10 AUGUST 2018 • FOGHORN FOGHORNFOCUS: SAFETY H ave you ever considered the possibility that a representa- tive of the Occupational Safety and Health Administration (OSHA) could come to your operation? What if that person says there is OSHAjurisdic- tion or probable cause to inspect your vessel, shoreside terminal and offices, or vessel repair and maintenance facili- ties? Do you know what to say and do? This article is the first of two that delves into complexity of OSHAand its role in the passenger vessel industry. OSHA’s overall mission is to promote workplace safety and enforce rules designed to prevent employee injuries. It certainly has extensive juris- diction over many parts of the maritime industry, but that authority is not unlimited. Operators of Coast Guard- inspected passenger vessels should familiarize themselves as to what OSHA’s authority is and what it is not. When it comes to workplace safety jurisdiction in the maritime industry, a lot of people are rightfully confused as to where OSHA’s boundaries start and end and where the U.S. Coast Guard’s boundaries begin. Keep in mind that when one refers to OSHA, it could be the federal agency or a state agency (if the federal government has delegated authority to the state). Inspected Vessels – Coast Guard or OSHA? O S H A’ s p u r v i e w i n c l u d e s shipyards, vessel maintenance facili- ties, marine terminals, other shoreside locations (these might include passenger terminals and company offices), and vessels that are not Coast Guard-inspected. With respect to inspected vessels (including passenger- carrying vessels), it is the U.S. Coast Guard that has regulatory authority for workplace safety. The key is section 4(b)(1) of the Occupational Safety and Health Act. It reads: “Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies … exercise statutory authority to prescribe or enforce standards or reg- ulations affecting occupational safety or health.” The Coast Guard has statutory OSHA and the Passenger Vessel Industry By Earnesto Coleman, Hornblower Cruises and Events authority to prescribe and enforce the safety and health of seamen aboard an inspected vessel. Since the Coast Guard has exercised that authority by issuing comprehensive regulations for the working conditions seamen on inspected vessels, OSHA may not enforce rules regarding these working conditions. However, as discussed later, OSHA does have some authority dealing with recording and reporting occupational injuries and illnesses aboard inspected vessels. The delineation of responsibility between OSHA and the Coast Guard was expressed in a Memorandum of Understanding executed between the two agencies in 1983. It remains in effect. It says, in part: “The Coast Guard is the dominant federal agency with the statutory authority to prescribe and enforce standards affecting the occupational safety of seamen aboard inspected vessels … OSHA has concluded that it may not enforce the OSH Act with respect to the working conditions of seamen aboard inspected vessels.” While the term “seaman” has several definitions for legal purposes, here it is construed very broadly. An OSHA Instruction document states: “A seaman is an individual engaged or employed aboard a vessel in navigation who has a substantial connection with a vessel … and who contributes to the function of the vessel in navigation or to the accomplishment of its mission, including but not limited to the navi- gation of the vessel.” Thus, virtually every individual employed on board an inspected passenger vessels falls within this definition. If OSHAreceives a workplace safety or health complaint for a worker on an inspected vessel, it will refer it to the U.S. Coast Guard for its consideration to determine whether the facts com- plained of constitute hazardous con- ditions. OSHA and the Coast Guard will continue to discuss the extent PROTECTING OVER 1 MILLION LIVES EVERY DAY Survitec is the number 1 global supplier of innovative safety and survival solutions on passenger vessels. In addition to our flexible liferaft agreements we offer MES, lifeboats, rescue boats, fire safety and suppression, lifejackets, immersion suits, distress signals, electronics and much more. CONTACT US TODAY: (800) 931-3221 | (604) 278-3221 vancouver.sales@survitecgroup.com SURVITECGROUP.COM SCA0154A Ad - Foghorn 2018.indd 2 18/07/2018 16:13:30