BECAUSE THERE IS NO DISPUTE AS TO ANY MATERIAL FACT SUMMARY JUDGMENT IS APPROPRIATE IN THIS CASE.
A recent trilogy of Supreme Court cases has changed many facets of the summary judgment inquiry, but the central rule remains the same: summary judgment is appropriate when there is no genuine dispute of a material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Greenberg v. Food and Drug Administration, 256 U.S. App. D.C. 135, 803 F.2d 1213 (D.C. Cir. 1986). Because the material facts are uncontroverted in this case, summary judgment is the appropriate tool for resolving the controversy.
First, there is no dispute that plaintiffs are commercial divers and that the members of their trade association are commercial diving organizations. Nor is there any dispute that laws and regulations governing commercial divers apply to the individual plaintiffs and to the members of the associational plaintiff. Plaintiffs' Statement of Undisputed Material Facts paras. 6, 7. The only other facts salient to this case are the provisions of the laws and regulations that govern the diving industry; all other issues require only interpretation of those regulations.
The Occupational Safety and Health Act of 1970 was designed to ensure "safe and healthful working conditions" in American industry. 29 U.S.C. § 651(b). To that end, the Act established a series of standards and requirements that apply to industry in general. Section 4(b)(1) of the Act, however, states that OSHA's safety regime 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." 29 U.S.C. § 653(b)(1).
On November 16, 1978, the United States Coast Guard promulgated a Final Marine Occupational Safety and Health Standard for Commercial Diving Operations, codified at 46 C.F.R. § 197.200 et seq. That standard "prescribes rules for the design, construction, and use of equipment, and inspection, operation, and safety and health standards for commercial diving operations" in deepwater ports, on the Outer Continental Shelf, and from vessels required to have a Certificate of Inspection from the United States Coast Guard. 46 C.F.R. §§ 197.200, 197.202. This regulation also mandates that commercial divers create records whenever a diving accident has occurred and maintain those records for a six-month period. Id at §§ 197.484 - 197.488. There is no question that plaintiffs are subject to these regulations.
The Records Access Standard was adopted on May 23, 1980. As mentioned above, this OSHA regulation requires employers to maintain any employee medical records they were previously required to create for a thirty-year period. The regulations provide for employee access to these records and for government access so that the "detection, treatment, and prevention of occupational disease" may be improved. 29 C.F.R. § 1910.20(a).
The only issue in this case is whether the Coast Guard's regulation of commercial divers pre-empts OSHA's Records Access Standards. In other words, whether plaintiffs are subject to the OSHA rule depends only on whether the exemption from OSHA created by Section 4(b)(1) of the Act for regulated "working conditions" can extend to record-keeping and access.
BECAUSE PLAINTIFFS ARE NOT EXEMPT FROM THE RECORDS ACCESS STANDARD, DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT.
Section 4(b)(1) states in full:
Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 2021 of Title 42, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.