OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

April 11, 1994



Regional Administrator
Deputy Director
Directorate of Compliance Programs
Office of Construction and
Maritime Compliance Assistance
SUBJECT: Vessel Safety - OSHA or U.S. Coast Guard
REFERENCE: (a) Mr. Gillotti's memorandum addressed to Mr. Joe Nolan, Chief, Division of Maritime Compliance Assistance, dated February 22, 1994 regarding, "Vessel Safety - OSHA or U.S. Coast Guard"

(b) National Association of Waterfront Employers letter from the Executive Director/General Counsel to NAWE Members dated January 26, 1994
ENCLOSURES: (1) International Labor Organization (ILO) Convention No. 32
(2) International Labor Organization (ILO) Convention No. 152


This is in response to Mr. Gillotti's subject memorandum, reference (a), requesting a review of reference (b) and advice with respect to OSHA/Coast Guard jurisdiction over vessel conditions and ship's cargo gear.

The expansion of Coast Guard authority over foreign flag vessels in 1992 only pertains to the conditions of the vessel. This change in Coast Guard authority was in response to recent international conventions which provide that, for vessels which have valid certificates or are required to have such certificates, port states may inspect foreign vessels to ensure that the conditions upon which certificates were based still exist. Therefore, under 46 USC 3303, the Coast Guard now has the authority to inspect the conditions of foreign vessels and, if necessary, order a foreign vessel crew to stop work and/or order a foreign vessel to be repaired by the crew or vessel representatives.

This 1992 change in Coast Guard authority over foreign flag vessels does not have any impact on OSHA's jurisdiction with respect to enforcement on foreign vessels, including cargo gear. The Coast Guard has no authority to take enforcement action against marine cargo handling employers under the vessel inspection laws. In this regard the Coast Guard only has authority to take enforcement action against the owner, charterer, managing operator, agent, individual in charge of a vessel, or a vessel (46 U.S.C. 3313, 3318). Therefore, Section 4(b)(1) of the OSH Act does not preclude OSHA enforcement against marine cargo handling employers. See Texas Eastern Transmission Corp. and Sinapp Co. of Staten Island, 1975-76 CCH OSHD Paragraph 20,092,page 23,899 (OSHRC Docket Nos. 4091 and 4078) (Section 4(b)(1) does not bar OSHA enforcement against an employer who is not subject to enforcement action by another Federal agency). Furthermore, OSHA has authority over marine cargo handling employers pursuant to 33 U.S.C. 941, the safety regulations provisions of the Longshoremen's and Harbor Workers Compensation Act. See Secretary's Order 1-90 (delegating OSH Act, LHWCA and other authority to OSHA). Thus, OSHA Instruction CPL 2-1.3B specifies:



"On foreign flag vessels, citations for violations shall be issued to each separate employer (covered by the Act) having employees exposed. CSHO's shall examine the vessel's Cargo Gear Register and supporting documents to establish that they are current and valid."

The term "employer" here refers to marine cargo handling companies (i.e., stevedoring and longshoring operations). The enforcement of cargo gear regulations and the requirements for gear certification in the maritime program will continue to be conducted in accordance with the policy and procedures specified in OSHA Instruction CPL 2-1.3B.

Vessels of countries which are signatory to International Labor Organization Convention No. 152 (i.e.; Brazil, Congo, Cuba, Cyprus, Denmark, Egypt, Ecuador, Finland, France, Germany, Guinea, Iraq, Mexico, Norway, Peru, Spain, Sweden and Tanzania) will be accepted as being in compliance if they meet or exceed ILO Convention No. 152 requirements. Vessels of most other countries remain subject to ILO Convention No. 32 requirements. For your convenience we have enclosed copies of these two ILO agreements.