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Wednesday, October 18, 2017

Legal Briefs

May 5, 2000

Shipbuilder Settles Safety and Health Violations

Avondale Industries, Inc. has agreed to pay $357,750 in penalties for safety and health violations at its shipyard in Avondale, La., and implement a revised safety and health program as part of a settlement agreement announced by the Occupational Safety and Health Administration (OSHA).

"We are pleased Avondale has agreed to resolve this matter," said Secretary of Labor Alexis M. Herman. "Avondale's new management has shown they are serious about eliminating safety hazards. Key to this settlement is the company's willingness to revise their safety and health program to better protect their employees."

OSHA originally inspected the shipyard in October 1998 following union complaints of possible imminent danger from falls, and other health issues. Based on that inspection, OSHA issued 60 citations against the shipbuilder last April and proposed fines of $537,000. The majority of those citations dealt with fall protection violations. OSHA also inspected Avondale's injury and illness recordkeeping practices following a union complaint of alleged violations associated with the reporting of employee injuries and illnesses.

On July 2, 1999, the agency issued three citations against the shipyard for recordkeeping violations and proposed penalties totaling $180,000. The settlement consolidates both those actions.

"Avondale is choosing to take a positive step to improve safety and health conditions for its workers," said OSHA Administrator Charles N. Jeffress. "We're encouraged they've committed to provide enhanced training on the use of fall protection, scaffold erection and the prevention of fall hazards, one of the leading causes of on-the-job fatalities."

Under the settlement agreement, Avondale Industries will:

· Create and implement a revised safety and health program.

· Implement a "Scaffold Erection, Maintenance, Use, Inspection Disassembly, Storage and Training" program, with oversight by Litton Ship Systems safety and environmental team.

· Provide enhanced training to all levels of supervision regarding fall hazards and the use of fall protection by Aug. 1, 2000.

· Complete an audit of accidents and injuries over past five years. The audit will be conducted by Litton Ship Systems safety and environmental team (completion date June 1, 2000).

The team will report findings and recommended abatement measures to OSHA and authorized employee representatives. Company will implement all feasible recommendations within 12 months from report's completion.

· Provide enhanced training to all supervisors about hazards that are contributing to the company's injuries and illnesses to include compliance with OSHA recordkeeping requirements.

· Document and report to OSHA and authorized employee representatives each quarter (over next 18 months) all efforts to implement the revised safety and health program and audit team's recommendations.

· Undergo a comprehensive review of all accident and medical records for 1995-1999 (conducted by Litton Ship Systems safety and environmental team).

· Establish an audit committee to conduct quarterly audits on medical and OSHA logs.

USCG Implements Five-Star Safety Rating

The USCG in Alaska, in conjunction with local harbormasters and the uninspected passenger vessel industry, implemented a new Five-Star Safety Rating Program for the industry. This new program is voluntary and designed to make sailing on this smallest size class of passenger vessels safer. Vessel owners implementing all of the program's suggested safety upgrades can earn a Five-Star Safety Rating for their craft.

Small, uninspected passenger vessel operations have expanded dramatically in Alaska. Thousands of Alaskans and tourists embark on them every year. There are more than 2,000 of these vessels in Alaska. They can carry six or less passengers for hire and are not inspected by the USCG.

After two of these small passenger vessels sank in Alaska last summer, the 17th USCG District sought ways to raise the level of safety for their passengers and crew. There is no required inspection of these vessels, and the mandated safety equipment on board is not much more than a recreational boat is required to carry. The vessels are not required to carry life rafts, EPIRBs or backup emergency communications; nor is there a safety audit program in place.

"I'm advocating a non-regulatory solution, referred to as the Five-Star Safety Program, for improving the safety of these vessels," said USCG Capt. Ed Page, chief of marine safety in Alaska.

"This program outlines a suite of recommended safety measures, and is designed to provide safety-conscious operators recognition for their efforts to provide a safer vessel for their passengers."

According to Page, the passenger ultimately decides what level of safety he desires ? anywhere from a vessel only complying with current regulations, which earns no stars, to a Five-Star vessel.

To be a One-Star vessel, the program requires compliance with existing regulations including the requirements found in 46 CFR, Subchapter C. In addition, the operator must have a safety-training program and a system of records to show that drills and training have been conducted regularly.

The training program must include drills on emergency procedures and the use of safety equipment.

A Two-Star vessel meets all One-Star requirements, and in addition, has a properly installed bilge pump and bilge alarm. If the vessel is designed without a bilge, it must have suitable reserve buoyancy to float the vessel, even if it is in a completely swamped condition.

A Three-Star vessel meets all Two-Star requirements, and in addition, has a handheld VHF FM radio with a minimum 5 watts of power. A portable satellite phone can be used as an equivalent level of safety.

A Four-Star vessel meets all Three-Star requirements, and in addition, has a properly mounted and registered 406 MHz EPIRB, Category I or II.

A Five-Star vessel meets all Four-Star requirements, and in addition, has on board a properly installed and serviced USCG-approved inflatable life raft or inflatable buoyant apparatus (IBA)(canister or valise type) with minimum capacity for all passengers carried on board. An equivalent level of safety for vessels too small to carry a liferaft or IBA would be level floatation that meets USCG standards. In some instances, upon review of the examiner, an inflatable-style commercial grade work boat may be used in place of an approved raft.

Oceans and Fisheries and Jones Act Waiver Bills Clear Committee

The Committee on Commerce, Science, and Transportation approved by voice vote the following bills dealing with oceans and fisheries and Jones Act waivers:

· Coast Guard Authorization Act, S.1089: The bill would authorize appropriations for the USCG. S.1089 was introduced by Senator Olympia Snowe (R-Maine), Chair of the Oceans and Fisheries Subcommittee, on May 20, 1999. Senators Snowe and John Kerry (D-Mass.) offered a substitute amendment, which was adopted to address core readiness problems and extend the authorization to 2002.

· National Marine Sanctuaries Amendments Act, S.1482: The bill would reauthorize the National Marine Sanctuaries Act for fiscal years 2000 through 2004. Marine sanctuaries are the water equivalent of national parks. S.1482 was introduced by Senator Snowe on August 4, 1999. Senators Snowe and Kerry offered an amendment to revise the requirements for new designations, authorize appropriations for fiscal year 2005, and make minor technical changes.

· Atlantic Highly Migratory Species Conservation Act, S.1911: The bill would promote conservation of highly migratory species of fish such as valuable swordfish and tuna. Senator John Breaux (D-La.) introduced the bill on November 10, 1999, and a hearing was held in New Orleans on December 14. Senator Breaux offered a substitute amendment that was adopted to make minor technical changes.

· Fishermen's Protective Act Amendments, H.R. 1651: The bill would amend the Fishermen's Protective Act of 1967 to extend the period during which reimbursement may be provided to owners of U.S. fishing vessels for costs incurred when such a vessel is seized or detained by a foreign country. Congressman Don Young introduced the bill on April 29, 1999. It was referred to the Senate Commerce Committee on September 14, 1999. Senators Snowe and Kerry offered an amendment that was adopted to clarify that the authorization for the acquisition of fishery survey vessels is for fiscal years 2002 and 2003, and to prohibit the use of aircraft in Atlantic bluefin tuna fishing. Senator Trent Lott's (R-Mich.) amendment was adopted to ensure full and open competition for fisheries research vessel procurement including a 40 percent small business set aside.

· Oceans Act, S. 2327: The bill establishes a commission on national ocean policy. Senator Ernest Hollings (D-S.C.), Ranking Democrat on the Committee, introduced the bill on March 29, 2000. No amendments were offered.

· Jones Act Waivers: Vessel Looking Glass, S.442; Vessel Yankee, S.1261; Victory of Burnham, S.1613; Vessel Lucky Dog, S.1614; Vessel Enterprise, S.1615; Vessel M/V Sandpiper, S.1779; and Vessel Fritha, S.1853.

USCG Posts CHRIS Manual on Internet

The USCG has placed the Chemical Hazards Response Information System (CHRIS) Manual on the Internet at The CHRIS manual contains the physical, chemical, thermodynamic, toxicological, and combustion properties of more than 1,300 chemicals and chemical mixtures.

CHRIS's introductory section also contains additional references to cover chemicals that may not be included in the database. This manual is designed to provide responsible personnel the necessary information to effectively address emergencies that may occur during the marine transportation of hazardous chemicals.

AWO Interregion Safety Committee Approves Report on Hose Handling Safety

The Hose Handling Safety Subcommittee submitted its final report on the safe handling of cargo hoses to the full AWO Interregion Safety Committee. The subcommittee, chaired by John Leerkes, manager, Safety, Training, and Quality, Petroleum Service Corporation, began its work in late 1997, and completed its task when the full Interregion Safety Committee voted to accept its report.

Members of the Hose Handling Subcommittee brought many years of safety and operational experience to this effort to improve personnel safety in the handling of cargo hoses. Representing a cross section of AWO members operating inland tank barges, subcommittee members included: Byron Inagaki, Higman Marine Services; Carmine Dulisse, SeaRiver Maritime, Inc.; Arne Christiansen, Southern Towing Co.; and, Steve Willis, Marathon Ashland Petroleum L.L.C.

The subcommittee was formed when the AWO Interregion Safety Committee identified several areas of concern on which members should consider focusing their attention. Back injury prevention was near the top of the list. Specific concerns were raised concerning work activities that data indicated were common to many back-related injuries. One of these areas was cargo hose handling on liquid cargo barges.

The subcommittee identified six key areas of concern: drip pan design, barge header position, hose weight and length, employee training and awareness, on-deck booms and other mechanical devices, and finally, dock cranes and other dockside assistance. The subcommittee considered each of the six areas of concern and identified potential solutions and some general recommendations it felt would improve the overall level of safety in each of these areas.

USCG Proposes Facility Response Plan Rules for Hazardous Substances

The USCG has published a notice of proposed rulemaking (NPRM), proposing response plan requirements for marine transportation-related facilities handling hazardous substances. The proposal comes more than a year after publication of a companion NPRM addressing response plan requirements for tank vessels carrying hazardous substances.

Despite the delay in its publication date, the substance of the facility response plan proposal was drafted at the same time as the vessel response plans NPRM. It does not, therefore, reflect changes in the USCG's approach to the rulemaking prompted by public comments on the vessel response plans proposal. Because the issues associated with the two proposals are similar, the USCG has said it intends to consider feedback received on the vessel response plans NPRM in considering the need for changes to the facility response plans proposal as well.

The USCG will accept written comments on the NPRM until June 29.

USCG Seeks Comment on Contractor Classification Program Changes

The USCG is requesting comment and will hold a public meeting to discuss proposed changes to its Oil Spill Removal Organization (OSRO) classification program. The proposed changes are detailed in a document titled "Coast Guard Program for Classifying Oil Spill Removal Organizations," which can be viewed on the USCG's website at

The USCG developed the OSRO classification program in 1995 as a voluntary system for classifying the capabilities and scope of operations of oil spill response contractors. The system allows vessel and facility response plan holders to list classified OSROs in their plans without providing extensive detail on the OSRO's equipment and capabilities. The OSRO classification guidelines were last revised in 1997.

Based on its own experience with the program and feedback from plan holders and contractors, the USCG believes changes are needed to provide a more accurate representation of OSRO capabilities and better align with regulatory requirements.

The USCG will accept written comments on the proposed changes until May 19.

House of Representatives Overwhelmingly Rejects Maritime User Fees

The House of Representatives decisively rejected ? by a roll call vote of one yea and 420 nays ? a resolution expressing support for the Clinton administration's proposed USCG and Harbor Services user fees. The measure had been introduced one day before and brought directly to the House floor as a way to demonstrate the lack of support for the Administration's proposal.

In its Fiscal Year (FY) 2001 budget submission, the Administration had renewed its proposal for a Harbor Services User Fee to replace the previous Harbor Maintenance Tax. This user fee is the same as a proposal made last year which, if enacted, would raise almost $1 billion per year. The Administration's budget assumes receipt of this revenue in FY 01, which begins on October 1, 2000.

In addition, the Administration's budget included mor than $200 million in "navigation assistance" user fees for various USCG services. Both the USCG and Harbor Services user fees were rejected last year and neither has been included in this year's congressional budget resolution.

Majority Leader Lott Includes Inland Fuel Tax in "Fuel Tax Holiday" Bill

In an effort to address concerns over rising fuel prices throughout the transportation industry and to focus attention on the Clinton administration's energy policies, Senator Trent Lott (R-Miss.), the Majority Leader of the Senate, recently brought to the Senate floor legislation to provide temporary relief from transportation fuel taxes.

Styled as a fuel tax "holiday," the Lott bill would suspend 4.3 cents of the fuel tax from April 15 (Tax Day) through the end of the year. In addition, if gasoline prices at the pump exceed $2 per gallon, the remainder of the fuel tax would be suspended for the rest of the year.

At AWO's request, Senator Lott included the inland waterways fuel tax in his legislation, so the 4.3-cent "deficit reduction" tax would be suspended from April 15 through the end of the year. If the $2 per gallon gasoline price were reached, the remaining 20 cents-per-gallon fuel tax would also be suspended for the remainder of the year. In all cases, Senator Lott's legislation would reimburse out of general revenues any trust fund which lost revenue as a result of the fuel tax "holiday."

The Senate voted cloture on a motion to proceed to the Lott legislation, by a vote of 85-11. Most Democrats in the Senate voted to invoke cloture on the motion to proceed because they believed they had the votes to defeat the bill on an "up or down" vote. The bill was set aside for Senate consideration of the Budget Resolution, and was brought back up approximately two weeks later. On Tuesday, April 11, the Senate failed to invoke cloture on the bill by a vote of 56 to 43.

Following this vote, Senator Lott pulled the bill from further consideration, but said something needs to be done to address U.S. dependence on foreign oil.

Daschle Introduces Bill; Calls for USACE to be Moved to Department of Interior

Shortly before the Secretary of the Army announced a restructuring of the USACE management, giving responsibility for all USACE decisions to the Assistant Secretary of the Army for Civil Works, Senate Minority Leader Tom Daschle (D-S.D.) introduced legislation to create a presidential commission to investigate the USACE.

The commission would be instructed to look into a number of areas, including the effectiveness of civilian control in the USACE, compliance with environmental laws in the design and operation of projects, the quality and objectivity of USACE' analyses, the appropriateness of the USACE budget, and whether the civil works program should be moved from the Army to a civilian agency or possibly have some functions privatized.

The commission proposed by Senator Daschle would have 18 members appointed by the President, including six governors and representatives of various interests, including navigation. In his statement introducing his bill, Senator Daschle expressed a number of concerns about the USACE, including "the existence of independent agendas," rigged cost-benefit analyses and disregard for environmental laws.

He said the USACE has not kept its promise to manage the Missouri River "wisely and efficiently." According to Senator Daschle, too much power has been concentrated in the Chief of Engineers and "that power too often has been abused." He went on to say Congress has "no choice" but to consider removing the USACE from the Army and placing it with the Department of Interior.

When Secretary Caldera announced his plans to restructure the USACE two days later, Senator Daschle praised the changes as a good "first step," but indicated he still intends to push for enactment of his legislation establishing the commission to review the USACE.

Maryland Legislature Considers Docking Pilot Licensing Proposals

The state of Maryland's Senate and House of Delegates held hearings to review proposed legislation to license individuals who provide docking services to vessels serving the Port of Baltimore.

Commonly referred to as "docking pilots," these individuals are employed by tugboat companies and licensed by the USCG as first class pilots. Under the provisions of the Lighthouse Act of 1789, states are granted the authority to exercise pilotage jurisdiction over foreign-flag vessels and vessels sailing under registry when operating on state waterways. Although Maryland law recognizes docking pilots in state statute, the law does not provide for state oversight or licensing of these individuals.

The state legislature initiated several studies in 1999 to review existing state pilotage laws and regulations. The resulting recommendation was for the state itself to proceed with a licensing proposal. Senate Bill 237 and House Bill 766 outline a licensing regime that would essentially "grandfather" individuals now providing docking pilot services. However, the future pool of docking pilot applicants would not necessarily be drawn from the tugboat industry and therefore might not have the same understanding of tugboat maneuverability and capability in relation to shifting or docking large vessels.

Several members of the maritime community, including tugboat companies, shipping agents and terminal operators, testified in opposition to the legislative proposal during the hearings. Their testimony focused on the fact that any licensing regime must provide a future pool of docking pilots trained in the tugboat industry and the legislative proposal did not necessarily ensure this; that existing docking pilots have exclusively provided docking pilot services over the last several decades and there is no need to alter this safe and efficient system; and, the expansion of a state controlled monopoly is not necessarily in the long term, best interests of the Port of Baltimore.

New Washington State Ballast Water Legislation Enacted

The Washington State Legislature passed SHB 2466, an act relating to ballast water management. The bill was a cooperative effort between industry and the Washington Department of Fish and Wildlife.

The bill applies to "a self-propelled ship in commerce of 300 gt or more" and provides no vessel discharge ballast water unless there has been an open sea exchange, or, beginning January 1, 2002, the ballast water has been treated. The bill defines a vessel as "self-propelled," therefore this new legislation does not apply to barges.

A similar, but more costly and onerous, ballast water law was passed in California last year which generally does not apply to vessels engaged in domestic commerce in coastal waters, exempting the majority of West Coast barge operators. However, if a barge on an international voyage enters California waters, it is covered by the law and must pay a fee of $400 per transit to contribute to a state fund on ballast water research and education.

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