermore, OSHA has

cooperated with other agencies in the formulation of

legislative proposals dealing with occupational safety

and health issues, such as trucking safety, that include

compliance provisions parallel to those in the OSH Act.

V. Conclusions and Recommendations

Preventing duplication of effort and achieving coor-

dination between the OSH Act and other Federal

statutes is, in the Department’s opinion, being ade-

quately addressed under existing authority. As the

6la

courts continue to refine the interpretation of section

4(b)\(1) of the OSH Act, an even clearer picture of each

Federal agency’s role for worker safety and health will

emerge. Federal policies will continue to be adjusted to

conform to the court’s interpretations. In addition,

cooperative efforts between Federal agencies will

continue to expand. The Department sees no need for,

and therefore does not recommend, legislation on the

subject of occupational safety and health jurisdiction.

62a

APPENDIX F

DEPARTMENT OF TRANSPORTATION

Coast Guard

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

Authority To Prescribe and Enforce Standards or

Regulations Affecting Occupational Safety and Health

of Seamen Aboard Vessels Inspected and Certificated

by the United States Coast Guard; Memorandum of

Understanding

Thursday, March 17, 1983

Purpose

It is the purpose of this memorandum of under-

standing (MOU) to set forth clearly the boundaries of

the authority of the United States Coast Guard (Coast

Guard) of the U.S. Department of Transportation and

the Occupational Safety and Health Administration

(OSHA) of the U.S. Department of Labor in prescribing

and enforcing standards or regulations affecting the

occupational safety and health of seamen aboard vessels

inspected and certificated by the Coast guard (herein-

after “inspected vessels”). This MOU is intended to

eliminate confusion among members of the public with

regard to the relative authorities of the two agencies.

Nothing in this MOU pertains to uninspected vessels.

The Coast Guard and OSHA agree to work together to

fulfill their respective authorities.

63a

Authority of the Coast Guard

The Coast Guard is the dominant federal agency with

the statutory authority to prescribe and enforce stan-

dards or regulations affecting the occupational safety

and health of seamen aboard inspected vessels. Under

the vessel Inspection Laws of the United States, the

Coast Guard has issued comprehensive standards and

regulations concerning the working conditions of sea-

men aboard inspected vessels.

These comprehensive standards and regulations

include extensive specific regulations governing the

working conditions of seamen aboard inspected vessels

as well as ample general authority regulations to cover

these seamen with respect to all other working condi-

tions that are not addressed by the specific regulations.

These standards and regulations are generally set forth

at 46 CFR Chapter I, and in the Coast Guard’s Marine

Safety Manual and its Navigation and Vessel Inspec-

tion Circulars.

OSHA has a general statutory authority to assure

safe and healthful working conditions for working men

and women under the Occupational Safety and Health

(OSH) Act of 1970. Section 4(b)(1) of the OSH Act

defines the relationship between OSHA and the other

federal agencies whose exercise of statutory respon-

sibilities may affect occupational safety and health.

Based on OSHA’s interpretation of section 4(b)(1), and

as a result of the Coast Guard’s exercise of its author-

ity, described above, OSHA has concluded that it may

not enforce the OSH Act with respect to the working

conditions of seamen aboard inspected vessels. None-

theless, OSHA retains the following responsibilities.

64a

OSHA retains its authority under section 11(c) of the

OSH Act, which forbids discrimination in any manner

against employees who have exercised any right

afforded them under the OSH Act. Pursuant to this

provision, OSHA has the authority to require vessel

owners to post a notice that informs employees of their

right to complain about working conditions to the Coast

Guard, OSHA, or the employer and to be free from

retaliatory discrimination. OSHA has concluded that

its exercise of authority under section 11(c) is not

precluded by the scope of section 4(b)(1) of the OSH

Act.

OSHA agrees to refer to the Coast Guard, for its

consideration, any complaints, other than section 11(c)

discrimination complaints, OSHA receives from seamen

working aboard inspected vessels. However, the Coast

Guard, consistent with the statement of its authority

above, has the sole discretion to determine, under its

applicable standards and regulations, whether the

events complained of constitute nazardous conditions

and the extent of any remedy that may be required.

Recordkeeping

OSHA and the Coast Guard will continue to discuss

the extent of their respective jurisdictions to require

owners of inspected vessels to keep records concerning

occupational injuries and illnesses. This MOU does not

resolve any issues concerning recordkeeping obliga-

tions.

65a

Effective Date and Publication

This MOU shall take effect upon signature by the

parties. It shall be promptly published in the Federal

Dated: March 8, 1983.

James S. Garcey,

Comma. ijant, United States Coast

Guard, Department of Transportation

Dated: March 4, 1983. :

Thorne G. Auchter,

Assistant Secretary for Occupational

Safety and Health, Department of Labor

66a

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-60124

MALLARD BAY DRILLING, INC., PETITIONER

ALEXIS HERMAN, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR, RESPONDENT

Petition for Review of an Order of the

Occupational Safety and Health Review Commission

[Filed: Aug 8, 2000]

ON PETITION FOR REHEARING EN BANC

Before: PoLitz and DAvis, Circuit Judges, and

RESTANI, Judge.”

PER CURIAM:

(3) Treating the Petition for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. No member of the panel nor

judge in regular active service of the court having

* Judge of the U.S. Court of International Trade, sitting by

designation.

67a

‘requested that the court be polled on Rehearing En

Banc (FED. R. APP. P. and 5TH CIR. R. 35), the Petition

for Rehearing En Banc is DENIED.

( ) Treating the Petition for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. The court having been polled at

the request of one of the members of the court and a

majority of the judges who are in regular active service

not having voted in favor (FED. R. APP.P. and 5TH CIR.

R. 35), the Petition for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ W. EUGENE DAVIS

United States Circuit Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.