U.S.
Department of Labor
Assistant Secretary for
Occupational Safety and Health
Washington, D.C. 20210
JUL 21 1997
Captain Kirk Greiner, USCG (Ret)
Maritime & Aviation Consultants
15112 Northeast 30th Avenue
Vancouver, WA 98686-1669
Dear Captain Greiner:
This correspondence is in response to your March 6, 1997
letter regarding OSHA Instruction CPL 2-1.20, "OSHA/U.S. Coast Guard
Authority Over Vessels."
With respect to the definition provided in CPL 2-1.20 for "seamen",
it is emphasized that the scope of this definition applies only to inspected vessels. We
call your attention to paragraph M.1 (page 10) and paragraph 0.1@ (page 12) of
CPL 2-1.20 which states that OSHA regulations apply for any employee including seamen on an uninspected fishing vessel except for hazards specifically regulated
by the U.S. Coast Guard. Since fish
processing vessels under 5,000 gross tons are "uninspected" fishing
vessels (includes all fish processors except for the PHOENIX ENTERPRISE), OSHA
regulations are applicable except where OSHA is preempted pursuant to 4(b)(1) of
the OSH Act by U.S. Coast Guard regulations (e.g., 46 CFR Part 28).
A determination of whether a crew member is or is not a Jones Act seamen
is of great importance with respect to worker injury compensation, however, such
determination has no bearing with respect to occupational safety and health
compliance enforcement activities.
You noted that 29 CFR §1915.2, §1915.4, §1918.1 and §1918.3
contain exclusions from OSHA regulations for the master, ship's officers, and
crew members. Again, this exclusion
only applies to inspected vessels.
As a consequence, employees working in the factory of an uninspected fish
processing vessel are not excluded from OSHA regulation under the above noted
provisions. Further, as noted in
the previous paragraph, OSHA regulations apply for any employee including seamen
on an uninspected fishing vessel.
It is not accurate to state that OSHA defines crew members
as those individuals involved in the "navigation" of the vessel and,
thereby, excludes individuals who are not involved with the navigation of the
vessel from being classified as crew members.
To the contrary, paragraph J.2 of CPL 2-1.20 provides the following
guidance with respect to making a determination as to whether an individual is a
seaman:
"A
seaman is an employee who:
a.
Is engaged or employed in any capacity on board a vessel and has a more
or less permanent connection with the vessel, and
b.
Contributes to the function of the vessel or to the accomplishment of its
mission. To be a seaman one need not aid in navigation or contribute to the transportation of
the vessel, but one must do the ship's work.
Land-based maritime workers are not seamen (e.g., shipyard employees,
longshoremen)."
Any employee on an inspected
vessel who is determined to be a seaman will be not be subject to OSHA
regulations except for 11(c) of the OSHA Act and limited recordkeeping
requirements.
For uninspected fishing vessels, as previously stated, OSHA has
authority to enforce applicable standards and regulations for all employees
including seamen, except where U.S. Coast Guard regulations specifically address
the hazard in question. Therefore,
OSHA regulations are applicable for workers engaged in those activities listed
in Appendix A of CPL 2-1.20.
We hope that this
discussion has fully responded to your questions regarding this matter.
Your continued sincere interest in worker safety and health is
appreciated.
Sincerely,
/s/ Richard Fairfax
for John D. Miles, Jr.
Director of Compliance Programs