# Petition for Writ of Certiorari — Chao v. Mallard Bay Drilling, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0436%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 534 U.S. 235 ## Text 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) IV 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 Vv 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 v. 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) 2 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). 3 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 d 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. 6 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 7 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 s 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). 9) 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 ll 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 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 a 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 ee 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. i: * % 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). 5a 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 Register. 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 v. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0436%3A02. Public record. Not legal advice.