September 20, 2004

Docket Management Facility

(USCG-2004-17615)

U.S. Department of Transportation, Room PL-401

400 Seventh Street, SW

Washington, DC 20590-0001

Re:	ENFORCEMENT OF SOLAS REQUIREMENTS 

	Policy Notice USCG-2004-17615

Dear Sir or Madam:

The Offshore Marine Service Association (OMSA) represents some 300 firms
engaged in support of the exploitation of mineral and oil resources,
including some 100 companies that operate special purpose vessels in
support of offshore oil and gas operations.  These vessels operate in
the Gulf of Mexico and every world location where significant offshore
oil and gas development has occurred. 

We urge the Coast Guard to rescind or revise Policy Notice
USCG-2004-17615.  The change in interpretation of SOLAS requirements
stemming from this notice and its companion (USCG-2004-17350) threaten
the ability of U.S. vessel-operating companies to compete overseas.
These changes represent a significant alteration in the U.S.
interpretation of SOLAS applicability with no justification in accident
history, safety records or security lapses.  This is particularly
significant in that the companies affected helped create the worldwide
offshore vessel market and would now be unable to compete with foreign
companies running identical vessels in identical service.

  

As stated in our comments to docket USCG-2004-17350, we believe that
these initiatives constitute major rulemakings that the Coast Guard does
not have the authority to accomplish through a simple notice of
interpretation or policy.   Specifically, the Coast Guard has redefined
the term “international voyage” in such a way as to do away with the
option vessel operators have had to operate in “foreign/domestic”
service. 

Under SOLAS, “International voyage means a voyage from a country to
which the present Convention applies to a port outside such country, or
conversely.”  In NVIC 11-93 the Coast Guard states “International
Voyage - This term is generally used in international conventions and
Coast Guard regulations to refer to a sea voyage between a country that
is party to a particular agreement and a port outside such country, or
conversely.”  The definition of international voyage included in the
vessel security regulations found in 33 CFR 101.105 states
“International voyage means a voyage between a country to which SOLAS
applies and a port outside that country.”  

The redefinition of international voyage under notice 17350, which is
then amplified and widely incorporated by this policy notice (17615)
states; “For purposes of vessel security, in interpreting 33 CFR
101.105 and 104.297, the Coast Guard will consider that each voyage of a
U.S. vessel originates at a port in the United States, regardless of
when the voyage actually began. Such a voyage is considered to continue,
until such time as the U.S. flagged vessel returns to the United States.
U.S. vessels operating from a foreign port will be considered to be on
an international voyage.”  The Coast Guard Notice of Policy docket
17615 is attempting through its companion notice 17350 to take the
definition of “Foreign Voyage” established by Congress in U.S.C.
§33201(3) which makes a national policy statement that is limited to
determining the applicability of the International Safety Management
Code (“ISM”) to U.S. vessels and apply it to determining SOLAS
applicability.  This is not a simple interpretation, but a wholesale
change in definition, which runs counter to treaty, statute and
regulation.  

To understand why this change is so significant and why it has such a
dramatic impact on OMSA’s members, a short comparison between the work
of vessels on true international voyages and the work done by offshore
support vessels may be helpful.  We have attached a table at the end of
this document for your review.

While a U.S.-flagged offshore support vessel may move from a U.S. port
to a foreign port, this is incidental part to its true function in
servicing a foreign offshore oilfield.  As a corollary, consider the
operations of a neighborhood ice cream truck.  The truck may be built in
Detroit and may operate in a neighborhood of New Orleans.  It will make
its initial journey from Michigan to Louisiana either carried as cargo
on a train or driven.  Once it has reached Louisiana, it’s actual work
will involve loading with supplies at a New Orleans base and delivering
those supplies in a Louisiana neighborhood a few miles away.  No one
would misconstrue the operations of that ice cream truck as being
interstate transportation.  Similarly, the offshore support vessel that
goes to Nigeria to work is not on an international voyage while
supporting Nigerian offshore facilities.  

Previous understandings of the plain language of SOLAS recognized this
and this thinking was incorporated in the concept of foreign/domestic,
i.e. a vessel which goes to a foreign country and works in domestic
service within that foreign zone.  Under this decades old Coast Guard
interpretation of SOLAS applicability (the foreign/domestic concept)
vessels moved to their location through four basic means:

As cargo onboard a heavy lift ship;

By being towed to the location in a deadship move;

Through the use of a SOLAS exemption letter from the Coast Guard; or

By relocating to a new location without carrying cargo or persons who
were not crewmembers during the transit.  As a result, under this option
a vessel under 500 GT (ITC) is neither a cargo ship nor a passenger ship
under SOLAS. It must be pointed out that this was based on written
guidance from the Coast Guard.

In the past, each of these moves was seen as acceptable and not subject
to SOLAS.  Once in the foreign zone, the vessel was not operating on an
international voyage (domestically) and, again, was not subject to
SOLAS.  We reiterate that the previous interpretation of SOLAS
definitions and regulation was and remains correct and the industry
practice was and continues to be legal and acceptable. As a result, we
believe that legal challenges to the new policies would have maritime
law and more than 30 years of Coast Guard practice on their side.  In
solving this problem, simply withdrawing Policy Notice USCG-2004-17615
and revising USCG-2004-17350 are acceptable options.

However, through our discussions with Coast Guard officials, we
understand the agency’s concern for international perceptions and the
potential for a Port State to interpret SOLAS requirements and
compliance differently.   While reserving the right to challenge the
legality of the re-definition found in this policy notice and its
preceding notice, OMSA stands ready to address this issue for the longer
term.  In order to flesh out the correct approach, we would propose that
a working group of knowledgeable industry and Coast Guard
representatives be formed to address the necessary details.

The group should develop consistent, understandable interpretations and
policy, which will avoid misinterpretations in the future.  Several
different approaches, or some combination of these approaches, may
accomplish this goal:

Immediately return to the status quo in effect prior to notices 17615
and 17350;

Consistently define International Voyage in all policy to conform to its
definition in SOLAS.  Considering that SOLAS is written in the present
tense (carrying passengers vs. can carry or did carry).  SOLAS
applicability is based upon the current operation of a vessel, not past
operations or potential future operations;

Establish through NVIC that vessels repositioning from one country to
another in order to go to work are not on international voyage, are not
subject to SOLAS and are not required to request exemptions;

Change the Service block on crewboats to read Offshore Support Vessel. 
This should reduce the likelihood of Port State Control Interventions
and allow the language defining passenger for Offshore Supply Vessels
found in 46 USC 2101 to eliminate employees of the charterer or
employees of the employee of the charterer (oilfield workers) from
consideration as passengers;

Develop a streamlined exemption process through which vessels are
inspected prior to leaving the U.S. and are able to apply for and
receive exemption letters online and without delay when they need to
reposition in the future; and/or

Create an equivalency so that crewboats, liftboats and other vessels on
foreign/domestic voyage are able to comply with SOLAS without being held
to the SOLAS requirements which they cannot physically meet such as fire
protection standards.  As precedent, the Coast Guard has already
informed IMO that Subchapter T is equivalent to SOLAS for vessels
operating coastally within 20 miles of the shore.  This could be
extended to 200 miles, matching the coastal range used by the Coast
Guard here in the United States.

The Coast Guard should also address two aspects related to these
notices.  The first involves past Coast Guard practice.  The clear
implication of the June 21st policy notice is that vessels have somehow
been breaking the law in the past and that they are now subject to
losing their ability to work outside the United States.  This is
incorrect and must be addressed.   Historically, vessel operators
applied for and received exemption letters for vessels that relocated
overseas under their own power.  Vessels which were transported or towed
did not seek or need exemptions.  However, the Coast Guard has not been
consistent in its handling of exemption letters and in the early
1980’s correspondence from Coast Guard Headquarters indicated that
exemptions were no longer necessary.  The Coast Guard cannot legally,
and should not in fairness, hold past relocations as a black mark on a
vessels record which can be used to cite the vessel as being in
violation from this point forward.  In short, the Coast Guard should
focus on the present tense; i.e. whether or not the vessel is on an
international voyage now, and not on whether the vessel was on an
international voyage in the past when the agency did not have a clear
and consistent policy.

Another issue that has recently cropped up in relation to this policy
notice; is the question of applying SOLAS requirements with regard to
passengers to offshore support vessels.  Under SOLAS, a passenger vessel
is one that carries more than 12 passengers on an international voyage,
and a cargo vessel is essentially any other mechanically propelled
vessel over 500 Gross Tons (ITC) on an international voyage.  More
specifically, under SOLAS the definition of passenger is every person on
board other than the vessel’s master, the vessel’s crew  “or other
persons employed or engaged in any capacity on board a ship on the
business or that ship.”  The Coast Guard has recently begun
interpreting this as a requirement that crewboats and many OSVs meet the
much higher SOLAS passenger vessel standard, particularly in the area of
fire protection standards. This interpretation is incorrect.

As stated above, we contend that the crewboats, liftboats and other
vessels on foreign/domestic service are not on an international voyage
and not subject to SOLAS and therefore the question of how SOLAS defines
passenger is irrelevant.  These vessels fall under U.S. law  (46 U.S.C.
2101(21)) which makes clear that they are carrying offshore workers, not
passengers.  

For those vessels which where subject to SOLAS during their
repositioning voyage, it is still incorrect to apply the SOLAS passenger
vessel standard.  The offshore workers are not passengers in the sense
of being paid customers seeking passage.  They are employees or
contractors of the same customer that is chartering the vessel.  They
may work onboard the vessel or they may be on the vessel so that they
can go from the charterer’s base to the charterer’s offshore
structure. Significantly, the time they spend onboard the vessel is
counted as a part of their workday and they are under the direction of
their employer, the charterer of the vessel.

The view that these are not passengers for the purpose of SOLAS is
consistent with the interpretation made by other countries which compete
in this sector.  It is also consistent with the way U.S. law treats
these offshore workers. The proof of this is that identical vessels are
doing identical tasks all over the world.  As with the redefinition of
“international voyage,” there is no compelling incident history or
risk analysis that argues for any change from the current practice. 

To reiterate, we do not believe that the Coast Guard has the authority
to redefine the SOLAS definition of international voyage in this manner.
 However, we do see a need for clear and consistent application of rules
involving foreign/domestic voyages and are willing to work with the
Coast Guard to achieve that end.  

Thank you for giving us the opportunity to comment on this policy
notice. In that this is not a Proposed Rule and is therefore not subject
to the same rules governing ex parte communications, we would like to
extend an offer to facilitate a meeting between the Coast Guard and
industry to discuss any proposed changes before they are made into
policy.

Sincerely,

Ken Wells

President



Traditional

International

Trade	Vessel type	Purpose	International Operations	Time spent in a
single country’s waters

	International Passenger vessel	Carry paying passengers between
international ports (international voyage)	Integral to delivering
passengers in international commerce	Time necessary to embark or
disembark passengers

	International cargo vessel	Carry cargo between international ports
Integral to delivering cargo in international commerce	Time necessary to
lade and unlade cargo



***********	************	**********************	******************
***********

Oilfield

Support

Vessels	Vessel type	Purpose	International Operations	Time spent in a
single country’s waters

	Offshore Crewboats	Move employees of the vessel charterer (oilfield
workers) and cargo between a port and an offshore facility within the
same country’s waters (domestic voyage).  	Moves internationally to
reposition for next job.  

Does not carry passengers or cargo during this relocation. 

Frequently carried as cargo during relocation.	Months, years or even
decades

	Offshore Supply Vessel	Move cargo and sometimes employees of the vessel
charterer (oilfield workers) between a port and an offshore facility
within the same country’s waters (domestic voyage).  	Moves
internationally to reposition for next job.  

Does not carry passengers or cargo during this relocation. 

	Months, years or even decades

	Offshore Liftboats	Used as a stable platform from which work
(construction/maintenance) can be performed on shallow water structures.
  

	Moves internationally to reposition for next construction or
maintenance job.  

Almost always moves as cargo on a ship.	Months, years or even decades



OFFSHORE MARINE SERVICE ASSOCIATION

990 N. Corporate Drive, Suite 210    Harahan, LA 70123    Telephone
(504) 734-7622    Fax (504) 734-7134

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9.20.04.doc 

