This will be my last, and briefest President's Message of the year 2001. Hooray! You say.

As you are all aware, my dear friends and colleagues, 2001 has been, in many respects, one hell of a year! Yet, hell, and dark hellacious memories, are not, I submit, what we need to dwell upon as we approach the seasons of Thanksgiving, Christmas and a Hopeful New Year.

So, this Holiday Season, I hope that we all are focused firmly and gratefully on the magnificent blessings that we have undoubtedly received. For example:

1) A brief President's Message
2) A United, United States
3) A brief Message from the President
4) Etc., Etc., Etc. (Fill in your own, at will)

For my part, on Thanksgiving Day, I returned to Manresa Retreat House for three wonderful days of prayer and peaceful meditation. Be assured that each and every one of you, and your families, were in my thoughts and spiritual devotions during that time.

Until we meet again, the OMSA Staff join me in wishing you a warm, secure and joyous holiday season.

May God be with you

AMERICA THROUGH THE EYES
OF A
WAR EAGLE

In light of the events of September 11, and the extraordinary examples of courage demonstrated by so many, I submit several literary reflections by Sir Winston Churchill just prior to and during the Second World War which add complexion to the times we are living in here and now, in America, since that fateful day.

On Courage

"The greatest storm of all is gathering, the thunderclouds are banking up, minute after minute, before our eyes. Have good confidence. Let us not for one moment lose our unshakable confidence that right will triumph."

On Commitment

"Come then, let us to the task, to the battle, to the toil - each to our part, each to our station."

On Duty

"What is the use of living if it be not to strive for noble causes and to make this muddled world a better place for those who will have it after we are gone?"

And, finally, in 1919, Churchill spoke of a hope filled future despite post-war harshness.

"We are not through the winter of our task yet. There will possibly be a period of hard weather. But the spring is coming, and we look forward to a brilliant and glorious summertime."

(His words, and his message, speak well to us, literally and figuratively, in our contemporary circumstances.)

Teresa Neumann of Lebanon, Oregon summarized the spirit of William Churchill and Americans in this letter to Time Magazine

All Americans, I hope, are ready to heed the words of Winston Churchill: "Victory at all costs, victory in spite of terror, victory however long and hard the road may be; for without victory there is no survival." To accomplish this victory, freedom-loving people throughout the world will have to be willing to sacrifice comfort, finances, superfluous liberties and perhaps even their lives. We must learn to be patient instead of arrogantly demanding, forgiving instead of litigious, and cooperative instead of contentious and divisive. It is the hour of course corrections, balance, discernment and wisdom. May we rise to the occasion with a new appreciation of what it costs to be free."

OMSA's NEW Business to Business Website
What can it do for you?

Keeping your name in front of the largest and most respected companies in the marine industry is only part of what OMSA will do for you.

OMSA takes business integration a step further by giving each member a viable web presence and by providing a new business environment to exchange ideas, products and services (Members Only).

1) Each OMSA Member Receives A Personal "Corporate Profile Page" which can:

• Display multiple locations
  
• Display multiple contacts (Names, Positions, Phone Numbers, Email Addresses)
  
• List products and services offered
  
• Include a link to your homepage (www.yourcompany.com) as well as a map link for each location, making it easy for a prospective customer to find you

2) Submit a Request for Proposals (RFPs)

• You select the categories of the OMSA MEMBERS you'd like to hear from
  
• You fill out the details of your project, including a description, time-frame, and other pertinent information
  
• You ask the questions you'd like the OMSA MEMBER to answer
  
• You post your RFP to the OMSA MEMBER NETWORK
  
• OMSA MEMBERS respond to your questions
  
• You decide with which OMSA Member you'd like to negotiate and do business....
  
• Buyers will be encouraged to post RFP's on the site, inviting respondents
  

3) Member Forum

• Exchange ideas, new products, and services all in one location.
  

4) Complete OMSA Searches and Reports:

• Directory of OMSA Members with Contact Names, Locations, Numbers, Email Address.

If you haven't requested a password and user instructions yet, contact the OMSA offices. This valuable business tool is only available to members, so get your password today.

TO ACCESS THE MOST CURRENT INFORMATION ON LEGISLATION LISTED IN THIS SECTION GO TO THE THOMAS LEGISLATIVE WEB PAGE AT HTTP://THOMAS.LOC.GOV/ AND ENTER THE BILL NUMBER IN THE ARTICLE

The April 2001 issue of About Management reported on the Supreme Court Decision in Circuit City Stores Inc. v. Adams which held that the Federal Arbitration Act of 1925 (FAA) applies to most employment contracts. House Democrats have introduced legislation intended to overturn that 5-4 decision. The proposed Preservation of Civil Rights Protections Act (H.R. 2282) would amend the FAA to make employment arbitration agreements unenforceable unless the employee and employer both voluntarily consent to arbitrate a claim after it has arisen. Developed by the Congressional Progressive Caucus, the bill was introduced by its chair, Rep. Dennis J. Kucinich (D-Ohio), and already has 35 cosponsors. It has been endorsed by civil rights, legal, labor, and other organizations, including the Leadership Conference on Civil Rights and the National Organization for Women. Sen. Russel Feingold (D-Wis.) said he will "strongly consider" introducing a matching bill on the Senate side. Since 1994, Feingold has repeatedly introduced the proposed Civil Rights Procedures Protection Act, also designed to prohibit mandatory arbitration of employment disputes.
Source: McGlinchey Stafford Vol. XIX No. 8 August 2001

Senator Kerry (D-MA) introduced a bill (S. 1587) to provide improved port and maritime security. Among other things, the bill would require the Secretary of Transportation to identify those nations with inadequate port security programs, would formalize the Sea Marshal program of the U.S. Coast Guard, would consider utilizing marine pilots to gather information, would enhance the foreign seaport security assessment program, and would provide for the collection of a fee of $0.50 per passenger embarked on cruise ships to fund the foreign seaport security assessment program.

HB 1740, Scalise - Prohibits local governments from requiring businesses to sign neutrality agreements that obligate them to tacitly allow a union to organize their workers in exchange for government services such as permitting, licensing or approval of zoning variances. (Act 1190; effective 6/29/01.) Labor reform history was made when the Louisiana Legislature passed House Bill 1740 sponsored by Representative Scalise. HB 1740 will prohibit local officials from requiring a business to sign neutrality contracts with unions (known as "labor peace agreements") in exchange for public services such as permitting licensing, or approved of zoning variances. By passing this bill, the Louisiana Legislature has sent a strong message that the receipt of public services should not be contingent upon a company's union status and help to ensure a level playing field in Louisiana's labor-management relations.

The Louisiana Legislature is ahead of the pack when it comes to the issue of genetic discrimination. Senate Bill 651, which passed in the house and the Senate without opposition, will limit genetic testing in employment and prohibit disclosure of an employee's genetic information, except under specified circumstances, and prohibit genetic discrimination in employment.

House Bill 1295 represents a welcome change for employers because it extends the three-day period for paying discharged employees wages to "the next regularly scheduled compensation run (payday) for the employer."

Source: Chaffe McCall's Labor & Employment Section: A Profile

SB 332, Michot - Permits the garnishment of wages paid to employees who have stolen from their employers. (Act 768; effective 8/15/01.)

Source: LABI Enterprise Vol. 26, No. 2 August 2001

While practical suggestions and tips are always helpful, it is prudent to occasionally revisit the major federal and state laws that apply to employers in the workplace. The following are the more common employment claims addressed in litigation:

• Louisiana Civil Rights Laws and Title VII of the Civil Rights Act, as amended these laws protect individuals from discrimination on the basis of race, sex, religion, color, and national origin. Employees who claim they were unlawfully terminated on one of these bases must prove their claim in one of two ways, by circumstantial or direct evidence.
• A case based on circumstantial evidence generally is harder for the employee to prove. The employee must prove that he was terminated for engaging in conduct that other employees of a different race, gender, religion, etc. got away with under nearly identical circumstances and that the reason for the different treatment was race, gender, religion, etc.
• Consistent prior practice is always the best defense against a circumstantial evidence claim. Direct evidence is more troublesome. Employees in this kind of case attempt to prove discrimination by showing that managers or supervisors uttered discriminatory statements that tend to indicate the employment action in question was discriminatorily motivated. Thus, it's vital that all supervisors understand that inappropriate remarks can lead to serious discrimination claims and expensive lawsuits that are harder for employers to win.
• Sexual Harassment - Sexual harassment claims are on the rise. Fortunately, employers have an affirmative defense you can utilize to obtain the dismissal of lawsuits in which employees fail to report harassment or to take advantage of the complaint procedure in your harassment policy. So, it's critical that you have a strong anti-harassment policy with an effective complaint procedure that you can show has been distributed to all employees. Usually, the best way to do this is to have all employees sign a statement to acknowledge their receipt of a copy of your policy. Additionally, your policy should encourage all employees to report any harassment directly to their supervisors or a member of the Human Resources Department. All claims should be investigated and resolved promptly with appropriate documentation. Your quick response to a harassment complaint could save you thousands of dollars in litigation costs.
• The Age Discrimination in Employment Act - This law protects employees age 40 and over from discrimination in employment actions. Employees also may attempt to prove age discrimination through circumstantial or direct evidence. Generally speaking, it is unlawful to treat employees differently because they are over the age of 40. For example, in a recent case an employer required a 55-year-old applicant to undergo a physical. The employer did not require other employees to undergo physicals and only a concern in this case because of the individual's age. The court said the employer's action was unlawful age discrimination. The only valid grounds for requiring a physical are objective performance or safety related reasons. There are a few exceptions, such as jobs that have bona fide occupational qualifications and retirement plans in which age and seniority can be taken into account.
• The Americans with Disabilities Act (ADA) - This law protects employees with covered disabilities from discriminations because of their disabilities. A disability is a physical or mental impairment that substantially limits a major life activity. Persons who have a record of being disabled or who are regarded as being disabled also are protected.

What is or is not a disability is a question for the courts to decide on a case-by-case basis. For example, one court recently held that an employee's inability to drive herself to and from work for six months did not constitute an impairment that substantially limited a major life activity since it was a temporary limitation. The ADA is unique in that the law doesn't just prohibit employers from discriminating against disabled employees and applicants. It also requires you to attempt to find reasonable accommodations for employees with disabilities that will allow them to work. Absent undue hardship, you must attempt to accommodate an employee's disability to the same level as nondisabled employees. But even if an employee can do the job with an accommodation, you're not required to hire him if it would create a direct threat to the employee's safety or the safety of others in your workplace. To constitute a direct threat, there genuinely must be a significant risk of substantial harm. If an employee cannot perform satisfactorily with or without an accommodation, then the employee is not a "qualified" individual with a disability, and you are only obligated to place him in another available job for which he is qualified.

The September 11. 2001, terrorist attacks on New York and Washington could have long-term effect on employers whose workers are reserve members of the United States military or the National Guard. On September 17, President Bush announced that as many as 35,000 reservists and National Guardsman could be called to duty as part of the nation's response to the recent attacks and sustained effort to eliminate terrorism. The Department of Labor is reminding employers that workers who leave civilian jobs for military service are protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA), which is enforced by the DOL's Veteran's Employment and Training Service.

The USERRA requires all employers, regardless of how many employers you have, to grant up to five years of unpaid leave to employees who are members of or apply for membership in the military. Military and National Guard training time does not count toward the five year leave period. To qualify for protection, an employee must notify you in advance of the need to leave for military service. The exceptions to the advance notice requirement are so broad that an employee rarely will be deemed not to have given sufficient notice.

When an employee returns from military service and requests reemployment, you must return the employee to the job he would have had if leave had not been taken. You may have to place the employee in a higher position (called the "escalator" position) if he would have been promoted in the interim. Reemployment is required if:

• The employee has taken less than five years of total military leave (but note that there are some exceptions to this requirement).

If the employee's leave lasts more than 90 days, you may be required to return the employee to:

• The escalator position or a position of equivalent seniority status;
  
• The job that most closely approximates the escalator position;
  
• The employee's job before taking leave or a job with equivalent seniority, status, and pay; or,
  
• The job that most closely approximates the employee's original job.

Additionally, if the employee is disabled due to his military service, you must provide a reasonable accommodation so he can perform the escalator position, an equivalent position, or the job that most closely approximates that equivalent position. Finally, you cannot fire an employee who returns from military leave for a specified period of time following reinstatement, depending on how long he was on leave.

Upon reinstatement, returning employees must receive all benefits they would have received had they not taken military leave. You cannot require such employees to forfeit accrued retirement benefits or to re-qualify for participation in a retirement upon return.

Employees on military leave continue to vest and accrue benefits under any retirement plan during the leave period as if they were still employed. You must also provide continuation coverage for health care to employees who take military leave, a requirement that is virtually identical to the COBRA requirement for separated employees.

Louisiana has its own military leave law.
The Military Service Relief Act (MSRA), which imposes even greater requirements that the USERRA, under the MSRA, is unlawful to refuse to hire, rehire, promote, or terminate a person because of military service.

The MSRA also prohibits firing or otherwise retaliating against
workers who take military leave.

The prohibition against retaliation applies to all employees, not just those who actually serve in the military.

Thus, an employer cannot fire anyone, whether or not she is in the military, for assisting in the enforcement of an employee's rights under the MRSA.

As of October 1, 2001, nearly 10,000 mariners still required an STCW '95 certificate. Many REC's already have extensive backlogs, and a surge of applicants seeking '95 STCW certification would exacerbate this situation. The interim policy outlined in this article will spread the certification effort over a one-year period and work in conjunction with other initiatives to ensure that all mariners are given timely services commensurate with their needs and the needs of the maritime industry. Although the Coast Guard will defer enforcement of the STCW '95 certification requirements for mariners serving on vessels over 200 GRT engaged in near coastal domestic trades, all mariners serving on vessels subject to STCW must hold the required certifications by February 1, 2003.

The new interim policy applies to U.S. mariners serving on vessels in near-coastal domestic trades on vessels of 200 or more gross register tons, beginning February 1, 2002.

It should be noted, however, that every mariner, before being assigned to any vessel over 200 GRT, whether operating near coastal or foreign routes, must have completed STCW compliant Basic Safety Training.

The Coast Guard will defer enforcement of the requirement for mariners on domestic near-coastal routes to hold an STCW '95 certificate until February 1, 2003. This policy is designed to more effectively manage the high demand for immediate issuance of STCW '95 credentials. Also, please note that even though many STCW '78 certificates are endorsed to expire on February 1, 2002, the Coast Guard will defer action on those certificates held by mariners employed in near-coastal domestic trades, and will continue to recognize them during this period, until Feb. 1, 2003.

Beginning February 1, 2002, all U.S. mariners applying for an upgrade of an existing credential, or issuance of a new credential subject to the STCW '95, must meet the full requirements of the STCW '95 before a '95 certificate will be issued. Also, between February 1, 2002, and February 1, 2003, any mariner with existing documents and renewing a credential will be issued an STCW '95 certificate, only if all the gap-closing STCW requirements have been met.

Applications for STCW '95 certificates from mariners employed on vessels engaged in foreign trade will be handled on a priority basis.

Those mariners holding a limited license that intend to engage in foreign trades should present a letter from the vessel's owner or operator stating that the expedited issuance of the STCW '95 certificate is needed. The mariner must have completed all of the gap-closing requirements before an STCW '95 certificate will be issued.

In effect, except for the requirement that every mariner must complete STCW Basic Safety Training, and mariners serving on vessels equipped with GMDSS must complete that training, both before February 1, 2002, mariners who are working on vessels over 200 GRT on domestic near-coastal routes will not be prevented from working by the USCG without a STCW '95 certificate between Feb 1, 2002 and Feb 1, 2003.

OMSA urges all members and mariners, if possible, to complete all requisite STCW training and request the appropriate documentation before Feb 1, 2002.

In 1988, at our request the Eighth Coast Guard District enacted a policy that allowed for engineering officer candidates who had met the requirements for the issue of a DDE 1000 HP license to have their license endorsed with a temporary company specific DDE for up to 4000 HP. This policy was most recently renewed by a MSO New Orleans policy in 1997.

With the advent of STCW, the Coast Guard had intended to allow this "temporary" program to expire. Once again, however, we found ourselves in a situation similar to that of 1988 and 1997 and were compelled by circumstances to submit to the Coast Guard a request to help ease a shortage of qualified engineers.

OMSA asked that the Coast Guard renew this policy for an additional three (3) years. Through extensive negotiations and the development of a generic list of assessments for our members, the Coast Guard has agreed to extend this program until February 1, 2005, on certain conditions. Note: This is a temporary endorsement as DDE 1000/4000 HP, authorizing restricted, domestic service by the subject mariner only aboard offshore service vessel(s) of the subject company.

As opposed to the previous versions of this temporary DDE program, where a mariner simply needed a letter from their company for the license endorsement, this new OMSA USCG approved DDE program further requires that each company must either:

A. Create a company specific assessment program and assess, the engineer's skills and abilities. This assessment program must, minimally, be based upon the competencies in the STCW Code and submit the program for approval to the National Maritime Center for approval for the DDE 1000/4000 program, OR

B. Submit a letter to the effect that the company has met all conditions of the U.S.C.G. approved OMSA program, and at a minimum, assessed the engineer candidates skills in the areas as listed in the approved OMSA generic OSV competencies. (In other words, use and fulfill the requirements of the OMSA program, as approved).

In either case, the company must have the candidate for the temporary, company specific, DDE 4000HP license be evaluated by three (3) licensed engineers, and receive a positive recommendation from these three engineers. A company must document the above requirements in a letter to the Coast Guard when requesting the issuance of a company specific DDE 4000 HP endorsement.

In addition, under this agreement, companies that use this extended DDE policy must develop and implement programs to increase the pool of qualified engineers. We, as an industry, have three years to determine the factors related to recruiting and retention of engineers, for OSV's and address those issues. OMSA has promised the Coast Guard that we will invest extraordinary efforts to avoid recurrence of this historical problem. OMSA members must therefore discuss the problem of mariner recruiting and training and will be obliged to devise a plan to increase the numbers of vessel engineers, i.e. adding an oiler/QMED (Engineer in training) to enginerooms) with a view to developing a long-term solution.

There are two groups of prospective seafarer candidates that could participate in and be constructively affected by the program:

The first group is comprised of seafarers with existing documents, such as QMED and Engineer, 1000 HP. This class of candidates, if they meet the stipulated requirements approved by the Coast Guard, would be granted company specific authority to operate as a DDE 4000HP during the interim period before they accumulate the full total of sea service days required under the regulation to automatically upgrade from 1000HP to 4000HP. The temporary, company specific endorsement will be removed when the mariner completes the additional sea service required to advance from DDE 1000HP to DDE 4000HP.

It is also contemplated that, under this program, a second group of seafarers will be eligible. Specifically, unlicensed mariners, such as those not currently holding QMED or DDE credentials, but considered as having "equivalent supervisory engineroom experience". Mariners with evidence of a minimum of 240 12 hour days of sea service in an engineroom, powered by engine units in excess of 1000 HP, would be allowed to test for QMED, and/or DDE 1000. If successful, the candidate would be allowed to participate in the subject company specific, temporary DDE 4000 HP program.

Note: We are still working out certain details with the USCG regarding implementation of this program, but the program is fully approved and in effect. Full details can be obtained by fax or mail from the OMSA offices.

On November 7 and 8, the Coast Guard National Offshore Safety Advisory Committee met in New Orleans, at the Marine Safety Office. On the 7th the Prevention Through People subcommittee met to discuss its task to research the so-called 12-Hour Rule and the effect of technology and deepwater operations on mariner fatigue. The committee chairman presented a plan of action. Bob Alario presented OMSA's actions on mariner fatigue. OMSA has already addressed all action items presented by the chairman. Our work with the Coast Guard (Lt. Scott Calhoun) addresses most concerns. It is very important that we continue our aggressive partnership with the USCG Crew Alertness Campaign and Crew Endurance Research. OMSA has presented a draft report to the subcommittee addressing all of their concerns, but this is just a start.

On November 8, Bob Alario reported to NOSAC the status of our OMSA STCW licensing programs. OMSA was well represented at the NOSAC meeting by a large contingent of member companies.

OMSA was one of a significant number of maritime related organizations that sent comments to the docket protesting the implementation of mandatory 2-year background checks of prospective employees. DOT implemented its new regulations requiring employers to undertake background inquiries of prospective safety-sensitive employees and, in so doing, rejected the maritime industry's petition seeking to exempt the industry from the requirement (Section 40.25) in the agency's final rule Transportation Workplace Drug and Alcohol Testing Programs. Essentially, DOT concluded that submitted industry comments on this provision did "not justify any change in Section 40.25".

Section 40.25 essentially requires an employer, after securing an employer's written consent, to obtain the previous two years of drug and alcohol testing information on the new employee from former employers. This requirement applies to employees seeking to begin performing safety-sensitive duties for the employer for the first time, i.e., a new hire, an employee who transfers into a safety-sensitive position (not defined in the final rule). If the employee refuses to provide written consent, the employer must not permit the employee to perform safety-sensitive functions. If feasible, the employer must obtain and review this information before the employee first performs safety-sensitive functions. If this is not feasible, the employer must receive and review this information as soon as possible. However, the employer must not permit the employee to perform safety-sensitive functions after 30 days from the date on which the employee first performed safety-sensitive functions unless the employer obtained or made and documented a good faith effort to obtain this information.

It was the position of OMSA, along with other maritime interests that this regulation was unnecessary due to the fact that all maritime related drug and alcohol tests (positives) are reported to the Coast Guard. Because of this central repository of information already in existence, there is not reasonable need for marine employers to conduct such a background check.

With the implementation of this rule, ignoring the comments of the affected industry, a coalition has been formed to seek legislative relief. Washington Policy Associates (WPA), a lobbying group representing small charter boat operators is the primary organizing force behind the coalition. They have approached OMSA for moral support and political clout. The Washington law firm of Dyer Ellis has agreed to pursue congress for legislative relief. OMSA has committed to communicating with friendly legislators in support of any efforts.

The Coast Guard Maritime Safety Line, 1-800-682-1796, has information from over 30 Coast Guard Captains of the Port from the Mississippi River to the Atlantic Ocean.

On September 17, the Coast Guard Marine Safety Center issued Technical Note MTN 01-01 that provides clarification of the towline pull criterion requirements for towboats equipped with Z-Drives, as specified in 46 CFR 173.095.

The Coast Guard is amending 46 CFR part 126 (subchapter L) to authorize Offshore Supply Vessels (OSVs) to be eligible for the Alternate Compliance Program (ACP). The action will provide OSVs an alternative method to fulfill the requirements for vessel design, inspection, and certification without compromising existing safety standards. OSVs were not originally included in the ACP's framework because they were not generally intended or designed for international service. Recent interest by the offshore industry to construct OSVs in compliance with international standards, specifically the International Convention for the Safety of Life at Sea, 1974 as amended (SOLAS), has provided impetus for this regulatory amendment. This rule is effective January 22, 2002, unless an adverse comment, or notice of intent to submit an adverse comment, reaches the Docket Management Facility (USCG-2001-10164) on or before December 24, 2001. If an adverse comment, or notice of intent to submit an adverse comment, is received, the USCG will withdraw this direct final rule and publish a timely notice of withdrawal in the Federal Register.

If the NPRM stands as is, OMSA will, in conjunction with the ACP program attempt to obtain approval for underwater inspections for OSV's, in controlled circumstances.

If you have questions on this rule, contact Lieutenant Benjamin Nicholson at 202-267-0143, or email him at BNicholson@comdt.uscg.mil.

The U.S. Court of International Trade has ruled that only that portion of the maintenance expense of dry-docking of a U.S. Vessel in a foreign port for a period of time in excess of that necessary for a mandatory inspection and/or modification is dutiable. In the instant case, plaintiffs' vessels were dry-docked in foreign ports primarily to undergo U.S. Coast Guard inspections and classification society surveys. Dutiable repairs were also performed. The U.S. Customs Service, in assessing the duties owed, applied a pro rata formula with regard to the maintenance expenses of the drydockings. The court determined that the use of pro rata formula was arbitrary and capricious. American Ship Management, LLC v. United States.

The US Coast Guard has implemented a new policy to centralize the notification of ship arrivals in US ports. As part of this new policy, the USCG announced the creation of the National Vessel Movement Center (NVMC). The NVMC began operations on October 15, 2001. All advance Notices of Arrival are to be submitted to the NVMC rather than to the local Captain of the Port (COTP). NVMC has established a web site, www.nvmc.uscg.gov, to provide information and forms for this program. Separate forms are provided for vessel identification, crew list, and cargo list. Ship notice of arrival information should be provided to the NVMC using email, fax, or phone.

The U.S. Coast Guard has signed a formal agreement with Germanischer Lloyd, the German classification society, establishing a partnership authorizing the classification society to perform certain vessel inspection and certification functions to evaluate the safety and material condition of U.S. flagged vessels on behalf of the U.S. Coast Guard.

The U.S. Bureau of Transportation Statistics (BTS) has released its Transportation Indicators: October 2001. The report reveals, among other things, that U.S. fatalities among both maritime workers and maritime passengers were down in 2000 as compared with 1999.

In November 2000, the National Marine Fisheries Service (NMFS) regulations that govern the incidental "take" (a term which includes the harassment, harm, injury or killing) of marine mammals during the explosive removal of offshore structures, expired. The MMS Regional Office has notified industry that due strict interpretation of these regulations, there can be "no take" of marine mammals when performing explosive removals. Any actions that result in the injury or harassment of a marine mammal during such operations would be subject to criminal penalties.

Source: NOIA Washington Report Vol. XXIX No. 11 September 5, 2001

These articles are intended as a summary of issues, for general information purposes only and are not intended to be a substitute for legal consultation with respect to any specific matter. For such opinion or advice, you should contact legal counsel. See your OMSA membership directory for the names of member firms.

On Wednesday, October 31st, the United States Supreme Court heard oral arguments in the case, Elaine L. Chao, Secretary of Labor v. Mallard Bay Drilling, Inc. In June, the Transportation Institute and American Waterways Operators among others filed Amicus Curiae briefs supporting U.S. Coast Guard regulatory authority over vessels in lieu of extending the jurisdiction of the Occupational Safety and Health Administration (OSHA) to uninspected vessels. This case will decide which Federal agency (Coast Guard or OSHA) has the primary occupational safety and health jurisdiction over uninspected commercial vessels.

Newport News Shipbuilding and Drydock Company v. Stilley, 243 F.3d 179 (4th Cir. 2001) This case arose out of a claim for long shore and harbor workers compensation benefits by a decedent and his family for decedent's asbestos-related lung disease, which he claimed to have suffered as a result of asbestos exposure during his employment. Stilley worked for Newport News as an electrical helper for about nine months in the 1950's. He then left and began working for NASA where he was employed for nearly 30 years until 1987. It is disputed that he was exposed to asbestos in sufficient quantities to cause lung disease by both employers. In 1994, he was diagnosed with mesothelioma, an asbestos-related lung disease. Stilley filed for disability benefits against Newport News under the Longshore and Harbor Workers' Compensation Act for this illness. After his death, his wife pursued the compensation claim and also filed for death benefits. The benefits awarded under the LHWCA were based on the last maritime employer rule, which holds the last maritime employer is fully liable for a claimant's injury, even though a subsequent, non-maritime employer also contributed to the injury. Newport News appealed the award on the grounds that the last employer rule should not be used to hold it liable where a subsequent employer is a non-maritime employer. The Fourth Circuit Court of Appeals rejected this argument and held that the last maritime employer rule is justified and serves the congressional purpose of the prompt and simplified processing of compensation claims. The Court refused to create a distinction for a situation in which a subsequent employer was a non-maritime entity to allow the last maritime employer to escape liability.

Source: Mouledouox, Bland, Legrand, & Brackett For the Record, Summer 2001

The U.S. Court of Appeals for the Fifth Circuit has reaffirmed its prior holdings that, for a person to be considered a seaman under the Jones Act, he or she must spend at least 30% of their work time on a vessel or fleet of vessels owned or under the control of the employer. In the instant case, plaintiff was an oil field worker in the Gulf of Mexico. He generally worked on offshore rigs, but sometimes worked from vessels. He was injured while working on a rig and brought suit against his employer under the Jones Act. His work record revealed that he spent 24.88% of his time on vessels of his employer and 13.54% of his time on vessels controlled by third parties. He argued that the third party time should be included in the calculation to determine if he was a Jones Act Seaman. The court disagreed. Roberts v. Cardinal Services.

Source: Maritime Items, bryant@hklaw.com

In a close 4-3 decision issued on June 29, the Supreme Court of Louisiana held that an employer and employee may not agree that the employee will not become employed by a competitor of the employer once their employment relationship terminates. Writing for the court, Justice Katherine Kimball found that Louisiana law only permits the employee to agree not to start his own business in competition with the employer - effectively killing such agreements in this state. Swat 24 Shreveport Bossier, Inc. v. Bond, Slip opinion, No. 00C1695 (June 29, 2001).

Source: Personnel Points of Interest, Lemle & Kelleher, L.L.P. Summer 2001

Most employers have come to the realization that one of the most serious implications of the Family Medical Leave Act (FMLA) is its effect on absenteeism policies and the employer's right to discipline for excessive attendance problems. A decision by the Ninth Circuit Court of Appeals in a case involving America West Airlines has underscored another wrinkle in the law that employers must clearly specify to employees which 12-month period will be used in calculating FMLA entitlements. The employer in this case terminated an employee who had missed 16 days of work in February 1996 for reasons which were admittedly covered by the FMLA. Regulations under the act provide that an employer "cannot use the taking of FMLA leave as a negative factor in employment actions, such as … disciplinary actions."

The employer argued that the absences were not covered by the FMLA since the employee had already exhausted her 12-week leave under a "rolling 12-month approach." The employer had never communicated to employees that it was using that approach rather than a calendar or anniversary year, and it was that failure which proved to be its undoing. The court relied on another federal regulation which provides that if the method of calculation is not communicated to employees, then the method that provides the best outcome for the employee must be used. Significantly, the court rejected the employer's argument that is parroting of the FMLA statement, that employees were entitled to up to 12 weeks leave in "any 12-month period," had provided enough notice to employees that a rolling period would be used.

Source: Client Letter, Vol. LVI. No. 8 The Kullman Firm, August 31, 2001

The U.S. Court of appeals for the Fifth Circuit ruled that when a shipowner files an action in federal court for limitation of liability, it waives any defenses it may have had with regard to that court's in personam jurisdiction over it. In the instant case, plaintiff seaman filed suit in state court against the shipowner for personal injury. The shipowner then filed for limitation of liability in federal court, where the shipowner asserted the court had not in personam jurisdiction over the shipowner as it had been forced to file the limitation action only because of plaintiff's state court action. The court held that a party may not utilize a court to its advantage without accepting all consequences flowing therefrom.

Karim v. Finch Shipping Company, Ltd.

Since September 11, the issue of Homeland Security has been at the forefront of everyone's mind. As indicated above, OMSA has been attending meetings to represent the industry and determine what we can do to enhance national security. On October 10, Ken Parris attended a meeting hosted by the Offshore Operators Committee. This was a general overview and organizational meeting. On November 7, Ken represented OMSA at the formative meeting of the Coast Guard's Eighth District Gulf Safety Committee. On October 30, Bob Alario was invited to represent our industry in Washington, D.C. at the Coast Guard's Maritime Homeland Security meeting hosted by Admiral Paul Pluta. This high level meeting was called by the Coast Guard to inform senior industry leaders of new governmental priorities and how we can help them secure our borders. The Coast Guard announced that the National Response Center would provide the "one call" service for receiving reports of suspicious activity at 1-800-424-8802. OMSA has prepared a written "suspicious activity" checklist that will be sent out and is available by email from our offices, and a checklist of suspicious activities produced by MSO New Orleans is reproduced below.

The Captain of the Port of New Orleans requests the assistance of everyone in the maritime industry community in our war against terrorism. Currently, USCG personnel are fully engaged in the protection of our vital port assets and infrastructure. All masters, mates, pilots, deckhands, agents and dockworkers can serve as our "eyes and ears" in the field as you go about the normal business of the port. Please review carefully the following list of suspicious activities and report them at once to MSO New Orleans staff at (504) 589-7471.

1. Unknown persons photographing waterfront facilities.
   
2. Unknown persons attempting to gain access to facilities.
   
3. Suspicious individuals establishing businesses or roadside food stands nearby facilities.
   
4. Suspicious persons loitering on or around bridges or bridge structures.
   
5. Suspicious waterfront tied to bridge piers or supports.
   
6. Suspicious VHF radio transmissions or communications with other vessels.
   
7. Lack of VHF communications from vessels transiting the river or offshore.
   
8. Suspicious vehicles on the levee or the levee batture.
   
9. Unknown persons near waterfront facilities for extended periods.
   
10. Unknown persons calling facilities or facility personnel to ascertain security, personnel, or standard operational procedures.
    
11. Vehicles with personnel in them loitering and perhaps taking photographs or drawing diagrams of facilities.
    
12. Small boats with personnel on board loitering near facilities or offshore platforms, perhaps taking photographs or drawing diagrams.
    
13. Small boats with personnel onboard loitering near tankers in transit, at anchor, or moored at petrochemical plants.
    
14. Suspicious general aviation aircraft operating nearby waterfront facilities or offshore platforms.
    
15. Any bomb threats to facilities or offshore platforms.
    
16. Unknown persons attempting to gain information about facilities by walking up to industry personnel or their families and engaging them in conversation.
    
17. Suspicious vendors attempting to sell merchandise nearby facilities or to facility personnel.
    
18. Theft of company vehicles, company vehicle passes, company personnel identification, or personnel uniforms.
    
19. Theft of standard operating procedures documents.
    
20. Unknown or suspicious workmen trying to gain access to facilities to repair, replace, service, or install equipment.
    
21. Suspicious emails on the Internet related to the maritime industry.
    
22. Suspicious package deliveries or attempts to deliver packages that were not ordered by the facility.
    
23. Suspicious activity around containers at terminals.
    
24. Individuals proclaiming support for the terrorist activities that occurred on 11 Sept. 01.
    
25. Anti-American sentiment being expressed by crewmembers on commercial vessels.
    
26. Anti-American pamphlets, posters, or other paraphernalia onboard commercial vessels.
    
27. Any or all-suspicious activity involving port infrastructure (bridges, locks, wharves, and facilities).
    
28. Small pleasure craft operated outside normally transited offshore routes.
    
29. Ships or larger vessels operated outside normally recognized safety fairways.
    
30. Anything not mentioned already that you find suspicious.
    

The U.S. Department of the Interior, Minerals Management Service has awarded a study, Supply Logistics of OCS and Gas Development in the Gulf of Mexico, to the National Ports and Waterways Institute of the University of New Orleans.

The study will analyze the logistics of the offshore oil and gas industry's supply and fabrication system in the Gulf of Mexico to develop a method of measuring Outer Continental Shelf (OCS) related port activity. Ports, and port-associated support facilities are critical staging areas for OCS oil and gas related activities. In recent years, the supply network supporting the offshore oil and gas industry has expanded greatly in size, complexity, and sophistication.

The National Ports and Waterways Institute, under the cooperative agreement, will examine the operations of three Louisiana ports: Port Fourchon, a service base port; Port of Iberia, a fabrication port; and Port of Morgan City, both a service base and a fabrication port.

This Q&A contains only a general explanation of Longshore law and how they affect employers and employees. Details on specific regulations, court decisions and other technical aspects are not included. For a specific legal analysis of your situation we recommend that you contact your attorney.

Who is covered? The Longshore and Harbor Workers' Compensation Act provides medical and wage benefits to employees (other than seamen) who work on or near navigable United States waters. Covered employees include, for example, Longshore and harbor workers engaged in stevedoring, ship building, ship repairing, ship breaking, and related services. Office and clerical workers (who are employed exclusively as such), individuals employed by a club, camp, recreational operation, restaurant, museum or retail outlet fall outside of the Act and would probably be covered by State workers' compensation.

Injured employees must meet two requirements to be covered under the Act:

1. Situs: The site or location where the accident occurred must be on or near navigable water. The situs may include any adjoining pier, wharf, dry dock, terminal, building way, marine railway or other adjoining area commonly used in the loading, unloading, repairing or building of vessels.
   
2. Status: The employee's work or occupation must be maritime in nature.

Are oil rigs in the Gulf of Mexico included? The Outer Continental Shelf Lands Act applies to individuals working on fixed platforms in the Gulf of Mexico. Fixed platforms located within three miles of the Louisiana coast are in the state's jurisdiction for workers' compensation purposes. Hence, individuals working on fixed platforms within the three mile limit of the Louisiana coast are covered by state workers' comp laws. Waters beyond this three mile limit are covered under the federal Longshore and Harbor Workers' Compensation Act under the provisions of the Outer Continental Shelf Lands Act.

When are employees covered? A Longshore injury is defined as almost any physical impairment occurring during the course and scope of the worker's employment. Employees who work offshore are in the scope of employment 24 hours a day, when working a seven-day-on, seven-day-off schedule offshore.

Are benefits different from State workers' comp? Unlike State workers' compensation, Longshore claims fall under the jurisdiction of the U.S. Department of Labor. Longshore claims involve a higher benefits schedule, stricter reporting deadlines and heavier fines of up to $10,000 for noncompliance.

Which injuries must be reported? Any injury resulting in lost time totaling one or more work shifts must be reported, even if it did not result in any compensable lost time. The only exception to this reporting requirement is when the injured employee returns to work the day after the injury. An injury may result in permanent impairment without lost time, but the employer is still required to report the injury because the employee may be entitled to permanent impairment benefits, even without temporary total disability.

How are Longshore Claims reported? Under the Longshore Act, the employer must notify his insurance carrier and the U.S. Department of Labor, using form LS-202, as soon as he becomes aware of the injury. If an employer reports an injury later than 10 days after the event, he will receive a "show cause" letter (Form LS-512) requesting an explanation for untimely reporting. A written response must be submitted within 21 days to avoid a fine. All injury reports are submitted to the District Director for the Compensation District in which the injury occurred. In Louisiana, reports are submitted to the Department of Labor's New Orleans office. After the employee returns to work, the employer must file form LS-210 which can also be used to report a second period of disability. Like the LS- 202, the LS-210 should be sent to both the insurance carrier and the U.S. Department of Labor.

What kind of coverage does LWCC offer for Longshore exposure? LWCC offers federal coverage as an endorsement to State workers' comp policy. "If Any" incidental coverage is appropriate for those who don't have definite Longshore exposure, but want peace of mind. It runs as little as $500 and is designed to cover legal defense expenses should one of your employees file a Longshore claim, as well as claims costs should the claim be ruled USL&H. For those with definite Longshore exposure, LWCC provides coverage for true "F" classes of business where most Longshore payroll falls. For other classes, LWCC allows you to split your payroll between State and Longshore so that you pay the Longshore rate for only the portion of your business that has the exposure.

Source: LWCC Online Newsletter, October 2001

Chemical exposure may cause serious health problems such as heart ailments, kidney and lung damage, sterility, cancer, burns and rashes. Chemicals may also cause fires, explosions and other serious accidents and was the most often cited OSHA violation for general industry in 1998.

To develop a Hazard Communication Program, employers must gather information about chemicals used in the workplace, take steps to reduce exposures, substitute less hazardous materials and establish proper work practices to help control work-related illnesses and injuries caused by chemicals.

Your Responsibilities Under the Hazard Communication Standard

The HCS requires employers whose employees package, handle, react or transfer hazardous chemicals to develop a Hazard Communication Program which includes preparing and transmitting information regarding those chemicals to their employees.

Most chemicals used in the workplace have some hazard potential and thus are covered by the rule, including physical hazards (such as flammability) and health hazards (such as irritation, lung damage, and cancer).

Laboratories and operations where chemicals are only handled in sealed containers (e.g., a warehouse) are covered by the rule on a limited basis only.

The HCS is a "performance-oriented" standard. That means you can adapt the rule to the needs of your own workplace, rather than following specific, rigid requirements. It also means you have to exercise more judgment to implement an appropriate and effective program.

In developing a Hazard Communication Program, you can rely on and should utilize information received from your suppliers. You have no independent duty to analyze the chemical or evaluate its hazards.

Chemical manufacturers and importers must evaluate the hazards of the chemicals they produce or import.

Using that information, they must prepare labels for containers and more detailed technical bulletins called material safety data sheets (MSDS) that explain the chemical's health hazards and recommend protective measures.

Identify Responsible Staff

Hazard communication is a continuing program in your facility. Success depends on a commitment from every level of your organization.

Identify Hazardous Chemicals in the Workplace

The standard requires you to list in your written program all hazardous chemicals found in the workplace. The best way to compile this list is to survey the workplace:

• Inspect the workplace. Identify chemicals in containers, including pipes, but also think about chemicals generated in work operations. For example, welding fumes, dusts and exhaust fumes are all sources of chemical exposures.
  
• Read labels provided by suppliers for hazard information.
  
• For your information and planning, you may also note location(s) of chemicals in the workplace and hazards indicated on labels
  

Once you have compiled a complete list of chemicals, the next step is to acquire an MSDS for each of them from the supplier. Employees should not use any chemicals for which an MSDS is not available.

Preparing and Implementing a Hazard Communication Program

A written plan describes how the standard will be implemented in that facility. It does not have to be complicated but should contain a blueprint for implementing your program to ensure all requirements have been addressed.

The written program must describe how the requirements for labels, material safety data sheets and employee training are going to be met in your facility.

Labels and Other Warnings

In-plant containers of hazardous chemicals must be labeled, tagged or marked with the identity of the material and appropriate hazard warnings.

The identity is any term that appears on the label, the MSDS and the list of chemicals, thus linking these three sources of information.

The hazard warning is a brief statement of the hazardous effects of the chemical ("flammable", "causes lung damage").

Labels must be legible and prominently displayed. There are no specific requirements for size or color, or any specified text.

With these requirements in mind, the following types of information will ensure that proper labeling is used in your facility:

• Designation of person(s) responsible for ensuring labeling of in-plant containers
  
• Designation of person(s) responsible for ensuring labeling of any shipped containers
  
• Description of labeling system(s) used
  
• Description of written alternatives to labeling of in-plant containers, if used
  
• Procedures to review and update label information when necessary

Material Safety Data Sheets

Although no specific MSDS format is required, there are specific information requirements. OSHA has developed a non-mandatory format, OSHA Form 174, which may be used by chemical manufacturers and importers to comply with the rule. The MSDS must be in English.

The role of MSDSs under the rule is to provide detailed information on each hazardous chemical, including its potential effects, its physical and chemical characteristics and recommendations for appropriate personal protective measures. A glossary of MSDS terms may be helpful to interpret MSDSs.

MSDSs must be readily accessible to employees in their work areas during their shifts. You must decide what is appropriate for your particular workplace.

Some employers keep MSDSs in a binder in a central location (e.g. in the pickup truck on the construction site). Others, particularly in workplaces with large numbers of chemicals, computerize the information and provide access through terminals. As long as employees can get the information when they need it, any approach may be used.

In order to ensure that you have a current MSDS for each chemical in the plant and that employee access is provided, include the following in your written program:

• Who is responsible for obtaining and maintaining the MSDSs
  
• How such sheets are to be maintained in the workplace (e.g., in notebooks in the work area(s) or in a computer with terminal access) and how employees can obtain access to them when they are in their work area
  
• What procedures to follow when the MSDS is not received at the time of the first shipment
  
• What alternatives to actual data sheets are in the workplace, if used
  
• For producers: What procedures to update MSDSs when new and significant information is found
  One of the most important aspects of the written program is to ensure someone is responsible for obtaining and maintaining MSDSs for every hazardous chemical in the workplace.

Employee Training
Employees who may be "exposed" to hazardous chemicals while working must be trained and provided with information prior to working with hazardous chemicals and again whenever hazards changes.

"Exposure" or "exposed" under the rule means that "an employee is subjected to a hazardous chemical in the course of employment through any route of entry" (inhalation, ingestion, skin contact or absorption, etc.) and includes potential (e.g., accidental or possible) exposure.

Through effective training, workers will learn to read and understand information about the chemicals they work with, determine how this information can be obtained and how it should be used in their own workplaces. They'll also understand the risk of exposure as well as ways to protect themselves.

If you conduct training yourself, understand the material and be prepared to motivate employees to learn.

In reviewing your training program, the following items need to be considered:

• Definition of training objectives
  
• Designation of person(s) responsible for conducting training
  
• Format of the program to be used (audiovisuals, classroom instruction, etc.)
  
• Elements of the training program
  
• Procedures for training new employees and retraining when a new hazard is introduced
  

The written program should provide enough detail about your training plans to assess whether or not a good faith effort is being made in this area.

The rule does not require employers to maintain records of employee training, but many employers choose to do so. This may help monitor your program and ensure all employees are appropriately trained. An employer can provide employees information and training through whatever means are found appropriate and effective.

Other Requirements

In addition, the following questions should be asked to assess the adequacy of the program:

• Does a list of the hazardous chemicals exist in each work area or at a central location?
  
• Are your methods of informing employees of the hazards of non-routine tasks outlined?
  
• Are employees informed of the hazards associated with chemicals contained in unlabeled pipes in their work areas?
  
• On multi-employer worksites, has the employer provided other employers with information about labeling systems and precautionary measures?
  
• Is the written program made available to employees and their designated representatives?
  

Source: LWCC Online Newsletter, October 2001

Government is now open seven days a week, 24 hours a day, 365 days a year, according to the head of the General Services Administration in New Orleans. Anyone with a computer and Internet access can get information about government agencies around the clock via www.firstgov.gov, an upgraded, award-winning search engine, Stephen Perry told information technology professionals attending a conference for the Federation of Government Information Processing Councils. Internet users can now search all 47 million pages of information about federal and state programs and services. (If you start now, you can finish by Christmas - 3010?)

Source: Leslie Williams, The Times Picayune

OMSA board member Tom Fairley, President and CEO of TRICO delivered the keynote address to this year's Workboat Show. A large crowd gathered to hear one of our industry's leaders discuss the current and future state of industry affairs. The unions attacking TRICO sent in a number of elderly women and girls to attempt to disrupt Mr. Fairley's speech. These interlopers were roundly booed by the audience and left.

While OMSA staff Bob Alario and Ken Parris were speaking on the STCW & Work Hours panels, David Krapf, Workboat Magazine editor and the crew at Diversified Publications were busy putting on another excellent show. This year's show was well attended and exhibited by OMSA members. The technical presentations again provided a valuable forum for information sharing.

Every now, then and again, on request, we reprint articles from past issues that retain elements of truth and substance. For example:

KNOW THINE OWN SELF
OR
(JUST WHO DO YOU THINK YOU ARE?)

OMSA members have been called a lot of names lately. Australians, Brits, Norwegians and others from around the world have taken the trouble to fly to the Gulf South and meet up with union snowbirds from Chicago, Washington and New York to say nasty, mean things about us.

So, OMSA desperately needed to do its own analysis in order to determine whether it's people really were the low class, superficial degenerates our antagonists insist we are. (And when OMSA has a tough "underground" job in industrial espionage to be done, to WHOM do they always turn? You guessed it, the infamous, notorious and openly ingenuous "OMSA special agent", # Double Zero, T-Joe Isouzou.)

OMSA told T-Joe that the unions had hired an "independent" professional firm to conduct a survey to develop a general character profile of OMSA members. The results, predictably, were not pretty. Now, what OMSA needed was a truly "scientific" appraisal of the nature and character, of the typical OMSA pond scum member. Actually, when you get down to the real nitty gritty, we all need to know just what kind of people we are, and what type of people are standing aside you and beside you, i