Amicus Curiae Brief — Chao v. Mallard Bay Drilling, Inc.

JUN $ 220 mL xs

No. 00-927 fun 8 = 2001

IN THE SUPREME COURT OF THE STABES Tur CLERK |

Elaine L. Chao, Secretary of Labor,

Petitioner,

Vv.

Mallard Bay Drilling, Inc.,

Respondent.

On Writ of Certiorari To The United States Court Of Appeals For

The Fifth Circuit

BRIEF OF AMICUS CURIAE THE AMERICAN WATERWAYS

OPERATORS IN SUPPORT OF RESPONDENT

BARBARA L. HOLLAND

Counsel of Record

ALAN P. SHERBROOKE

GARVEY, SCHUBERT & BARER

EIGHTEENTH FLOOR

1191 SECOND AVENUE

SEATTLE, WASHINGTON 98101-2939

(206) 464-3939

ATTORNEYS FOR AMICUS CURIAE THE

AMERICAN WATERWAYS OPERATORS

RPI Legal Printers, Seattle, Washington

'BEST AVAILABLE COPY}

TABLE OF CONTENTS

INTERESTS OF AMICUS CURIAE AMERICAN WATERWAYS

CUA ccc entities 1

SUMMARY OF ARGUMENT ........:.-cecseseeee: a

ARGUMENT ...0-....cecsececeeseeoeses 4 a

A. THE RECORD BELOW DEALT WITH MALLARD BAY’S DRILLING RIG,

NOT WITH UNINSPECTED TUGS AND BARGES OF THE TYPES

OPERATED BY AWO’S MEMBERS, AND HENCE THAT RECORD IS

INSUFFICIENT TO SUPPORT APPLYING THE OSH ACT TO ALL

UNINSPECTED VESSELS GENERALLY. .........ccccccceeeeeeeesereeesseeeceeenenees 5

B. THE COAST GUARD EXERCISES STATUTORY AUTHORITY OVER

UNINSPECTED TUGS AND BARGES WITH RESPECT TO WORKPLACE

SABE TY .. ..ccccccccccccccccccccscccccscccscoccsososssessooscoescsososososesoosossocosescssossssees 7

1. Coast Guard regulations “affect[] occupational safety and

health” within the meaning of Secton 4(b)(1) by requiring .

uninspected vessels of the types operated by AWO members

Ca TIN, cccnacttesctiecnernstcncntnteennmteiningeenmnseness 7

2. Coast Guard regulations “affect{] occupational safety and

health” within the meaning of Section 4(b)(1) by requiring

3. Coast Guard regulations “affect[] occupational safety and

health” within the meaning of Section 4(b)(1) by requiring

uninspected vessels of the types operated by AWO members

to be manned by crew members who are qualified and whose

hours of work are regulated. ................cc.ccccssccssssessessesessosees 11

4. Coast Guard regulations “affect[] occupational safety and

health” within the meaning of Section 4(b)(1) by requiring

uninspected vessels of the types operated by AWO members

to utilize practices and procedures that promote workplace

BEE, ccccnsssnnsemensentcscsssmonspindicenteesiateinemmmmmmmnetiannscenninennses 12

C. THE COAST GUARD ACTIVELY REGULATES WORKPLACE SAFETY

ON UNINSPECTED TUGS AND BARGES. ...........0ccccccccssccceeeeeseeeereeerees 14

D. OSHA REGULATION OF UNINSPECTED VESSELS OF THE TYPES

OPERATED BY AWO’S MEMBERS WOULD BE UNWORKABLE,

BECAUSE THOSE VESSELS SAIL “IN AND OUT OF [OSHA’S]

ag TES Te ee OC een REY SOR 18

E. EMPLOYEES ON UNINSPECTED VESSELS OF THE TYPES OPERATED

BY AWO’S MEMBERS ARE PROTECTED BY LONG-STANDING RULES

OF SUBSTANTIVE LAW THAT ASSURE WORKPLACE SAFETY,

WETIIT Gane GRTUADIGIN. ccccscccccccccssccsssseessnintneianeinenemerses 21

F. THE RESULT SOUGHT BY PETITIONER WOULD TREAT ALL

UNINSPECTED VESSELS AS IF THEY WERE THE SAME, THUS

INAPPROPRIATELY CREATING AN INDUSTRY-WIDE NON-EXEMPTION

SR re i ccccncssnsscattbinctnenterntiapiantnnitatincatiiiiaciiti 22

BY, CR oe cccecearsescccescerenscecsnsessessennnesnednestancesnsutteatssacamusseningeosete 24

TABLE OF CITED AUTHORITIES

CASES

Berkovitz v. United States, 486 U.S. 531 (1988) 6

Brown v. Socialist Workers '74 Campaign Committee, —

GD GB. Gi CR nccessscnassscsrenspeenstengnesnestinniienncssias ' 5

Browning-Ferris Industries v. Kelco Disposal,

GB GB. B50 ee rnentesipennnenipnn 6

Cowgill v. California, 396 U.S. 371 (1970).......c..cc.ccccsersereneeereesennens 6

Donovan v. Red Star Marine Services, Inc.,

CS Oy Se ernsreserestetesmeemmestenemsmennegene 20

Donovan v. Texaco, Inc.,

720 F.2d 825 (Sth Cir. 1983) .............cccccceees ~apateneneminnne 18, 21

Herman v. Tidewater Pacific, Inc.,

ee 19, 20

Hopson v. Texaco, 383 U.S. 262 (1966) ...........ccccccceeceeeceneeeeeeeenennes 22

In re Inspection of Norfolk Dredging Co.,

i Oe 20

Mahnich v. Southern Steamship Co.,

eT 21

Mallard Bay Drilling, Inc. v. Herman,

SE 3

Mitchell v. Oregon Frozen Foods Co.,

re Ce I iretencneuemnrinnmmemnneeen 6

STATUTES }

i Be Ge 0 Geese 21

Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq................ 21

ee passim

BD WEB. © BF 0 ccccenssnsssncnssssscesecnsseanesnvessasnsneszscnssescsnsssseusnenensssensnaesnse +

Pe EE Ne ERE eae tay 28 1,4

UG I i cictitiecimsititrtniatte 4

I I i cieecnistseevenmeeniniadaadiietienis 4

a ieee rE Te 4

en cee n Te 4,5

PL a eS RRR: NRE it ,

REGULATIONS AND RULES

me a ey ee 10

OI a 12, 13

No ee OOS 4,9, 10, 11

Pe ee ee Na fA 11

OI PTI insieenitteeaicniaisiabiniete in 10

PT a AEP ne OM 2 11

te i 11

Pe a SN ETS eI EL oe 11

OE eR aS eS! 1

a Ie EO 12

nes en. oS 7

a ee EATEN 9

UU i 6, 12

eR eae ta 10

I I i a ed 6, 12

a ee es Pee we ae 10

SS ee i ale 10

| SR ea ee Os Tere. ee 8

a 7

46 C.F.R. 42.09-25(a) .... . 7,8

46 C.F.R. 42.15-10(b)........... - 8

46 C.F.R. 42.15-40(c)............ a 8

46 C.F.R. 42.15-FO(f)......ccccececseesereees 8

46 C.F.R. 42.15-75(d) .......cccccecenceees 8

ee! = 11

OTHER AUTHORITIES

6S Fed. Reg. 66941 (Now. 8, 2000)..............ccccsecesersosecsereerecsensenseees 14

U.S. Coast Guard 1999 Annual Report......................... 14, 15, 16, 17

‘\

ree |

This brief is filed by The American Waterways

(AWO) as amicus curiae in support of the position of é

Sdallard Bap Didiion Inn AWG echaceaiie Gn

consent of all parties, which accompanies this brief at Appendix 1a-

2a. See Sup. Ct. R. 37(3\a).

I. INTERESTS OF AMICUS CURIAE AMERICAN

WATERWAYS OPERATORS

AWO is the national association representing the tugboat,

towboat and barge industry in the United States. AWO’s 375

member companies operate thousands of tugs, towboats, and barges,

most of which are “uninspected vessels” within the meaning of 46

U.S.C. § 2101(43), and many of which operate both inside and

outside the territorial waters of any State. Those vessels are already

regulated by the United States Coast Guard, but would also be

regulated by the Occupational Safety and Health Administration

(“OSHA”) if this Court accepted Petitioner’s invitation to hold that

the Occupational Safety and Health Act of 1970 (“OSH Act” or the

“Act”) applies to all uninspected vessels.

economy. In 1995, AWO and the Coast Guard entered into a written

agreement establishing the Coast Guard-AWO Safety Partnership”

illustrating the shared commitment of the Coast Guard and AWO to

' Counsel for amicus curiae AWO authored this bref in its entirety. No person or

entity other than AWO provided monetary support for the preparation or submission

of this brief. See Sup. Ct. R. 37.6.

? See “United States Coast Guard and American Waterways Operators Outline of

Quality Partnership for Marine Safety and Environmental Protection” dated

September !19, 1995, copy attached as App. 3a-Sa

aie

“ensur[ing] the safety of U.S. waters, vessels and crews.” Jd. at App.

3a.

The U.S. barge and towing industry is a diverse and vital

segment of America’s interstate transportation system. Barges and

towing vessels make nearly one million voyages annually from over

2,000 bulk cargo docks and terminals. The industry operates

approximately 5,000 tugs and towboats and more than 25,000

barges, which contribute more than $5 billion a year to the nation’s

economy.

Tug and barge transportation provides America’s shippers with

a highly cost-efficient and reliable means of moving the raw

materials that fuel the nation’s economy. Indeed, barges move

fifteen percent of our nation’s freight for less than two percent of the

nation’s total freight bill. The economic efficiency of barge

transportation is matched by its energy efficiency. In fact, barging is

America’s most energy efficient mode of surface transportation.

One gallon of fuel will move a ton of cargo more than 500 miles by

tug and barge.

The U.S. tug and barge industry is committed to providing safe

working conditions for its employees. In addition to the Safety

Partnership mentioned above, the industry has worked closely with

the U.S. Coast Guard to upgrade regulatory standards in such key

areas as towing vessel operator qualifications and navigation

equipment on towing vessels. That commitment is also

demonstrated by industry-driven safety initiatives like the AWO

“Responsible Carrier Program,” a code of safe practices for tug and

barge companies, with which all AWO members comply -as a

condition of association membership.

Il. SUMMARY OF ARGUMENT

AWO respectfully submits that Petitioner’s statement of the

issue before the Court is overly broad, and invites the Court to

decide questions not properly presented in the record below.

OSHA’s jurisdiction cannot depend simply upon whether a vessel is

classified as “uninspected,” because uninspected vessels are not all

the same. The Coast Guard regulates uninspected tugs and barges

ue

conten - to ousdoater, a ae cee ee empenre e metcer a |

natural gas in the atmosphere of the vessel.” Pet. Brief at 31,

(emphasis added).? AWO respectfully submits that the Court should

affirm the decision below, or remand with instructions to determine

> AWO respectfully submits that the description of the Question Presented contained

i ee ao aoe

statutory authority .. . concerning the ‘working conditions of employees’ .

‘uningpected vessel(s]”” Pet. Brief at (1) - i ieiines eh eb aheteernied

statement and other such statements by Petitioner regarding the specific and limited

working conditions at issue in this case. See also Pet. Brief at 12. The Question

Presented by Petitioner is overly broad and invites the Court to decide questions not

properly developed in, or presented by, the record below. See discussion at page 5.

ite

whether the Coast Guard has exercised sufficient authority with

respect to the specific vessel at issue in this particular case — Mallard

Bay’s drilling mg — without regard to whether the Coast Guard

exercises sufficient authori’y with respect to uninspected vessels as

an undifferentiated group.

Ill. ARGUMENT

Most of the tugs and barges operated by AWO’s members are

uninspected vessels within the meaning of 46 U.S.C. § 2101(43) and

46 U.S.C. § 3301.* Tugs over 300 gross tons operating beyond the

Boundary Line’ are inspected because they are classified as

“seagoing motor vessels,” 46 U.S.C. § 2101(33), but most tugs are

under 300 gross tons or operate inside the Boundary Line, rendering

them “uninspected.” “Seagoing barges” are inspected vessels if they

are manned or if they carry hazardous material as cargo or if they

carry flammable or combustible liquids in bulk. 46 U.S.C. §

3302(m). Most barges are unmanned and do not carry these types of

cargo, and hence most are uninspected vessels.

Petitioner correctly points out that all types of uninspected

vessels, including both Mallard Bay’s drilling mg and the

uninspected vessels operated by AWO’s members, are regulated by

the Coast Guard. Petitioner attempts to minimize the Coast Guard’s

regulation of Mallard Bay’s drilling rig, but in fact 46 U.S.C. §§

4101-06:

e prescribe the number, type, and placement of fire

extinguishers on the rig, 46 U.S.C. § 4102(a);

e prescribe the number and type of life preservers on the rig,

46 U.S.C. § 4102(b);

* 46 U.S.C. § 3301 lists fourteen categories of vessels that are “subject to

inspection,” subject to certain exceptions listed in 46 U.S.C. § 3302. The fourteen

categories are in turn defined in 46 U.S.C. § 2101.

* The Boundary Line is a line established pursuant to 33 U.S.C. § 151 not more than

twelve miles offshore. 46 U.S.C. § 2101(3). See also 46 CFR Part 7.

-4-

¢ require flame arrestors, backfire traps or similar devices on

the ng’s carburetors, 46 U.S.C. § 4102(c);

* require ventilation of the rig’s engine bilges and fuel tank

compartments, 46 U.S.C. § 4102(d); and

¢ prescribe the number and type of alerting and locating

¢ inchadi ition indicati i

beacons, that must be on the rig (if it uperates beyond three

miles from shore), 46 U.S.C. § 4102(e).

Petitioner also briefly acknowledges, but attempts to gloss over,

the numerous other Coast Guard regulations that apply to some

categories of uninspected vessels, including tugs and barges of the

types operated by AWO’s members. See Brief for Petitioner at notes

1 and 13. Examination of those and other regulations demonstrates

that, with respect to tugs and barges, the Coast Guard clearly has,

and exercises, “authority to prescribe or enforce standards or

regulations affecting occupational safety or health.” 29 U.S.C. §

653(b)(1). See discussion below at pages 7 — 18.

A. The record below dealt with Mallard Bay’s drilling

rig, not with uninspected tugs and barges of the types

operated by AWO’s members, and hence that record

is insufficient to support applying the OSH Act to all

uninspected vessels generally.

The record below concerned Mallard Bay’s drilling rig, not

uninspected tugs and barges of the types operated by AWO’s

members. Neither the Occupational Safety and Health Review

Commission (“OSHC” or the “Commission”) nor the court below

had any reason to consider the Coast Guard’s authority over

workplace safety on uninspected tugs and barges. Hence the record

before this Court does not include “data and arguments adequate to

inform the Court’s judgment” about all uninspected vessels.

* Brown v. Socialist Workers '74 Campaign Committee, 459 U.S. 87, 106 (1982)

(Blackmun, J., concurring in part and concurring in the judgment) (relating to

significant constitutional questions).

‘Be

\

Accordingly the Court should decline Petitioner’s invitation to

announce a general rule of law applicable to all uninspected vessels.’

The record below shows that OSHA cited Mallard Bay for

“failing to tmely evacuate employees on board the drilling ng. . .

failing to develop and implement an emergency response plan to

handle anticipated emergencies . . . and failing to train employees in

emergency response.” Although not part of the record before the

OSHC or the Fifth Circuit, Coast Guard regulations do require

uninspected tugs to meet training, safety, and emergency response

standards that include monthly safety drills, monthly safety

instruction, and a safety onentation program for all new crew

members, 46 CFR 27.245 (relating primarily to fire emergencies), as

well as emergency instructions as required by 46 CFR 26.03-2. See

discussion beginning at page 12, below. On uninspected tugs,

therefore, the Coast Guard clearly “exercise[s] statutory authority to

prescribe or enforce standards or regulations,” 29 USC. §

653(b)(1), pertaining to hazards like those for which Mallard Bay

was cited by OSHA.

In the proceedings below, there was obviously no reason for the

parties to develop facts related to tugs. However, the absence of a

record concerning Coast Guard regulation of uninspected tugs means

that the record before this Court is an insufficient basis to accept

Petitioner’s invitation to hold that the OSH Act applies to all

’ Id. See also Browning-Ferris Industries v. Kelco Disposal, 492 U.S. 257, 278

(1989) (declining to “attempt to decide the question in the absence of a record”);

Berkovitz v. United States, 486 U.S. 531, 545 (1988) (“Given that these regulations

are particularly abstruse, we hesitate to decide the question on the scanty record

before us”); Cowgill v. California, 396 U.S. 371 (1970) (Harlan, J. concurring) (“I

would therefore dismiss this appeal based on the inadequacy of the record for

deciding the question presented”); Mitchell v. Oregon Frozen Foods Co., 361 U.S.

231 (1960) (dismissing certiorari as improvidently granted “in view of ambiguities

in the record as to the issues sought to be tendered”).

® Secretary of Labor v. Mallard Bay Drilling, Inc. (OSHRC Docket No. 97-1973),

reprinted at Pet. App. 9a.

sfx

uninspected vessels.” The question presented by the record in this

case is limited to Mallard Bay’s drilling rig, not all uninspected

vessels.

B. The Coast Guard exercises statutory authority over

uninspected tugs and barges with respect to

workplace safety.

The Coast Guard’s regulations concerning the occupational

safety and health of employees on uninspected vessels of the types

operated by AWO’s members fall into four general areas: safe

construction, safe equipment, safe crewing, and safe practices.

Taken together, these regulations are precisely the type of

comprehensive “exercise [of] statutory authority to prescribe or

enforce standards or regulations affecting occupational safety or

health” that Congress intended would preclude OSHA jurisdiction

under Section 4(b)(1).

1. Coast Guard regulations “affect{] occupational safety

and health” within the meaning of Section 4(b)(1) by

requiring uninspected vessels of the types operated

by AWO members to be constructed safely.

All vessels, including uninspected vessels, that are over 150

gross tons and that are engaged in coastwise, intercoastal, or foreign

voyages must have a load line. 46 CFR 24.03-5. Many of the tugs

and barges operated by AWO members meet these requirements and

hence have load lines. In order to obtain a load line, a vesse] must be

surveyed, and it must be re-surveyed at least every five years. 46

CFR 42.09-15. As part of the survey, the vessel must be placed in

drydock, 46 CFR 42.09-25(a), and the surveyor must examine at

least the following items, all of which help to assure the

“occupational safety or health” of workers on the vessels within the

meaning of Section 4(b)(1):

e “all means of protection provided for openings, such as for

ventilators,” 46 CFR 42.09-25(b)(2);

® See cases cited at note 7.

“all guardrails, bulwarks, gangways and freeing port

shutters, including securing devices, and bars,” 46 CFR

42.09-25(b)(7);

fittings for deck lashings, “including . . . protective devices

as may be necessary for ventilators and steering

arrangements,” 46 CFR 42.09-25(b)(8);

“all gangways, cargo ports, and airports,” 46 CFR 42.09-

25(b)(6); and

air-pipe outlets, scuppers, and sanitary discharges in the

vessel’s sides, 46 CFR 42.09-25(b)(4).

In addition, other regulations prescribe standards for various

parts of the vessel as follows:

Openings in the bulwarks shall be protected by rails or bars

spaced approximately 9 inches apart. 46 CFR 42.15-70(f).

The height of sills of doorways and of access openings in

bulk'eads is specified for various portions of the vessel. 46

CFR 42.15-40(c), 42.15-10(b).

“Satisfactory means (in the form of guard rails, life lines,

gangways or underdeck passages, etc.) shall be provided for

the protection of the crew in getting to and from their

quarters, the machinery space and all other parts used in the

necessary work of the vessel.” 46 CFR 42.15-75(d).

“Efficient guard rails or bulwarks must be fitted on all

exposed parts of the freeboard and substructure decks.” 46

CFR 42.15-75(b) (specifying height of bulwarks or guard

rails above the deck and the spacing of the rails).

Thus the load line requirement assures (albeit indirectly) that

uninspected vessels are constructed and maintained to standards that

“protec[t] the crew.” 46 CFR 42.15-75(d).

See EEL OE ER GAME ELIT TID EN IG

2. Coast Guard regulations “affect(] occupational safety

and health” within the meaning of Section 4(b)(1) by

requiring uninspected vessels of the types operated

by AWO members to have safety equipment.

In addition to the safety standards for vessel construction

required by the load line requirements of 46 CFR 42.09, Coast Guard

regulations also prescribe in detail various items of safety equipment

that tugs such as those operated by AWO members must have on

board, even though the tugs are uninspected vessels. For example,

46 CFR 25:

prescribes the types of life preservers and ring life buoys

that must be on board, §25.25-5, how they are to be marked,

§25.25-7, and how they are to be stored, §25.25-9;

requires life preservers to have an approved “personal

flotation device light,” §25.25-13, prescribes how the light

has to be attached, §25.25-15, and specifies the type of

reflective material on the life preserver, id.;

requires the vessel to have an Emergency Position

Indicating Radiobeacon (EPIRB) that will float free if the

vessel sinks, §25.26-10, and prescribes the testing of the

EPIRB, §25.26-S0;

prescribes the number of, and maintenance procedures for,

fire extinguishing equipment, §25.30; and

prescribes standards for ventilation of tanks and engine

spaces, §25.40.

Uninspected towing vessels are subject to additional safety

requirements in Part 27 of 46 CFR. Those requirements assure that

the crew of an uninspected tug is able to respond to workplace

emergencies safely. For example, effective October 8, 2001, each

tug must be equipped with

a general alarm to “notify persons on board in the event of

an emergency,” §27.205(a), and that is tested at least once

each week, §27.205(a)(4);

ate

e in the engine room and other potentially noisy parts of the

vessel, a flashing red light and a sign near the general alarm

that reads “Attention General Alarm—When Alarm Sounds

or Flashes Go to Your Station,” §27-205(a)(3);

e asystem for detecting engine-room fires, §27.210;

® a system for communicating with the engine room,

§27.215; and

e a remote fuel shutoff valve that is located near the fuel

supply, that can be operated from “a safe place outside the

space in which the valve is located,” and that is “marked in

clearly legible letters at least 25 millimeters (1 inch) high

indicating the purpose of the valve and the way to operate

it.” §27.340(f)."°

The foregoing requirements apply to existing tugs. Additional

requirements apply to tugs for which construction contracts were

signed on or after January 18, 2000. See 46 CFR 27.101 (defining

“New Towing Vessel”) and 46 CFR 27.300-355 (prescribing

substantive fire protection measures for New Towing Vessels).

Finally, 33 CFR 164.72 requires vessels to be equipped with

radar, a searchlight, a radio, a compass, an echo depth sounding

device, appropriate charts, and a global positioning system or other

electronic position-fixing device.

'© Although 46 CFR 27.340(f) is included with the “new towing vessel” regulations,

§27.230 provides that even for existing tugs “by October 8, 2001, you must have

remote fuel shutoff that meets §27.340(f) installed on your vessel.”

-10-

3. Coast Guard regulations “affect(] occupational safety

and health” within the meaning of Section 4(b)(1) by

requiring uninspected vessels of the types operated

by AWO members to be manned by crew members

who are qualified and whose hours of work are

regulated.

In light of the inherent dangers of the sea, the most effective

way to assure workplace safety for employees on vessels is to

prescribe the qualifications, number, and hours of work of the crew.

The Coast Guard has done this for uninspected vessels of the types

operated by AWO’s members.

First, Part 15 of 46 CFR specifies manning requirements for

uninspected vessels. 46 CFR 15.103(a). Section 15.610 requires

towing vessels at least 26 feet long'' to be under the direction and

control of a licensed master or mate “holding an endorsement on his

or her license for towing vessels.” In addition, Section 15.601

incorporates by reference numerous provisions of subparts F, G, and

H of Part 15. Those subparts in turn trigger the application of

additional regulations, many of which are quite lengthy and detailed.

For example, Section 15.601 incorporates Section 15.701, which

effectively makes many uninspected vessels operated by AWO

members subject to over 90 pages of regulations in the CFR setting

forth various licensing requirements for crew members and types of

equipment, all for the purpose of assuring safety.'?

'' Nearly all of the tugs operated by AWO members are more than 26 feet long.

'2 Section 15.601 incorporates Section 15.701. Section 15.701 applies to

uninspected vessels over 200 gross tons operating seaward of certain Boundary

Lines set forth in 46 CFR 7.1 — 7.180. On those vessels (many of which are

uninspected vessels operated by AWO members), the master, mates and engineers

are required to hold licenses issued by the Coast Guard under part 10 of 46 CFR.

Part 10 consumes approximately 90 printed pages in the Code of Federal

Regulations. See also Section 15.730, which is also incorporated by reference

through Section 15.601, and which prescribes certain language requirements for

crew members.

c F

Second, the Coast Guard limits the hours of work of crew

members. 46 U.S.C. § 8104 and 46 CFR 15.705 (another provision

that section 15.601 incorporates by reference) require the

establishment of “watches” on vessels operated by AWO members,

including uninspected vessels. In general, three watches are required

on seagoing vessels, and two watches are required on a voyage of

less than 600 miles.

Third, Coast Guard regulations require comprehensive drug

testing of crew members, again in recognition of the fact that the

most effective way to assure a safe workplace at sea is to assure that

the vessel’s crew is qualified. 46 CFR Part 16 requires pre-

employment testing, random testing during employment, and testing

after any “serious marine incident” (a term which includes most

accidents). 46 CFR 16.210, 230, and 240, respectively. In addition,

46 CFR 16.401 requires adoption of an Employee Assistance

Program.

4. Coast Guard regulations “affect{] occupational safety

and health” within the meaning of Section 4(b)(1) by

requiring uninspected vessels of the types operated

by AWO members to utilize practices and

procedures that promote workplace safety.

Safe construction, safe equipment, and a safe crew are all

important elements of workplace safety. The Coast Guard’s

regulations in those areas demonstrate that, for the types of tugs and

barges operated by AWO’s members, the Coast Guard “exercise[s]

statutory authority to prescribe or enforce standards or regulations

affecting occupational safety or health” within the meaning of

Section 4(b)(1). In addition, the Coast Guard requires certain

specified safe working practices. For example:

e Personnel on each towing vessel must perform safety drills

at least once each month. 46 CFR 27.245 (incorporating

standards for New Towing Vessels set forth in 46 CFR

27.355).

¢ Personnel on each towing vessel must receive safety

instruction at least once each month. Jd.

e Each new crewmember must receive a safety orientation

within 24 hours of reporting for duty. Jd.

¢ Operators of uninspected vessels must prepare and post an

“emergency checkoff list” as “a reminder to the crew of

precautionary measures which may be necessary in the

event of an emergency situation.” 46 CFR 26.03-2(a)

(covermg emergencies including rough weather, crossing

hazardous bars, man overboard, as well as fire at sea).

¢ Both the towlines and the gear used to attach the towline to

the tug and to the barge must meet the detailed

requirements of 33 CFR 164.74,” including maintaining a

logbook or other record of the condition of the towline and

of when it was inspected, 33 CFR 164.74(a\((3)(v), and also

including “a method . . . that does not endanger operating

personnel but that easily releases the towline.” 33 CFR

164.74(b)(4).

It is important to note that the Coast Guard regulations

discussed immediately above require uninspected tugs to adopt

emergency preparedness and emergency response measures — the

type of deficiencies for which OSHA cited Mallard Bay’s drilling

rig. See page 8, above. In other words, if an uninspected tug did not

have emergency response plans meeting the requirements discussed

above, the failure to do so would violate existing Coast Guard

regulations applicable to uninspected tugs. For OSHA to inject its

own, additional regulations would be to create precisely the

ee eee

More generally, the Coast Guard regulations discussed at pages

7 — 18 describe a regime intended to promote and assure workplace

" See e.g., 33 CFR 164.74 (b\(2), which provides that “each connection is secured

by at least one nut with at least one cotter pin or other means of preventing its

failure.”

=e

safety on uninspected vessels. That discussion demonstrates that

Petitioner is incorrect when it asserts that “occupational safety and

health of workers on uninspected vessels, therefore, are largely

unregulated by the Coast Guard.” Pet. Brief at 4-5. On the contrary,

the Coast Guard regulations are the type of “regulations affecting

occupational! safety or health” that preclude OSHA jurisdiction under

Section 4(b)( 1).

C. The Coast Guard actively regulates workplace safety

on uninspected tugs and barges.

The Coast Guard workplace safety regulations discussed above

are not a dead letter. The Coast Guard actively regulates

uninspected vessels. As noted above, many of the regulations are

relatively new and will become effective on October 8, 2001. Of the

regulations discussed above, nine were adopted after the March 17,

1983 Memorandum of Understanding between OSHA and the Coast

Guard (“MOU”), “* and another six were initially adopted prior to the

MOU but were amended after it. Furthermore, by notice published

in the Federal Register on November 8, 2000, the Coast Guard has

proposed additional safety regulations requiring installation of fixed

fire-extinguishing systems in the engine rooms of towing vessels. 65

Fed. Reg. 66941 (Nov. 8, 2000). Clearly the Coast Guard actively

regulates workplace safety on vessels of the types operated by AWO

members, even though those vessels are uninspected.

The Coast Guard touts its own role as a safety agency. In its

1999 Annual Report, the first of the Coast Guard’s five strategic

goals is maritime safety. 1999 Annual Report of the U.S. Coast

Guard at 4.'° The Annual Report goes on to state that in 1999 the

Coast Guard conducted “more than 50,000 inspections on merchant

vessels.” (It is noteworthy that in its own count the Coast Guard

does not distinguish between inspected and uninspected vessels.)

* Reprinted as Pet. App. 62a-65a.

'S Posted on Coast Guard web site at http://www .uscg.mil/news/1999Report. pdf.

-14-

- A A OO a I A Rc oo

of government regulation in establishing minimum standards

necessary to ensure the safety of U.S. waters, vessels and crews.”

Id.

The Coast Guard’s Cooperative Towing Vessel Examination

Program (“CTVEP”) illustrates the Coast Guard’s active and

extensive regulation of workplace safety on towing vessels.'’ The

CTVEP combines voluntary inspections with unannounced, random

boardings to assure safety. Under the program, participating towing

vessels are voluntarily inspected by the Coast Guard. If the vessel

passes the inspection, it receives a decal and generally will not be

subject to unscheduled random boardings by the Coast Guard.

Vessels that do not participate remain subject to random boardings."*

© Once again, the document does not differentiate between inspected and

uninspected vessels. However, most of the vessels operated by members of AWO

are uninspected. Therefore it would make little sense for the Coast Guard to

emphasize its regulation of inspected vessels in an agreement with an organization

of operators of uninspected vessels.

'’ The CTVEP is a program of the Eighth District of the Coast Guard. The Eighth

District includes Louisiana, where Mallard Bay's drilling ng operated.

'® The Eighth District Instruction 16710.1 regarding CTVEP (copy attached as App.

6a-54a) states: “Unscheduled boardings of ‘decaled’ towboats shall normally be

limited to a check of principal lifesaving and firefighting equipment, as well as

-15-

As part of the voluntary CTVEP inspection, the Coast Guard

uses a checklist contaiming the following items under the heading

“Safety Policy/Procedures:”

‘1. Is there a company safety policy and is [sic] understood by

the employees?

“2. Is there a set of specific safety rules?

“3. Is there personal protective gear which includes, at a

minimum:

e Usage instructions

e Inspection procedures

e Maintenance procedures

e Replacement schedules

“4. Are there procedures for safety and training drills?

“5. Is there a safety training plan with a list of topics to be

covered?

“6. Are there scheduling and frequency procedures for safety

and training drills?

“7. Are there procedures for the documentation of safety and

training drills?

“8. Are there procedures for the safe use of vessel equipment

such as rigging, deck machinery [sic]?

“9. Are there procedures for the crew to be aware of the cargo

they are carrying and it’s [sic] possible hazards?”"”

The Coast Guard’s explanation for the CTVEP program

demonstrates the Coast Guard’s commitment to assuring safe

personne! licenses and documents. .. . Commercial towing vessels without a decal

will continue to be subject to random unscheduled boardings.” /d. at 8a.

'® Id., Quality Verification Check List Section B. App. 26a.

. =

working conditions for employees on uninspected vessels in the most

effective way possible:

Historically, the Coast Guard conducted

unscheduled boardings to ensure that commercial

operators complied with applicable U.S. laws and

mptations, Peabtesaeeeeeneenee

identified. Working with the industry, the Coast

Guard became convinced that there is a better way

to enhance safety on fleet and line boats. It is

believed that a higher level of safety and a more

efficient use of resources will be assured through a

cooperative voluntary dockside examination

program. This is the basis on which the CTVEP was

founded.

Id. at App. 14a.

The Coast Guard’s safety enforcement program for uninspected

towing vessels is not limited to the voluntary CTVEP program. For

vessels that do not participate in CTVEP, the Coast Guard still

District Towing Vessel Boarding Form (copy attached at App. 28a-

34a.) That Boerding Form contains over 60 specific items that Coast

Guard personnel are to check when boarding a towing vessel, such

as the ones operated by AWO’s members. While some of these sixty

items might not be considered matters “affecting occupational safety

or health,” 29 U.S.C. § 653(b)(1), many of the items on the Boarding

Form clearly and specifically regulate the working conditions of

employees on the vessel. For example, Section I of the Boarding

Form specifically identifies the following:

e “Living spaces are clean, no build up of debris nor evidence

of smoking in bed”

e “Galley cleanliness and refrigeration”

-17-

e “Electrical systems: no jury rigged wiring, guards and

globes cover exposed lights in work or external areas,

electrical boxes are in satisfactory condition, switches are

covered”

Id. at App. 32a (emphasis added).

These are not the actions of an agency disinterested in

workplace safety on uninspected vessels. On the contrary, these

actions are an explicit assertion of regulatory jurisdiction and an

effort to work with the towing operators to enhance the workplace

safety of uninspected towing vessels. The Coast Guard’s active and

ongoing regulation of uninspected towing vessels — including both

voluntary and involuntary inspections — contradicts Petitioner’s

assertion that the Coast Guard “does not have and has not exercised

comprehensive authority over the working conditions on uninspected

vessels.” Pet. Brief at 11-12. Having joined with the towing

industry in an effort to promote safety on uninspected vessels, the

Coast Guard should not now be heard to disclaim regulatory

jurisdiction over such safety.

D. OSHA regulation of uninspected vessels of the types

operated by AWO’s members would be unworkable,

because those vessels sail “in and out of [OSHA’s]

coverage.”

—s

OSHA’s statutory jurisdiction is limited to workplaces located

in a State. 29 U.S.C. § 653(a). However, many of the AWO

members’ vessels operate both inside and outside the boundaries of

any state. If the OSH Act were applied to all uninspected vessels,

“seamen on [such] a vessel [would] steam in and out of OSHA

coverage as they enter or depart ports in United States territory.”

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

Applying the OSH Act to all uninspected vessels would therefore be

unworkable.

As Petitioner acknowledges, “the OSH Act applies to

‘employment performed in a workplace in a State,’ as well as in

specified territories and ‘Outer Continental Shelf lands.’” Brief of

~ =18-

Petitioner at 2, quoting 29 U.S.C. § 653(a) (emphasis added). AWO

estimates that its members operate approximately 200 tugs that

regularly perform international voyages or otherwise operate beyond

the waters of any state. If this Court were to adopt the position urged

by Petitioner, those vessels would be subject to OSHA’s jurisdiction

when they happened to be physically located within a state, would

not be subject to OSHA’s jurisdiction when on the high seas, and

would always be subject to Coast Guard regulations as discussed

above at pages 7 — 18.

This would be, we think, a disastrous and

unworkable rule: one that would require . . . vessels

to paint all stumbling hazards yellow as they enter

port, one that would forbid retaliation for complaints

made to the Coast Guard in port but not for those

made to it on the high seas, and so forth.

Id. See also Herman v. Tidewater Pacific, Inc., 160 F.3d 1239, 1243

(9" Cir. 1998) (acknowledging that “vessels operating on the high

seas are certainly outside of the Act’s coverage,” but concluding that

OSHA had jurisdiction under the facts of the case before it because

“the waters involved here are by definition within the State of

Alaska”). ”°

The Ninth Circuit’s decision not only glossed over the difficulties created by

OSHA's limited geographic jurisdiction, it concluded that the Coast Guard had not

exercised its jurisdiction, notwithstanding the Ninth Circuit’s own lengthy

description of Coast Guard regulation of uninspected tugs: “The Dr. Jack, however,

is an uninspected vessel. While not subject to the regulations specific to inspected

vessels, uninspected vessels are nonetheless subject to a number of Coast Guard

safety-related regulations. In particular, 46 U.S.C. §§ 4101- 4106 and 46 C.F.R.

pts. 24-28 deal specifically with uninspected vessels. Among other things, these

provisions enumerate certain required safety equipment such as fire extinguishers,

lifesaving equipment, emergency radio beacons, and ventilation for tanks and

engine spaces. See 46 U.S.C.S 4102; 46 C.F.R. pt. 25.

“Uninspected vessels are also subject to other requirements generally applicable to

the type of vessel they are. For example, the Dr. Jack is a “vessel of the United

States” and a “towing vessel.” See 46 U.S.C. §§ 2101(40), 2101(46). It is therefore

-19-

The Fifth Circuit did not need to concern itself with

geographical jurisdiction because it found there was an industry-

wide exemption, Pet. App. at 7a, and because Mallard Bay’s drilling

rig “was stationary and within the territorial boundaries of the State

of Louisiana.”’ Accordingly, the record in this case does not

support applying the OSH Act to all uninspected vessels, regardless

of whether they regularly move in and out of OSHA’s geographic

jurisdiction. To accept Petitioner’s invitation to apply the OSH Act

subject to the seaworthiness provisions of 46 U.S.C. §§ 10901-10908. These

provisions apply to the vessel’s “crew, hull, equipment, tackle, machinery, apparel,

furniture, [and] provisions of food or water.” 46 U.S.C. § 10902(aX1). The

Statutes create a means of quasi-self-regulation: members of the crew are

empowered to initiate a court-supervised inspection of conditions they believe are

unfit. See id. Three court-appointed marine surveyors complete this inspection,

and the district court determines whether the vessel is fit for voyage. 46 U.S.C. §

10903. In addition, the doctrine of seaworthiness gives a private right of action to a

seaman who is injured by equipment that is not fit for its intended use. Ribitzki v.

Canmar Reading & Bates, Ltd., 111 F.3d 658, 664 (9th Cir. 1997).

“Additionally, an uninspected vessel’s status as a United States flag vessel may

subject it to further regulation depending on the type of service in which it engages.

Uninspected vessels may therefore be subject to Coast Guard regulations concerning

load lines, marine engineering, electrical engineering, and dangerous cargoes. 46

C.F.R. ch. I, subchs. E, F, J, N. For example, as a towing vessel, the Dr. Jack is

subject to the load line regulations. Not only are uninspected vessels subject to these

specific and general regulations, in this case the entire crew was subject to licensing

and certification. See 46 U.S.C. §§ 7101-7114; 46 C.F.R. pts. 10-16. The

certification requirements for uninspected towing vessels prescribe that crew

members be proficient in certain safety-related tasks such as fire fighting and first

aid. See 46 C.F.R. § 10.203, Table 10.203. At the time the Secretary issued the

citations in this case, the Dr. Jack was operating in Valdez, Alaska and was subject

to inspection by the Coast Guard Marine Safety Office in Valdez for compliance

with these and other general regulations.” 160 F.3d at 1242-43.

2! Secretary of Labor v. Mallard Bay Drilling, Inc. (OSHRC Docket No. 97-1973),

reprinted at Pet. App. at 13a. Neither the Second Circuit in Donovan v. Red Star

Marine Services, Inc., 739 F.2d 774 (2d Cir. 1984) nor the Eleventh Circuit in Jn re

Inspection of Norfolk Dredging Co., 783 F.2d 1526 (11™ Cir. 1986) considered the

limited geographical scope of OSHA’s jurisdiction.

-20-

an additional anomaly, that of steaming in and out of OSHA

coverage.” Donovan v. Texaco, 720 F.2d at 829.

E. Employees on uninspected vessels of the types

operated by AWO’s members are protected by long-

standing rules of substantive law that assure

the Coast Guard’s comprehensive safety regulations discussed

above,” Petitioner’s assertion also ignores the fact that seamen on

uninspected vessels of the types operated by AWO members are also

protected by the warranty of seaworthiness and the Jones Act, 46

U.S.C. § 688.

In addition to the Coast Guard’s workplace safety regulations,

provide each seaman with a seaworthy vessel. If the seaman’s

workplace is not reasonably fit for its intended use and causes

damage to the seaman, then the vessel is unseaworthy and the

seaman has a claim against the vessel owner for tort damages,

including pain and suffering, disability, loss of earnings and medical

expenses. Mahnich v. Southern Steamship Co., 321 U.S.96, 99

(1944) (“vessel and owner are liable to indemnify a seaman for

injury caused by unseaworthiness of the vessel or its appurtenant

appliances and equipment”).

Furthermore, the Jones Act applies the standards of the Federal

Employers’ Liability Act, 45 U.S.C. § 51 et seq., to claims by

2 Petitioner states that “{t}he Coast Guard, however, does not have and has not

omens hensive authority over the hing tee on ont

vessels.” Pet. Brief at 11-12. See also id. at 23. The discussion at pages 7 — 18

above demonstrates that this assertion is clearly wrong.

-21-

injured seamen. Under the statutes, the employer “shall be liable in

damages to any person suffering injury while he is employed by such

{employer], . . . resulting in whole or in part from the negligence of

any of the officers, agents, or employees of such [employer.]” 45

U.S.C. § 51. See generally Hopson v. Texaco, 383 U.S. 262, 263

(1966) (Jones Act makes “employer liable for the injuries

negligently inflicted on its employees by its officers, agents, or

employees.”)

Thus seamen on uninspected vessels are already protected by

numerous legal doctrines. Contrary to the suggestions of Petitioner,

declining to extend OSHA regulation to all uninspected vessels

would not leave those employees unprotected. Rather, it would

continue the historic role of courts and of the common law, together

with the Coast Guard’s comprehensive workplace safety regulations

discussed above, as the primary guarantors of workplace safety on

vessels, instead of injecting a federal administrative agency which

does not have specialized knowledge of, or historical experience

with, the dangers of the sea.”

F. The result sought by Petitioner would treat all

uninspected vessels as if they were the same, thus

inappropriately creating an industry-wide non-

exemption from OSHA regulation.

Petitioner criticizes the opinion below for utilizing an industry-

wide exemption, but Petitioner’s own approach would result in an

industry-wide “non-exemption” for uninspected vessels. Petitioner

argues that it was error to treat all vessels the same, regardless of

whether they are inspected or uninspected. But Petitioner would

treat all uninspected vessels the same, regardless of whether they are

inland drilling rigs like Mallard Bay’s or towing vessels operated by

AWO’s members subject to the Coast Guard safety regulations

discussed above.

» It is noteworthy that although OSHA asserts jurisdiction over all uninspected

vessels, it was the Coast Guard, not OSHA that conducted the actual investigation of

the explosion on Mallard Bay’s drilling rig. See Pet. Brief at 6, Pet. App. 22a — Sia.

-22-

ee ae

Petitioner relies heavily on the March 17, 1983 MOU between

the Coast Guard and OSHA, emphasizing that “[(njothing in this

MOU pertains to uninspected vessels.” Jd., Pet. App. 62a. But

saying that the MOU does not apply to uninspected vessels does not

mean that the Coast Guard does not regulate uninspected vessels.

The MOU does not disclaim Coast Guard jurisdiction over

uninspected vessels nor does it cede to OSHA authority to regulate

workplace safety on uninspected vessels. Rather the MOU has no

effect whatsoever on uninspected vessels, and the Coast Guard has

continued to regulate them, adopting or amending no less than

fifteen of the regulations discussed at pages 7 — 18 above after the

date of the MOU.

In sum, this Court should decline Petitioner’s invitation to

announce an industry-wide “non-exemption” from OSHA that is

applicable to all uninspected vessels without regard to their

differences and the differences in the nature and scope of the Coast

Guard regulations that apply to them. The Coast Guard has

exercised and continues to exercise its authority with respect to

workplace safety on the uninspected vessels operated by AWO’s

members. It is the federal agency best suited to regulate vessels and

the safety of the seamen who work aboard them. Overlapping

regulation by OSHA will create the confusing, duplicative and

potentially inconsistent regulatory structure that Congress sought to

avoid. ~

Ee

IV. CONCLUSION

The decision of the Fifth Circuit should be affirmed or, in the

alternative, the case should be remanded for a hearing to determine

whether the Coast Guard has exercised statutory authority with

respect to the specific type of uninspected vessel involved in this

case.

Respectfully submitted,

BARBARA L. HOLLAND

Counsel of Record

ALAN P. SHERBROOKE

GARVEY, SCHUBERT & BARER

Eighteenth Floor

1191 Second Avenue

Seattle, Washington 98101-2939

(206) 464-3939

Attorneys for Amicus Curiae The American Waterways

Operators

June 8, 2001

-24-

No. 00-927

Dear Ms Holland

As requested in your letter of May 10, 2001, | hereby consent to the filing of a bref

amucus cunac on behalf of the Amencan Waterways Operators un the above-styled case

Baie) D baiobg)

cc —- Wilharn K Suter, Esquire

Clerk

Supreme Court of the United States

Washington,DC 20543

Jones

WALKER

May 14, 2001

By Federal Express & Fax (206) 464-0125

Ms. Barbara L. Holland

Garvey, Schubert & Barer

18* Floor, Second & Seneca Building

1191 Second Avenue

Seattle, Washington 98101

Dear Barbara:

Please be advised that on behalf of Mallard Bay Drilling, inc., we consent to

the filing of an amicus curiae brief on behalf of the American Waterways Operators

in connection with the above matter.

We are forwarding to you by Federal Express today a copy of the Brief filed

by the Petitioner, Elaine L. Chao, Secretary of Labor, and a copy of the amicus

curiae brief filed on behalf of the American Trial Lawyers of America.

With best regards, | remain

Very truly yours,

VW RV S—-

Patrick J. Veters

PJV:dr

Encl

Jowes, Wacken, WaecutTea, Porrevent, Canentar & Dewfoar tir

ee SY 6 eRe. Are» Ree tee gener |) ear annen et Fe Seen ene Gat? tome - Fae We SRD SS. F Rene echip eevee: can: ew peerwe dier om

Wareee Rewee Lat aver ew (hae Waeren hee. 16

Meee a0 |

AWO's strategic plan, A WO 2000.

government reguiation m establashing munsmum standards necessary to ensure (he safety of US”

Details of the Quatsty Partmership

3. The USCG and AWO agree to establish » quality partnership to further mutual

and local Quality Steering Commattees to review and act on “Opportunities for improvement”

(OFIs) received from members of the barge and towing industry, AWO, and USCG personnel

Coast Gubdben auamank oon A a + ~

=m

problem or improve the process identified in de OPI — =

4. Quality Action Teams will operate under the guidance of the QSC and conduct their work

using 4 quabty process (o analyze the msues wvolved recoramend process mprovements

including, as 4 munamum, the followmg steps -

& Define the scope of the problem process anprovernent needed dctermme

base line), utilizing statistical dete, case snadion ete, an avaliable - ™

b Analyze the data/ entify root causes of the problem,

© Identify solutions to the problem or the

» improvements to process based on analysis

d Identify the measure(s) by which the success of

and check the validity of the proposed solutions by meamarng tai eae Bae

e Refine proposed sotutuons as necessary. and,

{ Develop an mnpiementation

ont te ned ae a en (nctading identification of the target eudience for

5. Quality Steering Committees will review the work of the QAT

quality steps have taken place, that proposed solsnons and ~- aoe

the underlying analysis, and thet the proposed implementation plan is complete snd

understandabie Having validated the QATS work, the QSC will endorse the results and

implementation plan

Action

6 To msti . ,

undertihee eek enaliae the quality partnership described sbove, the USOG and AWO agree to

— ee A ALN OO

ee

NTE

b The USCG and AWO will establish » Natsonai Quality Stcerng Commmnutiee by

September 30, 1995.

c The National QSC will cstabiash by November | 1995,» Nations! Qualsty

Action Team (QAT) that mamity will address the esue of deckhand fatalities

a The USCG and AWO will emsbish Regsonal Quality Sisermg Commuttees m the

ae

1,

e These Regional QSCs will stemtify by November |, |995, 20 more than two

Captamn of the Port Zones per Regson for the estabishment of Local QSCs.

t ‘The expenences gamed by the National, Regional and Locai OSCs » moetmng

the obyectrves of thes qualsty partnershup will be evahusted by the National QSC after one year’s

operation Based on thas evaluation, the National QSC will recommend to the USOG and AWO

whether to contame and/or expand the qualty partnersiup

& Ifa favorable recommendation 5 recerved to contmme and/or expand the quabty

partnershap, the USCG and AWO will expand the above described processes to the remamder of

the AWO Regions and Coast Guard Districts and Captam of the Port Zoncs.

Lnstitution of the Quality Partnership

7. Thss Outhme of Quaisy Partnerstup s effectrve upoo ugnature of thus agreement it

is mformal m nature and may be modified o: termmated by esther party by mutual agreement ai

any ume .

Security and Environments) Operstors

Protection

ii i bis 4s i, ‘ at $8 gee

i wl ad gilt

ji | i it ty tenet

a ie Hil He i it : iret

i Ht es ik iil i

Tn En

: ial; dialill aa THI ! ii ine

Rech eal 1

”

: a i i ; ja iil . g i AIT

it i: eT aH if i

i : ii Le aH: TR BEH ERIN

ae

THE ror pl ipa SEE

|

: g iH i : EL rf Hi ef i

Ti eee a t

ae adaatinlia ‘i

ut | i _ HH ae:

Hes gp br dE tHUTHIIIE

$358 rr ng HINT

PHTTAT Th

CCGD8INST 16710.1

Sia JAN 21 BST

SUBJ: COOPERATIVE TOWING VESSEL EXAMINATION PROGRAM SUBJ: COOPERATIVE TOWING VESSEL EXAMINATION PROGRAM

3. b. (2) Unscheduled boardings of “decaled" towbosts shail o @ 169

normally be limited to a check of principal lifesaving

and firefighting a, as well as personnel

licenses and documents. an eapectetie hazardous

(3) Commercial towing vessels without a decal will continue

enclosure (2) or (3). Vessels from companies that do

not participate in the CTVEP are pot eligible to be

issued a decal as a result of an unscheduled boarding.

4. ACTION.

a. Effective upon the date of this instruction, the following

personnel shall take the actions specified:

(1) CCGD8(m) is responsible for program management and

oversight and shall ensure that the CTVEP is carried out

consistently. =

(2) CCGD8(o) shall provide copies of this instruction to all

groups, stations, WPBs, and visiting cutters and shall

ensure that unscheduled boardings on “decaled" vessels

are limited in scope as described in this instruction.

(3) Commanding officers of MSOs and MSU Galveston are

responsible for implementation of the program. Units

choosing not to fully implement this program, due to

resourc® constraints or other higher risk priorities,

shall conduct familiarization training for vessel

boarding personnel. They shall also honor decals issued

by other units and use the boarding form in enclosure

(1) for all unscheduled towing vessel boardings.

10a PL AUVLUIe (4) be RAO! FUP Ewe

Commander SOL Bagesian Street

U.S. Department Sth Const Guard Bistrict Hew Orieaas. LA 70130-3996

of Transportouon

Gale Gegge Federal Sidg Steff Syebel: {nos

United States Peene: (504) rae ,~ ae

Coost Guard

Dear Captain:

Your vessel was boarded to check for compliance with federal

laws and regulations. The attached boarding report lists

violations that provide for assessment of significant civil

penalties. The Coast Guard will waive these penalties if,

within the next 30 days, you:

1) Correct all of the deficiencies noted on the boarding

report.

2) Contact any of the below listed Coast Guard Offices and

initiate the actions to begin participation in the cooperative

towing vessel examination progras.

Marine Safety ©:fice Corpus Christi, TX (512)

Marine Safety Jnit Galveston, TX (409)

Marine Safety Office Houston-Galveston, TX (713)

Marine Safety Office Huntington, WV (304)

Marine Safety Office Louisville, KY (502)

Marine Safety Office Memphis, TN (901)

Marine Safety Office Mobile, AL (334)

Marine Safety Office Morgan City, LA (504)

Marine Safety Office New Orleans, LA (504)

Marine Safety Office Paducah, KY (502)

Marine Safety Office Pittsburgh, PA (412)

Marine Safety Office Port Arthur, TX (409)

Marine Safety Office St. Louis, MO (314)

868-3181

766-3642

671-5180

529-5524

5862-5194

544-3941

441-5203

384-2406

589-6273

442-1621

644-5806

723-6509

539-3091

The goal of this penalty waiver program is to allow vessel

owners the opportunity to use funds that would go to 4 civil

penalty to bring their vessels into compliance with all safety

requirements.

In addition to having a safer vessel, enrollment in the

cooperative towing vessel examination

benefit you by resulting in less frequent and less time

consuming boardings by the Coast Guard.

should further

Failure to take advantage of the cooperative towing vessel

examination program penalty waiver provision within 30 days

will result in initiation of civil penalty proceedings.

Ila Enclosure (3) to CCGD6INST 16710.1

United States

Coost Guard

and regulations and no deficiencies were noted.

The condition of your vessel makes it a good candidate for our

cooperative towing vessel examination program. This program will

improve the safety of your vessel and will result in less

frequent and less time consuming boardings by the Coast Guard.

Participation in this program easy be initiated by contacting any

of the following Coast Guard Eighth District offices:

Marine Safety Office Corpus Christi, TX (512) 888-3181

Marine Safety Unit Galveston, TX 409) 766-3642

Marine Safety Office Houston-Gelveston, TX (713) 671-5180

Marine Office Huntington, WV (304) 529-5524

Marine Safety Office Louisville, KY (502) 582-5194

Marine Safety Office Memphis, TN (901) 544-3941

Marine Safety Office Mobile, AL (334) 441-5203

Marine Safety Office Morgan City, LA (504) 384-2406

Marine Safety Office New Orleans, LA (504) 589-6273

Marine Safety Office Paducah, KY (502) 442-1621

Marine Safety Office Pittsburgh, PA (412) 644-5808

Marine Safety Office Port Arthur, TX ) 723-6509

Marine Safety Office St. Louis, MO (314) 539-3091

12a Enclosure (1) co CCCDBINST 16710.1

Eighth Coast Guard District

Cooperative

Towing Vessel

Examination Program

21 JAN 97

13a

EIGHTH COAST GUARD DISTRICT

COOPERATIVE TOWING VESSEL

EXAMINATION PROGRAM

PROGRAM SUMMARY

Overview

l4a

Program Summary

The Eighth District's Cooperative Towing Vessel Examination

Program (CTVEP) is a program

enhance safety on fleet and line boasts. It is to reward

eppanies that have shown @ commitment to quality and it allows

industry

easnorically, the Coast Guard conducted unscheduled boardings to

ensure that commercial operators complied with applicable U.s.

laws and regulations. Penalties were assessed for deficiencies

identified. Working with the industry, the Coast Guard became

convinced that there is a better way to enhance saf on fleet

and boats. It is believed that @ higher level of safety and

be a

cooperative vol dockside examination program is the

Phase I - Vesse) Exams:

examinations with the Coast Guard which conducted

using @ joint mso- ee

industry e

will be provided thirty days to correct all but the mone

decal will ensure that vessel is subject to no

yz: examinations in the Coast Guard District

period of one year. The decal will be honored by

upon

Management Code for

Pollution Prevention (ISM Code), the AWO Responsible

- eS

;

|

In making the B41 1 fae

closely with company's quality representative,

consider the overall quality of the company. the operating

eres of its vessels and the total number and variety of

towing vessels within the company's fleet. The goal of the

ro —— By yr Agt—_ = s quality

. company '

progres is fully in place sboard its vessels. Companies

Set Gat) to aust the Geact Guasé ctauiaed for either ans

quality verification exam (Phase II) or the vessel exam

(Phase I) will be provided written notice of the

i

}

7

i

.

:

Companies failing the Il examination to forego

Phase II end chasse eo enroll in whe Phase 1

progres. it also expected that sany companies wil)

transition from Phase I to Phase II over « period of

1

i

tj

Greater emphasis on prevention and quality systems.

More effective use of resources.

Better focus on high risk vessels.

Increased industry cooperation.

Provides CG/Industry contact at “deck plate" level.

Company Benefits

Voluntary progres. Particip. on is at company's discretion.

i] i 1) lt i | li

iis i ‘| i tai it

i i i ly ig

‘all it THe aT

7 Me i es ie

es aod i. siya 8

Pian i atiae: abet

: } : i ie ne

in ey Hi Hh ie

a ; : ae TH tl

| | f | i fl Hy Hd a ale

Hi le a

i

il

uf

oy

Mi H ‘i \ al

, ha 34 He ae Bi iit We 34

i by | 4 H 3

ar vi ia Hue Ae if

ti ij ‘aH Nite

wif

rit S3cke S896

Glossary of Terms, Roles, Responsibilities and

Administrative Procedures

Glossary of Terms

The following are terms found within the Cooperative Towing Vessel! Examination

1. Seonsorna MSO: MSO that will be responsible for program coordination and

tssuance of decais. will inctude receming written requests for participation,

processing the requests, providing information, and establishing a sponsorship

agreemen. For Phase | participants, the sponsoring MSO will conduct vessel exams

and arrange with other MSO's for examinations requested outside the sponsoring MSO

zone. For Phase li participants, the sponsoring MSO will conduct a quality verification

exarnnation of a company's quality program Once the quality verification exam is

completed, the sponsoring MSO will meet with the company’s representative to

establish the percentage of vessets to exammne. The sponsoring MSO is a quality

partner of the company and will provide feedback on a company’s vessets and/or

Quality programs Additionally, the sponsonng MSO will seek feedback from the

company on processes improvements that would be useful to enhance the Cooperative

Towing Vessel Examination Program.

2 Sponsorship Agreement An agreement between the sponsoring MSO and a

company whch outlines scheduling, adrnsustrative procedures and examinations for

enrolment in either Phase | or Phase Ii

number of the company's vessels. This number will be discussed between the

sponsoring MSO and the company representative.

4 Unscheduled Boarding: Boardings conducted on towing vesseis by Coast Guard

personnel without prior notice to the company Unscheduled boardings would no‘ occur

on any decaied towing vesse/ within the Eighth District uniess it is involved in a

pollution incident, a marine casualty, or when a boarding is necessary in the interest of

safety, envwonmental protection or the enforcement of law or regulation.

5 Scheduled Examinations: Exammmations conducted on towing vessets by Coast

Guard personnet with pnor notice to the company Scheduled examinations are

arranged with the company's sponsonng MSO Scheduled examinations will be

Conducted with the expressed understanding that a civil penalty will not be levied.

agamst a vessel owner for terns drscovered to be mussing. not wortung, etc Scheduled

exarmmations are done to deterrmne if the towing vessel meets the applicable

regulations. Scheduled examinations are conducted for both Phase | and Phase Ii

compames. if a Phase | company's vessel meets the applicable regulations the Coast

Guard examine: will apply 8 decal to thal vessel. if s Phase fi vesee! meets the

requirements, the Coast Guard examiner will not apply a decal to that vessel. However,

if afi of the company’s vessels examined by the Coast Guard are in compliance with the

reguistions, the company will be allowed to issue the: own decals. if a serious

deficrency is found during a scheduted examination, the vessel should not be allowed to

leave until the deficiencies are corrected.

The Commander Eighth Coast Guard

Ortaron will be responsible for

establishing program policy, and the efforts of the “WM” and “O” boarding

programs. The Chief of the Marine Safety will also be responsible for

establishing program measurement requrements, and for general program

adménistration and coordination. This will inctude buk procurement of program

information and Phase | and Phase li decals and dispensing this information and blocks

of decats to MSO’s who sponsor companies (coordinate company participation). The

Ctnef of the Operations Division shall ensure afl unscheduled towing vessel boardings

are conducted using the boerding form developed as part of this program.

These Commanding Officers will be

program of decats. This will include receiving

written requests for participation, processing the requests. providing imformation, and

establishing a sponsorship agreement. This agreement should be in writing and should

detail the level of perticipation (Phase | or ), and number of examinations that will be

conducted. The Sponsoring MSO should also coordinate with other MSO’s for

examinations requested and decais issued outside the sponsoring MSO zone.

Commanding Officers of sponsoring MSO’s will also be responsible for honoring decats

and sponsorship agreements of other sponsoring MSO’s as discussed below

Seemann Deen tn See once Tapocorg aoe

be agreements of sponsoring MSO's,

except when a pollufion incident or marine casualty occurs, or when a boarding is

necessary in the interest of safety, ervvwormental protection, or law or treaty

enforcement. in addition, non-eponsoring MSO's will be responsible for ensunng

consistency by using the boarding form developed as part of this program.

Commanding Officers of Overational Unite: These Commanding Officers wit be

responsible for honoring decals issued by sponsoring MSO's. except in those cases

when a pollution incident or marine casually occurs, or when a boarding is necessary in

the interest of safety, environmental protection, or law or treaty enforcement (thes

generally apptes to non-river law enforcement operations). The standard 4100

Boarding Form will be used by Operational Units to document thew boardings of UTVs.

The 4100's should be forwarded to the Eighth Distrct’s 4100 Processing Cenier,

whereupon civil penalty procedures will be indiated

22a

Participating Marine industry Personne!: These personne! will be responsible for

requesting entry into the program, assisting in development of the sponsorsiup

agreement, and working with the sponsoring MSO’s to schedule examination of their

towing vessels. The marine industry will also be responsible for maintaining the

condition of thew equipment and their commitment to quality.

- All participants will be responsible for continuous evaluation and

program feedback in particular the sponsorship agreement constitutes a contract

between the MSO and the company to continually improve thew relationship and thew

joint commitment to safety.

Program Entry Companies desiring to participate shail forward a written request to

the Manne Safety Office that is responsible for the area that their company

headquarters is located. If the company headquarters is located in a non-sponsoning

MSO one, or where the MSO has insufficient manpower to conduct examinations, the

company may request sponsorship from any sponsoring MSO in thew area of

operations. Companies requesting Phase li participation must have an office located in

a sponsoring MSO’s zone in order to facilitate the required Phase Ii company quality

verification exams.

Phase | or Phase !!) Companies must indicate in their request whether Phase | or

Phase |i participauon is requested and receive approval from the sponsoring MSO in

writing (sponsorship agreement). if Phase | approval is granted examinations of each

vessel will be conducted and decais will be issued to vesseis at the

completion of successful examinations. if Phase I! participation is requested the MSO

will conduct a quatity verification exam to assess the company's safety, maintenance,

and quality programs. Upon completion of this quality verification exam the MSO will

determine the number or percentage of examinations of towing vessets to verify the

implementation of the safety and quality programms. This number will normally be no

less than ten percent of the company's operating fleet. When these examinations are

completed decats will be issued to the company by the sponsoring MSO (different in

color than the Phase | decais) for issuance to ther vessets. Blocks of decais will be

provided to all sponsoring MSO’s by MSO St. Louis.

Boardings, Boarding Forms and Decal Application Boarding procedures are

standardized for all towing vessels operating in the Eighth Coast Guard Distnct and

therefore will be the same for participating and non-participating vessets. Decals will

not be ‘ssued to vessets from companies who nave not requested program

particy ation. The boarding form developed for this program will be used by Marine

Safety units for all scheduled and unscheduled boardings. To ensure consistency,

additions or deletions shail not be made to the form. Operational units should use the

standard 4100 boarding form as described on the previous page when conducting

boardings. Decats issued to both Phase | and Phase Ii vessets must be applied to the

port side pilothouse window on all vessets. Decals may be issued to vessels by the

non-sponsoring MSO. This should only be done with the agreement of the sponsonng

MSO. and a copy of the boarding form must be forwarded for thew review.

—— er OE

23a

identified: For initial examinations the focus should clearly be on correction of

deficiencies as opposed to penalties. Deficiencies found during the initial phase | exam

shail be brought to the company’s attention and corrected within 30 days. Once the

defects are corrected a decal should be issued. However, the company will need to

reapply to the sponsoring MSO for re-enity into the Cooperative 7 o-ing Vessel

Examination Program if after 30 days the defects remain uncorrected. Vessels shail

not be allowed to get underway if deficencies are discovered which effects the vessel's

seaworthiness, pollution prevention or safety. For initial examination of Phase I!

vessels the same correction period and restrictions apply. For random boardings or

boardings associated with a casuaity or pollution case, normal penalty procedures

should be followed. in addition, a copy of the boarding report should be sent to the

sponsoring MSO. In coses where serious problems which hazard the vessel or crew

are identified. the sponsoring MSO shail investigate the problem to cetermine if

disenroliment from the program is warranted.

Program: The sponsoring MSO can disenroli a company from either Phase | or Phase

li of the Cooperative Towing Vesse! Examination Program if a company breaks its

commitment to quality. This is a serious step and will only be used in those cases were

a company’s vessels have been involved in a particularly serious incident or a pattem

of incidents which reflect poor quality practices. Groundings, collisions, bridgy: ailisions,

breakaways, oil spills and injuries or deaths are just a Sew examples of the types of

incidents that may be indicative of poor quality practices. Disenroliment from either

Phase | or Phase |i will be determined solely by the sponsoring MSO. The sponsoring

MSO will inform the company in writing that it is being disenrolied and why. The

company will be required to remove ail of its vessels’ decats once disenrolied and return

any unused decats (if a Phase Ii company) to the sponsoring MSO. The

MSO will suspend the company from re-entry into the Cooperative Towing Vessel

Examination Program until the company has proven it has taken action to correct its

process problems. The sponsoring MSO will work closely with the company to assist in

identifying and correcting its quality problems. To re-enter the program the suspended

company must re-apply to i's original sponsoring MSO.

2 : Companies envrolied in either Phase | or Phase li of the

owing Vessel Examination Program must annually notify their sponsoring

MSO to schedule the appropriate examinations. Once the request is received, the

same process used for initial Phase | or Phase Il entry will be used by the sponsoring

24a

EIGHTH COAST GUARD DISTRICT

COOPERATIVE TOWING VESSEL

EXAMINATION PROGRAM

QUALITY VERIFICATION CHECKLIST

Quality Verification Check List

The following is a suggested approach to examining a company's quality

program. It includes items that a COTP may want to review to during the Phase Ii

quality verification examination. Sponsoring MSO’s may want to add or subtract

from this list to meet their needs.

A) VESSEL OPERATING PROCEDURES

1.

2.

3.

a

Does the company have company specific vesse! operating procedures?

Are there vesse! specific operating procedures?

Are there procedures which ensure proper and valid documents are carried aboard

the vesseis?

ts there a list the docurnents which must be carried on board 7

Are fuel transfer procedures documented?

Are vessel maintenance procedures documented, including, at a minimum:

When maintenance is to be performed on equipment

Who is to perform the maintenance

The qualifications and training requirements for the persons responsible for

maintenance

e Procedures to correct deficiencies identified during maintenance

« Amaintenance documentation program

Are there procedures for inspecting the vessels, including at a minwnum:

Persons responsible for conducting in-house inspections

Are there cargo transfer and cargo handling procedures (Wf applicable) including,

B.)

1.

2.

3.

ep ~*~ PP PF P

Cc.)

Dd.)

a

26a

SAFETY POLICY/PROCEDURES

ts there a company safety policy and is understood by the employees?

ts there a set of specific safety rules?

ts there personal protective gear which includes, at a minimum:

Are there procedures for safety and training drilts?

ts there a safety training pian with a list of topics to be covered?

Are there scheduling and frequency procedures for safety and training drilis?

Are there procedures for the documentation of safety and training drilts?

Are there procedures for the safe use of vessel equipment such as nigging, deck

machinery?

Are there procedures for the crew to be aware of the cargo they are carrying and

it's possible hazards?

ENVIRONMENTAL POLICY/PROCEDURES

ls there a company environmental policy?

Are there procedures for garbage disposal?

Are there procedures for proper handling of waste oil, bilge siops and used oil

filters?

Are there procedures for the handling and disposai of hazardous waste?

Are there procedures for the proper use and maintenance of the marine sanitation

equipment?

Are there procedures for whom to contact after a manne casualty , specifically for:

Personal wyunes

;

E.)

F.)

1.

27a

« Groundings

Are there procedures for the proper compietion of CG 2692 “Report of Marine

Casualty or Personnel injury”?

Are there procedures for responding to:

¢ Personnel injuries?

« Oi or hazardous substance spill?

« Vessel damage due to fire or flooding?

Are there procedures to examine the cause of a personne! accident which result in

Are there procedures to examine causes of an oil spill or a hazardous materia!

discharge?

Are there procedures to examine the causes of a vessel accident?

Are there communication procedures established to disseminate lessons learned

from accidents, oil spills and injuries?

Are there procedures to establish safety measures to correct hazards or process

problems which contributed to an oil spill, an accident or an injury?

Are there procedures which explain the company's and the Coast Guard's drug and

alcohol programs?

Are there procedures for the onentation of new employees?

Are there training procedures which specifically outline:

*« Whois to be trained

« The subjects in which training is given

« The frequency of training

28a

EIGHTH COAST GUARD DISTRICT

COOPERATIVE TOWING VESSEL

EXAMINATION PROGRAM

TOWING VESSEL BOARDING FORM

I > a

AR

LOAF

WIN ‘DING FOR

Vessel Name Of cial Mo Cait

Home Port __hength ss Tot. Horse Per Me. of Eng

Gross Tons____s Wet Tons ss Your Sum

A. Required Markings & Documents:

Ld Aeaerenes: Remaster

1 O Cmetat manner Geary vaitte on wearer struches! part of til? 46 CPR 67 121

2 O Crna Meme Oocment produces # at east Sections? Expres «9 SS CPRGT 16148)

3 O Mame ond nating port cheery éapteyed 46 CFR 67 1ZKa)

« O Vetd cette maton sommes? 47 CPR 90.25

5 O vesset 0g of required test and mapechons 7 33 CPR 164 80m)

6 O Operator tomnse? 46 CPR 15.610

1 O Restnctes ratte operators tonnes? CFR 164 TKD

B. Lifesaving Equipment:

O Serncestie CG approved PFU's tor each person shoars 46 CFR 25 25-5

a Al teen equipment mared showng CG appro st surnbers 46 CPR 25 25-7

Wesrabte teiaving equornent ‘eadey scomssate 46 CFR 25 25-Ha)

“ Wort vests CG approved? (CG approval! # 160 05) & 160 064) 46 CFR 26 30-05

(Worn 5m stowed sepermteh for fe sees ven

_ Reworetectre matenst to each PFD Gucyert vest o manme Cucyert vest

2 O ing musy ( > 26), one (1) CG approwel # 160.050

_ Twowstte esavnng equpment swnediatety evatstte

_ SPIRE (igh sees tow vensets onty)

C. Navigation Safety:

1 O Mevigation Puntos. sas aeptaanie site ty 2 SO Pt Mate

hare, Charts of tre ares to be Wareied (Larrenty Corrected)

_ Comet Geet Uget Ue

_ Const Guard Local Motos to henners

_ US Coast Phot (nat seq'é tor Western Rivers towing vessets)

Tee Ces (eat ses tor Western Revers toweng weseets |

2 O dtergeton Equaperent sae aeptennte oe ty f

Mere ace

rege

VE Fl Radke wtubiity to separataty monitor Ch 13 (or G7 on the LMR) and Ch 16

Magnex Compass = wewg Meter

Ae Eno Ome) Senenang Oonce (mot nea 6 tor Western Revers smug -essets

Fiearore poster teary Geos (mot neg ¢ to Western Kner nmng wisem

2 O rtengaten Lights (masthend, site, toning. and stom Sights)

oo — 2

Mavgasor Sade ages Mec wih check screen |» 20S S 6

[Omang | 60 anbe: town agrts st steer

4 O Ciicert wnate and tog bet ( > 39.4)

weet wer.

oe PMR ee

een <p en eS Se ae .

Jia

—_ le ubemeanl

D. MARPOL Annex V - Garbage Pollution Prevention:

1 O MARPOL Pecans) posted XK & wth > temerntfets >25)

STE ee ee”

- SSS —__e

E. Marine Sanitaton Device:

F. Fire Fighting Equipment:

ae CG @ A appees

a Ad eqared ire eiinguahen © sercaeshte condibon

_ Al equred tre extnq™uaten have mataiic o ayia seme piste sttached”

eran ao coramie tre axtguasers

OF < e O + tree 1 tame Orn 4 ee Oe

_ Alma Os tt cach 1 EP ol mam engres ap we oe

_ One 648 or feed re extequinting system & engine room ( >300 GT)

G. Pollution Prevention:

1 O Prommmed Cucherge Warreng Paced (SX &) peated (>25)

_ i mace @ che of Game & he tages

ee

3 O Corttcate of Franctat Responsibility (COFR (>300 GT)

6) Rem od ScNege COMRANITER stequate to of Tarte

Re ee ee os

_ Gage step system adequate (eed peg, fenge. atc)

_ O80 wenster hose (@ on Geert o ¢ apphcatte)

BCR 1987

6 O Person Change” mstrected © Guues and FWPCA tows and regs

_ Records contan requred nto (perion- charge hose nfo)

1 O 06 Transter Procecures svatatie

_ Corsets of O« Transter Procedures meet equeements

3

33 CPR 155 710teK2)

33 CFR 155 620

33 CFR 155 740

33 CFR 155 750

3a

' TOWING VESSEL BOARDING FORM

ror Reger emer Rewsouer

H. Miscellaneous

1. O Praperty tconsed eperstons) tor towing vessets >25 FT. endorned tor route. wi maderend 80s 46. CFR 15.610

2 O Cperate snare of marine casualty mporting equrements 46 CFR 405-1

3 O Company participates in 2 drug testing program 46 CPR 16.205

|. General Housekeeping, including Mactunery Spaces:

1 O Unie spaces are cea. no tultd up of dates ne: evidence of smoking in bed.

OESCRIBE AMY UNSAT CONDITIONS NOTED AMD © CORRECTIONS WERE MADE

2 O Gatey ceantiness and setigerntion - SAT or UMSAT.

© UNGAT MOTE THE PROBLEMS) 4 F CORRECTIONS WERE MADE

3 O stain deck stanchions and chains

« O Fst tank vents are covered with fame scrsens

5) taco) spRCE COnDmNO Que © fIECE SEN Bf TY MeCKmOT) SEY S = (000 CONOR = haces

noted NOTE ANY PROGLEMS FOUND 1 MACIEMERY SPACES AM@ © THEY WERE CORRECTED

6) Reece SvEEEr nO Ray Ngyed ewwg quai ans glubeES Cove exposed tghG 7 mon o externe ares ewe

DOEES ere © LEMBTECtOr) Condor swatches ae COMErTed

NOTE ANY PROGLEMS FOUND WITH ELECTRICAL SYSTEMS AMD © THEY WERE CORRECTED

> O) Steenng syste Observe operauor snd note any probtems aah hyaravec tes o ereages

Exarmeners overall vessel's appearence and the crew's behave inctude

suggestions made by crow 20 well us any peative comments Gonved trom tis examination:

3Sa

EIGHTH COAST GUARD DISTRICT

EXAMINATION PROGRAM

COOPERATIVE TOWING VESSEL

a

TOWING VESSEL SAFETY REQUIREMENTS

3

j

Hy PE

i

di} ot

Signature of Company Representative Signature of Boarding Officer

3a

Moa

Towing Vessel Safety Requirements

A — — ee

passengers or

Seardings of UTVan

pb

requirements as

Goch coction

or eummgin esa tal

Hoan

sme 5 mn WR

the UTV must

Ap Kass —.

Clearty visible

volte bow

in

marked on

which

in durable

or Arabic

Required pre-voyage or crew change tests and inspections in accordance with 33 CFR

164. 80(b):

of 1,600 GT or more shall ensure

ee, Cote, 2 ene Sem eng een

tests of occur at

Sea ae EERE Vette ef enbeEES EEE os EGE ty 39 CPR

38a

Vesuinas quar: Mowat trapecton of tastier: <f cnnnestone ef trtdip end toning

pendant, # applicable, of chafing gear, and of the winch brake, if i .

Valid radio station license in accordance with 47 CFR 80.25:

All stations in the maritime services must be licensed by the FCC.

Licenses for ship stations in the maritime services will normally be issued for a

term of ten years from the date of original issuance, major modification, or

Each U.S. vessel of 26 feet (about § meters) in except

@ chip cadio-ciatian Hnomnn tor salle Uanamiiions .

Approved commercial hybrid PFDs may be substituted for fe preservers if.

pnyin= <A nthe peeeeen er enernriaeie

It is used in accordance with the marked conditions on the PFD and in the

owner's manual, and

Labeled for use on uninspected commercial vesseis.

equapert designed tobe town mat be reat avaiable #6 CFR

ifa PFD has a non-replaceable power source, it must be replaced on or

before tate

if the has the must be

— ea awe, power source replaced

When carned on UTVs, approved buoyant vests shail be stowed from the

cagaias chgumge of caquees Gaaadne egy’. 46 CFR 26.30-1

POS a SS TOSS CT nD. 46 CFR

pny at le ge ey np math hp gy

nng life buoy with a minanum outside diameter of 20 inches. 46 25.25-S(d)

4

Pilot House Equipment

A . Charts or and Publications of T. Vesseis of 12 Meters or

Rost tree, extematenly activated Catagery | 408 Mie EPINS stowed in 0 : Equipment, Maps. (ore to Lanes owing

Until Feb. 1, 1998, a 121.5/243.0 Mhz EPIRB made after Oct. 1, 1988 and Equapment Western Ravers US Nev Waters Other] Waters Seaward of Nav

installed . 27, 1993. it must be a Class A EPIRB or B EPIRB that is a

watertight, self-buoyant, and stabie in a floating position to property transmit a

ee | =

A UTV less than 36 ft in 3% ft with a builder's certificate tis

Sapte mens = wp 2 ae seas unless a readily | of a magnetic

penesaeanbameneunneantan | = -_

A float-free, automatically activated Category 1 406 Mhz EPIRB; or Fueng Dea — lad mi

Until Feb. 1, 1998, a 121.5/243.0 Mhz EPIRB wisame requirements as stated for - a or — lL

atte a , Currently corrected editson or Currentty | edition

Genera! 1. List : ee lo '¢. USSG Light List

Publications 2. Notices to 2. Local Notices to | 2 Local Notices to

Navigation or Local | Marimers. Mariners.

Notices to Mariners | 3. Tidal-current 3. Tidal-current

1. River-current Tables Tabtes

Tables 4 Tide Tables 4. Tide Tables

S. U.S. Coast Paiot_| §. U. S. Coast Pot

information from the above chart can be found in the 3 July 1996 Federal Register: 33 CPR Pan

164 Navigation Safety Equipment for Towwg Vessets; Final Rute

In addition to the above, the of each UTV 12 meters long or more shail carry a

copy of the iniand Navigation as per 33 CFR 88.05

Navigation Lights & Sound Signals

OS Geir Gae Caen Same aeay, Dee ee

COLREGS, Rule 24:

Two white masthead lights ahead at an arc of 225 degrees;

Red and green sidelights, from dead ahead at an arc of 112.5 degrees;

White stem light: astem at an arc of 135 degrees:

ee

UTVs less than 12 meters may substitute one ail around white light for the white

mast head and stern lights.

Sideliahts on UTVs 20 meters o shail be fitted with mat black inboard

screens. On UTVs less than 20 meters, sidelights, if necessary to meet the arc

required of the hall be fittec black mat inboard screens. A combined tantem,

for vessets less 20 meters using a single vertical filament and a narrow

division

between the red and green sectors, external screens need not be fitted. 33 CFR 84.09

An efficient bell and whistle is required in accordance with the COLREGS, Rule 33:

UTVs less than 12 meters in length must have a means of making an efficient

sound signal.

UTVs of 12 meters and more in length must have a whistle and bell:

eae i aoe a mneters in length must have @ bel of at least 200 mm (7.9

inches) in diameter. 33 CFR 86.23

UTVs over 20 meters in length must have a bell of at least 300 mm (11.8 inches)

diameter. 33 CFR 86.23

5

Note: The bell does not have to be mounted, however, It must be on board

the vessel and accessibie.

4a

Section D: MARPOL ANNEX V Garbage Pollution Prevention

No person may discharge garbage into US. navigable waters. 33 CFR 151 66

tach must be at least 9 inches wide by 4 inches high, made of durable

and cal temose at tenet eat The placard must notify the reader of the

following in accordance with 33 CFR 151.59 (d):

Discharge of plastic or garbage mosed with plastic into any waters ss prohibted

waters and 7 all other

ators eatin bree nevtioe miles Of te nearest land

and pectung matenal that float 1 prohibited wathan

25 neues! mies ofthe nearest land

Other unground garbage may be discharged beyond 12 nautical miles from the

nearest tand.

a6

Violators are table for civil penalties up to $25,000. fines up to $50,000, and

unprtecnmant tar up to fue youre por Vsiation.

4Sa

25.30-15

F | (ewe

eh i ada el

u : i i 3

Lana

fi | i it Be tt 3

F F HL li r

i a F KL it y iH

ima | ft tte da

i 2 ak HF He

Maya pig fii,

ar al ad is ;Pae

Wa aes iti

eu gad a

248 it it i ; iif f

i tn te nn | fT a i

ii dike Git at

te th ie it

a HA ETH a

Note 1: Any UTV 65° or under in length may utilize a property labeled and functioning

Type | MSD.

Note 2: Portable todets or “porta-potties” are not conssdered wnstaiied toilets and are

not subyect to MSD reguiations.

$3

i:

i

fe

Pollution Control Act the of ofl

ncn eka ate er tsar Sm

such causes a film or sheen upon or a

the surface

$7

3

Q

:

|

|

-

i

hi

rit

i

li

$2

:

4

i

q

§

}

;

ta wae Oy shee tetenthe

water separator, A cly residue tank @ nl toquared on thase UTVs. 34 GFR 155-50

REPT STASI UTY may not be operated in U.S. navigable waters, as stated in 33

Ho + gece eee

Piping system has at least one outlet accessible from the vessel weather deck.

Each outlet has a shore connection that meets the specifications of 33 CFR

155.430 or the UTV has at least one portable adapter that meets the samme

specifications and fits the required ouflets, and

The outiet has a stop vaive on the weather deck.

The previous requirements do not apply to UTVs that have a CG approved oily-water

An UTV over 100 operate 'S. navigable waters.

ametanuanaow = ”

it has at least one pump to discharge oly moxtures from a fixed piping system to

a reception facility.

The System has at least one outlet that rs accessible from the vessel

47a

Each outlet has a shore connection that meets the specifications of 33 CFR

155.430 or the UTV has at least one portable adapter that meets the same

specifications and fits the required outlets.

The UTV has

@ means on the weather deck near the discharge outlet to stop

each oly waste pump. and

The outiet has a stop vaive on the weather deck.

The above requirement does not appty to a UTV that has a CG approved ofy-water

vent, overflow, and fill pipe that has a capacity of at

i}!

of tank and fi of transfer with

“datude US. a a

Hl

u

i

|

|

|

matenal transfer hose for UTVs over 100 gt, musi meet the

of 33 CFR 154.500:

burst pressure must be at least 600 PS! and at least four

of the reef vaive plus the static head

at the point where the ts installed

“The MAW?P must be at least 150 PS! and more than the sum of the pressure of

py a ay a KR,

Se eos System at the point where the hose

|

|

Each nonmetallic hose must be usabie for of and hazardous material service.

Each hose must either have full threaded : that

8.16.4, Brass or Bronze Pipe of the Amencan Standards

institute (ANSI), or quick-connect couplings acceptable to the CG.

Each hose must be marked with:

Name of products for which the hose may be used or, for of products, the words

“oll service”. ,

Maamum allowable working pressure (MAWP).

Date of manufacturer, and

12

-_-—

“. ~~ TB + SR ee

Indl tea pantin length must be under the direction and control of an

tecensed by the as per 46 CFR 15.610

The following rules apply for operators of UTVs in accordance with 46 CFR 15.910:

aay, Rating 0 feanse an master of

pilot of inapected, self

tons, is authorized to serve as

operator of an UTV may only be in

$y S23:

that

available for inspection by the CG. in

820 indicating:

Person currently designated as a person in charge of transfer

all transfer work areas in accordance with 33 CFR 155.

8 written record

CFR 185

Sep erat at

transl op

ilurunates

The name of each

operations.

sdoqustey

The UTV operator shall

accordance with 33

AUTV, with

H s

i :

H

ty

2

————eOooo-- Ce Oe

most recent test and inspection of items as required by 33

a hae Uheematon comtres ty 38 CFR 154.500, untess that information is

marked on the hose:

The date and result of

CFR 156.170;

The following applies to UTVs" in accordance with 46 CFR 4.05-1:

An unintended Of an unantended strike of a bn

es. bridge or bndge

The “Dectaration of inspection™ as required by 156.150(f).

Seconda Ee Feb re required to have Certificates of Financial Responsibility in

14

An intended grounding or an intended strike of a bridge that creates a hazard to

navigation, the environment, or safety of a vessel.

13

Sta

“os

wwoilved mn the madeni are

shall ensure that all persons

A marine casually or accident which ss required to be reported to the CG and resutts in

46 GFR

A senous marine incident includes the following events involving a UTV.

any of the following:

flooding. or fadure of/damage to fire fighting, kfesaving. & auxihary power

equipment. or bilge-pumping systems,

A loss of fe,

Loss of maim propulsion, prmary steenng, etc that reduces the maneuverability

Sneansrasee ebremty eating Ge copsesinass o Mnses Oateing Se.

of the vesse?.

One or more deatt.s;

requinng professional meckcal weatment for a crewmember. that

me ote ee eee ted

Damage to property in excess of $100,000.

Actual or constructive total loss of any vessel subject to inspection: or

ingury requinng professional medical treatment and, for a crewmember, that

renders the individual unfit to perform hes or her routine dues, or

any sell-propefied vessel, not subject to

more.

Actual of constructive total loss of

quantity of a hazardous substance

a reportable

of

Unaed

of the

enrvwonrnent

discharge of a reportable quantity of a hazardous substance mio U S.

waters or a

A discharge of of of 10.000 gallons or more into U.S. navigable waters.

ome

A

inspection, of 100 gross tons or

ite

Hi

ili

reports as positive for a penod of five years. Records of tests reported as negative

shall be retained for one year in accordance with 46 CFR 16.260

Employers shall maintain records of chermcal tests which the Medical Rewew Officer

Hilly

Hit

THEE

ke : He

if

i

ib)

S3a

EIGHTH COAST GUARD DISTRICT |

COOPERATIVE TOWING VESSEL

EXAMINATION PROGRAM

PRY

DECAL DESIGN

PHASE | VES “G1

OAV: 123456768 to tt 12 t3 94 OS 06 t7 88 19 20 21 72 2D 26 25 25 27 28 29 30 31

worm: 1234686768 8 H 12

YEAR 96 87 98 9D OO Ot G2 6D oO: Os 0 Sema ®

OFFICE. SLMMS LOUMS PAOMS HAe0NS MEMES frTMS neWeS

MORMS WORMS GALS CORMS HOUMS PATWS ComMeS(OS)

GAY: 123466769 161% 42 13 16 065 06 17 06 09 20 21 22 23 26 25 28 27 28 7 8

wommec 1 2324586 7TES OH

YER OS 87 SS 99 GO Ot OF G3 OF OS OF SA

OFFICE SLMMS LOUMS PADMS HUNEES MEREES PITES NEWEES

<n nen