                        REVISED - June 12, 20000

                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit

                       ___________________________

                               No. 99-60124
                       ___________________________


                       MALLARD BAY DRILLING, INC.,

                                                                 Petitioner,

                                    VERSUS


 ALEXIS HERMAN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF
                             LABOR,

                                                                 Respondent.

          ___________________________________________________

               Appeal from the Occupational Safety and
                       Health Review Commission
          ___________________________________________________
                             June 2, 2000

Before POLITZ and DAVIS, Circuit Judges, and RESTANI.*

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

Administrative Law Judge, which found that Mallard’s drilling barge

-- the MR. BELDON -- was a “workplace” within the meaning of the

Occupational Safety and Health Act (“OSH Act”)1 and that OSHA’s


      *
       The Honorable Jane A. Restani, Judge, U.S. Court of International Trade,
sitting by designation.
      1
       29 U.S.C. § 651 et seq.
jurisdiction was not preempted by the Coast Guard’s regulatory

authority over vessels.             For the reasons that follow, we reverse.

                                           I.

       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

territorial 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 investigating the explosion.

Based on the information collected 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 allegations;

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.2

       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 Discretionary Review with the Occupational Safety and Health

Review Commission, which was denied.              Mallard now appeals.

                                           II.



       2
        29 U.S.C. § 653(a).

                                            2
      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.3                  As our

discussion 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 regulations affecting occupational safety or health.”4

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 jurisdiction 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



      3
       29 U.S.C. § 653(b)(1).
      4
       29 U.S.C. § 653(b)(1).

                                         3
F.2d 1120 (5th Cir. 1980); Donovan v. Texaco, Inc., 720 F.2d 825 (5th

Cir. 1983).     “OSHA regulations do not apply to                 working conditions

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. Texaco, Inc., 736 F.2d 218 (5th Cir. 1984);

Producers Drilling 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.                              Id.

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.             Id.         Because        Clary    is

indistinguishable from the case at bar, its holding controls our

decision.

       Respondent attempts to distinguish Clary by arguing that this

                                             4
Court, in ruling that OSHA lacked authority 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.5

      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 orientation and emergency

instructions; action required after an accident; and signaling

      5
       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.

                                      5
lights.    See 46 C.F.R. §§ 25.01 et seq; 46 C.F.R. §§ 26.01 et seq.

Thus, the Coast Guard has authority to issue safety regulations for

uninspected vessels, as well as inspected vessels, and it has in

fact exercised this authority.6         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 distinguishable from the facts of this

case, we made it perfectly 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.”      Id.    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.”            Id. at 826.

      We gave a number of reasons in Donovan for our conclusion that

the Coast Guard’s jurisdiction is exclusive 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,


      6
        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.

                                        6
     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 geographic
     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.7

                                     III.

     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 RENDERED 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).

                                      7
