OSHA "SEAMEN" (Fall 97 issue)
by Captain Kirk Greiner, USCG (Ret)
This article updates information previously published in this newsletter as to applicability of OSHA shipyard and longshoring regulations contained in 29 CFR 1915 and 29 CFR 1918 to persons sailing on uninspected vessels such as tugs and fishing vessels. These two parts of 29 CFR contain exceptions for the master, ship officers and crew from the definition of an OSHA employee. We were previously under the opinion based on discussions with Seattle OSHA personnel that these exceptions applied to only those persons directly engaged in the navigation of the vessel. Processing personnel on fish processors were not crewmembers for the purposes of OSHA regulations and thus the regulations contained in these two parts applied to them. The following response dated July 21, 1997 to our inquiry to the Director of Compliance Programs, Occupational Safety and Health, Washington, DC clarifies the matter and should be of great interest to persons dealing with uninspected vessel operations.
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 O.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 5000 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 seaman 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 involved with the navigation of the vessel from being classified as crewmembers. 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, and longshoremen).
Any employee on an inspected vessel who is determined to be a seaman will not be subject to OSHA regulations except for 11(c) of the OSHA (sic) Act and limited record keeping 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 to 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.
(Signature) Richard Fairfax for John B. Miles, Jr.
Director of Compliance Programs.
Our questions to which OSHA responded were limited specifically to fish processing vessels. However, the response is broader in its application. OSHA regulations contained in 29 CFR 1915 and 29 CFR 1918 would appear to be applicable to the master, officers or crewmembers of any uninspected vessel except in those specific areas where the U.S. Coast Guard has specifically regulated such as in 46 CFR 28.