PROTECTING THE JONES ACT
Over the last few years I have plied you with stories of union attacks on our industry, problems with the STCW Code, and even my perverted view of retirement. Each day, as we approach still another hurdle, I think to myself, “Thank God this should be the last one for a while.” Unfortunately, as we clear each hurdle, our longing gaze finds not clear sailing ahead, but still another hurdle, after more formidable than the last. The fights for our industry, instead of fewer, are getting more frequent. Instead of getting easier, they are getting harder. Today, I am announcing a “CODE RED” ALERT!

We face today, in the offshore marine industry, one of the most serious challenges we have seen or will see, in the general erosion of the cabotage laws of the U.S., viz. the Jones Act and U.S. towing statutes. This emerging threat to American control of the domestic inland and OCS offshore waters emanates from various sources, none of which should be underestimated. Each poses an extremely serious threat to our U.S. Cabotage laws, and thereby, to our industry’s survival.

What makes this struggle so difficult is the fact the battlefield shifts with each set of circumstances. Our allies in one case may be our adversaries in another. And, at times, we will, ironically, have to fight our own government and, on certain occasions, even be forced to oppose our friends and our customers.

The American merchant marine is the most highly regulated and its mariners, despite the complaints of the maritime unions, among the best paid, in the world. As such, our cost basis is generally higher than foreign competitors. Unfortunately, some of our customers, and other commercial interests, i.e. farmers, support the incursion of foreign vessels into currently protected Jones Act trades, ostensibly in order to increase competition and, thereby, reduce costs. Foreign competitors most definitely and desperately want into our vast domestic markets. Toward that end, they are seeking U.S. citizen “partners” to infiltrate the U.S. OCS market. Due to the subsidies, advantageous tax policies and other cost advantages these foreign operators enjoy, primarily with respect to labor costs, these foreign controlled corporations can drive U.S. Sec. 2 companies out of business. Ironically, our own U.S. government, due to a general failure in effectively policing and enforcing current cabotage laws, or because of hyper technical interpretations of U.S. cabotage or related laws, has allowed foreign incursions into our statutorily protected markets, thereby violating the essence of the U.S. Jones Act, the fundamental spirit of our cabotage laws in general and the administration’s stated policy on maritime affairs. Fortunately, the USCG is beginning to review their position in this area.

OMSA is committed to protecting the integrity of the Jones Act and the jobs of our mariners. We have been aggressively fighting violations of the Jones Act and other cabotage laws by foreign flag towing and offshore supply vessel operators, and others for years, as they arise. These incursions involve prohibited use of foreign flag vessels in protected trades, and the use of legalistic loopholes which permit actual or virtual control by foreign owners of vessels engaged in Jones Act trades. This is a complex subject. However, we will try to lay out for you where the most serious attacks on the Jones Act are coming from, and we will attempt to identify the “players” and/or stakeholders at each level, where we can.

An example is the “exception” to the Jones Act created by the Coast Guard Authorization Act of 1996 and certain subsequent, liberal, and expansive interpretations of the language of the Act by the Coast Guard since the promulgation of the Act. Following an appeal by OMSA, some of these decisions are under review. In addition, the USCG is considering more restrictive regulations that will address the issues and give effect to the actual intent of Congress.

OMSA and other Jones Act supporters have also been fighting attempts by foreign countries to effectively circumvent the Jones Act through trade offs in treaty negotiations. For instance, Norway is attempting to expand the definition of “Energy Services” to include marine vessel services in ongoing WTO “fast track” trade negotiations being conducted under the jurisdiction of the Office of the U.S. Trade Representative.
We are attempting to preclude such an accommodation, which amounts to an invasion of the U.S. OCS through a back door, and will keep out members advised.

OMSA has also recently testified in Congressional hearings against attempts to weaken Jones Act citizenship requirements by foreign controlled corporations that provide vessels to the U.S. Department of Defense under the Maritime Security Program. Foreign controlled corporations are proposing to further diminish U.S. citizenship requirements currently in force. Specifically, these foreign controlled corporations, with the surprising and disappointing support of the AFL-CIO affiliated U.S. maritime unions, which are usually very strict about Jones Act protections, are asking that Congress not renew the requirement for Section 2 citizenship oversight and control over vessels carrying military cargoes for the U.S. under the Maritime Security Program (MSP), and that the U.S. ownership requirement be reduced from 75% to 50%. We firmly contend that if the move to dilute U.S. citizenship requirements in as critical a program to our national security as the Military Security Program is successful, such an action can, and will, inevitably, portend trouble for the U.S. Jones Act fleet and the U.S. mariners who serve within it. OMSA supports the continuation and expansion of the MSP program and is committed to the protection of U.S. jobs that are involved. However, we do not believe either has to be achieved by sacrificing U.S. citizenship requirements and weakening the Jones Act. Therefore, OMSA will continue to resist these initiatives. During the hearings on this subject, Congressman Gene Taylor of Mississippi demonstrated an astute awareness of and concern over these proposals to weaken the Jones Act.

Cong. Taylor, historically, has been one of the most ardent defenders of the Jones Act in Congress. He has, in this case directed particular attention to the tactics employed by NABORS to maintain Jones Act privileges for an oil field vessel operation but avoid paying U.S. taxes. The Chairman of the Committee, Duncan Hunter of California, also urged caution.

And, of course, there are the tactical, calculated violations of the Jones Act or U.S. Towing Statutes which occur when end users bring in foreign flag vessels to perform restricted Jones Act services, knowing full well the activity is a violation. We must identify these perpetrators and stop them legally.

In view of all of the above, OMSA has taken certain actions and we report as follows:

1. OMSA has engaged, with Board approval, a Washington, D.C. law firm, to assist with our initiatives to appeal the USCG approval of the NABORS transaction, and to identify and assist us in coordinating other options, i.e. legislative amendments/clarification, litigation with respect to ownership/control challenges, etc., that may be available to us;
2. The OMSA administrative appeal of the NABORS transaction is under serious consideration by the USCG; we are now preparing a follow up letter outlining the critical premise(s) of our objection to the Coast Guard determination in this case
3. .3. In the interim, we have submitted a FOIA (Freedom of Information Act) request to the USCG for any/all correspondence between the USCG and either Groupe Bourbon, a French conglomerate and/or Rigdon Marine, or affiliates thereof, who have indicated an intent to use the lease finance provisions. We have, further, submitted an objection in principle, to any application that may be submitted by these operators, or others, until the regulations are final. We have notified other interested parties, including holding interviews with several trade journals, about the possibility of an application by Groupe Bourbon/Rigdon Marine, and/or others, and our aggressive, determined opposition thereto.
4. 4. We have maintained close contact and close cooperation with the Maritime Cabotage Task Force, AWO, Transportation Institute, Shipbuilders Council of America and others. We, through our attorneys, are collaborating with the aforementioned parties in a combined and coordinated effort which includes meetings, separate and apart, with USCG, White House, Dept. of Transportation, MARAD, selected Congressional representatives and others who can help us to advance our common objective to protect the Jones Act and close the controversial loopholes that are having a negative impact on the Act and us. We recognize that there are legitimate transactions, which are consistent with congressional intent. It is not our wish to interfere with such transactions.
5. 5. We have presented strong messages to the USCG, with a view toward educating them, about the Jones Act issues we feel are involved and, particularly, the damage done and promised by recent USCG interpretations of lease/financing provisions of CG Authorization Act. Those contacts, among others, and our flow of correspondence has accentuated the focus of the USCG and their political sensitivity to the problems their decisions have created.
6. 6. OMSA has also arranged interviews, as indicated, with several trade publications in order to spread the word and more broadly raise the alert about the more controversial cases, the future issues and threats raised by a too liberal implementation of the lease/finance provisions of the Coast Guard Authorization Act.
7. 7. OMSA has raised objections and submitted formal comments:
   1. a) Opposing a request by McDermott, BP, Heerema et al, by their attorneys, Dyer/Ellis, to have MARAD/U.S. Government waive requirements to poll U.S. industry re availability of U.S. equipment and our ability to provide special barge services (Jones Act qualified) through non-US citizen (Sec. 2) corporations;
   2. b) Designed to persuade MARAD that TIMECHARTERS to FOREIGN CONTROLLED CORPORATIONS should be thoroughly reviewed to prevent circumvention of the Jones Act by foreign controlled interests and/or U.S. affiliates thereof;
   3. c) On the USCG Supplemental Notice of Proposed Rule Making for regulations relative to implementation of the lease/finance provisions of the Coast Guard Authorization Act of 1996, which we contend, if applied as proposed, would not prevent future nor cure past abuses of the Jones Act.
8. 8. We have requested public hearings on the Proposed Rulemaking regarding the lease/finance provisions of the Coast Guard Authorization Act of 1996. This tactic, if successful, would hopefully have the added positive effect of buying time and delaying action on applications by the USCG. OMSA has also contacted various congressional offices and the USCG commandant relative to the announcement in Lloyds List by Groupe Bourbon of their plans to expand their offshore services into the Gulf of Mexico, and submitted a copy of a marketing notice for hire of a Norwegian flag AHTS vessel for service in the Gulf of Mexico, both of which provide a degree of evidence that the threats to the Jones Act to which we have been trying to alert them are real.
9. 9. We have provided copies of previous correspondence on the subject and our actions/and objectives to associations, congressional offices, etc. that could be helpful to us. We have written letters in support of our sister associations, to their contacts, and vice versa.
10. 10. We were contacted by and have spoken with Dean Taylor of Tidewater and, subsequently, met with other Tidewater representatives, viz. Cliffe Laborde, Marty Quist and Keith Lousteau to discuss the specific actions OMSA has taken, and which we plan to take in the future. Tidewater is disposed to cooperate with us, in addition to retaining their right to act unilaterally.
11. 11. We have submitted draft versions of letters to our members requesting extensions and public hearings on the USCG supplemental notice of proposed rulemaking.

It is our opinion that we will, ultimately, have to accomplish and maintain our final objective through a reliable, permanent change or clarification in the Coast Guard Authorization Act of 1996 lease/finance provisions. It is also possible that certain technical amendments to the Outer Continental Shelf Lands Act might be required to accommodate Jones Act operations in deepwater. We will pursue both.

In the meantime, however, we have no choice but to use every means possible, and currently available to us, to momentarily plug the hole and stop the hemorrhaging. Those things include, but are not limited to, maintaining unrelenting pressure on the government agencies, involved, registering administrative appeals, instituting litigation, if necessarily, introducing surgical legislative initiatives contained within appropriate, and productive legislative vehicles immediately available in the upcoming 2003 session, maintaining counter pressure on companies or customers contemplating use of the Jones Act loopholes, expanding our base of allies and having them influence their congressional representatives to support our position, identifying and educating all key congressional representatives and staffers who can constructively influence the outcome, etc.

In the end, however, we will need an aggressive, carefully laid out legislative strategy to be carefully developed and well executed with which to target US Customs, the Dept of Transportation, MARAD, the USCG and, of course, Congress. We are working on this end product while we keep the other initiatives intensely in play.We may have lost a few rounds. We cannot afford to lose the fight. And, we must win the battle.

OMSA Christmas Dinner Dance
Friday, December 13, 2002
Hilton New Orleans Riverside
Poydras at the Mississippi River

Please join your OMSA colleagues, guests and friends for Christmas Cocktails & Light Hearted Cheer on Friday, December 13, 2002, at the Hilton New Orleans Riverside, 7:00 p.m. in the Versailles Room, 3rd floor. Following cocktails, dinner will be served at 8:00 p.m. in the Napoleon Ballroom, 3rd floor. We will then dance to music by the “Wise Guys.” And, as a special treat for our OMSA Christmas
Party Crowd . . . the talented twelve-year-old Cajun “fiddle wizard” Amanda Shaw will rock the hall with her Cajun/Zydeco/New Orleans music. At seven years of age, Amanda was the youngest person ever to play with the Baton Rouge Symphony as a soloist.

This is the time of year for OMSA members to celebrate, and the Christmas Dinner Dance presents an opportunity to invite some of your best customers, or your hardest working people, as a "special thank you." Tables of 8 or 10 may be reserved. Reservations received first will be assigned tables in that order. If you want to sit at the same table with Mr. and Mrs. John Doe, you must put all names and arrange payment for all persons on the same reservation ($120 each). Please send in your reservations EARLY, but please be advised that cancellations after 10:00 a.m., December 11, must be billed to your company.

Please make your party plans and respond as early as possible in order for us to make arrangements for maximum comfort and fun. We look forward to sharing warm Christmas cheer with you and your guests on Friday, December 13

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 bill is the culmination of a two-year effort by Sen. Fritz Hollings and Sen. Bob Graham to close the security gaps that exist at ports along America's coast. Citing the urgent need to enact the bill's security provisions during this session of Congress, Sen. Hollings rescinded his recent proposals to institute a user fee and an extend a maritime tonnage duty to defray the associated costs. Said Senator Hollings, "Completion of this legislation represents a significant step forward for the nation's security." As agreed to by conferees, the bill establishes local port security committees to integrate the myriad federal, state, local and private law enforcement agencies overseeing the security of the international borders at America's seaports. Federal agencies include intelligence, FBI, Customs, Immigration, and the Coast Guard. The legislation also mandates a regional Area Maritime Transportation Security Plan and directs all ports, facilities and vessels to draw up comprehensive security and incident response plans. To enhance safety within U.S. ports, the Port and Maritime Security Act directs the U.S. Department of Transportation to develop specific regulations to secure ports and limit access to security-sensitive areas through background checks and the issuance of a transportation security identification card. The bill also restricts firearms and other weapons at U.S. ports and dictates that ports conduct background checks of employees working in security-sensitive areas. Under the bill, seafarers also will be required to carry acceptable identification. The bill also improves the reporting of crewmembers, passengers, and imported cargo to better track suspicious activity. To that end, the measure requires ships to electronically send their cargo manifests to a port before gaining clearance to enter, and prohibits the unloading of improperly documented cargo. To address potential security threats traveling through international ports, the legislation directs the Secretary of Transportation to assess the antiterrorism measures maintained by foreign ports and permits U.S. ports to deny entry to vessels that call on ports without effective antiterrorism measures. The bill also authorizes the Coast Guard to board ships entering U.S. ports in order to deter highjackings or other terrorist threats. However, to date, there has been no provision of funds by Congress to implement the Act.

Sections of particular interest to our members are special, private provisions added at the last minute by special interests. One provision waives the Jones Act and allows BP to use foreign flag launch barges in the construction of several deepwater production facilities. OMSA has objected to certain features of this proviso and intends to work to tighten these up in the upcoming session. In a second provision of note, the Jones Act was waived to allow foreign flag shuttle tankers to operate between deepwater Gulf of Mexico production facilities and U.S. refineries if U.S. flag shuttle tankers are not available. A third amendment revoked a proviso that would have discouraged corporate inversions, a tax ploy recently used by NABORS to circumvent the Jones Act. Each of these provisions was slipped into the legislation at the last minute. Each has fundamental merit or defense only to the extent that there are no Jones Act qualified U.S. owned vessels available for a particular purpose. Any use beyond that will be viewed as an assault on the Jones Act and be aggressively opposed by OMSA. What each of you must realize is that each piece of special legislation, such as these, amounts to another “bite” out of the Jones Act apple. Unless each of our companies loudly proclaims to his or her Congress person or Senator that further erosion of the Jones Act is unacceptable, they will continue to allow and, worse, possibly support these small bites and, in the end, our industry will have no Jones Act protection.

In landmark legislation Congress approved the formation of the Department of Homeland Security. Agencies as diverse as the Coast Guard, Secret Service, Immigration and Naturalization Service, Customs Service, the animal and plant health inspection service, the Plum Island Animal Disease Center and the Commerce Department's critical infrastructure assurance office would be in the new department. Which Congressional committees will oversee the new department, and the U.S. Coast Guard, in particular, how the Department will be managed and who will be in charge are critical questions that OMSA will track as this new department is formed. This complex government reorganization will have things in disarray for a significant period. Considering how difficult it is for citizens to deal with even the most “organized” government agencies, God help us with respect to our dealings with the “new” old agencies.

The House Ways and Means Committee this week took the first step to abolish a onerous and costly regulatory burden placed on U.S.-flag vessel operators by the U.S. Customs Service when it approved by voice vote on Wednesday H.R. 5385, the Miscellaneous Trade and Technical Corrections Act of 2002. In April 2001, the Customs Service amended its 50 percent ad valorem duty regulation on non-emergency repairs on U.S.-flag vessels performed in foreign shipyards to expand the duty to supplies and parts used in routine repairs and maintenance by the crew while a vessel is at sea. H.R. 5385 would reverse the expansion of the duty retroactively to April 25, 2001, the effective date of the rule change.
Source: Maritime Update September 20, 2002

The Coast Guard is examining reorganizing its Merchant Mariner Licensing and Documentation (MMLD) program. In the past the Coast Guard has conducted internal working group meetings looking at how they could reorganize the MMLD program and announced those changes to industry. These inward focused groups forgot to include industry input and the proposals were soundly rejected. This time around, the Coast Guard has begun a multi-year process of examining the program from the inside and outside. The Coast Guard has hired a management consulting company to get the input of the Coast Guard’s MMLD customers first. As part of that outreach, the Coast Guard is holding a series of regional “Listening Sessions” to get customer input. The Gulf Region meeting was hosted by Houston Marine Training Services and attended by Coast Guard personnel from Washington and New Orleans, OMSA member companies, Tidewater, Kirby, GCMA and IOMM&P. The input was spirited and valuable to the Coast Guard.

The bottom line is that due to external requirements such as STCW and internal requirements such as changing merchant mariners documents from a permanent to a 5-year renewable document the need for Coast Guard licensing office services has risen. While the workload of Coast Guard exam centers has risen, the number of personnel staffing these offices has not. The future outlook is a continued rise in the need for services with no increase in personnel. The general feedback the Coast Guard receives on its licensing process is negative. To improve its performance the Coast Guard must reorganize the way it conducts its licensing program, apply new technologies to the system and try to find areas where workload can be consolidated. OMSA members responded to the call by the Coast Guard for help. We will continue to provide input to the Coast Guard on the needs of the Coast Guard’s customers and ensure that any reorganization is first and foremost customer (mariner) focused.

The OMSA Human Resources committee met at the OMSA offices after the Coast Guard meeting to determine what we could do to improve the process NOW. We are unwilling to wait the years it will take the Coast Guard to finish its process. One of the CG assumptions was that any change must be accomplished under current law. Previous suggestions to improve the efficiency of the licensing system by OMSA have been rebuffed because of potential conflicts with existing law. One of the first suggestions for action by the HR committee was to submit a legislative change through friendly congressional delegates to adjust current law to allow for greater efficiencies in the licensing system. In addition, the committee has committed to the creation of a single license and/or documentation submission package for OMSA members. We will develop a licensing package that is identical to what a Coast Guard licensing evaluator would create. The file will be identical in size, shape and order of documents. We will use national guidance to create a single instruction set so that every file received by an exam center from an OMSA member will be identical and in exactly the format they want. We will document the time this will save for the Coast Guard. For more details attend the January OMSA HR committee meeting, 10 a.m. at the Hilton Riverside.

The Regional Examination Center (REC) New Orleans will now honor renewal applications with a request for delayed processing in order to match, as reasonably as possible, the issuance date of the new credential with the expiration date for the previous credential. The processing of “delayed request” applications will be for trial period only. Any mariner wishing to take advantage of this service must write the word “delayed” in large black letters at the top of the first page of his/her application. Please advertise this information to your licensed employees.

This opportunity will enable mariners to get the most life from their current credentials before the new ones arrive in the mail. The REC will accommodate requests for a “ delayed” renewal application for a trial period during which to evaluate the workload associated with this service. The REC will notify you if it discontinues this service after the five-month period.

The REC has received a number of requests lately for an extension of the grace period requirements in effect for twelve months after license expiration. Under no circumstances, except for the military service exception in the regulations, will the NOLA REC renew a merchant mariner’s license after the period of grace. If twelve months have elapsed since license expiration, mariners must apply for a reissuance of their license under Title 46, Code of Federal Regulations (CFR), Part 10.209 (f). Please note that mariners may apply for a continuity endorsement at the time of renewal (prior to expiration or during the twelve-month grace period) and may have the prohibition rescinded at any time by satisfying the usual renewal requirements. A mariner can always appeal any decision made by this office.
Source: REC New Orleans, CDR Nathalie Valley

At the October OMSA business meeting, it was mentioned that there was confusion among vessel operators and some Port State Control officials as to the applicability of various international conventions to older vessels. There are a number of IMO resolutions that allow older vessels to use their domestic tonnage versus international tonnage to determine applicability of several international conventions. In connection with the item discussed regarding the use of National Tonnages for the application of the SOLAS 1974 Convention, as amended, that have been measured in accordance with the provisions of the 1969 ITC, the applicable IMO Resolutions to look up are the following:

IMO Resolution A.494 (XII) of 19 November 1981
IMO Resolution A.540 (13) of 17 November 1983
IMO Resolution A.541 (13) of 17 November 1983
IMO Resolution A.758 (18) of 4 November 1993
·

• SOLAS Interim Scheme (IMO Resolution A.494 (XII)) - At the request of the vessel owner, regulatory measurement system tonnages may be used for the application of the provisions of SOLAS for vessels in the following categories: All vessels with keel laid/substantially altered from 19 July 1982 to 31 December 1985. Cargo vessels under 1600 gross tons (as measured under the regulatory measurement system) with keel laid/substantially altered from 1 January 1986 to 18 July 1994. In addition, at the request of the vessel owner, all vessels with keel laid/substantially altered from 19 July 1982 to 18 July 1994 may use regulatory measurement system tonnages for the application of SOLAS radiotelephony station requirements.
  
• STCW Interim Scheme (IMO Resolution A.540 (13)) - At the request of the vessel owner, regulatory measurement system tonnages may be used for the application of the provisions of STCW for vessels in the following categories: All vessels with keel laid/substantially altered from 19 July 1982 to 31 December 1985. Cargo vessels under 1600 gross tons (as measured under the regulatory measurement system) with keel laid / substantially altered from 1 January 1986 to 18 July 1994.
  
• MARPOL Interim Scheme (IMO Resolution A.541 (13)) - At the request of the vessel owner, regulatory measurement system tonnages may be used for the application of the provisions of MARPOL for vessels in the following category: All vessels under 400 gross tons (as measured under the regulatory measurement system) with keel laid/substantially altered from 19 July 1982 to 18 July 1994.
  
• IMO Resolution A.758 (18) acknowledges the intent that the transition to the International Convention on Tonnage (1969) should cause the least possible economic impact on ships whose keels were laid before 18 July 1994. This resolution allows existing (keel laid before 18 July 1994) vessels to which resolutions A.494 and A.541 are applicable to add their domestic tonnage onto their International Tonnage Certificate in the remarks section of their ITC tonnage certificate.

For a complete explanation see Coast Guard NVIC 11-93 which can be downloaded from the Marine Safety, enter web site at www.uscg.mil/hq/g-m/nvic/11_93/n11-93.htm.

OMSA has been working with the Coast Guard for several years in an effort to expand the authority for conducting underwater inspections in lieu of drydocking (UWILD) to offshore supply vessels. This procedure has been available to drilling rigs for decades and all other vessels for many years, but not available to OSV’s. As we reported earlier this year OMSA has been working with the Coast Guard to allow supply vessels to conduct UWILD and with ABS to incorporate the UWILD program into their Alternate Compliance Program (ACP) for OSV’s. ABS remains committed to expanding the ACP to OSV’s and is nearing the completion of their inspection supplement for supply vessels. The ABS limitation will be the baseline for entry into the ACP, which is that the vessel must be SOLAS.

While the regulatory change generally allows for such inspections, the local Coast Guard units have, as usual, not been given any additional resources to conduct underwater inspections in lieu of drydocking. The most critical problem for operators in utilizing the UWILD option may be the additional strain it puts on limited Coast Guard inspector availability. An UWILD may save a vessel operator significant drydocking expenses and time. Unfortunately, they take significantly more time for Coast Guard inspectors, a very limited resource. In the long run, whether or not the Coast Guard approves an UWILD vs. drydocking may be a function of the availability of marine inspectors, and will be considered on a case-by-case basis. The program, in any case, will be relatively restricted to newer vessels, inspected offshore in deepwater which enhance conditions for underwater inspection. We present our compliments and appreciation to MSO Morgan City for its cooperation in this pilot project.

The Eighth Coast Guard District Marine Safety Division is expected to issue in December its much-anticipated policy on the use of Dynamic Positioning Systems for the transfer of oil and hazardous materials from OSV’s. OMSA and the Offshore Operators Committee have been working with the Coast Guard since May 2001 to develop this policy. While the final policy is not all that we had hoped for, we believe it does offer a workable solution to the issue. A copy of the latest draft is available by fax or email from the OMSA office. The essence of the draft policy is: 1) The policy is applicable to oil and hazardous materials transfers from OSV’s on the OCS under the jurisdiction of the Eighth Coast Guard District. 2) The policy automatically allows for any vessel meeting IMO, ABS, DNV or Lloyds class DP2 or DP3 to transfer oil or HAZMAT. 3) If a vessel is not classed DP2 or DP3 the Eighth District has two alternative schemes, one is to ensure your vessel meets the equipment requirements of Enclosure (2) to the policy or is equipped with a breakaway fitting with quick-closing valves. In all cases, vessel crews must be trained in operating the vessels in DP mode and instructions on the operations must be included in the vessel’s oil transfer plan.

At the last OMSA meeting the Liftboat subcommittee again discussed the Coast Guard’s return to a 1 for 3 sea service credit for liftboats in the elevated mode. While this change is frustrating, OMSA has elicited a commitment from MSO Morgan City to listen to our concerns, possibly visit working liftboats and if appropriate, support our position and arguments with the National Maritime Center. Our thrust this time around will be to have Coast Guard personnel witness the operation of liftboats in both the afloat and elevated mode. Our hope is to convince Coast Guard observers that our personnel perform sufficient navigational or related duties while elevated that full sea service credit should be granted. We would then request the assistance of the Morgan City office and Eighth District to convince the NMC that our position on liftboat sea service is valid. We’ll keep you updated on the progress.

The Minerals Management Service on November 15th issued two Notices to Leaseholders (NTL) that specifically direct the actions of vessel personnel. The effect of these NTL’s is that your customers have been given orders by their primary regulatory agency, that if you do not properly carry out, your customers can be cited for. In effect the MMS has issued an order to your customers, that your customers will retransmit to you in the form of contract requirements.

OMSA staff have spoken to MMS personnel concerning these notices and expressed concerns over the legality of MMS orders to vessels and the use of a NTL to “backdoor” regulations onto vessels. OMSA has requested to meet with MMS officials in an effort to address our concerns. The two NTL’s in question are NTL No. 2002-G-13 and 2002-G-14. The entire text of the NTL’s can be viewed and downloaded from the MMS website at www.gomr.mms.gov/homepg/regulate/regs/ntls/ntl_lst2.html.

NTL G-13 deals with marine trash and debris. It is redundant to the MARPOL regulations that your vessels must already comply with. It also has prescriptive signage and annual training requirements that are in addition to MARPOL. It also requires annual certifications by your customers that every employee of yours has received the required annual training. NTL G-14 deals with vessel strike avoidance and reporting requirements for protected species. The requirements in G-14 include such things as a mandatory whale, dolphin, turtle and manatee identification manual on the bridge of your vessels, mandatory sighting reports of injured animals, the requirement to slow or stop your vessel to avoid striking a protected species and if you injure a protected species the requirement to stop and render aid. OMSA will keep you informed as to the progress of our discussions with MMS.

At its fall meeting held on September 13 at Coast Guard headquarters in Washington, D.C., the Towing Safety Advisory Committee (TSAC) acted on a number of important agenda items. The advisory group approved the submission of performance assessment criteria to be used in conjunction with the Towing Officers Assessment Records (TOARs) to the Coast Guard; agreed to review both STCW and TOAR requirements to avoid duplicate assessments for those mariners subject to STCW; reviewed the Coast Guard’s draft Navigation and Vessel Inspection Circular on vessel security committee concerns including issues of confidentiality, unrealistic threat assessments, and legal liability potentials; approved a resolution endorsing the Crew Endurance Management System; and, received a report on the progress if its Regulatory Review Working Group that identified 38 potential gaps in regulations affecting the towing industry. The next TSAC meeting scheduled for March 2003. Source: Maritime Update September 27, 2002

OMSA President Bob Alario represented the association at the November 6-7, 2002 NOSAC meeting held at the Westin Galleria Hotel, Houston, Texas. The meetings began on Wednesday November 6th with a session of the Liftboat Subcommittee. This subcommittee has been formed by the Coast Guard to examine whether or not current design standards for liftboat legs are sufficient. The committee is chaired by Paul Liberato of Billy Pugh Corp. OMSA representation on the subcommittee includes Bob Alario, our liftboat operators and designers. OMSA is planning on hosting a meeting of the OMSA liftboat operators to discuss the findings of the work of the subcommittee in early December. This was the second meeting of the committee. Information presented to the committee tended to indicate that current design standards are adequate. On November 7th the full NOSAC committee met to hear the status reports from various standing committees and the newly formed liftboat subcommittee

The Coast Guard Merchant Personnel Advisory Committee met September 4-5, 2002 at the Coast Guard base in Cleveland, Ohio. Ken Parris represented OMSA at MERPAC. The major item on the agenda was the continuing development of the required Knowledge, Understanding and Proficiencies of the vessel security officer. As a result of the 9/11/2001 tragedy the vessel security officer is going to become another job title required on vessels by the Coast Guard (along with a company security officer). While the Coast Guard has enlisted the aid of industry in developing the requirements of the position, the Coast Guard refuses to give any indication as to whether or not this will become a required billet on the vessels or simply additional duties assigned to an already overburdened crew. Based upon the discussions to date the committee members believe that the extensive scope of duties for a vessels security officer will most likely require a full-time position.

The U.S. Coast Guard is seeking applications for membership on the Towing Safety Advisory Committee (TSAC) and National Offshore Safety Advisory Committee (NOSAC). TSAC provides advice and makes recommendations to the Department of Transportation on matters relating to shallow-draft inland and coastal waterway navigation and towing safety. NOSAC provides advice and recommendations related to offshore exploration, exploitation and production of oil and gas. Applications should be submitted by December 23, 2002. It is imperative that OMSA members seek representation on these committees. You can retrieve information on the committees and an application form from the Coast Guard at http://www.uscg.mil/hq/g-m/advisory/index.htm. For information on TSAC contact Gerald Miante; Assistant Executive Director of TSAC, telephone 202–267–0214, or email gmiante@comdt.uscg.mil, for NOSAC contact Mr. Jim Magill, telephone 202-267-1082 or email jmagill@comdt.uscg.mil.

The General Accounting Office (GAO) released the report, Marine Transportation: Federal Financing and a Framework for Infrastructure Investments, an analysis of federal funding for the commercial marine transportation system in comparison with federal funding for the aviation and highway sectors. The report found that during fiscal years 1999-2001 federal expenditures for the commercial marine transportation system averaged $3.9 billion per year, with funding for about 80 percent of these expenditures coming from the U.S. Treasury’s general fund. The GAO found that with so many stakeholders involved in the marine transportation system and so many demands for funding to maintain and enhance the system, federal decision makers would benefit by having a systematic framework for making investment choices and ensuring federal resources are used prudently. The report can be found in GAO reports of September 10 at http://www.gao.gov.
Source: Maritime Update September 13, 2002

The USCG Marine Safety Office Honolulu has recently reported that a high percentage of antennas equipped to Satellite 406 Cat I EPIRB’S, product number 2754, manufactured by ACR Electronics Incorporated have failed during dockside examinations of Commercial Fishing Vessels. ACR Electronics has acknowledged receipt of the failed antennas and has initiated a study to determine the cause and scope of the problem. ACR is committed to support its safety products and will replace damaged antennas at no cost to the owner. Should you encounter similar problems with your vessel’s 2754 EPIRB antenna, contact ACR Electronics Customer Service Representatives at (800) 432-0227, ext. 110 to receive a replacement antenna.

NVIC 10-02 establishes VOLUNTARY guidelines for performing security assessments, developing security plans, and implementing security measures for commercial vessels. The NVIC provides guidance for vessel owners and operators establish protective measures for commercial vessels. The NVIC contains detailed appendices on security assessments and recommended protective measures. The Coast Guard will use the three Maritime Security (MARSEC) Levels to identify threat levels. The security levels that the Coast Guard uses are different than the 5-tier system used by the Office of Homeland Security.

The three MARSEC Levels correspond to the Homeland Security Advisory System (HSAS), color-coded system as follows:

MARSEC 1 corresponds to the HSAS Green (Low): Blue (Guarded): and Yellow (Elevated). MARSEC 2 corresponds to HSAS Orange (High). MARSEC 3 corresponds to HSAS Red (Severe). This NVIC is not binding and can serve only as guidance for vessel owners and operators. The Coast Guard cannot mandate national, uniform requirements for vessel security until it promulgates regulations. However, as we know from experience, once a standard is promulgated by the government, whether voluntary or not, it is the de facto standard until something else is published. The Coast Guard is encouraging Captains of the Port (COTPs) to promote VOLUNTARY compliance with the NVIC to ensure uniformity across the maritime industry.

Facility operators may be interested in NVIC 09-02 Guidelines for Port Security Committees and Port Security Plans. This NVIC details Coast Guard guidance on forming Port Security Committees and conducting risk assessments of port facilities. The appendices include a sample port security plan and port risk assessment. The NVICs are available on the internet at www.uscg.mil/hq/g-m/nvic/index00.htm.

Decades after it was first proposed MARPOL Annex IV, Prevention of Pollution by Sewage, will go into effect next September. The United States has not ratified the protocol, as current domestic regulations for vessel sewage systems are more stringent.

It has come to the attention of the U.S. Coast Guard and Federal Communications Commission that certain consumer electronics-grade active VHF/UHF marine television antennas are causing operational degradation in the performance of Global Positioning System (GPS) receivers. This interference may be realized as a display of inaccurate position information or a complete loss of GPS receiver acquisition and tracking ability. The interference is not limited to the GPS equipment onboard the vessel with the installed active marine television antennae. There have been reports of interference occurring on other vessels and installations operating up to 2000 feet away from vessels using such antennas.

Antennae models identified during investigations of GPS interference.

TDP (Tandy Distribution Products) Electronics - MINI STATE Electronic Amplified UHF/VHF TV Antenna - Models 5MS740, 5MS750, 5MS921

Radio Shack Corporation - Long Range Amplified Omni Directional TV Antenna - Model 15-1624

Shakespeare Corporation - SeaWatch - Models 2030, 2050

OMSA, along with about 100 other companies, commented on the Coast Guard’s supplemental notice of proposed rulemaking on the Lease Finance provisions of the Coast Guard Authorization Act of 1996. Since its enactment these provisions, which were intended as a means of adding fresh capital to the domestic shipping industry, have been used by foreign interests to buy their way into our Jones Act trades. OMSA welcomes anything that provides new sources of construction capital to our companies. What OMSA and a large number of companies have protested is the liberal interpretations of the legislation by the Coast Guard that has allowed foreign control of domestic shipping. While the supplemental rulemaking is still in process we do not know the final outcome or changes to the regulations, but we can report that the Coast Guard is taking a much closer look at these transactions to ensure that they do not allow for foreign control of domestic shipping. We’ll keep you updated with our progress. You can view the proposal and all comments received at the DOT Docket Search page by entering docket number 8825. http://dms.dot.gov/search/searchFormSimple.cfm.

These articles are intended for information purposes only. They 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. Please see your OMSA membership directory for the names of member firms.

The U.S. Attorney for the Western District of Washington issued a Press Release stating that the Chief Engineer on the M/V RUBIN STELLA was sentenced to 12 months and one day in prison for making false entries in the ship's Oil Record Book that was presented to the U.S. Coast Guard in Longview, Washington. He had previously pled guilty to the charges, admitting that he directed crewmembers for a period of almost a year to dump oily bilge waste and oily sledges overboard without treatment and without making required entries in the Oil Record Book. NOTE: This case illustrates a growing trend toward imprisonment of corporate employees, including management and directors of corporations (see article below) for convictions in the United States of crimes related to pollution of the marine environment.
Source: Dennis L. Bryant, Haight Gardner Holland & Knight

A federal grand jury in Anchorage last month indicted a corporate director, two corporate managers, a ship’s captain and a first engineer for their roles in an ocean pollution conspiracy involving the direct discharges of oil from a fleet of large, refrigerated cargo ships that regularly travel through Alaska waters, the Justice Department announced. “Illegal pollution from ships remains widespread throughout the maritime industry,” said Tom Sansonetti, Assistant Attorney General of the Justice Department’s Environment and Natural Resources Division. “We are vigorously prosecuting these crimes to deter other polluters and to ensure that the industry fulfills its responsibility to legally dispose of waste when ships come into port.”

The charges are the first such charges to have been filed in the United States against a corporate board member for a role in a conspiracy involving vessel pollution.

“This prosecution demonstrates the United States’ commitment to holding corporate officers accountable for their personal disregard of the law,” said Timothy M. Burgess, United States Attorney for the District of Alaska. “The aggressive investigation and prosecution of ships’ officers, on-shore managers and international corporations sends a strong message to those who seek to profit from polluting the world’s oceans.”

In what must be considered an anomaly, the California Court of Appeals has discovered a previously unknown class of seaman. In Freeze v. Lost Isle Partners, 2002 AMC 842 (2002), the plaintiff was hired as a laborer at a resort island. At times, she helped crew a small boat used as a barge to the mainland. The plaintiff was injured on the boat, and filed suit under the Jones Act against her employer. She claimed negligence and unseaworthiness of the vessel. She also filed a claim under the Longshore and Harbor Workers Compensation Act. However, she voluntarily dismissed that claim because she was clearly excluded from coverage under the LHWCA. (The LHWCA excludes certain individuals from coverage who are employed by a club, camp, recreational operation, restaurant, and museum or retail outlet. The facts showed that the plaintiff fit one of these exclusions.) At trial, the plaintiff asked the court to charge the jury to the effect that the plaintiff could recover even if she was not considered a Jones Act seaman. After a trial on the merits, the jury found that the plaintiff was not a Jones Act seaman, and not entitled to maintain her claim against her employer. The plaintiff appealed. The California Court of Appeals resurrected the Sieracki seaman doctrine that had all but been abandoned after the 1972 Amendments to the LHWCA. The court held that even though the plaintiff was not a Jones Act seaman, she could still be a seaman for the purposes of general maritime law, and pursue a remedy against her employer for unseaworthiness and negligence. Although not discussed in the court’s opinion, the court found that the plaintiff’s unseaworthiness claim arose from general maritime law, which also provides a claim for maintenance and cure. Therefore, the court’s opinion also seems to give the plaintiff an action for maintenance and cure, in addition to the actions for unseaworthiness and negligence. The court also found that the plaintiff was covered by California compensation law, and also found that California compensation law did not bar the plaintiff’s tort action against her employer. A literal reading of the court’s opinion seems to indicate that the court found the plaintiff had an action for negligence against her employer, and action for unseaworthiness of the vessel, and probably an action for maintenance and cure, even though she was not a Jones Act seaman. Furthermore, the court also found that she had an action for compensation benefits under California compensation law. Also of interest is the fact that the court found that the test had been met for seaman status for the purpose of an unseaworthiness claim under the general maritime law while failing to meet the test for seaman status under the Jones Act. Although the court did not provide a detailed analysis of its holding, the court did say that the test for seaman status for an unseaworthiness claim is based on the type of work the plaintiff was doing when injured and its relationship to the vessel. Presumably, a temporary worker on a vessel who may be performing seaman’s work when injured, would be a seaman under general maritime law according to this court, even though the worker was not permanently assigned to the vessel or facing the hazards of the sea, as was required by the United States Supreme Court in Chandris. Hopefully, the reasoning found in this opinion is an anomaly that we can only blame on the wild west of California. It is believed to be unlikely that the Fifth Circuit Court of Appeals, or any other competent maritime courts, would consider adopting this holding as law. However, stranger things have occurred, particularly regarding the law of seamen.
Source: THE LAW REPORT, Vol. 7, No. 4 June 2002, Lemle & Kelleher, L.L.P.

Louis v. Louisiana Dept. of Trans. and Development, 2002 WL 992109 (La. App. 5th Cir. 2002) Isaac Louis sued the Louisiana DOTD, owner of the ferry M/V FELICIANA, under the Jones Act for injuries to his teeth, jaw and left eye after a spinning winch handle struck him in the face. Louis was a deckhand on the ferry, which crosses the Mississippi River between Luling and Edgard, Louisiana. One of Louis’ duties is to operate the winch used in aligning the ferry pontoon barge with the bank. Significant testimony at trial was disclosed regarding the shoddy condition of the winch, including: (1) a missing spring on the pawl; (2) a missing dowel pin on the winch handle; (3) the winch handle itself was bent; and (4) the winch’s brake was essentially inoperable due to worn pads which were covered in grease. The trial court entered judgment for Louis and apportioned 90% of the fault to the DOTD and 10% to Louis.

On appeal, the DOTD argued that plaintiff’s own superceding act should bar his recovery. Specifically, the DOTD pointed to Louis’s testimony that he may have unlocked the winch handle before being told to do so by the captain of the vessel. In other words, DOTD contended that plaintiff caused the accident when he disobeyed an order not to crank the winch before the cables had slack in them. The Louisiana Fifth Circuit rejected the DOTD’s argument for several reasons. First, it was unclear whether Louis was cranking the winch when he should not have been because there were not witnesses to the accident and plaintiff’s testimony on the issue was susceptible to several interpretations. Second, plaintiff suffered from a learning disability that severely limited his ability to understand and remember instructions. As a result, the appellate court agreed with the trial judge that without another independent source to confirm or deny whether plaintiff disobeyed the order, it could not find that Louis’s superceding act of cranking the winch handle was the legal cause of the accident.
Source: FOR THE RECORD, Mouledoux, Bland, Legrand & Brackett

In Durgin v. Crescent Towing & Salvage, Inc., 2002 WL 31365365 (E.D.La. October 18, 2002), the West of England Shipowners Mutual Insurance Association ("West of England Club") sought to strike Crescent's cross claims for contribution and indemnity in which Crescent sought to recoup $270,000 it had paid to two injured Crescent employees for maintenance, cure, lost wages, and temporary partial disability. The court held that the sums Crescent paid beyond maintenance and cure were gratuitous, voluntary payments made without legal obligation because they were paid before the workers filed suit and thus it could not recover the funds from the West of England Club whose member vessel was involved in the underlying incident and thus who was "actively at fault."
Source: Marine Legal Update (http://www.bwhllc.com/mlu/), October 28, 2002, © 2002 Frederick B. Goldsmith, Burns, White & Hickton LLC Used by permission.

In a related matter, the US Eighth Circuit Court of Appeals has ruled that a shipowner has a duty to pay maintenance and cure to an injured seaman who did not disclose a prior jury, except where it could be proven that the shipowner would not have hired the seaman had it known of the prior injury. Be alert to questionable medical examinations!
Source: VMS LTD VANUATU UPDATE Oct/Dec 2002

The U.S. Court of Appeals for the First Circuit ruled that where the owner allows a vessel to be loaded in excess of the level provided for in the stability book, the owner may not limit its liability when the vessel sinks. In the instant case, the fishing vessel's stability book provided that the vessel should not carry more than 120 loaded clam cages. Evidence indicated that the vessel routinely carried 130 or more clam cages with owner's knowledge and was carrying 134 loaded clam cages on the day it sank and two crewmembers drowned. The owner petitioned for limitation of liability. The court denied the petition, holding that the vessel was unseaworthy when it sank and the owner had privity or knowledge of the unseaworthy condition. Cape Fear, Inc. v. Martin

The U.S. Court of Appeals for the Fifth Circuit ruled that a seaman personal injury suit filed in the United States should await resolution in the courts in Australia where a prior settlement agreement included a forum selection clause providing for exclusive jurisdiction in Australia. In the instant case, plaintiff Australian diver was injured while employed by defendant U.S. Company working in China. The settlement agreement provided for resolution of dispute in Australia and an Australian court entered final judgment on the matter. Plaintiff then filed a separate suit in federal court in Texas. Defendant moved for dismissal, while pursuing a specific performance action in Australia. The U.S. trial court enjoined the Australian action and denied the motion to dismiss. The appellate court vacated the enjoining order and directed the trial court to await disposition of the matter in Australia. MacPhail v. Oceaneering International, Inc.
Source: www.ca5.uscourts.gov/opinions/getopin.cfm?loc=02/02-40317-cv0.ht (5th Cir., August 7, 2002)

LOUISIANA SUPREME COURT RULED THAT A WELDER’S HELPER WHO WAS “NEVER MORE THAN A GANGPLANK’S DISTANCE FROM SHORE WHILE WORKING” FAILED TO QUALIFY AS A SEAMAN.
In Richard v. Mike Hooks, Inc., 799 So.2d 463 (La. 2001), apparently the Louisiana Supreme Court’s first post-Wisner seaman status decision, a tacker/welder’s helper was injured while working aboard a vessel. Unbelievably, in Wisner v. Professional Divers of New Orleans, 731 So.2d 200 (La. 1999), the Louisiana Supreme Court found that a commercial diver, who spent more than 90% of his work-life on vessels not under common ownership or control was a seaman. In Richard, the only vessel-related jobs performed by the worker were on dockside vessels and the worker “was never more than a gangplank’s distance from shore while working.” The Louisiana Supreme Court reversed both lower courts, concluding that the land-based welder worked only sporadically on boats and did not qualify as a seaman under the Jones Act.

The clear implication of the decision appears to be that land-based workers do not meet the “substantial connection” requirement of Papai. The court focused on the fact that the welder worked only on dockside boats, his duties never took him to sea, and he neither ate nor slept aboard any vessels. Though the court does not mention Wisner, the result supports the notion that the court’s decision in Wisner was based on the fact that the plaintiff diver in that case was engaged in “classical seaman’s work,” and, as such, Wisner should be limited to its facts.
Source: Deutsch, Kerrigan & Stiles, L.L.P. Litigation Update Fall 2002

On September 4, 2002, the Louisiana Supreme Court issued a decision finding that a New Orleans Ordinance establishing a minimum wage rate $1 above the federal minimum wage (currently $5.15 per hour) for all private sector employment in the City is unconstitutional.

In a 6 to 1 vote, the Louisiana Supreme Court declared the Ordinance unconstitutional under the state constitution. Four Justices concluded that a state statue (La. R.S. 23:642) prohibiting local governments from enacting local minimum wage standards was a valid exercise of the state legislature’s power that could not be constitutionally overridden by a city ordinance.
Source: Personnel Points of Interests, Volume 4, Number 2, Lemle & Kelleher, L.L.P.

In a decision issued on August 12, Judge Jay Zainey of the U.S. District Court for the Eastern District of Louisiana has ruled that a father absent from work to take care of his healthy children while the mother is taking care of a sick child in the hospital qualified for leave under the Family Medical Leave Act. Briones v. Genuine Parts Company, Slip opinion, No. 01CV1792 (E.D.La., August 12, 2002). The court found that the FMLA was enacted by Congress in order to “…aid families when faced with a crisis such as the one faced by the Briones family when Calixto [Briones] became gravely ill.”
Source: Personnel Points of Interests, Volume 4, Number 2, Lemle & Kelleher, L.L.P.

The U.S. Court of Appeals for the Ninth Circuit has upheld the right of citizens to bring suit for civil penalties under the Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA). In the instant case, plaintiff environmental advocacy group brought suit against the owner of an oil refinery for alleged discharges of petroleum coke into U.S waters, after notifying the owner of the alleged violations. The defendant contended that the notification letter was deficient because the letter failed to identify the specific dates of the alleged violations and because it had sold the refinery to a third party between the time it received the notification letter and the time suit was brought. The court held that the notification need only provide enough information that the defendant can identify and correct the problem. The court also held that a defendant cannot escape liability for past violations by selling the polluting facility. San Francisco Baykeeper, Inc. v. Tosco Corp.

A Supreme Court decision has allowed non-union workers to have Weingarten privileges, meaning they may request that a co-worker accompany them to investigatory interviews that might result in disciplinary action. In July 2000, the National Labor Relations Board overturned a 12-year precedent by extending to non-union workers rights emanating from the Supreme court’s 1975 decision in NLRB v. Weingarten Inc. which awarded such rights to union workers. The U.S. Court of Appeals for the District of Columbia Circuit upheld the NLRB position as a reasonable interpretation of the National Labor Relations Act, and the Supreme Court has let the ruling stand.

The subject case stemmed from the discharge of two Epilepsy Foundation of Northeast Ohio research specialists. Each was asked to attend a disciplinary meeting after criticizing their boss in a memorandum to the boss’ supervisor. One of the employees refused to attend his meeting unless the other could accompany him. The company refused, sent him home, and the next day fired him for gross insubordination. The other employee attended a disciplinary meeting, received a warning for having helped create the memo, and was later fired for refusing to accept supervision.

The employees sought legal redress, but an NLRB administrative law judge found that the employer’s decision to fire the first employee did not violate the NLRA because board law did not extend Weingarten rights to non-union employees. He also found that the second employee’s termination was not in violation of the act because there was no connection between this discharge and protected activity.

The board reversed the decision of the ALJ, finding it to be “inconsistent with the rationale articulated in the Supreme Court’s 1975 decision and with the purposes of the Act.” The NLRB said the Supreme Court decision was grounded specifically in the right to engage in ‘concerted activities for the purpose of mutual aid or protection’, a rationale “equally applicable in circumstances where employees are not represented by a union.”

The D.C. court supported the NLRB decision. The court pointed out that over the years the NLRB has gone back and forth on the issue of the applicability of Weingarten to non-union workers. But, it said, “It is a fact of life in NLRB lore that certain substantive provisions of the NLRA invariably fluctuate with the changing composition of the board. Because of the board’s new interpretation is reasonable under the Act, it is entitled to deference.”
Source: About Management volume XX No. 7 July 2002

OMSA President Bob Alario is tentatively scheduled to meet with Admiral Conrad C. Lautenbacher Jr. USN (ret.), Undersecretary of Commerce for Oceans and Atmosphere (NOAA) and NOAA administrator. Bob will be meeting with Admiral Lautenbacher to discuss the possibility and feasibility of NOAA leasing offshore service vessels and contracting with OMSA offshore operators to “build vessels to purpose” in order to meet NOAA’s scientific and research needs rather than the agency and maintaining a fleet of NOAA owned and operated vessels.

WHY AREN’T YOU?
The OMSA Business to Business website went online one year ago, this month. Like any new venture the first few months out of the starting gate have had a few bumps. Those glitches have largely been corrected and OMSA, fundamentally, has an extraordinary business to business website. But the one hurdle we did not expect was the lack of use. At the request of our members OMSA developed an excellent business tool. However, it is not being used to advantage. Please, visit the site and give us your comments. We want to make this the first choice for our members, but we can’t do that without you.

The OMSA Business to Business Website is THE Forum for Purchaser’s to Submit Request for Proposals (RFPs)

• OMSA Vessel Operators/Shipyards:
  
• You select the categories of the OMSA MEMBERS you’d like to hear from
  
• You control 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....

OMSA Associate Members: What can it do for you?

• Keep your name in front of the largest and most respected companies in the marine industry
  
• Take business integration a step further by giving you a viable internet presence
  
• Provide a new business environment to exchange ideas, products and services
  

You Have A Personal ”Corporate Profile Page” where you can:

• Display multiple locations
  
• Display multiple contacts (Names, Positions, Phone & Fax Numbers, Email)
  
• 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

Member Forum

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

Complete OMSA Searches and Reports:

• Directory of OMSA Members with Contact Names, Locations, Numbe