0001
 1                     U.S. DEPARTMENT OF LABOR
 2                          Washington, DC
 3   
 4   
 5                     INFORMAL PUBLIC HEARING
                                ON THE
 6           PROPOSED RULE ON GENERAL WORKING CONDITIONS
                        IN SHIPYARD EMPLOYMENT
 7                   (29 CFR Part 1915 Subpart F)
 8   
 9   
                                    Madison Renaissance-Seattle
10                                  515 Madison Street
                                    Seattle, WA  98104
11   
                                    Tuesday,
12                                  October 21, 2008
13   
14              The committee was convened, pursuant to notice, 
      at 9:30 a.m., JENNIFER GEE, Administrative Law Judge, 
15    presiding.
16    APPEARANCES:
17              MS. JENNIFER GEE
                Administrative Law Judge
18   
                DOL OFFICE OF THE SOLICITOR
19   
                MS. SARAH SHORTALL
20   
                MS. SUSAN BRINKERHOFF
21   
                OSHA DIRECTORATE OF STANDARDS AND GUIDANCE
22   
                MS. DOROTHY DOUGHERTY
23   
                MR. BILL PERRY
24   
25    REPORTED BY:  THAD E. BYRD, CCR
26   
                SEATTLE DEPOSITION REPORTERS
27            600 University Street, Suite 320
     Seattle, Washington  98101     PH:   (206) 622-6661
0002
 1             OSHA OFFICE OF MARITIME STANDARDS AND GUIDANCE
 2             MR. JOSEPH DADDURA                 
 3             MS. AMY WANGDAHL
 4             DANIELLE WATSON
 5             OSHA OFFICE OF REGULATORY ANALYSIS
 6             MR. PAUL BOLON
 7             OSHA OFFICE OF COMMUNICATIONS
 8             MS. VENETA CHATMON
 9   
10   
11   
12   
13   
14   
15   
16   
17   
18   
19   
20   
21   
22   
23   
24   
25   
0003
 1                        C O N T E N T S
 2                                                PAGE
 3   1.   Introduction and Hearing Guidelines     5 - 7
          Judge Jennifer Gee       
 4   
     2.   Introductory Statement                  7 - 10
 5        Sarah Shortall
 6   3.   Overview of Proposed Rule               10 - 18
          Dorothy Dougherty
 7   
     4.   Questions about the Proposal            18 - 50
 8   
     5.   Dave Fraser                             51 - 79
 9        Representing:  FV Muir Milach
10   6.   Dale Myer                               79 - 108
          Representing:  Arctic Storm 
11        Management Group
12   7.   Richard Nielsen                         108 - 132
          Representing:  Nielsen Shields, 
13        PLLC
14   8.   Panel 1 - Commercial Fishing            132 - 203
          Vessels Industry
15        Lurilla Lee
          Representing:  Trident Seafoods 
16        Corp.
17        Karen Conrad                            
          Representing:  North Pacific 
18        Fishing Vessel Owner's Association
19        Amy Duz
          Representing:  iWorkWise
20   
          Ethan Bohannon                          
21        Representing:  Supreme Alaska 
          Seafoods
22   
     9.   Panel 2 - Commercial Fishing            204 - 251
23        Vessels Industry
24        Mark Weed
          Representing:  Stellar Seafoods, 
25        Inc.
0004
 1        Panel 2 Continued                       PAGE
 2        Chris Kline                             204 - 251
          Representing:  Icicle Seafoods, 
 3        Inc.
 4        Kurt Gremmert
          Representing:  Spartan Ltd.
 5   
          Teri O'Leary
 6        Representing:  Golden Alaska 
          Seafoods, Inc.
 7   
     10.  Alan Davis                              252 - 308
 8        Representing:  American Seafoods 
          Company, NPFVOA & PSSA
 9   
10   
11                        E X H I B I T S
12   Number                             Marked    Received
13   0170                               56        56
14   0171                               108       108
15   0172                               157       157
16   0173                               157       157
17   0174                               203       204
18   0175                               227       227
19   0176                               251       251
20   
21   
22   
23   
24   
25   
0005
 1                     P R O C E E D I N G S
 2              INTRODUCTION AND HEARING GUIDELINES
 3               ADMINISTRATIVE LAW JUDGE JENNIFER GEE:  We 
 4   are on the record now.  The hearing will come to order.  
 5   I am Judge Jennifer Gee, an administrative law judge with 
 6   the U.S. Department of Labor, and I will be presiding 
 7   over this informal public hearing on the Occupational 
 8   Safety and Health Administration's proposed rule updating 
 9   its standards on general working conditions in shipyard 
10   employment. 
11        OSHA published the proposed rule in the Federal 
12   Register on December 20th, 2007 at Volume 72, page 72452.  
13   This is the second hearing on the proposed rule.  The 
14   first was held on September 9th, 2008 in Washington, DC.
15        The purpose of this hearing is to receive oral and 
16   written testimony of interested parties as well as other 
17   information pertinent to the proposed rule.  At the 
18   conclusion of this hearing, OSHA will review the record 
19   of the proceedings in determining what the content of the 
20   final rule should be. 
21        My role as presiding judge will be limited to 
22   conducting the hearing to ensure that a complete and 
23   accurate record is made, and that all interested parties 
24   receive a fair hearing and have an opportunity to submit 
25   their information. 
0006
 1        OSHA's rules governing this hearing and the 
 2   prehearing guidelines, which Judge John Vittone issued on 
 3   July 15th, 2008, are available on the table at the 
 4   entrance.  There also is a revised list of witnesses who 
 5   will be presenting testimony today and the designated 
 6   order in which they will appear.
 7        Earlier this month, OSHA sent the prehearing 
 8   guidelines and hearing sketch to those persons and 
 9   organizations who filed a notice of intention to appear 
10   at this hearing. 
11        A few words here about the nature of this hearing:  
12   Despite the informal nature of the hearing, it is 
13   governed by OSHA's rules on rulemaking hearings that are 
14   found at 29 Code of Federal Regulations Part 1911, and 
15   the prehearing guidelines to assure that everyone has a 
16   fair opportunity to speak and express their points of 
17   view.
18        However, unduly repetitious testimony will not be 
19   allowed, and the presentation of witnesses generally will 
20   be limited in time and scope. 
21        The written comments and testimony you have 
22   submitted already or will submit today will be part of 
23   the record of this rulemaking.  Therefore, participants 
24   should concentrate their oral testimony on presenting the 
25   highlights of their written testimony or clarifying their 
0007
 1   written submissions.
 2        After each witness has completed giving oral 
 3   testimony, parties who have filed a notice of intention 
 4   to appear may question the witness.  Each participant is 
 5   expected to limit their questions to 15 minutes.  After 
 6   participants have questioned the witness, OSHA will then 
 7   have an opportunity to ask questions. 
 8        This is the process I intend to follow.  After a 
 9   witness finishes giving testimony, I will ask 
10   participants who wish to ask questions to identify 
11   themselves.  Then I will determine the order in which the 
12   participants will question the particular witness. 
13        Before I turn this over to Ms. Shortall, I would 
14   like to make one additional point.  As said earlier, if 
15   you have cell phones, please don't use them in this 
16   conference room.  If you need to use them, please step 
17   out into the hallway. 
18        Also, at this time please make sure your phones are 
19   on vibrate or on silent or turned off.  I've put my phone 
20   on vibrate so if a call comes in it won't disturb 
21   anybody. 
22        Ms. Shortall?
23                     INTRODUCTORY STATEMENT
24               SARAH SHORTALL:  Thank you, Your Honor. 
25        Good morning.  My name is Sarah Shortall, and I'm 
0008
 1   the project attorney for this rulemaking.  With me today 
 2   from the Solicitor's Office is also Susan Brinkerhoff. 
 3        On behalf of the Solicitor's Office, I would like to 
 4   welcome everyone here today to this rulemaking hearing.  
 5   It's a pleasure to see so many new faces at an OSHA 
 6   rulemaking hearing.  I'm hoping that you will enjoy the 
 7   process today, and that we will be able to develop a good 
 8   record.
 9        Let me explain the role of the Solicitor's Office at 
10   this rulemaking hearing.  Our rule is sort of the three 
11   Cs of rulemaking hearings.  We are here to help develop a 
12   clear, correct and complete record.  And to do this, 
13   we'll do it through a variety of ways:  By asking and 
14   answering questions, by eliciting information and putting 
15   it into the record, and helping to resolve any procedural 
16   matters that might arise.
17        And speaking of procedural matters, I realize that 
18   for most of you here today this is your first OSHA 
19   rulemaking hearing, and maybe even your first rulemaking 
20   hearing at all.  And to you I'd like to give a special 
21   welcome, and I also would like to just tell you to relax. 
22        Although we are trying to develop a complete record, 
23   we want to do so in a very conversational way.  And I 
24   think you will notice through the types of questions that 
25   we will be asking today, the idea is to let you have the 
0009
 1   greatest chance possible to give us the value of your 
 2   experience and knowledge to try to help us develop a good 
 3   record. 
 4        Also, at any time during the process if you have a 
 5   question, you're not sure about something, you want to 
 6   know if it's okay to say or do something, please don't 
 7   hesitate to ask.  That's why the Solicitor's Office is 
 8   here to help you with any problems that you might have.
 9        So once again, I want to thank you for coming and 
10   participating in this rulemaking hearing.  And at this 
11   time, Your Honor, what I'd like to do is offer to you the 
12   most current master exhibit index of the complete record 
13   of the rulemaking up to this point. 
14        This is not a copy of everything that is in the 
15   docket for this rulemaking, and it's not a copy of all 
16   the documents that have been submitted.  Rather, it's an 
17   index of everything that's been submitted to docket 
18   number OSHA-SO49-2006-0675, including the documents that 
19   were entered into the record at the rulemaking hearing 
20   September 9 in Washington, DC.
21        All of the documents in the master index are 
22   available for inspection and copying at the OSHA docket 
23   office, and they're also available in the index that is 
24   electronically accessible at www.regulations.gov, which 
25   is the Federal Government's E-rulemaking portal. 
0010
 1               ALJ:  Thank you, Ms. Shortall.  The master 
 2   exhibit list as presently available is made a part of the 
 3   record.
 4               MS. SHORTALL:  Thank you, Your Honor. 
 5        Now, we would like to introduce Dorothy Dougherty, 
 6   Director of OSHA's Directorate of Standards and Guidance, 
 7   who will introduce the other persons here with the 
 8   rulemaking team today and present OSHA's opening 
 9   statement.
10                   OVERVIEW OF PROPOSED RULE
11               DOROTHY DOUGHERTY:  Good morning, Judge Gee, 
12   Ladies and Gentlemen.  I am Dorothy Dougherty, Director 
13   of the Standards and Guidance of the Occupational Safety 
14   and Health Administration, OSHA.  On behalf of OSHA, I 
15   would like to welcome you to this informal public hearing 
16   on the proposed rule to revise and update OSHA's 
17   standards on general working conditions in shipyard 
18   employment at Subpart F or 29 CFR part 1915.  I will 
19   refer to these standards collectively as Subpart F.
20        Accompanying me today from OSHA are Bill Perry, 
21   Deputy Director of the Directorate of Standards and 
22   Guidance, Joseph Daddura, Director of the Office of 
23   Maritime, Amy Wangdahl, Project Office and Safety 
24   Specialist in the Office of Maritime, Danielle Watson, 
25   Safety Specialist in the Office of Maritime, Paul Bolon, 
0011
 1   the Project Economist from the Office of Regulatory 
 2   Analysis.
 3        OSHA considers this informal public hearing to be a 
 4   very important step in its efforts to develop an 
 5   effective, feasible and protective final rule addressing 
 6   general working conditions in shipyard employment.  The 
 7   development of a clear, accurate and complete public 
 8   record is a critical part of the rulemaking process.  
 9   Your participation and contributions are greatly 
10   appreciated.
11        Let me assure you that OSHA will fully consider your 
12   comments, testimony and recommendations as the Agency 
13   develops a final standard.  We all share the same goal of 
14   protecting employees.
15        Performing shipyard employment work is one of the 
16   most hazardous occupations in the United States.  
17   Shipyard employees are at risk due to the nature of the 
18   work, which includes performing hazardous industrial 
19   operations, such as steel fabrication, welding, abrasive 
20   blasting, electrical work and operating complex 
21   machinery.
22        Also, the conditions in which they work, including 
23   outdoors in all kinds of weather, in confined spaces 
24   below deck, on scaffolds and on elevated platforms also 
25   heighten the risk to employees.
0012
 1        The shipyard industry has one of the highest 
 2   fatality and injury rates in private industry.  From 1987 
 3   to 2002, an average of 15 shipyard employees were killed 
 4   each year.  Although shipyard injury and illness rates 
 5   declined during that period from 34.2 per 100 full-time 
 6   employees down to 15.9, the rates continue to be more 
 7   than three times the combined private industry rate.
 8        Shipyard fatality and injury data indicates that a 
 9   significant number of deaths and injuries resulted from 
10   the types of hazardous working conditions the proposal 
11   addresses, in particular, hazardous energy.
12        From 1992 to 2002, 25 percent of shipyard fatalities 
13   and almost one third of loss workday injuries were 
14   associated with hazardous energy. 
15        OSHA believes the lockout/tagout proposal could have 
16   prevented a significant number of those fatalities and 
17   injuries.  OSHA estimates that the proposal will prevent 
18   one fatality and more than 150 injuries each year.
19        OSHA's preliminary analysis estimates that the 
20   proposal will affect approximately 640 establishments and 
21   87,000 employees in the shipyard industry.  OSHA 
22   estimates the annual compliance cost of the proposed rule 
23   for the industry as a whole would be 1.1 million dollars, 
24   and the annual monetized benefits would be 15.4 million 
25   dollars.
0013
 1        OSHA's existing Subpart F standards were adopted in 
 2   1972 from standards issued under the Longshore and Harbor 
 3   Workers Compensation Act. 
 4        Pursuant to Section 6A of the Occupational Safety 
 5   and Health Act of 1970, OSHA was allowed in the first two 
 6   years after the act's effective date to adopt established 
 7   federal occupational safety and health standards and 
 8   national consensus standards as OSHA standards.  The 
 9   Subpart F standards have remained essentially unchanged 
10   since OSHA adopted them.
11        In 1982 industry associations requested that OSHA 
12   update its shipyard employment standards.  In response, 
13   OSHA established the Shipyard Employment Standards 
14   Advisory Committee, or SESAC, a working committee of 
15   industry, labor and professional representatives from the 
16   shipyard industry to provide guidance and technical 
17   expertise on revising OSHA's shipyard standards.
18        As part of their charge, SESAC developed 
19   recommendations based on industry best practices at the 
20   time, and draft regulatory language included in Subpart 
21   F.  The Maritime Advisory Committee For Occupational 
22   Safety and Health, MACOSH, which OSHA subsequently 
23   established to provide advice on occupational safety and 
24   health issues in the shipyard and longshoring industries, 
25   approved SESAC's recommendations and urged OSHA to move 
0014
 1   forward with rulemaking.
 2        In 2006 MACOSH recommended that OSHA develop a 
 3   separate lockout/tagout standard in shipyard employment 
 4   through negotiated rulemaking.  The proposed rule served 
 5   several purposes.  It updates existing requirements to 
 6   reflect advances in technology, industry practices and 
 7   national consensus standards.  It clarifies certain 
 8   provisions for easier comprehension.  It consolidates 
 9   provisions to indicate more clearly their application to 
10   shipyard employment, and it adds provisions to protect 
11   employees from hazards existing standards do not address. 
12        Although the proposed rule covers 14 shipyard safety 
13   and health topics, many of the provisions are simple 
14   updates and clarifications.  The most significant 
15   provisions are the following: 
16        Medical services and first aid:  The proposal adds a 
17   requirement that first aid providers have training that 
18   includes cardio-pulmonary resuscitation or CPR.  It also 
19   adds objective criteria that employers must consider in 
20   determining how many first aid providers and supplies to 
21   provide.
22        In addition, the proposal requests comment on 
23   whether shipyards should have automated external 
24   defibrillators or AEDs, and we welcome your input on this 
25   issue during the hearing.
0015
 1        Sanitation:  OSHA proposes to give employees greater 
 2   flexibility in complying with sanitation requirements by 
 3   allowing them to provide drinking water in single-use 
 4   bottles, waterless hand-cleaning agents and portable 
 5   toilets to supplement required sewered facilities.
 6        Motor vehicle safety:  The proposal adds 
 7   requirements for equipping, operating and maintaining 
 8   motor vehicles at shipyards.  In particular, it requires 
 9   that new employer-provided vehicles be equipped with 
10   safety belts, and that operators and passengers use them.
11        Lockout/tagout:  The proposed lockout/tagout section 
12   adds requirements to protect employees from hazardous 
13   energy during the servicing of machines, equipment and 
14   systems.  As mentioned, many injuries and fatalities in 
15   shipyards are related to hazardous energy, and existing 
16   lockout/tagout provisions applicable to shipyard 
17   employment do not provide adequate protection.
18        OSHA is proposing to apply the performance-based 
19   general industries lockout/tagout standard to shipyard 
20   employment.  The general industry standard has been found 
21   to provide effective protection for employees.  A 
22   Lookback review of the general industry standard 
23   conducted pursuant to requirements under the Regulatory 
24   Flexibility Act and Executive Order 12866 concluded that 
25   the standard has been effective in reducing fatalities 
0016
 1   throughout the range of sectors comprising general 
 2   industry.
 3        Similarly, many shipyard employers have already 
 4   implemented lockout/tagout programs modeled on the 
 5   general industry standard and found them to be effective.  
 6   Moveover, SESAC recommended that OSHA use the general 
 7   industry approach as a framework for lockout/tagout 
 8   provisions for shipyards.
 9        OSHA has received a number of comments about the 
10   proposed approach to shipyard lockout/tagout principles.  
11   One of the proposed lockout/tagout provisions that 
12   generated significant comment and raised a number of 
13   questions in scope and application; that is, the 
14   provision that explains when the lockout/tagout proposal 
15   would or would not apply.
16        A number of commentors have recommended that OSHA 
17   apply the shipyard lockout/tagout standards to all 
18   servicing operations on vessels.  OSHA welcomes further 
19   discussion on this issue and aspects of the 
20   lockout/tagout proposal.
21        Finally, on a related, but broader point, an issue 
22   has arisen about when the OSH Act as well as OSHA 
23   shipyard standards, including Subpart F, apply.  The 
24   proposal does not change OSHA's jurisdiction.  OSHA's 
25   authority is limited to employment performed within the 
0017
 1   jurisdiction of the OSH Act. 
 2        Under the act, OSHA's jurisdiction extends only to 
 3   employment performed within the U.S. geographical limits, 
 4   which basically extend three nautical miles from the 
 5   coast line except for the Gulf Coast where territorial 
 6   waters extend for three marine leagues approximately nine 
 7   nautical miles.
 8        Outside U.S. geographic limits and territorial 
 9   waters, OSHA has no jurisdiction.  And OSHA standards, 
10   including existing and proposed Subpart F standards as 
11   well as general industry standards, do not apply.
12        For example, lockout/tagout provisions do not apply 
13   to commercial fishing vessels when they operate outside 
14   U.S. territorial waters.  Similarly, the proposal does 
15   not change OSHA's jurisdiction over vessels.  OSHA has 
16   jurisdiction over uninspected vessels, including 
17   commercial vessels, only to the extent that the Coast 
18   Guard has not regulated a specific hazard or working 
19   condition.  OSHA welcomes your input in helping make 
20   these points as clear as possible in the final role. 
21        The importance of the public participation phase of 
22   this rulemaking cannot be overemphasized.  The rule which 
23   we will be discussing is still in the proposal stage.  It 
24   should not be considered OSHA's final rule, final 
25   determination or position on the issues involved. 
0018
 1        The proposal serves only to initiate the public 
 2   rulemaking process by presenting OSHA's preliminary 
 3   assessment of the content of an appropriate rule based on 
 4   the information available to the Agency at the time the 
 5   document was developed. 
 6        The purpose of this informal public hearing is to 
 7   provide a forum for a thorough discussion of the proposed 
 8   standard, and to receive testimony and additional 
 9   evidence to assist OSHA in developing a final standard 
10   that reflects the best available and most current 
11   information.
12        Further opportunities for hearing participants to 
13   introduce evidence will be provided during the 
14   post-hearing comment period.  Thank you for your 
15   attention.  At this time we will answer any questions you 
16   may have about the proposal.
17                  QUESTIONS ABOUT THE PROPOSAL
18               ALJ:  Thank you, Ms. Dougherty. 
19        Now, may I see a show of hands from those who filed 
20   a notice of intention to appear and would like to ask 
21   OSHA questions? 
22        Will you please come forward, and give me your name 
23   and how long you expect your questions to take.  Please 
24   spell your name for the court reporter.
25               KURT GREMMERT:  My name is Kurt Gremmert, and 
0019
 1   I'm with Spartan Limited.  My name is K-U-R-T, last name 
 2   G-R-E-M-M-E-R-T.  I'm estimating about 10 minutes.
 3               ALJ:  Thank you.  Next person?
 4               KAREN CONRAD:  Good morning.  I'm Karen 
 5   Conrad, and I'm with NPFVOA, the Vessel Safety Program.  
 6   I have three questions, probably five minutes.
 7               ALJ:  Thank you.  Next? 
 8               LURILLA LEE:  My name is Lurilla Lee, spelled 
 9   L-U-R-I-L-L-A, last name's Lee, L-E-E.  I have two 
10   questions, and I'll be no more than 10 minutes.
11               ALJ:  Thank you.
12               CHRIS KLINE:  My name's Chris Kline, spelled 
13   K-L-I-N-E, C-H-R-I-S, and I'm with Icicle Seafoods, 
14   I-C-I-C-L-E.  And I have one question, probably a minute 
15   or two. 
16               ALJ:  Thank you. 
17               DAVE FRASER:  Dave Fraser, F-R-A-S-E-R, with 
18   Fishing Vessel Muir Milach, two questions, just a minute 
19   or two.
20               ALJ:  Thank you. 
21               ALAN DAVIS:  Alan Davis, A-L-A-N, American 
22   Seafoods Company, and I have two questions.  It'll 
23   probably take five minutes. 
24               ALJ:  Thank you.
25               RICHARD NIELSEN:  Richard Nielsen, 
0020
 1   N-I-E-L-S-E-N, Nielsen Shields, and I have just a 
 2   question that'll take a minute or two.
 3               ALJ:  Thank you. 
 4               AL RAINSBERGER:  Al Rainsberger, 
 5   R-A-I-N-S-B-E-R-G-E-R, two questions, probably two 
 6   minutes. 
 7               ALJ:  Thank you. 
 8               MS. SHORTALL:  Your Honor, as you're going 
 9   through the process of deciding who will go first, 
10   second, third, fourth, I'd like to note for the 
11   audience that Ms. Dougherty's opening statement has 
12   already been entered into the record as OSHA Exhibit 
13   OSHA-SO49-2006-0675-0161.  And anyone who would like to 
14   look at it, like in composing their post-hearing 
15   comments, they can do so by going to regulations.gov.
16               ALJ:  All right.  Thank you very much.
17        Is there anybody else who wants to ask questions of 
18   the OSHA panel?  All right, thank you.  I think we'll 
19   just start in the order that you came up.
20        Mr. Gremmert?
21               MR. GREMMERT:  Thank you, Judge Gee.  A 
22   clarification question, in the opening statement a 
23   discussion was given about the estimated cost associated 
24   with compliance.  And there was a figure, I believe if 
25   I'm correct, of 1.1 million.
0021
 1        Could I get a clarification of what 1.1 million 
 2   means in terms of is that per employer?  Is that for the 
 3   entire industry, or what does that number mean?
 4               PAUL BOLON:  I'm Paul Bolon, the economist on 
 5   the project.  It's an annual cost figure for all of the 
 6   industry.
 7               MR. GREMMERT:  Okay.  My second question 
 8   would be was there an estimated number of vessels that 
 9   would be affected by these proposed regulations?  Was 
10   there an assumption or an estimation made by OSHA when 
11   they were preparing these guidelines and recommendations?
12               MR. BOLON:  In the preamble I think we 
13   estimated that there were two hundred vessels processing 
14   fish that would be affected. 
15               MR. GREMMERT:  Thank you.  I also wondered if 
16   during the formulation of the proposed regulations if 
17   there was any consideration given to the size and class 
18   of vessels that would be covered by the proposed 
19   regulations, not just simply numbers, but was there any 
20   consideration given to the number of persons onboard, 
21   size of vessel?
22               MR. BOLON:  No, there wasn't.  Actually, the 
23   cost analysis for the food processing industry, of which 
24   the fish processors are part of, was done in the original 
25   rulemaking back in 1989, I believe, which was included in 
0022
 1   the docket that was available for this rulemaking, but it 
 2   wasn't broken down by size.
 3               MS. SHORTALL:  I'd like to clarify what Paul 
 4   is referring to as the original rulemaking was the 
 5   rulemaking on the general industry lockout/tagout 
 6   standard, the final rule, which was published in 1989. 
 7               MR. GREMMERT:  Thank you.  I also had a 
 8   question about if you could provide some additional 
 9   clarification or a definition.  I believe the term 
10   operating outside of U.S. territorial waters or outside 
11   of three nautical miles was used in the opening 
12   statement.  What exactly does it mean operating outside?
13               MS. SHORTALL:  Operating outside means during 
14   the period of time that the vessel is outside the three 
15   mile, or in the case of Texas, the West Coast of Florida 
16   and Puerto Rico, nine miles, OSHA does not have 
17   jurisdiction.  Once you come back within the geographical 
18   limits, OSHA does have jurisdiction at that point.
19               MR. GREMMERT:  Thank you. 
20               ALJ:  Thank you, Mr. Gremmert. 
21        Ms. Conrad?
22               MS. CONRAD:  Thank you.  I was just curious 
23   who with experience in the fishing industry was consulted 
24   when writing this proposed rule, and was the Coast Guard 
25   consulted? 
0023
 1               JOSEPH DADDURA:  My name is Joe Daddura, 
 2   Director of Office of Maritime Standards.
 3        The rule dated back to 1991, its involvement from 
 4   SESAC.  You had a representative from the West Coast, 
 5   from the State, and also one from the labor unions out 
 6   here.  We currently have a MACOSH committee, which was 
 7   consulted with it, and they also have a representative 
 8   from the State out here.
 9               MS. SHORTALL:  I'd also like to point out 
10   that OSHA has ongoing relationships and communications 
11   with the Coast Guard, and we have established several 
12   Memorandums of Understanding with the Coast Guard during 
13   the pendency of this rulemaking as well as before.
14               MS. CONRAD:  Okay.  Thank you. 
15        After reviewing the proposed rule, we felt that your 
16   consideration of vessels, vessel owners and repairs 
17   outside of shipyards is inadequate. 
18        What specifically did OSHA do to consider the safety 
19   needs of vessels doing repair not in shipyards, and the 
20   feasibility of applying the shipyard rules to vessels 
21   outside of shipyards? 
22               MS. SHORTALL:  Could I ask you clarify what 
23   you mean by that?  Are you saying outside of shipyards 
24   meaning further inland or out on the seas?
25               MS. CONRAD:  When the vessel is not within 
0024
 1   the shipyard itself, so tied to a dock doing shipyard 
 2   activities or within the three miles.
 3               MR. DADDURA:  Let me try it.  Basically, you 
 4   are talking not within the confines of a known shipyard?
 5               MS. CONRAD:  Correct.
 6               MR. DADDURA:  Such as a pier, downtown, 
 7   whatever?
 8               MS. CONRAD:  Correct.
 9               MR. DADDURA:  The standards still apply.  
10   They always have applied, and that's when you're doing 
11   ship building, ship repair and ship breaking.
12               MS. CONRAD:  Okay.  Thank you.
13               MS. SHORTALL:  And I think, Joe, you said it 
14   excellently at our first hearing.  What we're doing is 
15   we're looking at No. 1, the operations; and No. 2, the 
16   hazards, and we regulate when both of those are present. 
17               MS. CONRAD:  That's it.  Thank you. 
18               ALJ:  Thank you. 
19        Ms. Lee?
20               MS. LEE:  We may have already covered my 
21   questions, but I'm going to ask at least one of them 
22   anyway.
23               MS. BRINKERHOFF:  Ms. Lee, can we ask you to 
24   identify yourself?  There's a reporter here.
25               MS. LEE:  Oh, I'm sorry.  Lurilla Lee.  I'm 
0025
 1   representing Trident Seafoods. 
 2        Why wasn't a broader scope of knowledgeable people 
 3   and organizations consulted in the initial phases of this 
 4   rule revision process?  And I'm referring to smaller 
 5   shipyard representatives, fishing industry, vessel 
 6   owners, Puget Sound Shipbuilders and North Pacific 
 7   Fishing Vessel Owner's Associations, and OSHA Region 10, 
 8   and the Anchorage area office, who have a really good 
 9   understanding of our operations and our vessels. 
10               MR. DADDURA:  Joe Daddura again.  The 
11   advisory committees that OSHA establishes, public notice 
12   is given to where anyone can apply to attend, to be 
13   recommended to be a member of those committees. 
14        Those notices went out to everybody.  We recently 
15   sent it out I guess last November for the new advisory 
16   committee coming up.  So Puget Sound has every right to 
17   apply or be recommended or the associations.
18        We have a number of -- we try to get a balance on 
19   this committee -- a number of small shipyards or 
20   organizations that represent small shipyards, such as the 
21   Shipbuilders Council on the East Coast and things of that 
22   nature.  So we constantly have input from those type of 
23   industries. 
24        Also, the national office does consult with the 
25   regions with their maritime area offices.  We have a 
0026
 1   steering committee established at OSHA that deal with 
 2   maritime issues, so all regions represented include area 
 3   offices.
 4               MS. LEE:  All right.  And Kurt's already 
 5   answered my second question for me.
 6               ALJ:  Thank you. 
 7               MS. SHORTALL:  Could I add one other thing 
 8   about your last question?  And that is because of the 
 9   relationships that OSHA has developed through MACOSH, 
10   Maritime Advisory Committee on Safety of Health, and 
11   through our regions, this has benefitted the Agency in 
12   developing this rule, because the Agency has been able to 
13   conduct a number of site visits leading up to proposing 
14   the rule, so gained a lot of experience there as well. 
15               ALJ:  Thank you. 
16        Mr. Kline?
17               MR. KLINE:  Thank you.  Chris Kline with 
18   Icicle Seafoods. 
19        My question has been asked several times, but let me 
20   try to hit it from another angle.  We talked a lot about, 
21   or you have talked a lot about back and forth dialogue 
22   with regional offices. 
23        The fishing industry has had an alliance with OSHA 
24   in this area, and yet I don't see anywhere where they 
25   were ever consulted.  I think they're a perfect funnel 
0027
 1   into a lot of information, and I just -- have you 
 2   associated or contacted other alliances?  I know there 
 3   are shipyards that are aligned with certain OSHA offices.  
 4   Is that common or uncommon? 
 5               MR. DADDURA:  During the rulemaking process 
 6   and guidance development, we do put together a 
 7   boilerplate-type approach where we send out for comments 
 8   and things of that nature.
 9        Now, if a region feels that it doesn't directly 
10   affect their alliances, then they won't normally bring it 
11   up.  I don't know in this case what exactly happened from 
12   a lockout/tagout standpoint that everybody's concerned 
13   about, so I can't speak for the region.
14               MS. DOUGHERTY:  Let me add, too, there's some 
15   limited discussion with the alliance partners when we do 
16   rulemaking, but rulemaking is a little bit of a different 
17   animal in OSHA.  We have this formal process.  Not 
18   everything that we do in OSHA involves hearings. 
19        So rulemaking does have these hearings to allow the 
20   public to come in and present information.  So it is a 
21   way for us to kind of reach out to people and say, hey, 
22   where did we get it right?  What kind of information can 
23   you give us? 
24        So it's not typical, to answer your question, that 
25   we would reach out to the alliances in the development of 
0028
 1   a rulemaking, because we do have these hearings that 
 2   allow us to do that as well.
 3               MR. KLINE:  All right.  I think people here 
 4   seem a little frustrated because we could have provided 
 5   the information, and it just wasn't an avenue that was 
 6   explored.  That's all.
 7               MS. WANGDAHL:  I do want to add that we did 
 8   have a number of conference calls with Region 10 over the 
 9   past two or three years.  We've had a number of those 
10   conference calls with the rulemaking team.  Dick Terrill 
11   was one of those calls.
12        So, like Dorothy was saying, we try to make attempts 
13   to include everybody that we can.  So we were in touch 
14   with Region 10, and they did know what was going on with 
15   Subpart F.
16               MR. DADDURA:  Let me add one more thing to 
17   that.  There is a comment period when we do propose a 
18   rule where you have a right to comment, anybody, not just 
19   alliances, and we do expect the regions and the area 
20   officers to put notices out to the people, the 
21   associations and alliances to provide comments to the 
22   rulemaking.  So there is an avenue even if you never met 
23   OSHA before.  As a public citizen you have a right to 
24   comment.
25               MS. DOUGHERTY:  I think what I'm a hearing, 
0029
 1   too, is a little bit of frustration, because when we 
 2   develope guidance, there seems to be a lot of give and 
 3   take.  And in the rulemaking process, it's a little bit 
 4   since it's a legal process.  So we have to get everything 
 5   on the record, and that's why we have to have these 
 6   hearings and allow people to come in.  That's why you 
 7   have to speak into a microphone so we can record 
 8   everything.  It's just a little bit different.
 9               MR. KLINE:  Thank you. 
10               ALJ:  Thank you. 
11        Mr. Fraser? 
12               MR. FRASER:  Thank you, Your Honor.  Dave 
13   Fraser, Fishing Vessel Muir Milach.  I have a couple 
14   questions. 
15        The first is I'd like some clarification, if you 
16   could, on the discussion of the ship's crew in the 
17   proposed rule, page 72491.  When I read that discussion 
18   -- and I read this page I don't know how many times, but 
19   it still didn't come clear to me. 
20        There's the discussion of the existing exemption for 
21   vessels under 18 tons under 1914.4, and then the 
22   beginning of this speaks of section 1915.89.  I get the 
23   impression when I read it, but it doesn't come clear to 
24   me whether that exemption goes away for 1914.89, if at 
25   all, or more broadly if it goes away out of 1915.4.
0030
 1               MS. SHORTALL:  I guess that's probably going 
 2   to be my question to answer.  And I do appreciate when 
 3   you say this seems to be somewhat confusing, because, in 
 4   fact, it is.  So let me see if I can explain it in more 
 5   simple terms so that I don't get my own self confused.
 6        When OSHA adopted the existing standards for 
 7   shipyards in 1971, it did so under special provision of 
 8   the Occupational Safety and Health Act, which was Section 
 9   6A.  And 6A allowed the Agency in the first two years of 
10   its creation to adopt as its own safety standards 
11   existing federal standards and national consensus 
12   standards.
13        So what we did was take the safety standards that 
14   were in the Longshore and Harbor Workers Compensation Act 
15   and bring them over as ours, and gradually we've gone 
16   through the process as we've been able to do so of 
17   updating those standards. 
18        Those particular regulations, the Longshore and 
19   Harbor Workers one, had very specific definitions of 
20   seamen, ship's crew, and shipyards that applied to them 
21   more for the purposes of the compensation side of it and 
22   not the safety side of it, the regulation side of it. 
23        What we did was only adopt the substantive parts of 
24   it, the actual safety and health regulations themselves.  
25   And the following year in 1972 we issued an interpretive 
0031
 1   rule saying any place we've adopted existing standards, 
 2   we've adopted only the substantive part.  We are not 
 3   adopting the jurisdictional or definitional parts, 
 4   because OSHA's jurisdiction is broader than the Longshore 
 5   and Harbor Workers standard.
 6        And for years it worked out fine.  And then someone 
 7   challenged us, and in three circuits we ended up losing 
 8   that.  And what they said was, well, if that was what you 
 9   were going to do, you needed to do so within a rule.  You 
10   need to be a little broader than simply doing an 
11   interpretation rule.  You need to make it part of an 
12   actual substantive specific rule.
13        And so what we're doing now is bit by bit, as we're 
14   updating the rules, we're changing our scope provisions 
15   to sort of take care of what we consider bad or adverse 
16   decisions to the Department, and that was one of them.
17        So what we are basically trying to reaffirm in 1989 
18   is our definition that ship crew are, in fact, covered.  
19   And say under the Longshore Act, that'll exist for its 
20   purposes, but it doesn't affect us.
21        So it has been our position since 1971 that we do 
22   cover ship's crew.  We're just making very explicit now 
23   in 1915.89 so that no Court of Appeal would say to us, 
24   well, if you wanted to do it that way, you needed to say 
25   so in a rule.
0032
 1               MR. FRASER:  Then just to follow up, this 
 2   broader interpretation of ship's crew doesn't just apply 
 3   to 1915.89?  It applies to the whole shipyard section?
 4               MS. SHORTALL:  It applies to the entire 
 5   shipyard section in the Courts of Appeals that have not 
 6   adversely decided against us, all right?  And as we are 
 7   going through updating rules, we are making it more 
 8   specific in every rule that we adopt so we don't end up 
 9   revisiting the same type of case we had in those three 
10   circuits, the important one being the Dravo decision.
11               MR. FRASER:  Thank you.  So that gets me to 
12   my second question.  We're now talking in the universe of 
13   tens of thousands of vessels in the United States and the 
14   commercial fishing fleet.  Earlier there was an answer to 
15   a question that a shipyard is not just a shipyard.  It's 
16   a vessel that's in its own slip doing work on its own 
17   ship's systems by its own ship's crew.
18        So given that we're talking about tens of thousands 
19   of entities, how does Table 6, and it says we're dealing 
20   with 600 and some entities, and Table 8 that says we're 
21   dealing with a million dollars in cost, how does that 
22   stand up? 
23               MR. DADDURA:  Which question do you want me 
24   to answer first?  You have to understand the standard 
25   says shipyard employment, not shipyards, so employment 
0033
 1   outside the shipyards is also covered.
 2        We recognize that the crew does repair some systems 
 3   and replace some systems and overhaul the vessels, 
 4   including painting and blasting and things of that 
 5   nature.  That type of work is defined as shipyard 
 6   employment, okay? 
 7        So we took it -- I guess to clarify it, we're not 
 8   just dealing with shipyards.  We're dealing with vessels.  
 9   We're dealing with shipyard employment, and that type of 
10   industry work being done.  Does that answer your 
11   question? 
12               MR. FRASER:  That answers the part that I 
13   correctly read to mean that we're dealing with the 
14   universe of tens of thousands of vessels, but you've got 
15   a document that says the total cost is a million dollars, 
16   and the total number of entities is 600.
17               MR. BOLON:  Well, I think your point's well 
18   made.  It's always just been an area of uncertainty for 
19   OSHA and our shipyard regs.  I don't really think it's 
20   come up in the previous regs we've done. 
21        Clearly, if crew or other people are doing repair 
22   work within our jurisdiction, it falls under 1915.  So I 
23   think your point's well taken that we should look at 
24   this, and so we would like as much comment today on it as 
25   possible.
0034
 1        And there's also an issue about not just how many 
 2   vessels, but what other kind of work the ships' crews are 
 3   doing.  And we always look at what we call the baseline; 
 4   that is, are the people working on vessels already 
 5   following our standards? 
 6        So we would not view that if people were already 
 7   following lockout/tagout, for instance, ship's crew work, 
 8   then we wouldn't count that as a new cost even though 
 9   they would be caught under the rules.
10        So we'd like to hear more comment about what crews 
11   are doing, and whether they're already following 1915. 
12               MR. FRASER:  Thank you.  I'll address that in 
13   comment.
14               MS. SHORTALL:  Thank you for your very 
15   careful read of the preamble, too, Mr. Fraser.
16               ALJ:  Thank you. 
17        Mr. Davis?
18               MR. DAVIS:  The challenge with going towards 
19   the end is that quite a few people have already asked 
20   some of the questions that I had on my list.  Some of 
21   them were where did you get your vessel numbers for 
22   affected vessels?  And you've taken a shot at that.
23        A quick call to the Coast Guard and a little bit of 
24   Googling I came up with an estimate of 79,500 commercial 
25   fishing vessels in the U.S., and I think that that's low.  
0035
 1   That's everything from 20-30 foot boats that people are 
 2   working on themselves all the way up to the large vessels 
 3   that you see here in the Pacific Northwest.  American 
 4   Waterway Operators Association, there's about 5,000 
 5   vessels.
 6               MS. SHORTALL:  Your Honor, we welcome 
 7   Mr. Davis giving that testimony about the numbers during 
 8   his presentation, but this is the time for asking us 
 9   questions.
10               MR. DAVIS:  All right.  I will ask the 
11   question.
12        With all ships that are doing repair activities, all 
13   vessels that are doing repair activities at the dock on 
14   their own affected, and this larger scope that has been 
15   identified, will OSHA be going back and redoing their 
16   economic analysis?
17               MR. BOLON:  We'll be considering all the 
18   information that we get here today.  And like I say, we 
19   have not really looked at the impact on the standards 
20   that we've done in the last 10 or 15 years about how they 
21   impacted individual vessels.
22        And Subpart F is interesting, because a lot of the 
23   things deal with conditions of work, which you don't 
24   usually think of applying on vessels, because when 
25   vessels operate, they're not operating as shipyards.  
0036
 1   They're doing their task of gearing things, fishing and 
 2   whatever.  We'll certainly consider it.
 3               MR. DAVIS:  One of the questions that I had 
 4   was about OSHA's definition of medical services.  Part of 
 5   the proposed standard requires that medical services be 
 6   made available, but I found it a little vague.  Could 
 7   somebody explain more what you're looking at in the 
 8   beyond first aid category for medical services?
 9               MS. WANGDAHL:  Are you talking about the 
10   on-site first aid providers, or you just want to know 
11   when we say medical services what --
12               MR. DAVIS:  I want to know what you mean when 
13   you say medical services, because I take it to mean 
14   beyond first aid providers.
15               MS. WANGDAHL:  Well, I think for the intent 
16   of this proposal, when we talk about providing on-site 
17   first aid providers, we're talking about first aid 
18   providers and CPR-trained employees.  We're not 
19   necessarily requiring EMTs or paramedics.  I know you 
20   have a background -- I believe you were a paramedic 1 or 
21   an EMT.
22               MR. DAVIS:  I was a firefighter EMT.
23               MS. WANGDAHL:  Okay.  So I think you're going 
24   to take it a little further than how most people will, 
25   but we're requiring CPR and first aid providers on site.
0037
 1               MR. DAVIS:  Okay.  By definition I understood 
 2   medical services to have a broader scope, so I wanted to 
 3   make sure that that was defined.
 4               MS. SHORTALL:  Yes, it does have a broader 
 5   scope, and broader scope of medical services encompasses 
 6   Paragraph B of proposed 1915.87, which is a provision 
 7   that has been on the books for 30 years.  And it simply 
 8   says that employers have to ensure that they have health 
 9   care professionals readily available with whom they can 
10   consult about medical issues regarding their employees' 
11   health issues, possibly evaluation or advice on 
12   appropriate type of first aid supplies and first aid 
13   providers that they might have on site.
14        The idea behind that is that employees have an 
15   ongoing relationship with some health professional so if 
16   an emergency situation arose, especially regarding health 
17   issues, they wouldn't have to be shopping around at that 
18   time, but they could easily consult with someone who had 
19   possible knowledge about that particular shipyard, about 
20   the hazards or the type of chemicals or toxic substances 
21   to which employees may be exposed so that information or 
22   assistance or medical intervention could be given at a 
23   time that it would be effective.
24               MR. DAVIS:  Okay.  Thank you.  That actually 
25   addressed my third question.
0038
 1               MS. SHORTALL:  Thank you.
 2               ALJ:  Thank you.
 3        Mr. Nielsen? 
 4               MR. NIELSEN:  Good morning.  I'm Richard 
 5   Nielsen.  I'd like to know whether you can tell us 
 6   whether in the rulemaking process the impact of the 
 7   proposal on workers' litigated injury claims, that is, 
 8   those claims that are going to be in court as opposed to 
 9   in the longshore harbor worker compensation system was 
10   analyzed.
11               MS. SHORTALL:  Well, Section 4(b)(4) of the 
12   OSH Act specifies that nothing in the act shall be 
13   construed to supercede or in any manner affect any worker 
14   compensation law or to diminish or affect in any other 
15   manner the common law or statutory rights, duties or 
16   liabilities of employers and employees under any law with 
17   respect to injuries, diseases, death or death of 
18   employees arising out of, or in the course of employment.
19        Said in short terms, violation of an OSHA act does 
20   not in and of itself establish liability under any worker 
21   compensation law.  Some states, and it's usually a state 
22   by state situation, will allow it as some evidence.  Some 
23   will not allow it at all. 
24        So I think it is very clear that the fact that you 
25   may not have been in compliance with an OSHA standard 
0039
 1   does not in and of itself affect whether you have a 
 2   claim, whether that claim has been proven, or whether 
 3   that claim will be sustainable in a worker compensation 
 4   case, and that question's probably best addressed to the 
 5   state compensation boards or state compensation setting 
 6   units.
 7               MR. NIELSEN:  Well, I assume, or I would ask 
 8   are you aware of the practical decision out of the 1st 
 9   Circuit or here in the Western District of Washington our 
10   own Cook v. Ancich decision, both of which courts held 
11   that violations of OSHA regulations could constitute 
12   negligence per se, and would deprive the vessel owner 
13   defendant or the employee defendant of the defense of 
14   comparative negligence?
15               MS. SHORTALL:  I am aware of those cases, but 
16   those are cases that have been established, and those are 
17   statutes and interpretations that have been done by an 
18   entity other than OSHA.  It has not been OSHA's viewpoint 
19   or OSHA's intent or purpose in establishing regulations 
20   to affect worker compensation, nor do we order worker 
21   compensation systems to take account of our standards in 
22   litigation of cases before them.
23               MR. NIELSEN:  Well, in a similar vein, has it 
24   been considered or has the expansion of the number of 
25   workers that are going to be subjected to these proposals 
0040
 1   that then will have claims that are litigated in court 
 2   again as opposed to the comp system?  Has that been 
 3   considered in the rulemaking? 
 4               MS. SHORTALL:  I'm not sure what you mean 
 5   what type of cases they would have in court as opposed to 
 6   under worker comps since in all but gross negligence 
 7   cases, worker comp acts as a bar to seeking remedy in a 
 8   tort case.
 9               MR. NIELSEN:  Well, here I'm talking about 
10   individuals who are crewmen aboard the vessel, but who 
11   will be subject to these proposals, subject to these 
12   regulations when they're in the employee/employer 
13   relationship, but nonetheless after they're injured or 
14   death, they'll be able to go into the Federal Court or 
15   State Court and sue in tort.
16               MS. SHORTALL:  Well, I believe that The Jones 
17   Act is the appropriate vehicle under which they will 
18   operate for compensation purposes, and we do not have any 
19   involvement with setting the parameters on that.
20               MR. NIELSEN:  Well, you said you're aware of 
21   the cases that said not only is OSHA involved, but its 
22   regulations, its standards can establish liability and 
23   deprive the employer of comparative negligence.  That's 
24   one instance where that's going to happen.
25        I would ask as well, you're aware, are you not, of 
0041
 1   the prevailing standard, the accepted majority view that 
 2   OSHA violations, or I should say the standards 
 3   promulgated by OSHA, are the best evidence of what 
 4   constitutes reasonable care in that litigation?
 5               MS. SHORTALL:  Well, OSHA standards are not 
 6   the one and only avenue of establishing whether you have 
 7   a potential evidence of negligence or liability.  For 
 8   example, national consensus standards are another of 
 9   which we have nothing involved in that, too.
10        So that would suggest that not only should OSHA not 
11   be establishing regulations, but we should have no 
12   national consensus standard because some states may take 
13   those into account in doing worker compensation. 
14        I think that would be an outcome that many in this 
15   room would not even favor, let alone with the state 
16   worker compensation boards, nor a lot of employers that 
17   we believe are excellent, good actors and are always 
18   looking for either best practices when it comes to 
19   national consensus standards, or trying to do the best 
20   they can to comply with OSHA standards themselves.
21               MR. NIELSEN:  Nor would I, and what I'm 
22   suggesting I'll address when I actually give my testimony 
23   -- let me get a couple simpler questions out there then.
24        Can you tell me whether in the rulemaking process 
25   and the development of the 1.1 million dollar figure in 
0042
 1   terms of cost, did that include an analysis of the 
 2   increased cost that'll come in through claims and the 
 3   increased cost of insurance premiums?
 4               MR. BOLON:  No.
 5               MR. NIELSEN:  And then finally, as I said, my 
 6   testimony will address the impact on claims brought by 
 7   seamen, who will be working in the proposed working 
 8   environments.  The shipyard employments I think they were 
 9   called. 
10        But when you say that OSHA's jurisdiction will still 
11   be limited to territorial waters, are you referring there 
12   simply to the right of OSHA to board, inspect and cite a 
13   vessel?
14               MS. SHORTALL:  Outside of the geographical 
15   limits of the OSH Act, we simply have no authority at 
16   all.
17               MR. NIELSEN:  I understand that, but are you 
18   aware that in terms again of these litigated claims, when 
19   the seaman is injured at sea, in the Bering Sea, and he 
20   comes in and he hires a lawyer, are you aware that that 
21   lawyer is going to file his lawsuit, and he's going to 
22   put those OSHA regulations regarding lockout/tagout on 
23   the board as the standard by which that vessel should 
24   have operated regardless of whether or not OSHA can get 
25   on and cite when it's on the high seas?
0043
 1               MS. SHORTALL:  I imagine that that is 
 2   possible, as well as any other litigation cases that have 
 3   occurred over the 30 years that OSHA has been in 
 4   existence in which other general industry standards 
 5   currently applicable to vessels they might also cite at 
 6   the same time, as well as any national consensus 
 7   standards they might look at, any manufacturer's 
 8   instructions.  Any type of best practices dialogue among 
 9   employers they might look at, too.
10               MR. NIELSEN:  So true, that's nothing new.  
11   It's been going on for a while, but would you agree that 
12   that makes it that much more important for the 
13   modification of the rules by which our people operate, 
14   that those proposals be internally consistent, that those 
15   proposals be understandable, and that the employers have 
16   a fair chance to comply with the revised regulation? 
17               MS. SHORTALL:  I'm not sure what your 
18   question is there.
19               MR. NIELSEN:  Would you agree that it's 
20   important then when you modify the rules of the game, 
21   that they be understandable and reasonably achievable by 
22   the people who are now subject to them? 
23               MS. SHORTALL:  Well, since so many of our 
24   rules here today have been on the books for 30 years and 
25   we've seen excellent compliance within this industry, we 
0044
 1   do believe that they are achievable.
 2        As to lockout/tagout, we've just, as Joe mentioned, 
 3   and I'd like to have him go even further about the 
 4   Lookback review that talked about the efficacy of that 
 5   particular standard. 
 6               MR. DADDURA:  I can't get into your legal 
 7   argument, believe me.  I can tell you what our concerns 
 8   are:  Worker safety and health. 
 9        A Lookback study done some years ago went back, and 
10   it detailed how many lives are saved, how many injuries 
11   were prevented, and it was a very successful standard. 
12        One would hope that an employer is taking all the 
13   measures needed to protect employees, whether within 
14   jurisdiction or out of jurisdiction of OSHA.  The 
15   jurisdictional issue that we can only go out three miles, 
16   within three miles, is one that is clear under the act. 
17        The consensus, the ANSI standard, or they're using 
18   the lockout/tagout standard or whatever the case might 
19   be, we would hope they're using them to prevent injuries 
20   and accidents from within I guess the occupation of the 
21   fishermen, the crabbers or whatever the case might be.
22               MR. NIELSEN:  Well, when I have a chance to 
23   provide my testimony, you'll see that I'm really trying 
24   to describe and elaborate upon the environment in which 
25   you are dealing, and the impact it's having on these 
0045
 1   operators in terms of the details of those differences, 
 2   and the details of the confusion that appears to be in 
 3   the proposals. 
 4        And the details of the internal inconsistency, I'll 
 5   defer to the operators who are working with these rules 
 6   day to day, but -- well, I'll get to the balance of my 
 7   remarks later.  Thank you.
 8               ALJ:  Thank you, Mr. Nielsen. 
 9        Mr. Rainsberger?
10               MR. RAINSBERGER:  Thank you, Judge Gee.
11        Was there a formal risk analysis performed on the 
12   Subpart F standards?  And if so, is it available? 
13               MS. SHORTALL:  Would you repeat the question?
14               MR. RAINSBERGER:  Was there a risk analysis 
15   performed on Subpart F prior to the issuance of the 
16   proposed standard?  And if so, is it available? 
17               MS. SHORTALL:  It's actually included in the 
18   preamble.  It's discussion of the hazards and the various 
19   injuries and fatalities that occur, and the likely 
20   reduction of those.  In addition, Paul, could you explain 
21   it in your section as well?
22               MR. BOLON:  In the economic analysis, there's 
23   a benefit section, which looks at the historical record 
24   of fatalities and injuries, and estimates the number of 
25   risk reduction, the number of fatalities that would be 
0046
 1   reduced and injuries reduced.
 2               MR. RAINSBERGER:  Well, I saw the summary in 
 3   the preamble.
 4               MR. BOLON:  It's not as formal as 
 5   quantitative risk assessment for a health standard.
 6               MR. RAINSBERGER:  Okay.  That's what I was 
 7   driving at.
 8               MR. BOLON:  It's based on basically the 
 9   history of accidents, and how we think the proposal would 
10   affect and change those.
11               MR. RAINSBERGER:  Thank you. 
12        Did any organized labor provide any written comments 
13   or testimony in Washington, DC or on the agenda to 
14   provide comments here today or tomorrow?
15               MS. SHORTALL:  Unfortunately, no.
16               MR. RAINSBERGER:  Isn't that surprising? 
17               MS. SHORTALL:  Pardon?
18               MR. RAINSBERGER:  Is that surprising?
19               MS. WANGDAHL:  We were surprised.  We didn't 
20   receive any written comments from organized labor, nor 
21   did we receive a NOITA for either hearing.  We just 
22   didn't receive any.
23               MR. RAINSBERGER:  I thought with their 
24   activity with Hexachrome that they would be pretty active 
25   in this.
0047
 1               MS. WANGDAHL:  We thought so, too.
 2               MS. SHORTALL:  We tend to find that with the 
 3   labor unions that they get involved when they actually 
 4   have local unions who are represented at the particular 
 5   work sites.  So if there's more limited union activity, 
 6   they may not be involved. 
 7               MR. RAINSBERGER:  Okay.  OSHA used a good 
 8   approach when they put Subpart P into place, and that was 
 9   communicating with American Shipbuilding Association, 
10   Shipbuilders Council of American, Puget Sound 
11   Shipbuilders Association and other alliances.
12        Did you ever contemplate using that same approach 
13   when putting these subparts forth for public comment? 
14               MR. DADDURA:  The negotiated rulemaking 
15   process is unique.  With the number of issues we had to 
16   address in the proposal, it would probably take us 30 
17   years to come to agreement with the committee, and we 
18   were already deep into the proposal stage.
19        So when MACOSH recommended lockout/tagout, we were 
20   already pushing forward through clearances, things of 
21   that nature, so we didn't do it.
22               MS. SHORTALL:  We'd already had an advisory 
23   committee established specifically for the purpose of 
24   looking at shipyard employment standards.  The SESAC 
25   committee had worked with them for four years for them to 
0048
 1   develop recommendations for the Agency, and many of the 
 2   proposed items in the proposal are recommendations that 
 3   they had made to the Agency.
 4        So as Joe correctly pointed out, if we would have 
 5   moved back to another negotiated rulemaking, at that 
 6   stage that, in essence, would have been the second 
 7   negotiated rulemaking, which is an advisory committee 
 8   because we'd already had one.  And we'd taken it to 
 9   MACOSH, and we did not feel a third one was necessary.
10               MR. RAINSBERGER:  It just seems that some of 
11   those things that you're mentioning had been altered and 
12   changed.  And I think that the industry would have had 
13   agreement on a lot of that, and this hearing wouldn't 
14   even be necessary if the process would have been followed 
15   communicating with the alliances.  That's my opinion, not 
16   a formal question. 
17               MS. SHORTALL:  Okay.  Please tell us more 
18   during your testimony, too.
19               MR. RAINSBERGER:  I will.  My last question 
20   is were subcontractors involved in the overall numbers 
21   that you had with your economic studies in shipyard 
22   employment? 
23               MR. BOLON:  If they identified themselves as 
24   being part of the shipyard industry, yes.  If not, then 
25   they're not part of the 639. 
0049
 1        Our number of shipyards is based on a census that 
 2   the Commerce Department does every 10 years.  It contacts 
 3   every employer and asks them what industry they're in, 
 4   and that's the basis for the numbers that we used, 
 5   although we can identify the largest shipyards in terms 
 6   of where they are and their number of employees, but the 
 7   639 number comes from the census.
 8               MR. RAINSBERGER:  But you do realize that 
 9   subcontractors make up a huge part of the shipbuilding 
10   community?
11               MR. BOLON:  We know there are a lot of 
12   subcontractors, but subcontractors are affected in very 
13   different ways by the different standards we do.  I mean, 
14   some people do sheet metal work versus electrical versus 
15   painting versus this -- I'm aware they do work in 
16   shipyards, but we don't count them as shipyards, because 
17   they don't identify themselves as shipyards.  That's the 
18   simplest answer.
19               MR. RAINSBERGER:  Right.
20               MR. DADDURA:  Let me add on that.  As you 
21   know, since the work comes and goes quickly in shipyards, 
22   especially out here and all over the country, it's hard 
23   to put a figure or number on number of contractors, 
24   number of employees that subcontract into the shipyard. 
25        We would be certainly glad to entertain any numbers 
0050
 1   and information or statistics you can give us on that.
 2               MR. RAINSBERGER:  Sure.  My point is that 
 3   there is a lot more than probably what you've captured.  
 4   People -- the sheet metal guy who says that he's a sheet 
 5   metal person, not in ship repair, but he's actually doing 
 6   ship-repair activities.
 7               MR. BOLON:  Right.
 8               MR. RAINSBERGER:  Thank you.
 9               ALJ:  Thank you.  I believe that's it for the 
10   questions for the OSHA representatives.
11        Our first witness is Dave Fraser.
12               MS. SHORTALL:  Your Honor, can I request that 
13   we take a break 10-minute break or something?
14               ALJ:  All right.  Let's take a 10-minute 
15   break, and then we'll start with Mr. Fraser. 
16                        (Recess taken.)
17               ALJ:  I noticed earlier that a number of 
18   people walked into the room after we started.  And if you 
19   have not checked in with Ms. Chatmon, will you please 
20   make sure that you do so, so that she has a record of 
21   who's present at this hearing. 
22        Is Dale Myer here?
23               DALE MYER:  Right here.
24               ALJ:  All right.  Apparently, she didn't know 
25   that you were here.
0051
 1               MR. MYER:  Oh, excuse me.
 2               ALJ:  All right.  So if you didn't check in 
 3   with her, you do need to do so.
 4               MR. MYER:  All right.
 5               ALJ:  Thank you.
 6        Our first witness is Dave Fraser.
 7                           TESTIMONY
 8                         BY DAVE FRASER
 9               MR. FRASER:  Thank you, Your Honor, and 
10   members of the panel.  Dave Fraser, Commercial Vessel 
11   Muir Milach.
12        I've been a commercial fisherman since 1971, owned 
13   and operated vessels of a variety of sizes from a 28-foot 
14   gillnetter to a 102-foot trawler up Washington, Oregon 
15   and in Alaska.  During that time I've never thought of 
16   myself as a shipyard worker.  I've thought of myself as a 
17   fisherman. 
18        I was moved to comment on OSHA's shipyard proposal, 
19   because after reading it and taking the language at face 
20   value, it appeared to me that OSHA was casting a very 
21   large net, bringing in thousands of entities, primarily 
22   catcher vessels that had no idea that they were going to 
23   be regulated as shipyards during the course of their 
24   normal day-to-day operations.  In the fishing business, 
25   we call this bi-catch when our nets bring up species that 
0052
 1   we weren't intentionally targeting.
 2        Under Section 1915.80 on the scope, the proposed 
 3   rule says shipyard employment is defined at 1915.4, 
 4   meaning ship repair, ship building, ship breaking and 
 5   related to employment, and then adds that regardless of 
 6   geographic location. 
 7        The casual reader would think this section is all 
 8   about shipyards rather than ship vessels, but on page 
 9   72491 the proposed rule's definition widens that scope by 
10   saying that 1915.89 will apply to the servicing of ship's 
11   systems by any employee, including ship's officers and 
12   crew of the vessel, and it clarifies again that 
13   regardless of geographic location, even though the 
14   language of 1915.4 limits the employer to persons engaged 
15   in shipyard employment on navigable waters.
16        Ship systems are broadly defined as all of the 
17   ship's systems, including machines, equipment, systems 
18   that are pertinent or inherent to the vessel, navigation, 
19   propulsion, power, hydraulic, electric and so on. 
20        So my reading of the proposed rule is that anybody 
21   anywhere working on any component of any commercial 
22   vessel of any size is subject to this rule, and I think 
23   that was confirmed in the question period.
24        So my reading is that if an owner of a 50-foot 
25   vessel underway in navigable waters were to go up and 
0053
 1   replace the faulty radio antenna, he would be subject to 
 2   the regulations.  Likewise, the salmon trawler down in 
 3   Fishermen's Terminal in his slip with a 35-foot boat that 
 4   is replacing a hydraulic valve is subject to the 
 5   regulations.
 6        Despite this broad net, Table 6 suggests that 
 7   there's only 614 entities that fall under the proposed 
 8   rule.  That might be a reasonable estimate of the number 
 9   of shipyards as any lay person would interpret the 
10   meaning of the word shipyard, but now the proposed rule 
11   is about governing ships' crew of vessels servicing ship 
12   systems.
13        The State of Alaska maintains a list of registered 
14   commercial fishing vessels.  Alaska's list has 9,818 
15   vessels, 25 of which are over 10,000 tons, a hundred of 
16   which are over 200 net tons, 400 of which are over 100 
17   net tons, 1,900 are over 18 net tons, and the remaining 
18   7,000 fishing vessels are less than 18 net tons.
19        National Marine Fishery Service has a list of 
20   commercial fishing vessels in just the trawl along line 
21   sectors on the West Coast that is 500 vessels.  There's 
22   far more if you include salmon and other species.
23        Is really OSHA's intent that a shipyard rule should 
24   be applied to the day-to-day maintenance of the fishing 
25   vessel's crew working onboard their own vessel? 
0054
 1        Table 8 says the cost for compliance for small 
 2   entities is $56 a piece.  That wouldn't pay for 15 
 3   minutes of an attorney's time for a catcher vessel owner 
 4   to try to read the rule and see what the rule subjects 
 5   them to. 
 6        I think the proposed rule itself states it best when 
 7   it quotes the Court in Dravo in saying that an 
 8   occupational and health standard must give an employer 
 9   fair warning of the conduct it prohibits and requires. 
10        To strain the plain and natural meaning of the words 
11   for the purpose of alleviating sea and safety hazard is 
12   to delay the day when occupational and safety regulations 
13   will be written in clear concise language so that 
14   employers will be better able to understand and observe 
15   them.  The responsibility to promote clear and 
16   unambiguous standards is upon the secretary.  The test is 
17   not what he might possibly have intended, but what he 
18   said.
19        So the Court in Dravo was reprimanding OSHA for 
20   trying to broaden its reach beyond the language of what 
21   the regulation said on its face.  And now OSHA's response 
22   is to create new regulatory language that gives the 
23   definition of shipyard that is not clear and concise, but 
24   rather confusing to employers who own and operate 
25   commercial fishing catcher vessels.
0055
 1        Is the owner of a 75-foot longline catcher vessel 
 2   going to be required to have an AED, a basket-staged 
 3   stretcher and eye wash station?
 4        When OSHA suggests applying the shipyard measures to 
 5   all commercial vessels and their crew at any geographic 
 6   location when they're servicing their own vessel systems, 
 7   clearly OSHA fails to comprehend the size constraints of 
 8   catcher vessels, almost all of whom are less than 200 net 
 9   tons.
10        I'm also concerned about the application of these 
11   regulations when a service technician comes down to a 
12   vessel to do day repairs when a catcher vessel is in 
13   their mooring booth or the processing plant dock where 
14   they're delivering their catch.
15        Consider the circumstances of a crab catcher vessel 
16   delivering its catch in Dutch Harbor in December coming 
17   in from the grounds with icy conditions and it's snowing.  
18   Is the vessel owner really expected to keep all walkways 
19   free of ice and snow just so the engineer can go down to 
20   the engine room and change the oil? 
21        Catcher vessel owners and operators look to the 
22   Coast Guard regulations to govern their safety issues.  
23   North Pacific Fishing Vessel Owner's Association has put 
24   together an excellent set of voluntary safety training 
25   programs that are tailored to different size vessels in 
0056
 1   different operational modes.
 2        I would urge OSHA to come up with clear and concise 
 3   language that defines shipyards in a way that the 
 4   industry understands that term.  If OSHA wishes to reach 
 5   beyond shipyards and regulate at sea day-to-day 
 6   maintenance on ships, then OSHA should set up a threshold 
 7   definition of ship, which excludes catcher vessels under 
 8   200 net tons in the commercial fishing vessel fleet.  
 9   Thank you.
10               ALJ:  Are there any questions from the 
11   audience?  The OSHA panel?
12               MS. SHORTALL:  Yes, Your Honor, but first, 
13   Mr. Fraser, do you have an additional or an extra written 
14   copy of your testimony?
15               MR. FRASER:  Yes.  I have extra copies.
16               MS. SHORTALL:  At the end could I have a copy 
17   of that?  And, Your Honor, I'd like to mark that copy as 
18   Exhibit 0170 for the afore-mentioned docket.
19               ALJ:  All right, thank you.
20               MS. WANGDAHL:  Hi, Mr. Fraser.  Thanks for 
21   coming.  I know it's tough being the first one to go, but 
22   I just want to ask you a few questions.  And some of them 
23   will seem probably a little basic to start off with, but 
24   just bear with me. 
25        You said you were strictly a catcher, or do you have 
0057
 1   processing vessels as well?
 2               MR. FRASER:  No, strictly catcher boat 
 3   experience.
 4               MS. WANGDAHL:  And how many?  Just one?
 5               MR. FRASER:  Currently we operate one vessel.  
 6   I've been involved in a number of vessels over my career.
 7               MS. WANGDAHL:  And you were talking about the 
 8   range of sizes of vessels.  Currently what is the -- it's 
 9   the Muir Milach?
10               MR. FRASER:  Muir Milach, yes.
11               MS. WANGDAHL:  And what's the size of that 
12   vessel?
13               MR. FRASER:  It's a 102-foot, about 170 net 
14   tons.
15               MS. WANGDAHL:  How many employees are on that 
16   vessel?
17               MR. FRASER:  Generally, we have a skipper and 
18   a crew of three or four.
19               MS. WANGDAHL:  Do you have any type of safety 
20   and health program, or what are you doing right now -- 
21   you can be as broad as you want to explain -- for the 
22   safety and health of your employees?
23               MR. FRASER:  Yes, we're members of -- you'll 
24   hear from Karen Conrad later today about North Pacific 
25   Fishing Vessel Owner's Association.  We've sent our crew 
0058
 1   through their training programs.  That's our basic...
 2               MS. WANGDAHL:  Okay, great.  Let's get a 
 3   little specific.  How about any provisions that you've 
 4   made for first aid on the vessel or while you're doing 
 5   work at a pier, anything?
 6               MR. FRASER:  We have a standard medical chest 
 7   onboard that a number of the fishing industry use that's 
 8   provided by a company here in Seattle.  We have crew that 
 9   have taken the first aid classes so that they got a first 
10   aid certificate.
11               MS. WANGDAHL:  Okay.  Have you ever had the 
12   occasion or any types of accidents where you've had 
13   occasion to use the first aid kit?
14               MR. FRASER:  Oh, yes.
15               MS. WANGDAHL:  Can you elaborate or give a 
16   few examples?
17               MR. FRASER:  I mean, you know, it's been over 
18   20 years, so it's been used in a number of instances from 
19   guys with toothaches to some extreme injuries.
20               MS. WANGDAHL:  Can you talk about the length 
21   of some of the seasons when you're out?  It's obviously 
22   not just one day, or is it?
23               MR. FRASER:  It depends on the fishery we're 
24   involved in.  Sometimes we're in at sea mode where we're 
25   delivering at sea, so we may be out for a month at a 
0059
 1   time.  Other times we're doing almost daily deliveries to 
 2   shore plants.
 3               MS. WANGDAHL:  And when you're out for a 
 4   month, what procedures do you take if there's an accident 
 5   that the first aid kit wouldn't be able to adequately 
 6   address?
 7               MR. FRASER:  Well, we'd first get on radio or 
 8   phone connection with Coast Guard for advice and either 
 9   prepare a medivac or to vessel him to port.
10               MS. WANGDAHL:  Okay.  And you said that you 
11   do have employees that are trained in first aid.  Who 
12   does that training?  Is that through MPSCOA?
13               MR. FRASER:  Yes.
14               MS. WANGDAHL:  So you send them through there 
15   on a regular basis?
16               MR. FRASER:  Yes.
17               MS. WANGDAHL:  Great, great.  In your NOITA 
18   you were referencing when you're making a delivery.  Do 
19   you come in, or do you go to one of the floating 
20   processors or it just depends on the season?
21               MR. FRASER:  Again, it depends on the fishery 
22   we're involved with, whether we're in a mother ship 
23   delivery mode or shore plant delivery mode.
24               MS. WANGDAHL:  Can you just explain the 
25   process of a mother ship when you're loading to the 
0060
 1   mother ship?  Can you just walk us through that process?
 2               MR. FRASER:  It's a trawl fishery, so the net 
 3   is a funnel-shaped net that has a bag at the end so the 
 4   fish are gathered in the bag, so that bag is detached 
 5   from the net. 
 6        The mother ship lets out a cable behind it with a 
 7   float on it, and we have a cable set up from the bag.  We 
 8   come up behind the mother ship.  They're moving forward 
 9   slow speed, and we're moving forward behind them and pick 
10   up the cable, attach it, release our bag from our 
11   control, and the mother ship hauls it up.
12               MS. WANGDAHL:  And how often do you do that? 
13               MR. FRASER:  It, again, varies, but between 
14   two deliveries to five deliveries a day might be sort of 
15   a typical day.
16               MS. WANGDAHL:  If you need to make repairs to 
17   your vessel out at sea, who makes them?
18               MR. FRASER:  Again, it depends on which kind 
19   of system.  I mean, if the radar isn't working and you 
20   need to change brushes, the radar rotor probably fell to 
21   me because I like to dabble in electronics.  If it's 
22   something engine related, we've got an engineer that does 
23   that.
24               MS. WANGDAHL:  Is that his only job? 
25               MR. FRASER:  No.  Pretty much -- you know, 
0061
 1   once you get over a hundred feet, give or take, you may 
 2   have somebody who's hired first of all because he's an 
 3   engineer.  But on vessels sort of less than a hundred 
 4   feet, I mean, you want to hire a guy who's a fisherman 
 5   and then also an engineer.  You know, there's a 
 6   transition.  It isn't a clear line what vessel size that 
 7   occurs at, but...
 8               MS. WANGDAHL:  So would it be fair to say 
 9   that it's typically on the smaller vessels everybody sort 
10   of has two or three different jobs depending on what's 
11   going on at the particular time?
12               MR. FRASER:  That's right, but everybody, 
13   including the engineer, is going to spend the majority of 
14   their time on the fishing end of things.
15               MS. WANGDAHL:  Okay, great.  When you come in 
16   to do any sort of repairs, who's doing the repairs?
17               MR. FRASER:  Again, it's a real variety.  I 
18   mean, you may call up Vern's Diesel to come down if 
19   there's something beyond an oil change or normal, you 
20   know, maintenance on your main engine.  You may call 
21   Lundy Electric to come down and work on the navigational 
22   equipment or fish-finding equipment.  You may call Salmon 
23   Bay Hydraulics if you're dealing with a hydraulic issue, 
24   so a wide range of contractor firms that you'd call in.
25               MS. WANGDAHL:  For major repairs you would 
0062
 1   call out basically?
 2               MR. FRASER:  Well, if we -- I mean, pretty 
 3   much every year, if not every year, every two years we go 
 4   into the shipyard, as most people would understand the 
 5   term, and haul out, paint and maybe make modifications to 
 6   some of the equipment, you know, that involves welding 
 7   new structures, et cetera.
 8               MS. WANGDAHL:  Okay.  Where was your vessel 
 9   built?
10               MR. FRASER:  Coos Bay, Oregon.
11               MS. WANGDAHL:  All right.  What type of 
12   lockout/tagout program do you have, or what are you doing 
13   right now for lockout/tagout?
14               MR. FRASER:  Well, again, it depends.  We 
15   have remote starts on the bridge for the engine that we 
16   use to drive the hydraulics.  So if the chief was going 
17   to work on that, you know, service it, he'd come up, and 
18   he'd take a piece of, if nothing else, duct tape, put it 
19   over the starter switch and write on it, "Do not start.  
20   I'm working on the generator."
21               MS. WANGDAHL:  Okay.  I think that's all that 
22   I have, but I know that a few other people on the panel 
23   have questions.  Thank you very much.
24               MS. SHORTALL:  The next person to ask 
25   questions will be Mr. Bolon.
0063
 1               MR. BOLON:  I have a couple of questions.  
 2   There are in the shipyard regs now some provisions that 
 3   address hazardous energy.  I think they deal with 
 4   electrical work and ship's piping and boilers and maybe 
 5   propulsion as well where you're supposed to protect 
 6   employees while they're working on them from unexpected 
 7   energy.
 8        Do you follow those, or do you follow any of the 
 9   OSHA regulations in the ship repair type work that you do 
10   on your own vessel?
11               MR. FRASER:  I confess, I had never read any 
12   of the OSHA regulations prior to this proposed rule 
13   coming to my attention.  So we probably -- you know, 
14   general practices, we're probably following things that 
15   are written in there, but not because we know that 
16   they're there.
17               MR. BOLON:  Okay.  Since it's the language of 
18   ship repair that pulls you into the regulations -- I 
19   mean, I think you read them fairly.  I guess I'm 
20   interested in how frequent ship repair is, and I'm 
21   wondering also in relation to that where you might draw a 
22   line between what is ship maintenance versus repair.  I 
23   mean, painting something might be considered maintenance, 
24   and repair might be obviously when something's broken. 
25        So how often do you repair, and what does repair 
0064
 1   mean to you? 
 2               MR. FRASER:  I think you -- it's a good 
 3   question.  There aren't bright lines, I suppose, but 
 4   maintenance is ongoing.  You know, I can't think of very 
 5   many times when you come into the dock that there isn't 
 6   something that you want to address, whether it be 
 7   changing oil filters or working on some piece of 
 8   electronics. 
 9        We pretty much have redundant systems for most 
10   everything on the vessels.  So just off the top of my 
11   head, I guess repair is when you can't proceed without 
12   doing it.  Maintenance is what you do in order that you 
13   don't have to do repair. 
14               MR. BOLON:  Once the vessel, especially a 
15   fishing vessel returns to the dock, does the crew stay on 
16   it to do repair?  Are they full-time employees, or once 
17   you come back to the dock, are you more likely to have 
18   the vessel owner or contractor they hire come and do the 
19   repair?
20               MR. FRASER:  Our fishing seasons are fairly 
21   lengthy and discrete.  It's not, you know, you're out 
22   fishing for a couple days, and then you're off for a 
23   week.  So it's continuous, and with our vessel the crew 
24   is essentially living onboard for the season. 
25        So from the vessel owner's perspective, the duties 
0065
 1   of crew are as broad as their skills.  And those things 
 2   that can be done by the crew, you try to have done by the 
 3   crew.  Those things that are beyond their skills, you 
 4   call in the contractor to come down if available.  And if 
 5   something is beyond what a contractor can come onboard 
 6   and repair, then eventually you end up in the shipyard.
 7               MR. BOLON:  Are there many, especially 
 8   obviously smaller fishing vessels, that are family owned 
 9   and operated so the employees would be essentially family 
10   members?
11               MR. FRASER:  Yeah, I think -- I mean, again, 
12   it's a very rough rule of thumb, but once you get under 
13   70 foot in a vessel size, you're dealing with owner 
14   operated vessels, and they may have family members.  They 
15   may not.  When you get down into the 30, 40-foot boats, 
16   it's often either just the owner alone or with a crew of 
17   one.  It's a family member.
18               MR. BOLON:  Thank you, very much.
19               MS. SHORTALL:  Mr. Daddura has some questions 
20   now.
21               MR. DADDURA:  Yes, I do. 
22        Good morning, Mr. Fraser.  How are you? 
23               MR. FRASER:  I didn't know it would take this 
24   long.
25               MR. DADDURA:  You were kind of the first one, 
0066
 1   so we want to set the pace.  You say you're a catcher 
 2   vessel, and you tow your bag or your net to the 
 3   processor, I guess. 
 4        On your vessel do you have refrigeration systems for 
 5   fish or bait or whatever you use? 
 6               MR. FRASER:  Yeah, I mean, mother ship 
 7   operations used to be a big part of our operations.  Now 
 8   they're a small part, so we do deliver shore side most of 
 9   the time and do have an RSW system for that.
10               MR. DADDURA:  Do you have a specific lockout 
11   and tagout procedure, or is the duct tape pretty much 
12   your process on how you secure your switches?
13               MR. FRASER:  Yeah, other than the remote 
14   start engine.  You know, our systems are small enough 
15   that the person that's working on them has control of the 
16   hold.
17               MR. DADDURA:  How does he gain control of 
18   that?  I mean, what's his process?  Say I wanted to work 
19   on the fire pump or bilge pump on the vessel.  What would 
20   your typical mechanic or engineer do to secure that 
21   system? 
22               MR. FRASER:  Well, say our generator, for 
23   example, it's local.  So if he's working on it, he's in 
24   control of it.  It isn't going to be started from some 
25   other place.  And he's probably the only guy that's going 
0067
 1   to be down there, because he is the engineer, and 
 2   everybody else is the cook or the...
 3               MR. DADDURA:  You've got a small crew.  Is 
 4   your crew instructed, "Don't touch anything unless you're 
 5   told to"? 
 6               MR. FRASER:  The chief is territorial.
 7               MR. DADDURA:  Okay.  That's what we need to 
 8   hear.  We need to hear that on the record that he 
 9   controls, not even the captain can come in and override 
10   his direction, his orders.  That's what we need to hear 
11   on the record.
12               MR. FRASER:  In my vessel I don't like 
13   working with engines, and the chief, that's his 
14   department.  I don't mess with it unless he's invited me 
15   to mess with something.
16               MR. DADDURA:  Is that normal procedure for 
17   your size vessel?
18               MR. FRASER:  Yeah.  Again, you know, we're 
19   sort of on a cuspid size.  We're just a little under 200 
20   net tons.  The smaller you get from there, you know, the 
21   smaller the crew is, and the smaller the systems are.
22               MR. DADDURA:  So on your vessel we don't have 
23   a situation like an aircraft carrier where a control 
24   device might be located seven decks down a mile away 
25   versus where the equipment is, correct?
0068
 1               MR. FRASER:  That's correct.
 2               MR. DADDURA:  Okay.  Just one more thing.  Do 
 3   you do -- and I'll use the term loosely, because I'm not 
 4   that familiar with your industry -- a change out 
 5   depending on what your catch season is?
 6               MR. FRASER:  I'm sorry?
 7               MR. DADDURA:  Do you ever do a change out as 
 8   far as your equipment, your winches or anything else 
 9   based on your nets or when you change your fishing 
10   seasons or crab seasons or whatever?
11               MR. FRASER:  If we change between trawl and 
12   crab, we would remove the net reels, remove the winches 
13   and put on the crab block and the crab pot launchers.  So 
14   there would be that kind of change out, and that's done 
15   by the crew.
16               MR. DADDURA:  When you do the winches, do you 
17   just take them off the vessel, or do you secure them or 
18   do you cover them?  What do you do exactly?
19               MR. FRASER:  Yeah, we'd crane them off the 
20   vessel.
21               MR. DADDURA:  Crane them off the vessel?  So 
22   you'd disconnect --
23               MR. FRASER:  The crew would disconnect them, 
24   use our own equipment to get them out onto the deck where 
25   we'd come into the -- it's OSI up in Dutch, a company 
0069
 1   with -- does storage, and they have a crane.  And they 
 2   lift your nets on and off, lift your winches on and off.
 3               MR. DADDURA:  When you go disconnect those 
 4   wenches, are they hydraulic or are they electrical or 
 5   both?
 6               MR. FRASER:  Hydraulic.
 7               MR. DADDURA:  Do you secure that system?
 8               MR. FRASER:  Basically you loop the hoses.
 9               MR. DADDURA:  You don't install blanks?
10               MR. FRASER:  That's the engineer's job.
11               MR. DADDURA:  Okay.  I'm just wondering.
12               MR. FRASER:  But it's basically looping the 
13   hoses.  Some things you might blank, yeah.
14               MR. DADDURA:  All right, thank you.
15               MS. SHORTALL:  Ms. Watson will ask questions 
16   next.
17               MS. WATSON:  Hi, I just have one question.  
18   In your testimony you mentioned the infeasibility for 
19   some of the smaller vessels to have basket stretchers and 
20   other first aid items like that.
21        In the case where someone has to be medivaced off, 
22   is that provided?  Are the stretchers provided by the 
23   helicopter, or do you guys have something onboard to 
24   remove somebody from a space?
25               MR. FRASER:  If the Coast Guard is going to 
0070
 1   do a helicopter lift off, I think, yeah, they'd have the 
 2   basket.
 3               MS. WATSON:  Okay.  So the smaller vessels, 
 4   they really don't have stretchers or anything like that 
 5   on them?
 6               MR. FRASER:  Yeah, I mean, once you get down 
 7   talking 50, 40-foot vessels, there's just no way that 
 8   would be something that there'd be room to have.
 9               MS. WATSON:  Okay.  Thank you.
10               MS. SHORTALL:  Ms. Brinkerhoff has questions 
11   next.
12               MS. BRINKERHOFF:  Just a couple.  In your 
13   written testimony, you mentioned that smaller vessels, or 
14   I think you said something about smaller vessels being 
15   125 feet or less, and today you talked about your vessel 
16   being I guess 102 feet and maybe smaller vessels are 200 
17   net tons.
18        I'm wondering if that's actually a kind of generally 
19   accepted industry standard, or if there's some cut off 
20   point in which a vessel is small and/or medium or if 
21   there's some range of vessel size that would be 
22   considered small.
23               MR. FRASER:  Well, 200 net tons is the 
24   measure used by the Coast Guard, and it's the break where 
25   you have an inspected -- or a licensed crew.  You're 
0071
 1   subject to different rules under the Coast Guard if 
 2   you're over 200 tons. 
 3        The 125 foot -- most of the vessels over 125 foot 
 4   are also over 200 net tons.  There's a rough equivalency 
 5   there.
 6               MS. BRINKERHOFF:  Okay.  And what about crew 
 7   size on the smaller vessels?  You have about five people 
 8   on your vessel for smaller vessels.  What would the range 
 9   be for crew? 
10               MR. FRASER:  Well, if you're talking like 
11   salmon vessels, gillnet and trawl fisheries that are 30 
12   to 40 feet, you're talking about a skipper and one other 
13   crew person most of the time. 
14        If you're talking longline vessels that many range 
15   from 40 feet to 60 feet, they may have anywhere from a 
16   skipper and two or three and four crew, and some of the 
17   larger into that 60-foot range thing.
18        And the trawl fisheries, a skipper and three, a 
19   skipper and four is pretty typical up to at least a 
20   125-foot range.
21               MS. BRINKERHOFF:  So there's probably going 
22   to be fewer than 10 crew on a smaller vessel?
23               MR. FRASER:  Yeah, they vary until you start 
24   processing, which is a different animal.
25               MS. BRINKERHOFF:  So as you read through the 
0072
 1   regulation or the proposed standard, from your 
 2   perspective working on a smaller vessel, did any 
 3   provisions of the standard kind of seem impractical for a 
 4   smaller vessel? 
 5               MR. FRASER:  I sort of focused -- I didn't 
 6   read a lot of it, you know, the sanitation, et cetera.  I 
 7   mean, I read it, but didn't read it carefully. 
 8        The snow and ice issue, I mean, working in Alaska, a 
 9   vessel, snow and ice is a part of life a big chunk of the 
10   season, and the basket stretcher, the defibrillator, 
11   those sort of things.
12        And then getting into lockout/tagout, I mean, I 
13   acknowledge lockout/tagout is a good practice.  I didn't 
14   read all the details of lockout/tagout either, but I 
15   remember one about a 50-pound breaking strength on a 
16   lockout tag.  And I don't know if that -- I mean, that 
17   seems more than -- I mean, depending on where -- you 
18   know, moving down the size threshold of vessels and 
19   whatnot, how necessary the -- you know, that sort of 
20   specificity is.
21               MS. BRINKERHOFF:  Have you ever had an 
22   accident or an injury from hazardous energy control on 
23   your vessel or vessels?
24               MR. FRASER:  Yeah.  Well, define hazardous 
25   energy control, I guess.
0073
 1               MS. BRINKERHOFF:  Well, something that in our 
 2   regulation would require a lockout or tagout.
 3               MR. FRASER:  No.  I mean, we had an accident, 
 4   but it wouldn't have been one that tagout would have 
 5   impacted at all.
 6               MS. BRINKERHOFF:  Do you want to describe the 
 7   accident?  Would you be willing to do that? 
 8               MR. FRASER:  I wasn't there, but we had a 
 9   refrigeration compressor blow up just as the engineer was 
10   going into the compressor room.  It was a flash fire, and 
11   he was burned.
12               MS. BRINKERHOFF:  And was that a malfunction 
13   of the machinery?
14               MR. FRASER:  Yeah.  I mean, that -- it was a 
15   freak accident.
16               MS. BRINKERHOFF:  Okay.
17               MS. SHORTALL:  Do you another question?
18               MS. BRINKERHOFF:  I think I don't have any 
19   more.
20               MS. SHORTALL:  Well, Mr. Fraser, I want to 
21   thank you for being here.
22               DOUG DIXON:  Can we have one relevant 
23   question from the audience?
24               ALJ:  I asked for questions earlier, but I 
25   guess since we are just starting the process I will let 
0074
 1   you do that.  In the future the questions from the 
 2   audience need to be directed to the witness after the 
 3   witness testifies. 
 4        Will you please identify yourself?
 5               MR. DIXON:  I'm Doug Dixon from Pacific 
 6   Fishermen Shipyard, and thank you for that consideration.  
 7   I appreciate it.
 8        Dave, you and I go back a long ways, and we know 
 9   your vessel quite well.  I hope you won't be angry for my 
10   suggestion here.  Your vessel had a lot of items that, 
11   relative to its construction, are not OSHA compliant, 
12   items like 42-inch handrails, probably your engine room 
13   ladder to get down to the engine room, rotating 
14   machinery, warping heads, you name it.  There's a whole 
15   gamut of things within the regulations that a fishing 
16   vessel this size is not OSHA compliant.
17        So my question is with these regulations, are you 
18   willing to literally -- you can't rebuild the vessel.  
19   It's impractical.  Are you willing to tie this vessel up 
20   to the dock as a result of these regulations, or are you 
21   going to continue with your penchant for social 
22   disobedience or criminal disobedience and continue to 
23   fish?
24               MR. FRASER:  Your Honor, Mr. Dixon is right.  
25   We go back a long way, and he did a lot of shipyard work 
0075
 1   on our vessel, including designing some features. 
 2        And as I answered the question earlier, I had never 
 3   read the OSHA CFRs until reading just the preamble to the 
 4   proposed rule recently.  And, yeah, it's...
 5               MR. DIXON:  Tie up or fish, that's the 
 6   question.
 7               MR. FRASER:  Pardon?
 8               MR. DIXON:  Scrap the vessel or fish, that is 
 9   the question.
10               MR. FRASER:  I guess I wouldn't be the first 
11   one to tie our vessel up.  If OSHA actually intends to 
12   start applying its rules through the fishing industry 
13   broadly, I think we'll end up tied up with a whole lot of 
14   other vessels, but clearly OSHA hasn't been enforcing all 
15   of the regulations that it could potentially do.
16               MR. DIXON:  Thank you.
17               MS. SHORTALL:  Your Honor, I have a few 
18   questions, too, for Mr. Fraser, but I was sort of saying 
19   I wanted to thank you for being the first one up, and 
20   thank you for reading the preamble so carefully.  Rarely 
21   does someone get into quoting the court cases. 
22        I do have a question about in what operation or task 
23   on your vessel do the most injuries occur? 
24               MR. FRASER:  I mean, it's a hard question to 
25   answer in terms of trying to remember a theme of what it 
0076
 1   is, but...
 2               MS. SHORTALL:  Or could you tell us what 
 3   tends to be your riskiest tasks or jobs for potential for 
 4   injury on the vessel if you can't identify one? 
 5               MR. FRASER:  I mean, I think the injuries are 
 6   most likely to occur handling fishing gear.  You know, 
 7   when you're crabbing, it's handling the pots.  They're 
 8   700-pound steel cages swinging around. 
 9        So I think most of our injuries have occurred in the 
10   crab fishery, and I'm sure you've all watched Deadliest 
11   Catch and seen what the worker conditions are on the deck 
12   of an operating vessel, but that's outside OSHA's range, 
13   because most of the time it's outside three miles.
14        To a lesser extent in the trawl fishery when you're 
15   handling the net and dumping a bag of fish, you know, 
16   you're dealing with a catch that can have up to 200 tons 
17   of fish in it.  So there aren't a lot of injuries that 
18   happen there, but that's kind of one of the areas that 
19   you're exposed to the greatest risk of injury.
20               MS. SHORTALL:  Do you happen to know how many 
21   injuries occurred on your vessel last year? 
22               MR. FRASER:  In the last year I don't think 
23   we really had any injuries.
24               MS. SHORTALL:  All right.  One of the 
25   tensions that we have in developing rules is the age-old 
0077
 1   battle between the employer who says, "Tell me one, two, 
 2   three what it is I have to do to comply," and then we 
 3   have another group of employers who say, "Don't tell me 
 4   one, two, three.  Give me a little leeway so that I can 
 5   find the best way to comply."
 6        Which would work better for your end of things, 
 7   "Tell me one, two, three, these are the three things I 
 8   have to do comply in exactly the way I have to do it, 
 9   like the 50-pound strength on the tie for the tag," or 
10   would you like to have something that is more flexible in 
11   allowing you to work out the method that works best on 
12   your vessel to comply? 
13               MR. FRASER:  Well, I'd like it clear and 
14   concise as to when I'm subject to the rule.  In terms of 
15   what works on a vessel, I mean, the design I think -- as 
16   Mr. Dixon alluded, the design of vessels are so variable 
17   and so specific to the constraints of the size of the 
18   vessel, that getting particularized rules on what the 
19   railing size should be, et cetera, you know, I think 
20   that's pretty unworkable.
21               MS. SHORTALL:  The lockout/tagout proposal 
22   that is in the proposed rule is what we refer to as a 
23   performance-based approach.  It allows employers to have 
24   maximum flexibility in putting together a program that 
25   works for them.
0078
 1        Could you explain some specific areas in that part 
 2   of the proposal that you think are too vague in terms of 
 3   what you would have to do to comply? 
 4               MR. FRASER:  Again, I'd -- I read some parts 
 5   of this preamble very closely, and others I sort of 
 6   skimmed over, and I don't think I can really address your 
 7   question very well.
 8               MS. SHORTALL:  If you could be thinking about 
 9   that during the post-hearing comment period, that would 
10   be particularly helpful.  We have found in doing the 610 
11   Lookback review of the lockout/tagout rule -- this 
12   applies to all of general industry -- that employers, 
13   whether they were large or small, on this particular 
14   program-based rule, this performance-based rule to be 
15   particularly effective.  And even for small employers it 
16   had produced an increase in their productivity, and a 
17   decrease in fatalities and injuries.
18        We would like to know if there's anything for, I 
19   guess, smaller employers as opposed to a large employer 
20   in the shipyard industry, such as Northrup Grummand, 
21   whether there are certain items within the particular 
22   proposal that for you are difficult to understand and 
23   need to be made more specific.  I appreciate your 
24   attention to that. 
25        Thank you very much for being our first person to 
0079
 1   get up.  We appreciate your testimony and being here 
 2   today and look forward to seeing your post-hearing 
 3   comments as well.  Thank you again.
 4               ALJ:  Thank you, Mr. Fraser.
 5        Our next witness is Dale Myer. 
 6                           TESTIMONY
 7                          BY DALE MYER
 8               MR. MYER:  Welcome, Judge Gee, and 
 9   distinguished participants.  Welcome to Seattle.  And you 
10   have caught us in one of our very rare fall days where we 
11   actually have sunshine, so I appreciate you coming out 
12   this way to see us.
13               ALJ:  Mr. Myer, can you specifically identify 
14   yourself before you begin?
15               MR. MYER:  I was -- I'm going to do that, 
16   yes. 
17               ALJ:  All right, thank you.
18               MR. MYER:  My name is Dale Myer, and I am the 
19   Director of Operations for Arctic Storm Management Group.  
20   Arctic Storm Management Group owns two catcher processors 
21   that fish and harvest pollock and yellow-fin sole in the 
22   Bering Sea and Pacific whiting off the West Coast of the 
23   United States. 
24        The CPs are 275 feet long, and have a complement of 
25   128 people.  Our largest CP is 334 feet long, and has a 
0080
 1   complement of 134 people. 
 2        Arctic Storm Management Group also manages two 
 3   catcher vessels.  These are smaller vessels that fish in 
 4   Alaska and also along the West Coast.  Our largest 
 5   catcher vessel is 123 feet long and has four crew on it.  
 6   And our other vessel is similar to Mr. Fraser's boat, 
 7   about 109 feet long and also has four crew.
 8        I've been employed for Arctic Storm Management Group 
 9   for over 20 years.  Prior to this I was working at sea as 
10   a fisherman.  I also worked in the oil support industry, 
11   and on various research vessels in and around the Pacific 
12   Ocean. 
13        Today I would like to speak to you regarding CFR 
14   1915 Subpart F, and in particular I'd like to contain my 
15   comments to 1915.81, the housekeeping part of it.  In 
16   particular I'd like to make most of my comments on part 
17   G, which is the snow and ice provision. 
18        That reads, G, the employer shall ensure that 
19   slippery conditions such as snow and ice on walking and 
20   working surfaces are eliminated as they occur. 
21        Eliminated as they occur, in particular I see many 
22   difficulties with trying to define snow and ice, define 
23   "as they occur," implement these particular phrases, and 
24   in particular I also see difficulties with jurisdictions. 
25        And when I say jurisdiction, I'm not regarding 
0081
 1   whether it's three miles or four miles or whether or not 
 2   it is OSHA or Coast Guard jurisdiction.  I'm talking 
 3   about the jurisdiction on the walking and working 
 4   surfaces, whether it's owned by the dock, whether it's 
 5   owned by the -- or if it's controlled by a union or if it 
 6   is a fisherman's responsibility to make sure that those 
 7   walking surfaces are clear of snow as it occurs. 
 8        My comments -- I'm going to make them mostly 
 9   particular to Dutch Harbor, Alaska.  That's the area I'm 
10   most familiar with, but I believe that these similar 
11   comments would cover all the docks in Alaska, some in 
12   Washington, many on the Great Lakes and on the Eastern 
13   Seaboard.
14        And with regards to the fishing industry, and I 
15   would think most maritime vessels that when you come to 
16   the dock there is always going to be some sort of 
17   maintenance being done or repair being done, because it's 
18   so difficult to get this done at sea that you try to 
19   undertake that when you get to the dock. 
20        In Alaska -- and as I say that, I hope I'm not 
21   sounding too much like our next vice president, but in 
22   Alaska snow and ice can occur at any time.  In Dutch 
23   Harbor it can be sunny one minute, rainy the next, and 
24   then five minutes later you have a snow and blizzard 
25   condition.
0082
 1        You folks came in yesterday into Seattle, and you 
 2   saw how different the weather can change here.  Well, in 
 3   Alaska it can change quite a bit more faster than that.  
 4   So this is going to be a difficult situation.  How do you 
 5   determine when a working surface has occurred snow and 
 6   ice?  As I said, the definitions here would be very 
 7   difficult to eliminate them as they occur. 
 8        Working surfaces and slippery conditions I believe 
 9   would be almost impossible to define.  When is a surface 
10   slippery?  For you that have ever been around snow, you 
11   probably know that a surface with one foot of snow on it 
12   is actually less slippery than the snow that has maybe a 
13   little sheen of snow on it.  Having that buffer of eight 
14   to 10 inches of snow can make it less slippery than it 
15   can if you have not.
16        So is one flake going to be snow occurred?  Is one 
17   inch going to be snow occurred?  Is a trace of snow going 
18   to be as it occurs?  I think this is going to be really 
19   difficult to define. 
20        Again, I mentioned about the jurisdiction.  In Dutch 
21   Harbor where we work, we come to the dock.  We do an 
22   off-load at the dock.  The dock is owned by someone else.  
23   It's probably even leased to somebody else, and it could 
24   be a union dock, but our crew is out there off-loading on 
25   it. 
0083
 1        So they're on the dock.  They're working on the 
 2   dock.  There's probably maintenance going on on some of 
 3   the off-loading equipment, maybe a conveyor or something 
 4   like that and probably would fall under the shipyard 
 5   standards, but who's responsible for cleaning the dock?  
 6   Is it the dock owner, the dock lessor, or the union or is 
 7   it the ship owner? 
 8        Those are things that I think the jurisdiction parts 
 9   are going to be a problem, particularly if you get into 
10   it with the unions.  You have a real big problem, because 
11   the unions don't want anybody working on the dock except 
12   their own people.  You can't get out there with 
13   snow-removing equipment and try to clean that dock.  The 
14   union's not going to allow it. 
15        I have a couple suggestions, and I'll just throw 
16   those out.  I believe that the phrases that you have in 
17   subsection D, which talks about the dry conditions, as it 
18   reads it says, maintain so far as practical in dry 
19   conditions. 
20        I think that that phrase, "so far as practical," 
21   should actually be incorporated into G, or perhaps a 
22   better solution might be to combine D and G, because what 
23   we're really talking about is slipperiness.  That's what 
24   the part D is trying to overcome, too, is the dry 
25   conditions, the slipperiness.
0084
 1        So why not combine section D and G to read, the 
 2   employer shall ensure slippery conditions, so far as 
 3   practical.  "On walking and working surfaces" should be 
 4   eliminated.  That would seem to cover almost everything 
 5   and combine the two.
 6        And then some of the testimonies that came out 
 7   earlier -- well, it'd be only from Fraser.  He's the only 
 8   one that's been up here before, but also some of the 
 9   questions and stuff like that, I also believe that the 
10   number of vessels is underestimated, woefully 
11   underestimated. 
12        On the West Coast here we have -- we're going 
13   through some things in the West Coast that we're actually 
14   trying to delineate how many fishing vessels we have on 
15   the West Coast.  We have a process that's going on right 
16   now where we are estimating somewhere between 1,200 and 
17   1,500 open access vessels, a thousand of those which are 
18   in California, and we haven't even been able to delineate 
19   how many those are.
20        And so, I mean, to hear that we only have 600 
21   fishing vessels on the West Coast seems like a 
22   misrepresentation, or at least some poor outdated data. 
23        We also have 168 trawl vessels, which I'm well 
24   familiar with that are permitted on the coast, and this 
25   doesn't even take into consideration the longliners that 
0085
 1   Mr. Fraser mentioned. 
 2        A commercial charter vessel, all of the paying 
 3   passenger vessels that are commercial vessels, all of 
 4   those are going to count.  Salmon vessels, crab vessels, 
 5   shrimp vessels, the number of 600 is way too low, and 
 6   with that I think I'll conclude my statements. 
 7               ALJ:  Thank you.  Is there anyone in the 
 8   audience who would like to ask questions?  Would you like 
 9   to come up and identify yourself, please?
10               MR. DIXON:  I'm leaving this afternoon, so 
11   this is my last question.  I'm Doug Dixon, and actually 
12   I'll speak on behalf of --
13               MS. SHORTALL:  Your Honor, could we ask 
14   Mr. Dixon to identify who he represents, please?
15               MR. DIXON:  Yes.  I'm representing in this 
16   case Dixon Marine Surveys, which is a separate entity 
17   from the shipyard.  And I'm a certified Tribologist by 
18   the International Safety Association.  And I have a 
19   device for measuring friction on deck, and I've been 
20   recognized as an expert in this by several of the courts, 
21   federal and state. 
22        And the definition of slipperiness was in portions 
23   of OSHA defined as a 0.5 coefficient of friction, but I 
24   believe that's been removed from some of the current 
25   regulations.
0086
 1               MS. SHORTALL:  What's your question for 
 2   Mr. Myer?
 3               MR. DIXON:  And the question for Dale is are 
 4   you aware that ice, which has a coefficient friction of 
 5   0.23, can be safe to walk on, as in not slippery, if your 
 6   gait is adjusted properly, so very small so that ice -- 
 7   and since there's no definition within OSHA of 
 8   slipperiness, with its coefficient of 0.23, if your crew 
 9   is instructed to walk properly in icy conditions, that it 
10   would not be considered slippery by the rules?  Are you 
11   aware of that?
12               MR. MYER:  I'm not aware of that, no.
13               MR. DIXON:  And this is more of a rhetorical 
14   question for OSHA to perhaps develop some criteria for 
15   slipperiness, and what is and what isn't, because you've 
16   removed 0.5 from your coefficient of friction.
17               ALJ:  Thank you.  Are there any other 
18   questions from the audience?  All right.  I'll turn now 
19   to questions from the OSHA panel.
20               MS. SHORTALL:  Yes, Your Honor, we have 
21   questions, and Ms. Watson will start.
22               MS. WATSON:  Good morning, Mr. Myer.  Thank 
23   you for coming. 
24               MR. MYER:  Good morning, Ms. Watson.
25               MS. WATSON:  I have some questions regarding 
0087
 1   your testimony, and also some others that we're just 
 2   trying to get some more information on. 
 3        You mentioned removal of snow and ice, and that 
 4   there's some confusion or it could be worded better 
 5   instead of saying as it occurs.  One commentor had 
 6   mentioned maybe changing the wording to say, "to remove 
 7   as soon as it accumulates to a hazardous level." 
 8        You mentioned that there's several vessels that 
 9   you're in charge of.  What do they, or what do you 
10   consider a hazardous level in the day-to-day operations?
11               MR. MYER:  Well, I think that's just the 
12   point.  I think in some conditions even a quarter of an 
13   inch or half an inch of snow and ice or snow in 
14   particular can be more slippery than if you get a deeper 
15   amount of snow.
16        So I don't know the answer to that, and that's the 
17   -- I believe that's the problem.  You're going to have a 
18   hard time defining when it is slippery.  You're going to 
19   have a hard time defining when it has occurred.
20               MS. WATSON:  So what are your practices right 
21   now, though, to prevent people from injuring themselves?  
22   I'm just curious what --
23               MR. MYER:  Well, yeah, okay.  Well, of 
24   course, we remove snow if it's a problem.  Another thing 
25   that we do is we have bought our crew slip-on -- you 
0088
 1   know, we call them toggles.  What they are is they're 
 2   just -- they slip right over the rubber boots and stuff 
 3   like that.  They're like grippers. 
 4        And when we have been working on the dock and the 
 5   dock is slippery, we provide those to our crew members so 
 6   that they can put them over the crew.  So those are some 
 7   of the things that we do.
 8               MS. WATSON:  Okay, great.  And one other 
 9   thing you mentioned in your testimony is about sometimes 
10   you off-load on piers that you don't, or that maybe is 
11   owned by the labor union or something like that, but do 
12   you guys have some point of contact that you use in case 
13   there is something like you feel that it's too dangerous 
14   for your employees to be out there moving around?
15               MR. MYER:  We always have a point of contact.  
16   The people -- before we come to the dock until after we 
17   leave the dock we're in contact with the owners or the 
18   lessee of the dock, so yes.
19               MS. WATSON:  And do you find that they're 
20   pretty helpful in meeting your needs, or have you run 
21   into some issues? 
22               MR. MYER:  They're certainly trying to 
23   accommodate our needs, yes.
24               MS. WATSON:  Okay, great.  I just have one --
25               MR. MYER:  But what I think that gets back to 
0089
 1   is that the point then you're trying to make is that I 
 2   need to contact them to remove the ice or snow?  If 
 3   that's how it was written up, that it would be my 
 4   responsibility to contact it?  Is that as far as my 
 5   responsibility goes or would go, or is my responsibility 
 6   then to ensure that my employees are not walking on 
 7   surfaces that have -- are free of snow and ice?  I guess 
 8   I don't understand your question.
 9               MS. WATSON:  No, you answered it fine.  I'm 
10   just trying to get an overall picture, so we can 
11   understand better.
12               MR. MYER:  All right, thank you.
13               MS. WATSON:  You mentioned a little bit about 
14   water, wet surfaces, that sort of thing.  I was just 
15   curious.  If it rains a lot, you get six inches or more 
16   of rain or there's some sort of wet process, you're 
17   cleaning the decks off, what do you guys do for drainage 
18   so there's not a lot of water on deck?
19               MR. MYER:  Yeah, well, these are fishing 
20   vessels that work in the rain all the time.  They're 
21   self-bailing, or if you want to call it -- you know, the 
22   drainage is all made so that the water runs off the deck.
23               MS. WATSON:  Okay.  So it pretty much takes 
24   care of itself then?  You guys don't go out there with 
25   brooms or anything like that to try to expedite removing 
0090
 1   the water?
 2               MR. MYER:  No, ma'am.
 3               MS. WATSON:  Okay.  I'm going to shift gears 
 4   a little bit.  I was just curious, since you have more 
 5   than one vessel, is there a lockout/tagout program that's 
 6   company wide that each vessel follows?  And if so, is it 
 7   different on the vessel versus when you're pier side?
 8               MR. MYER:  All three vessels have 
 9   lockout/tagout programs.  All three of them have been 
10   tailored to the vessels, because they're different sizes 
11   in different places.  I have worked with my engineering 
12   staff and electricians to design the programs, but they 
13   are vessel specific.  And I can't remember what the other 
14   part of it was, what the question was.
15               MS. WATSON:  I was just curious if it was 
16   different whether you're out to sea or shore side.
17               MR. MYER:  No, ma'am, they're the same.  
18   They're the same when we're out to sea as when we're at 
19   shore.  It only makes sense to have them the same.
20               MS. WATSON:  And were they modelled after 
21   1910 or is there some --
22               MR. MYER:  1910.
23               MS. WATSON:  1910?
24               MR. MYER:  Yes.  They specifically say in the 
25   front of all the programs that they're modelled after 
0091
 1   1910.
 2               MS. WATSON:  Okay, great.  And have you found 
 3   that they're effective?  Have they saved lives to your 
 4   knowledge?
 5               MR. MYER:  Well, they certainly save lives.  
 6   We haven't lost anybody to a discharge of energy.  The 
 7   only people we've lost is because of a suicide and a 
 8   heart attack, and nothing to do with any lockout/tagout.
 9               MS. WATSON:  And are these vessels foreign 
10   made, or where are most of them constructed?
11               MR. MYER:  These are American vessels.  In 
12   order to be American flag, the keel has to be laid in the 
13   United States.  The one vessel was built here in Seattle, 
14   Washington, or I should say constructed here in Seattle, 
15   Washington. 
16        The other one was first modified in the first two 
17   bankruptcies before we took over it in Norway, but it was 
18   -- the vessel was built actually here in Seattle, 
19   Washington also.  It was just taken to conversion over in 
20   Norway.
21               MS. WATSON:  And have you guys had any major 
22   repairs that maybe you had difficulty ordering equipment, 
23   or is most equipment made over here that you replace 
24   onboard?
25               MR. MYER:  No.  A lot of our equipment, most 
0092
 1   of it -- most of the fishing -- America has not led the 
 2   fishing industry, especially in the larger fishing 
 3   vessels.  The Norwegians, the Danes, the Germans have all 
 4   -- and the Japanese have all been much better at building 
 5   equipment than the United States.
 6        So I would say our boat is a cosmopolitan boat, if 
 7   you would, made up of equipment from all over the world.  
 8   And at times when Europe goes on holidays, we have 
 9   difficulties getting equipment, yes, parts and pieces, 
10   yes.
11               MS. WATSON:  And as a proposal it suggests 
12   having all equipment be able to be locked out. 
13        When ordering equipment, would you be able to 
14   specify that you need something that would be able to be 
15   locked out or is that pretty much out of the question? 
16               MR. MYER:  Well, I think I understand your 
17   question.  Right now our 1910 lockout/tagout program says 
18   either tagged out or locked out, and we are using tags 
19   because some of our equipment cannot be, quote, quote, 
20   locked out.  We cannot use a lock on it.
21        But your question is actually a two-part question, 
22   because, yes, I probably could order some equipment.  I 
23   can't say all of it, because I'm not that familiar with 
24   it that that could be locked out.
25        But then I've got a whole other range of all the 
0093
 1   equipment that's on the vessel already.  I mean, what do 
 2   I do with that?  I can't just be replacing everything on 
 3   that vessel, because it needs now to have a lock instead 
 4   of a tag.
 5        So I think that's -- I'm getting to the point of 
 6   your question, but I'm not sure if I answered it.
 7               MS. WATSON:  No, you answered it.  Thank you.
 8               MR. MYER:  Thank you.
 9               MS. WATSON:  And then we just had one other 
10   question.  Towards the end of your testimony you 
11   mentioned the difficulty in finding out the exact number 
12   of fishing vessels.
13               MR. MYER:  Right.
14               MS. WATSON:  Could you direct OSHA, or do you 
15   have any advice for determining whether it's Coast Guard 
16   or --
17               MR. MYER:  I can.  All right.  The United 
18   States is composed of eight regional fisheries management 
19   councils.  There's three on the East Coast, one in the 
20   Gulf, Alaska, West Coast, and then the Western Pacific.  
21   If you were to contact the heads of each one of those, 
22   the executive director of those regional fisheries 
23   management councils and ask them for an estimate of how 
24   many vessels they have fishing in their area, they would 
25   at best give you the lowest denominator. 
0094
 1        They could tell you -- it may take them a week or 
 2   two to try to compile it all, but that's probably your 
 3   best source of how many fishing vessels there are in the 
 4   United States.  Go right to the regional fisheries 
 5   management councils and ask them directly how many they 
 6   have. 
 7        Many of these have already gone through a limited 
 8   entry program, and so for those they can give you the 
 9   exact permit numbers or how many of limited entries.
10        The other program that I mentioned in here that we 
11   are presently doing on the West Coast is trying to put 
12   our open access program into a limited entry program, and 
13   that's where we're having difficulties, because right now 
14   we're trying to do analysis on how many of these open 
15   access vessels there are, and we don't really have a clue 
16   because none of them are registered.
17        So at the very best, that'll give you the bottom or 
18   the -- it'll be underestimated still, but at least it'll 
19   give you some concrete numbers.
20               MS. WATSON:  Great, thank you. 
21               MR. MYER:  You're welcome.
22               MS. WATSON:  That's all the questions I have.
23               MR. MYER:  Thank you.
24               MS. SHORTALL:  All right.  Ms. Wangdahl has 
25   some questions now.
0095
 1               MS. WANGDAHL:  I just had one question.  You 
 2   said you're using tags in places where your equipment 
 3   can't be locked?
 4               MR. MYER:  Some of our equipment cannot be 
 5   locked.  It's not capable of taking a lock, that's right.
 6               MS. WANGDAHL:  Can you tell me what some of 
 7   that equipment is?
 8               MR. MYER:  Well, one comes to my mind.  We 
 9   actually worked around it.  It was actually a breaker for 
10   some equipment in a factory, but we actually were able to 
11   work with one of the safety manufacturers and suppliers.  
12   And they came up with a clip that actually screwed onto 
13   the breaker, and then which you could put a lock, but it 
14   was jury-rigged.  It wasn't quite that way it is. 
15        And I can't think of a real good example of where 
16   the tag comes, but I know I have -- I've been through 
17   this with OSHA inspectors from Anchorage.  And we've been 
18   around the vessels where we have talked about that, and 
19   we were working with the electrical cable ties that they 
20   just slid in there and slid them into a place where they 
21   could not energize the equipment, but I can't tell you 
22   the exact type of equipment it was.
23               MS. WANGDAHL:  But it's a small percentage of 
24   your equipment that can't be locked?
25               MR. MYER:  A small amount, yes.
0096
 1               MS. WANGDAHL:  It's not like 50 percent?
 2               MR. MYER:  No, it's not like 50 percent, no.
 3               MS. WANGDAHL:  Okay.  Thank you.
 4               MS. SHORTALL:  Ms. Brinkerhoff has questions 
 5   next.
 6               MS. BRINKERHOFF:  Can you tell me what an 
 7   open access vessel is?
 8               MR. MYER:  Yes.  It's a terminology that's 
 9   probably a misnomer other than anything else, but what 
10   happened is on the West Coast what they did is they gave 
11   limited entry permits out to vessels, longline vessels, 
12   trawl vessels and stuff like that that had been in the 
13   fisheries for many, many years, but then they left the 
14   rest of the fisheries open access. 
15        So if you didn't have a limited entry permit, then 
16   you could still participate in these fisheries without 
17   having a permit.  This went on for -- well, it went on 
18   since 1994 is when we put in the limited entry. 
19        And since that time more and more vessels got into 
20   it, and so what happened is finally our Pacific council 
21   is saying, that's enough.  We're going to have to try to 
22   figure out how many are in here, and let's limit the 
23   number of open access vessels or the vessels that have 
24   access to the fisheries without having a permit.
25               MS. BRINKERHOFF:  Okay.  Thank you.
0097
 1               MR. MYER:  It's probably a poor nomenclature, 
 2   but that's what we call it.
 3               MS. BRINKERHOFF:  Do you have lockout/tagout 
 4   procedures for your smaller catcher vessels?
 5               MR. MYER:  Yes, ma'am.
 6               MS. BRINKERHOFF:  As well as the bigger ones?
 7               MR. MYER:  Yes, ma'am.
 8               MS. BRINKERHOFF:  Would you be willing to 
 9   share those with OSHA?  You could submit those as part of 
10   your post-hearing comments so we could take a look at 
11   what a smaller vessel is actually doing?
12               MR. MYER:  I have copies of the programs at 
13   my office.
14               MS. BRINKERHOFF:  Okay.  Would you mind 
15   submitting those to us?
16               MR. MYER:  I'll print you out a copy, yes.
17               MS. BRINKERHOFF:  Thanks.  And then I was 
18   curious about a -- in your written comments you said 
19   something -- you said how the proposed ruling for 
20   shipyards under 1915.81 are vague and impractical in that 
21   maintenance and cleaning operations at times necessitate 
22   that the walking or working surfaces be lifted from their 
23   frame.
24        Can you describe what that actually means?  I mean, 
25   you're lifting the walking surface, and how does our 
0098
 1   proposed standard --
 2               MR. MYER:  And these are my written comments, 
 3   because I didn't know I submitted any.
 4               MS. BRINKERHOFF:  Okay.  Well, they're there.
 5               MR. MYER:  But I can tell you what that 
 6   means.  I can tell you what that means.
 7               MS. BRINKERHOFF:  Okay.
 8               MR. MYER:  Can you read it to me one more 
 9   time? 
10               MS. BRINKERHOFF:  Somebody says that you 
11   intend to testify how the proposed ruling for shipyards 
12   under 1915.81 are vague and impractical in that the 
13   maintenance and cleaning operations at times necessitate 
14   that the walking or working surfaces be lifted from their 
15   frames.
16               MR. MYER:  Well, I think I know what it 
17   means, but I'm trying to figure out how it would apply to 
18   the snow and ice, because what I'm thinking about is down 
19   in our factories.  We actually have our walking surfaces 
20   that are put up.  It's a grating.  It's a big fiberglass 
21   grating that goes over the top of a lot of the area.
22        And in order to get down to that, you have to 
23   actually remove that grating and clean underneath it, but 
24   I don't see where it pertains to the snow and ice that I 
25   was testifying to.
0099
 1               MS. BRINKERHOFF:  I don't either.  I couldn't 
 2   tell.  I just was hoping you could clarify.
 3               MR. MYER:  Okay.  I'm sorry.  I didn't read 
 4   my written testimony before I came here.
 5               MS. BRINKERHOFF:  And then just one more 
 6   question.  When you say that you use tagout, are you 
 7   talking about just tagout or do you use tagout?  You 
 8   affix a tag, plus you take another step like removing a 
 9   valve handle or just something in addition to applying a 
10   tag? 
11               MR. MYER:  Well, again, I'd have to think of 
12   the specific case and stuff like that, but I believe I'm 
13   talking about just tagging it out.  I mean, turning it 
14   off and tagging it out, you know, make sure the energy's 
15   out of it and tagging out, but I'm not sure what you mean 
16   by removing a valve handle unless we're talking about 
17   some scheme energy or something like that or hydraulic --
18               MS. BRINKERHOFF:  Well, in the proposed 
19   regulation we gave a couple of examples of tag plus.  One 
20   is removing a valve handle or opening of extra and 
21   disconnecting devices or blocking of controlling switches 
22   or removal of isolating circuit elements.  So instead of 
23   just having a tag, you're taking an extra step, that it 
24   just provides more protection to your workers, your crew.
25               MR. MYER:  All right.  Well, if your 
0100
 1   question's about what we're currently doing, we're just 
 2   tagging it out.
 3               MS. BRINKERHOFF:  Okay, thanks.
 4               MS. SHORTALL:  Mr. Daddura has questions 
 5   next.
 6               MR. DADDURA:  Yes, I do.  Do you do all your 
 7   vessel repairs other than going to the shipyard?
 8               MR. MYER:  I'm not sure what you mean by all 
 9   of them.  We certainly don't do them all.  On our smaller 
10   vessels my -- as Dave Fraser mentioned, my engineer is a 
11   fisherman who had more mechanical knowledge than the 
12   other one and got thrown in the engine room.
13        So, no, if we come to do work on the main engine or 
14   most of the hydraulics, we certainly get a sub down.  You 
15   know, we get a vendor down to take care of the main 
16   engines or the hydraulics or a lot of the work. 
17        On my larger vessels my engineers are, quote, quote, 
18   engineers.  They are licensed engineers, and they're 
19   actually very capable people.  But even at that, my 
20   engineers are too overwhelmed to do all of the work 
21   themselves.  And so we often times use a sub to come down 
22   or, you know, an outside vendor to come down and do the 
23   work.
24               MR. DADDURA:  Okay.  What lockout/tagout 
25   program do your vendors follow?
0101
 1               MR. MYER:  They follow ours.
 2               MR. DADDURA:  It's a requirement?
 3               MR. MYER:  The shipyard standard requires 
 4   that when they come onto our vessel, we provide them with 
 5   a copy of our regulations and they're to follow them.
 6               MR. DADDURA:  Okay.  I just wanted to know.  
 7   One other thing, when you're out at sea, can you give me 
 8   your definition of working and walking surfaces? 
 9               MR. MYER:  My definition of working and 
10   walking surfaces?  Again, I'm the one that said you're 
11   going to have a hard time defining these. 
12        So at sea, my walking and work surfaces, well, 
13   obviously all of the grating areas that we have are going 
14   to be our walking surfaces.  Those are the areas that 
15   they -- this is down in my -- down in our factory, but we 
16   get out into the outside, the outside decks.  I mean, the 
17   whole boat is pretty much a walking surface.  I mean, we 
18   have deck hands that are all over the boat.
19               MR. DADDURA:  Right.
20               MR. MYER:  And including -- you know, they're 
21   all over the boat.
22               MR. DADDURA:  So is there really a difference 
23   between walking and working surfaces in your viewpoint? 
24               MR. MYER:  It depends upon which part of the 
25   boat we're talking about.  On the outside of the boat 
0102
 1   probably not, because it could be climbing up into the 
 2   mast.  It could be any place on the -- I mean on the 
 3   outside surface of the boat.
 4        Down in the factory is quite a bit different.  You 
 5   really can only go where the -- well, I shouldn't say 
 6   that.  You can walk only in certain places.  The other 
 7   places you still have to work.  I mean, you still have to 
 8   go to work, yes?
 9               MR. DADDURA:  So you have established 
10   walkways basically.
11               MR. MYER:  That's correct, down in our 
12   factory.  In our factories we have -- most of our 
13   walkways are grated, and they actually are raised, you 
14   know, six to 12 inches.  They're raised with grating, and 
15   that becomes our walking surfaces, but it's not uncommon 
16   for people to have to go and work in other surfaces, I 
17   mean different areas.  I mean, people do have to maintain 
18   machinery and stuff like that, and have to have access to 
19   just about all surfaces of the factory.
20               MR. DADDURA:  Okay, that's all.  Thank you.
21               MS. SHORTALL:  Mr. Myer, I have a few 
22   questions as well.  First of all, have you found any 
23   general industry 1910 standards that would have been 
24   particularly difficult for you to comply with?
25               MR. MYER:  Boy, that's a big question.  1910 
0103
 1   covers a lot.
 2               MS. SHORTALL:  Or have you been able to 
 3   achieve compliance with all the 1910 standards? 
 4               MR. MYER:  There are some parts of the 
 5   standards that are much more harder to comply with on a 
 6   fishing vessel than they would be under a normal working 
 7   condition, that's for sure, but we we're -- we were -- 
 8   we're working through them.
 9               MS. SHORTALL:  And so as you work through the 
10   different ones, do you feel confident you'll be able to 
11   achieve compliance with the 1910 standard?
12               MR. MYER:  At times I feel I'm -- I feel not.  
13   Fall conditions on a vessel are very, very difficult to 
14   deal with. 
15               MS. SHORTALL:  I see.
16               MR. MYER:  Fall hazards are very, very 
17   difficult to deal with on a boat.
18               MS. SHORTALL:  And you mean fall hazards on 
19   the same level, or fall hazards from one level to the 
20   next?
21               MR. MYER:  From one level to the next, 
22   because the railing situation as we heard earlier is very 
23   difficult on a boat, having railings around all the 
24   equipment that might be perceived as having a fall 
25   hazard.  I'll give you an example, because I love to give 
0104
 1   examples.
 2               MS. SHORTALL:  Okay.  I like to hear 
 3   examples.
 4               MR. MYER:  All right.  I was -- one of my 
 5   vessels was inspected in 2006 by a group of OSHA 
 6   inspectors.  And they came down, and they looked at an 
 7   area on my vessel and came by and said everything looks 
 8   fine.  Everything looks great. 
 9        The next year I got inspected by the very same OSHA 
10   inspectors.  They came down and found the very same areas 
11   that they'd found completely all correct the year prior 
12   to that were now a fall hazard, and that really kind of 
13   disturbs me because it just kind of goes to show you that 
14   either, one, the inspector was not being diligent the 
15   first time, or that it's just depending on the view of a 
16   particular time frame.
17        And I think that a lot of times that can be the 
18   case.  Sometimes something stands out in a person's mind 
19   much more.  Not that complying with that issue was 
20   difficult, but just recognizing it as being the area that 
21   someone might consider to be a fall hazard.
22        I mean, he looked at that area the year prior to 
23   that and said it was not a fall hazard.  Looked at it the 
24   very next year, the same inspector, the same three of us 
25   going through and doing an inspection, and now it was a 
0105
 1   fall hazard.
 2        So, I mean, that's the problem.  That's the 
 3   difficulty with the boat that we have, because it may not 
 4   look like a trouble problem area, but it can be, you 
 5   know.
 6               MS. SHORTALL:  All right.  You said that you 
 7   hand out toggles.  Did I hear that correctly?
 8               MR. MYER:  I said toggles, but they're really 
 9   grippers.
10               MS. SHORTALL:  Grippers, okay.  You hand out 
11   grippers?
12               MR. MYER:  For my crew on the docks when the 
13   docks are slippery, yes.
14               MS. SHORTALL:  Right.  When do you decide 
15   that now my people need to have the grippers on their 
16   feet?
17               MR. MYER:  All right.  I'm not there all the 
18   time, but if my crew comes to me and says, "Hey, this 
19   dock is slippery.  I need something for my feet," then we 
20   go get them.
21               MS. SHORTALL:  All right.  So you wait for 
22   them to report the slippery condition?
23               MR. MYER:  Again, I'm not there all the time.  
24   If my -- a factory manager or somebody who's in charge of 
25   stuff like that says, "Hey, the docks are a little bit 
0106
 1   slippery.  We need to get something for the crew," we go 
 2   get them.
 3               MS. SHORTALL:  All right.  What arrangements 
 4   do you currently have for clearing of docks that you 
 5   don't own? 
 6               MR. MYER:  I have no arrangements.
 7               MS. SHORTALL:  So you have no contracts that 
 8   you sign with anyone specifying who will be responsible 
 9   for clearing the docks?
10               MR. MYER:  That's a good point.  Yes, there 
11   is -- in our lease contracts -- and I'd have to take 
12   another look at that, because I believe it says our 
13   warehouse space shall be clear -- be cleared, kept clear 
14   of snow by the facility, but I'm not sure it extends to 
15   the dock.  I'll have to take a look.  That's a good 
16   point.  I'll look at that.
17               MS. SHORTALL:  All right.  And if you don't 
18   have such an arrangement, is that an arrangement that is 
19   possible to make? 
20               MR. MYER:  I don't see why it couldn't be 
21   written into the contract.
22               MS. SHORTALL:  Okay.  When you go through the 
23   normal replacement of equipment on your vessels, do you 
24   replace it with lockable equipment?  If this piece is 
25   worn out, I have to replace it, do you replace it with 
0107
 1   lockable equipment? 
 2               MR. MYER:  I'm going to answer that with a 
 3   little bit of difficulty, because we replace it with the 
 4   most current piece of equipment that there is, and I -- 
 5   but I don't know whether that means necessarily it's 
 6   lockable.
 7               MS. SHORTALL:  All right.  So is there some 
 8   equipment that you have replaced that is lockable, that 
 9   you could choose to have a lockable one if you want from 
10   a particular manufacturer?
11               MR. MYER:  I really can't answer that, 
12   because I don't know.  I don't know if that has happened.
13               MS. SHORTALL:  Okay.  Well, thank you very 
14   much.  I appreciate you so much coming in here today to 
15   testify, and your examples.
16               MR. MYER:  All right.  Well, thank you for 
17   the chance to be able to testify, and I hope you continue 
18   to bring us good weather while you're here.
19               ALJ:  Thank you, Mr. Myer.  We appreciate the 
20   weather.
21        Mr. Nielsen? 
22               MS. SHORTALL:  Your Honor, as Mr. Nielsen 
23   comes up, I'd like to ask, do you happen to have extra 
24   copies of your testimony that we might use and follow 
25   along with? 
0108
 1               MR. NIELSEN:  I do, one.
 2               MS. SHORTALL:  Thank you very much. 
 3               ALJ:  Ms. Shortall, are you going to assign a 
 4   number to it?
 5               MS. SHORTALL:  Yes, Your Honor.  I would like 
 6   to have the written copy of Mr. Nielsen's testimony 
 7   entered into the record as Exhibit No. 0171 of the 
 8   afore-mentioned docket.
 9               ALJ:  Thank you.  It's so ordered.
10        Mr. Nielsen, would you state your name, spell your 
11   last name and your affiliation.
12                           TESTIMONY
13                       BY RICHARD NIELSEN
14               MR. NIELSEN:  Good morning, I'm Richard 
15   Nielsen, N-I-E-L-S-E-N.  I'm with Nielsen Shields, and 
16   I've been asked to testify by the NPFVOA.
17        Good morning --
18               MS. SHORTALL:  Your Honor, could we ask 
19   Mr. Nielsen to spell out or explain what the acronym is, 
20   please?
21               MR. NIELSEN:  North Pacific Fishing Vessel 
22   Owner's Association.
23               MS. SHORTALL:  Thank you.
24               MR. NIELSEN:  I've practiced maritime law in 
25   Washington and Alaska for 27 years defending personal 
0109
 1   injury and death claims connected with fishing and 
 2   processing vessels of all sorts, and any number of 
 3   shipyards and shipyard operations.
 4        I come to this proceeding both as a lawyer that's 
 5   represented employers and carriers in the context of the 
 6   Longshore and Harbor Workers Compensation Act, and as a 
 7   lawyer representing vessels and their owners who are sued 
 8   in tort by seamen pursuant to The Jones Act and maritime 
 9   law.
10        I wish to address today the impact of the subject 
11   matter of this hearing on the cases that find their way 
12   into the tort system, the courts where liability and 
13   fault is a central part of the equation.
14        The regulations under consideration will apply to 
15   thousands of workers, whose rights and remedies are 
16   adjudicated in the courts in lawsuits where they qualify 
17   as such The Jones Act and general maritime law seamen. 
18        It's my pleasure to appear before you, and to have 
19   been asked by the NPFVOA to speak very briefly about what 
20   we believe are some of the important aspects of your work 
21   and deliberations in these hearings, that is, the impact, 
22   as I alluded to in my questioning, that the OSHA 
23   standards have on workers' claims that we occasionally 
24   have to address, practices and standards that -- and the 
25   critical importance of establishing rules, practices and 
0110
 1   standards that can reasonably be understood, followed and 
 2   complied with by the employers on the front lines, that 
 3   is, in the vessels, which now, of course, you refer to as 
 4   shipyard employment.
 5        We've heard from a number of interested people and 
 6   will hear from more about their deep concerns about the 
 7   proposed changes and the confusion, in some cases the 
 8   impossibility, and in other cases the unlikelihood of 
 9   enhanced safety or injury avoidance likely to result if 
10   the revisions are adopted as proposed.
11        Others have addressed or will address these concerns 
12   either here or in DC, and you'll be hearing from a number 
13   of knowledgeable people over the next couple of days.
14        I've never worked on a vessel or in a shipyard, 
15   except when I've been there in the role of defense 
16   council investigating some casualty, but I've handled a 
17   great many claims that resolved through the machinery of 
18   the courts, either through trial or most regularly, of 
19   course, in negotiations and settlements. 
20        Despite these 27 years in this business, I couldn't 
21   begin to claim an understanding of the problems and 
22   issues that are presented by these proposals like those 
23   from whom you'll be hearing, because I don't work in and 
24   operate on the day-to-day basis that they do.
25        But I'm here today because I've been asked 
0111
 1   essentially to share with you thoughts and factors that 
 2   arise in my work environment, which is the courts that 
 3   these claims come in, the onboard and in shipyard 
 4   environments will lead to lawsuits by seamen, who are 
 5   working in the employment environment subject to these 
 6   regulations. 
 7        I'll also address the impacts that the claims can 
 8   have and will have on the ability of the individuals and 
 9   businesses in the maritime industry probably to survive 
10   in a very competitive industry. 
11        The economic climate that we're now in, especially 
12   in the last couple months it's become very clear and 
13   undoubtedly will persist for years to come, only enhances 
14   the importance of having a fair chance to do things right 
15   to stay afloat, the importance of being able to conduct 
16   business under and within a regulatory system that fairly 
17   and intelligently guides us in our work place 
18   environments and safety practices.
19        I'd suggest that it's critical that these employers 
20   have a reasonable chance to understand and implement the 
21   practices that OSHA develops, and that the standards 
22   actually enhance their ability to avoid injuries and 
23   claims by engaging in safe and effective practices as 
24   opposed to simply trying to just make do in any way that 
25   they can in dealing with confusing and possibly 
0112
 1   counterproductive standards and rules.
 2        With respect to seamen's claims, you probably know 
 3   that generally speaking, as I mentioned previously, in 
 4   the courts OSHA standards are admissible as evidence of 
 5   what amounts to reasonable care.
 6        Injured seamen come into the courtroom entitled to a 
 7   duty of reasonable care.  And the employers, of course, 
 8   have a duty to provide a reasonably safe work place.  
 9   That's the legal standard.  Reasonable conduct is the 
10   benchmark applied in many aspects, as you know, of legal 
11   reasoning.  Blacks Law Dictionary, which we like to look 
12   at every six years or so, defines a reasonable act as, 
13   quote, such as fairly, justly and reasonably may be 
14   required of a party. 
15        It doesn't help much to use the word in the 
16   definition, but it defines reasonable as just, proper, 
17   ordinary or useful, fit and appropriate to the end in 
18   view. 
19        Now, typically in these claims in these cases, if it 
20   goes there, the juries decide in any given situation 
21   whether an employer has been reasonable, whether the 
22   employer has provided a reasonably safe place to work.  
23   They're given the rule of law, that the employer must 
24   reasonably conduct its operations, that the employer must 
25   reasonably provide safe machinery, training personnel, et 
0113
 1   cetera, and then this jury decides whether through the 
 2   evidence presented the defendant employer met or did not 
 3   meet that standard.
 4        Now, by rule of law in most jurisdictions, again, 
 5   OSHA regulatory standards are accepted.  It's the 
 6   majority view as proper evidence of the reasonable 
 7   standard of care, and everyone accepts and lives with 
 8   that.  It's appropriate because OSHA's purposes, of 
 9   course, jibe with the operator's purposes, and that is to 
10   do what they can to avoid injuries and deaths and, of 
11   course, claims.
12        But in the cases the OSHA regulations are presented 
13   as evidence of what is reasonable, it's thus important, 
14   in fact, vital, that OSHA standards don't set the bar 
15   unreachably beyond an appropriate measure of reasonable 
16   care.  More importantly we must strive to assure that 
17   OSHA standards are sufficiently clear, sensible, 
18   understandable and capable of proper application.
19        In a court the jury is going to be told that this, 
20   that or the other practice or requirement sets the level 
21   by which the jury should evaluate the conduct of the 
22   defendant employer.  And the jury's going to look at the 
23   regulation, often times hear the testimony of an OSHA 
24   expert, and then decide the issue of fault with an eye to 
25   the OSHA regulation and what it seems to them to require. 
0114
 1        Now, as I mentioned previously, we're now dealing 
 2   with precedent in the country, and, in fact, it's come up 
 3   in a Federal Court in our Western District of Washington 
 4   that it's applying in cases involving OSHA regulations 
 5   and regulation issues a very strict rule of liability 
 6   otherwise applicable to U.S. Coast Guard safety 
 7   regulations.
 8        Locally a lot of people are familiar with the SESAC 
 9   decision, which came out of the Ninth Circuit Court of 
10   Appeals that dealt with machinery guarding.  It is 
11   settled here and elsewhere that violation of a Coast 
12   Guard safety regulation enables the Court to take the 
13   question of reasonableness away from the jury, that is, 
14   to rule as a matter of law that the employer is negligent 
15   per se, and also very importantly in such a case to 
16   deprive the employer of the defense of comparative fault.
17        Now, typically in tort, and certainly in seamen's 
18   cases, a person's damages are reduced once established by 
19   the percentage to which he or she is to blame for the 
20   casualty.  It's run out in simple percentages, and 
21   whatever percentage that individual carried in the cause 
22   of the accident diminishes proportionally the damages 
23   that are otherwise awarded. 
24        Coast Guard violations, as I say, if proved will 
25   deprive the employer of that reduction, regardless of the 
0115
 1   extent of the party's blame.  And as I say, some courts 
 2   have ruled in my view very incorrectly for the very 
 3   reason of the paragraph, which I'll mention later that 
 4   you read. 
 5        Of course, they've applied that same standard to 
 6   OSHA violations, and have had the same effect with 
 7   respect to negligence per se and the loss of the 
 8   comparative fault defense.
 9        So let me be clear.  I recognize I acknowledge 
10   that's a minority view.  Hopefully one day this is going 
11   to work its way through the courts, and the Supreme Court 
12   is going to set straight that that's not an appropriate 
13   use of the OSHA standard to have such automatic and 
14   preclusive effect.
15        But in the meantime it's going to be presented.  
16   It's going to be pushed.  Attorneys for the plaintiffs, 
17   the injured workers, are going to try to broaden and 
18   enhance the application of that principle in real life 
19   cases today. 
20        Most courts do conclude, as well as another federal 
21   judge in our own district, that OSHA itself disallows 
22   this kind of approach by virtue of Section 653(b)(4), 
23   which provides, and again in my view clearly as well as 
24   it seems your own, paraphrasing that nothing in OSHA 
25   shall enlarge, diminish or affect in any manner the 
0116
 1   common law rights, duties or liabilities as between 
 2   employers and employees with respect to injuries or 
 3   deaths arising in the course of employment.
 4        It seems to say that OSHA violations shall not have 
 5   that effect in court cases, but it does.  This should 
 6   mean that it cannot automatically render an employer 
 7   negligent per se, and certainly it should not obviate the 
 8   injured worker's comparative fault, even in cases which 
 9   we've seen where the workers are actually 80 to 90 
10   percent at fault for their own injuries. 
11        However, I'm not coming here to talk about that 
12   issue.  The issue here is not whether these applications 
13   by courts or misapplications in the case of the SESAC 
14   rule's extension to OSHA, whether these laws or rules are 
15   good or bad, effective or onerous.  That issue is going 
16   to develop in the courts in whatever manner it develops.
17        The point here that I simply want to make is that 
18   the mechanism and trending highlights the importance of 
19   developing and adopting effective, efficacious, workable, 
20   knowable standards for these employers, standards that 
21   enhance, say, that are truly plausible in the real world. 
22        Standards set unreasonably high with the laudable 
23   goal of aspiring to a perfectly safe work environment 
24   would merely require the reasonable minds of the human 
25   jury to apply a standard of perfection as when they 
0117
 1   evaluate reasonable care in measuring the adequacy of the 
 2   employer's conduct.
 3        This benchmark would deprive the jury of its 
 4   application of its human, its real experience with the 
 5   issues at hand by which otherwise it would go to that 
 6   fit, appropriate, ordinary, just result. 
 7        Vessel owners want to install safe practices.  They 
 8   want to employ people in safe work place environments.  
 9   They want to avoid to the greatest degree possible 
10   injuries to their people, but they need to be able to do 
11   it, and the regulations themselves need to be 
12   appropriate, understandable and effective in the real 
13   world. 
14        Ineffective, confusing or implausible standards 
15   likely will not enhance safety or minimize workplace 
16   injuries.  They'll frustrate.  To some degree they could 
17   be ignored.  In the torts scenario, which I'm most 
18   concerned about here, they could substantially increase 
19   the risk of misplaced jury verdicts. 
20        Even with claims that never see trial, it's 
21   important to recall they could skew the exposure.  They 
22   could skew the merits of the case and create unfair 
23   leverage in the negotiations well beyond the true facts 
24   and the law.
25        So in addition to the cost to the system, the cost 
0118
 1   that you've been talking about in terms of what it would 
 2   take for these sorts of changes to be implemented in fact 
 3   on these many more than 666 or however many it was 
 4   vessels that we're talking about, in addition to those 
 5   costs we're going to see increased liability risk.  We're 
 6   going to see increased claims cost, which could lead to 
 7   increases in the operating costs, mainly by virtue of 
 8   substantially increased insurance premiums depending upon 
 9   and resulting from worsened claims histories.
10        If the cycle ran its natural course, especially 
11   with, but not only with smaller operators, they could 
12   find themselves unable to even afford insurance, perhaps 
13   even unable to continue operating, leaving them without 
14   the opportunity to provide the jobs to the people that 
15   you're concerned with protecting as are the operators.
16        So in this dramatic -- this is a dramatic scenario, 
17   but it is truly plausible, especially today when so many 
18   different market forces are battering this industry. 
19        So this is why I feel it is so important that we 
20   take steps to listen to the owners, listen to the 
21   operators, understand how these regulations are really 
22   going to mesh into, and what the true result will be of 
23   doing so in the operational realities that they live in 
24   and that they deal with. 
25        And then again, in terms of what I do, the less able 
0119
 1   employers are to understand and comply with these 
 2   regulations, the more dangerous and the more costly are 
 3   going to be their claims, because I assure you it will be 
 4   taken advantage of to the greatest extent possible by the 
 5   growth industry that's out there searching for injured 
 6   seamen who can be represented in court.
 7               ALJ:  Thank you.  Are you finished?
 8               MR. NIELSEN:  I had one more point.  With 
 9   respect to this jurisdictional issue, as I say, I think 
10   it's very important in this context -- I mean, I get the 
11   impression that a lot of people haven't thought about or 
12   talked about this aspect of the issue.  I've gotten that 
13   impression from friends of mine in the audience.
14        And I think the discussion that was had earlier 
15   about the jurisdiction of OSHA is an interesting one to 
16   look at, because you say it's been said that, well, OSHA 
17   only has jurisdiction within the territorial waters. 
18        And that's why I asked the question about whether 
19   that wasn't simply focusing on boarding, inspecting and 
20   citing vessels, because the fact of the matter is if 
21   there are OSHA regulations requiring that certain rails 
22   be certain heights and certain risers be certain levels 
23   and certain equipment be utilized in a certain fashion 
24   that vessel owners simply are not able to comply with, 
25   when an injured seaman in the Bering Sea has an accident 
0120
 1   that is in some way attenuated or not connected with that 
 2   OSHA violation, let's say, it is going to be used in a 
 3   court of law.  It is going to be used in the 
 4   negotiations, and it is going to have an impact, and I 
 5   believe an inappropriate impact on the resolution of that 
 6   claim.
 7        So what I am suggesting is that the comments, the 
 8   concerns, the fears of the operators who are really 
 9   living with these and understand what it is about these 
10   proposals that don't work for them be taken into due 
11   consideration.
12               ALJ:  Thank you, Mr. Nielsen.  Are there any 
13   questions from the audience?  How about from the OSHA 
14   panel?
15               MS. SHORTALL:  Yes, we have questions.  
16   Mr. Bolon will start.
17               MR. BOLON:  Could you give us some idea about 
18   the scale of the workers compensation cost for the 
19   industry? 
20               MR. NIELSEN:  Well, I'm not sure if you mean 
21   workers compensation in terms of the compensation system 
22   or the court costs.
23               MR. BOLON:  Yes, both together.
24               MR. NIELSEN:  Well, they're huge.  I mean, I 
25   couldn't really give you a number.  I mean, vessels -- 
0121
 1   what we're talking about here is vessels are insured with 
 2   protection and indemnity insurance, which essentially is 
 3   a liability insurance that responds to these sorts of 
 4   bodily injury and death claims.  It's a very expensive 
 5   insurance.
 6        Now, again, the market softens and hardens, but it's 
 7   very -- it's significantly expensive to operate these 
 8   vessels from an insurance standpoint.  Even small 
 9   vessels, they'll usually come in with a per man premium. 
10        And where it is today, quite honestly, I couldn't 
11   tell you, because I'm neither an underwriter or a broker.  
12   But if you ask the operators, their experience with 
13   having to pay for their premium, it is a significant 
14   expense.  And the thing is obviously it adjusts to the 
15   exposure. 
16        I mean, principally this P & I market will look at 
17   the prospective insured, and look at its loss history.  
18   And it goes back however many years it chooses to go 
19   back, but they're going to look.  And they want to know 
20   how many claims, and they want to know how much they 
21   cost. 
22        So we've created a quandary for these operators, who 
23   cannot reasonably understand what it is they're supposed 
24   to do, either because there are conflicting regulations 
25   or ambiguous regulations or they really don't know 
0122
 1   whether or not they're in compliance. 
 2        You look at talk about deck surfaces and slippery 
 3   conditions.  I mean, honestly, on that subject, a wet 
 4   deck can be very slippery, and there aren't many dry 
 5   decks in the Bering Sea.  It's simply a factor.  It's 
 6   simply a known condition.
 7        Even the law recognizes that a vessel is unseaworthy 
 8   not just because it has a slippery deck, because that's 
 9   expected.  It's only unseaworthy if it has an 
10   unreasonably slippery deck condition, whether it's water, 
11   ice, whatever. 
12        So, again, it's sort of like obscenity.  I know it 
13   when I see it.  But the fact of the matter is the 
14   slipperiness issue is a very difficult thing, because 
15   every surface -- again, as was stated, every surface is a 
16   walking and working surface. 
17        I mean, even the underdeck hallways to the galley, 
18   you know, housekeeping workers are working in that area 
19   as well as all the other workers while on duty on the 
20   clock traversing those areas.
21        So, again, when you have --
22               MR. BOLON:  But the regs that we have in 
23   question here are really --
24               MR. NIELSEN:  I'm sorry?
25               MR. BOLON:  The regs that we're considering 
0123
 1   only have to do with shipyard employment.  If vessels 
 2   underway are just performing the normal capacities as 
 3   carrying something or fishing, then the housekeeping regs 
 4   we're talking about today don't really apply.
 5               MR. NIELSEN:  Well, if the housekeeper -- 
 6   what I'm talking about is every person on that vessel 
 7   that qualifies as a seamen.  And every person on that 
 8   vessel today would qualify as a seaman, because they're 
 9   more or less permanently connected to the vessel, perform 
10   a substantial part of their work on the vessel, and they 
11   contribute to the mission of the vessel.  Bang, they're 
12   seamen.
13        That housekeeper gets injured because a railing is 
14   the wrong height from the stairway or the angle of the 
15   steps is too steep, OSHA violation will be argued by the 
16   plaintiff's counsel, and it will have an effect on the 
17   negotiations and probably the price.
18        So, again, I am not sitting here saying make the 
19   OSHA regulations less safe.  I am not suggesting that it 
20   should be your mission to dumb down the regulations so 
21   employers get into trouble less.
22        I'm saying consider the real-life situation that you 
23   have in vessels, the wide variety of vessel types that 
24   you've been hearing about, sizes, tonnage, everything 
25   about them, and see if we can achieve the purpose, 
0124
 1   achieve the goal that we all share of enhancing the 
 2   safety and avoiding injuries without setting up this 
 3   industry for major expense beyond what is reasonably 
 4   appropriate.
 5               MR. BOLON:  Thanks. 
 6               MS. SHORTALL:  Mr. Daddura has questions now.
 7               MR. DADDURA:  Yes, I do, Mr. Nielsen.  You 
 8   bring up an interesting point, an interesting fact.  If 
 9   it's the Agency's purpose to put out the minimum 
10   requirement standards for shipyard employment, how do you 
11   feel that it's unreasonable for the vessel owners and 
12   operators that are performing shipyard employment?  How 
13   does that fit into what you're saying?
14               MR. NIELSEN:  Well, because, again, I am not 
15   an expert in OSHA.  I hire OSHA experts.  And I'm not an 
16   expert in the detailed physical plan that we're talking 
17   about.  I deal with casualties as they come, and I deal 
18   with the OSHA regulation that applies to that casualty.  
19   And that's the way, frankly, maritime lawyers practice 
20   law.
21        So in terms of the details of what is the issue with 
22   the proposed regulations, I leave that to the industry.  
23   They have been this morning, and I believe they'll 
24   continue to be explaining problems they have with the 
25   details of the regs. 
0125
 1        I'm asking the panel to factor in, to consider the 
 2   impact of the plausibility and the ability of the 
 3   operators to understand and implement whatever is 
 4   created, because it has consequences beyond boarding 
 5   inspections and citations.  It has importance in the 
 6   world of maritime personal injury claims, which involve 
 7   very large sums of money. 
 8               MR. DADDURA:  Okay.  That's all I have.  
 9   Thank you.
10               MS. SHORTALL:  Ms. Brinkerhoff has questions 
11   next.
12               MS. BRINKERHOFF:  I really only have one, and 
13   that is that I know that you're not speaking in 
14   theoretical terms when you talk about standards that 
15   might be confusing or the language in a standard that 
16   might be confusing or vague, and I'm assuming that there 
17   have been cases that you know of or have been involved 
18   with where a standard, maybe an OSHA standard, was so 
19   vague that it really did affect the outcome in an unfair 
20   way toward the employer.  Is that something that's 
21   common?
22               MR. NIELSEN:  Honestly, no.  As they are now, 
23   I have found most cases that arise when OSHA comes in, 
24   it's relatively clear, but it's the periphery.  It's the 
25   edges that concern me the most.
0126
 1        And especially, as I say, when we get into this 
 2   incorporation of a shipyard.  I mean, if I were to say it 
 3   very generally, the incorporation of a shipyard 
 4   regulatory mentality, and we just pick that up and we 
 5   plop it on a vessel, it raises significant concerns and 
 6   issues, because you're mixing almost apples and oranges.  
 7   You're looking to put standards on a vessel that in many 
 8   ways are just not practically possible.
 9        And the question becomes are they going to -- you 
10   know, as Mr. Dixon was asking, are you going to tie up or 
11   are you going to fish in violation because you can't 
12   comply?  And I don't think that's going to serve the 
13   interest of the operators, OSHA or the workers. 
14               MS. BRINKERHOFF:  I don't really have any 
15   other questions, but I just want to say that I appreciate 
16   your perspective.  And being an attorney, a trial 
17   attorney is certainly different than most of the 
18   commentors.  It's a different perspective, and it has not 
19   been the intent of OSHA ever to promulgate a standard 
20   that's confusing or vague or isn't going to make sense. 
21        I mean, that's why we're here today, and I'm hoping 
22   that we can get a lot of comments and suggestions for 
23   clarifications of any part of the standard that causes 
24   problems or people aren't going to be able to comply with 
25   because they don't understand them.
0127
 1               MR. NIELSEN:  And I understand that's the 
 2   goal and the mission of OSHA and you and your work, and I 
 3   respect that.  What I wanted to bring to the table is 
 4   simply an awareness of the consequences, the cost, and 
 5   the burdens that might be imposed beyond getting right 
 6   the numbers of ships, beyond getting right the amount of 
 7   money that it's going to cost to comply with these 
 8   proposals, and look as well at really the unknowable 
 9   increased risk to employers in dealing with worker's 
10   claims. 
11               MS. SHORTALL:  Your Honor, I have some 
12   questions, too.  And thank you, Mr. Nielsen, for coming 
13   here today to testify. 
14        You said that or you seem to indicate that OSHA 
15   standards or issuing standards increases the number of 
16   claims that seamen or those employed in shipyard 
17   employment file.  Did I hear you correctly? 
18               MR. NIELSEN:  Not quite.  I'm not suggesting 
19   that what you're trying to do is going to increase the 
20   number of claims.  I'm suggesting that the claims that 
21   are going to arise are going to present more problems and 
22   greater expense for the employers and their insurance 
23   market, which then again, of course, always comes back to 
24   them because they've got to pay for their insurance 
25   market's losses. 
0128
 1        If the balance between what should be done and what 
 2   was done is unreasonably skewed in favor of the injured 
 3   worker -- I'm not talking about numbers of claims.  I'm 
 4   talking about what I believe would be the unintended 
 5   effect of imposing on operators regulations that simply, 
 6   whether it's because they can't or they simply don't or 
 7   they don't understand what they're going to do, what 
 8   they're supposed do, where they're going to come into 
 9   claims more frequently where the injured worker is going 
10   to be able to hold up an OSHA regulation, say that that 
11   OSHA regulation is violated; and, therefore, one, go for 
12   the gusto and try to get negligence per se and no 
13   comparative, or at a minimum talk to the jury and just 
14   say, look, OSHA says this is what's reasonable.  You see 
15   that OSHA standard by some technical fashion was 
16   violated.  Therefore, you must, and that's going to be 
17   the closing argument, and that's going to have an impact.
18               MS. SHORTALL:  Are you aware that under 
19   OSHA's rulemaking requirements that we also have a 
20   requirement to ensure that rules are reasonably necessary 
21   and effective under our statutes?
22               MR. NIELSEN:  Of course.
23               MS. SHORTALL:  All right.  Our practice or 
24   our experience has been that when OSHA standards do come 
25   out, that, in fact, what happens is we see a decrease in 
0129
 1   employee injury and illness.  Is that what you have seen 
 2   also?  And I will be asking other people today in the 
 3   audience, too.
 4               MR. NIELSEN:  I would say I have not seen to 
 5   the contrary, which is pretty much the same thing.  But, 
 6   again, that's one --
 7               MS. SHORTALL:  That was my question.
 8               MR. NIELSEN:  That's what I --
 9               MS. SHORTALL:  So you haven't seen to the 
10   contrary, so I want to follow with another question.
11               MR. NIELSEN:  What I'm suggesting here is 
12   that in this process -- I mean, what you are doing now 
13   ultimately will determine what the regulation becomes. 
14        So I am encouraging you through the process that 
15   you're doing now, you get, once the regulation comes out, 
16   an appropriate effective, as you say, regulation, one 
17   that can be followed.
18               MS. SHORTALL:  And you are aware that if 
19   there was a standard that you or your industry did not 
20   feel to meet that, you would have a right to challenge 
21   that standard at the time it's issued, right?
22               MR. NIELSEN:  Absolutely.
23               MS. SHORTALL:  All right.  And so then if it 
24   was found to be reasonably necessary by the courts, then 
25   that will, in essence, have I guess settled the day. 
0130
 1        Are you aware that in the lockout/tagout 610 
 2   Lookback review that the Agency discovered through a 
 3   similar process of going before the public and asking 
 4   questions that the standard did significantly decrease 
 5   both injuries and fatalities?
 6               MR. NIELSEN:  I'm not taking issue with 
 7   OSHA's mission.  I'm not taking issue with OSHA's 
 8   standards or regulations.  I am asking that in the 
 9   process of developing the standard that you're talking 
10   about, you bear in mind all the factors that are being 
11   addressed in this process that you're engaged in.
12               MS. SHORTALL:  So you're suggesting that what 
13   we should do is keep in mind what the current state of 
14   the law and litigation practices are under The Jones Act 
15   or the Longshore and Harbor Workers Act in what type of 
16   provisions we put in our standard, that they may be used 
17   very aggressively by plaintiff's attorneys?
18               MR. NIELSEN:  Yes.
19               MS. SHORTALL:  Okay.  I guess I would have to 
20   say on the record I don't think that's something that's 
21   permitted under the OSH Act.  We have standards that we 
22   have to meet as well, and they have been litigated by the 
23   U.S. Supreme Court as well as issued by Congress. 
24        And we have a duty first to live up to those, and 
25   not to take into account the various arenas of worker 
0131
 1   compensation law, but to put our mission of protecting 
 2   workers at the forefront of it.
 3               MR. NIELSEN:  Well, I'm not asking you to 
 4   address or have any effect upon the rules of law that 
 5   we're handling these cases in or the evidentiary rules 
 6   that are applied, or even the use of OSHA regulations in 
 7   those cases.  I mean, good, God.  The enabling statute 
 8   itself says that you can't use an OSHA regulation to 
 9   impair, impede, enlarge or diminish the common law rights 
10   and liabilities between employers and employees, and 
11   they're doing it anyway.
12        So I don't even expect OSHA could, if it wanted to, 
13   get into that realm.  What I'm suggesting is it's my 
14   understanding that your mission is to listen to the 
15   community, and listen to their concerns and listen to the 
16   practical reality that with all due respect -- I mean, 
17   the questions illustrate the extent to which the reality 
18   of the maritime industry is not understood.
19        So I'm asking you to consider that reality, and in 
20   this respect the legal reality of seamen's personal 
21   injury and death cases.
22               MS. SHORTALL:  I thank you very much for your 
23   comments, Mr. Nielsen.  I appreciate you coming here 
24   today to testify.
25               MR. NIELSEN:  I appreciate the opportunity.
0132
 1               ALJ:  Thank you, Mr. Nielsen.  We'll take a 
 2   lunch break now. 
 3                        (Recess taken.)
 4         PANEL 1 - COMMERCIAL FISHING VESSELS INDUSTRY
 5               ALJ:  Let's go back on the record and begin.  
 6   This afternoon we're going to start with a panel of four 
 7   speakers, and the process for this is each speaker will 
 8   be given an opportunity to speak for approximately 10 
 9   minutes.  And after the last speaker has spoken, then I 
10   will open it up for questions from the audience followed 
11   by questions from the OSHA panel.
12        So I would like Lurilla Lee, Karen Conrad, Amy Duz 
13   and Ethan Bohannon to step forward, please. 
14        All right.  I'm going to ask you to speak in the 
15   order that's listed.  So, Ms. Lee, would you identify 
16   yourself, state your full name, spell your first name and 
17   identify your affiliation. 
18               MS. LEE:  My name's Lurilla Lee, 
19   L-U-R-I-L-L-A, and I'm with Trident Seafoods Corporation. 
20               ALJ:  Thank you.  You may begin.
21               MS. LEE:  Good afternoon, Ladies and 
22   Gentlemen.  Thank you for the opportunity to testify on 
23   behalf of the Trident Seafoods Corporation.  We harvest, 
24   process and market seafood from Alaska, the Pacific 
25   Northwest and around the world.
0133
 1        Trident Seafoods is one of the largest U.S. seafoods 
 2   companies, although far smaller than the likes of 
 3   Northrup Grummand Shipbuilding, is firmly committed to 
 4   providing a safe work place for our employees.  We want 
 5   each and every person working for us to go home as 
 6   healthy or healthier than when they arrived.
 7        I'm the Vice President of Vessel Safety for 
 8   Trident's fleet of over 40 fishing industry vessels.  
 9   That's comprised of 16 fish tenders, 16 catchers, six 
10   fish processing vessels and four catcher processors.  
11   Vessel lengths range from 66 to 356 feet.  Our crew sizes 
12   range from four to 235 people.
13        I also assist with the safety and regulatory aspects 
14   of our facilities that provide vessel dock side 
15   maintenance.  These include our Tacoma facility, which is 
16   about 12 and a half acres with 3,030 feet of mooring 
17   space, and 150 employees during peak activity.
18        The other place is our old yard.  We call it 
19   affectionately the old yard in Seattle, which consists of 
20   about two and a half acres, 400 feet of mooring space and 
21   about 70 employees during peak activity.
22        I must point out these facilities are diverse and do 
23   much more than just vessel maintenance, and that includes 
24   functions such as shipping and receiving, purchasing and 
25   support for our numerous shore side facilities. 
0134
 1        We employ over 190 contractors throughout the year 
 2   at different times.  We're members of North Pacific 
 3   Fishing Vessel Owner's Association and Puget Sound 
 4   Shipbuilders Association, both of whom have OSHA 
 5   alliances.
 6        I've been employed with Trident Seafoods for 11 
 7   years this December.  I earned a Bachelor of Science 
 8   degree in physical science from the United States Coast 
 9   Guard Academy, and a Master of Science degree in 
10   Chemistry from the University of Washington.  I don't use 
11   that much anymore.
12        I have about 25 years of maritime safety experience, 
13   and I learn something new every day.  Several others will 
14   be commenting on various aspects of the proposed rules, 
15   plus I provided other comments in my March letter to the 
16   docket. 
17        I'll be focusing today's comments in three areas:  
18   The need to involve stakeholders early in the regulatory 
19   rulemaking process; the need for plain language 
20   regulations that limit subjective interpretation, 
21   although I'm not saying hamstring us; and the need to 
22   tailor 1915.89, the control of hazardous energy 
23   requirements to best meet your goals, and that of the 
24   maritime industry.
25        With the first one, a broad range of stakeholders 
0135
 1   must be brought in to the initial phases of the 
 2   regulatory rule development.  A perfect example of why 
 3   this is necessary is obvious in this particular 
 4   rulemaking process where an instance specific to a 
 5   particular stakeholder segment was called out in the 
 6   preamble of the proposed regulation.  I'm referring to 
 7   the discussion on the control of hazardous energy 
 8   referencing an incident that occurred over 150 miles 
 9   offshore on a fish processing vessel.
10        Somehow from that incident OSHA drew an incorrect 
11   conclusion that processing is totally separate and 
12   distinct from the remainder of the vessel, and not an 
13   integral part of the ship's systems and operations.
14        This lack of understanding of our fish processing 
15   vessels could have easily been remedied by consulting 
16   with the owners and operators of such vessels, the North 
17   Pacific Fishing Vessels Owner's Association, and Region 
18   10 in Anchorage offices.
19        Keeping in mind that both OSHA and the maritime 
20   industry have the go for ensuring safe workplaces for all 
21   employees, regulations must be easy to understand.  They 
22   must clearly convey their intent without the need to 
23   refer to the proposed and/or final rules and preambles, 
24   OSHA directives and compliance guidance or the need to 
25   take an OSHA course. 
0136
 1        We need and want to be able to easily convey the 
 2   regulatory requirements and expectations to our employees 
 3   in an efficient and effective manner without having to 
 4   sit through directives hoping to find all that are 
 5   applicable to the topic at hand and/or having to go back 
 6   to the federal registers.  Requirements must improve 
 7   safety, and not only be an exercise to meet a written 
 8   regulation.
 9        I emphasize we do not depend solely upon regulations 
10   to determine what we consider safe practices.  We want 
11   our employees to work in environments that are as safe as 
12   possible, given the inherent operational risk.
13        How we interpret the regulations should align with 
14   your field inspectors' interpretation.  This rule 
15   provides an opportunity to narrow the subjectivity to 
16   these rules, some of which are carried forward from the 
17   current regulations, yet not make them overly 
18   prescriptive.
19        This current breadth of subjectivity allows us to 
20   think in good faith we're meeting the regulations until 
21   an OSHA inspector tells us we misinterpreted the meaning 
22   and cites us.  Worse yet, if an injury occurs, our 
23   reasoning and judgment is scrutinized. 
24        A few examples of this subjectivity in the 
25   housekeeping section include Paragraphs J where it states 
0137
 1   an employer shall ensure flammable substances are stored 
 2   in fire resistant containers when not in use.
 3        This is an opportunity to further delineate when not 
 4   in use is.  I would not consider taking a 15-minute break 
 5   period an instance requiring an employee to take a paint 
 6   thinner container to the fire resistent storage area, but 
 7   it can be interpreted that way.
 8        Paragraph K states that an employer shall ensure 
 9   that combustible scrap is removed from work areas as soon 
10   as possible.  It's another subjective term.  Most 
11   cleanups are done at the end of a particular job or task 
12   as needed as determined by a lead worker or another 
13   authority, especially when hot work is to be conducted, 
14   and at the end of a shift.
15        In the lighting section the term "available in the 
16   immediate work area" is used to describe where an 
17   employer shall ensure handheld portable lights are 
18   available.  Again, what does immediate mean, especially 
19   when the lights go out? 
20        Working confined or isolated spaces section, 
21   Paragraph A states that whenever an employee is working 
22   in a confined or alone in an isolated location, the 
23   employer shall ensure that each employee is checked 
24   frequently during each work shift. 
25        We'll be required to convince an OSHA field 
0138
 1   inspector that our frequently is as good as or better 
 2   than his or her concept of frequently.  And just so you 
 3   know, we do make frequent checks of our people, but that 
 4   could be a few minutes or no more than an hour.
 5        The radar and radio transmitter section uses the 
 6   term near when describing work where -- describing an 
 7   area where work is to be done on a radar transmitter.  We 
 8   recommend following the minimum safe working distance 
 9   established by the manufacturer for that particular type, 
10   model and power of the equipment being serviced.
11        In the medical service and first aid section, 
12   Paragraph C and D uses the term adequate number and 
13   readily accessible in reference to first aid providers 
14   and first aid supplies.  What may seem adequate or 
15   readily accessible to us may not seem so to others, 
16   regardless of the objective factors considered.
17        In Paragraph E they use the term hazardous or toxic 
18   substances instead of corrosives as is used currently.  
19   It's overly inclusive, making this regulation impractical 
20   due to the increased number of locations we would be 
21   required to provide drenching and flushing sections.  
22   This would also be economically challenging due to the 
23   purchase and installation cost.
24        These are the terms that will require providing 
25   stations when using substances that can cause immediate 
0139
 1   damage to the body would be much more reasonable.
 2        We also recommend adding definitions in Section 
 3   1915.95 to include isolated location.  What does that 
 4   mean, and examples of it.  Hazardous energy, again, 
 5   examples of it.  Major repair, work location and work 
 6   area, the meaning of these two terms are discussed in the 
 7   Federal Register preambles, but not in the body of the 
 8   regulation.
 9        In the energy isolating devices definition, we 
10   recommend adding more examples of devices that isolate 
11   sources besides electrical ones, such as mechanical, 
12   hydraulic, pneumatic, chemical, thermal and so on.
13        It seems often that the mention of lockout/tagout 
14   automatically sends thoughts to electrical breakers, and 
15   this isn't the case.
16        In the ship's systems definition, we recommend 
17   removing the reference that fish processing equipment is 
18   not an inherent part of the vessel.  Fish processing is a 
19   primary function of the fish processing vessel, and the 
20   entire vessel supports that function.
21        Additionally, many of those systems called out in 
22   the definitions, such as electrical and water, are 
23   intertwined with fish processing.
24        Shifting over to the control of hazardous energy 
25   proposed regulation, I know that several others either 
0140
 1   have or will discuss these in detail during the hearing, 
 2   so I'll keep my comments short.
 3        These requirements must be reasonable and feasible 
 4   for our shipboard applications.  We must be allowed to 
 5   rely on systems experts to isolate hazardous energy.  I 
 6   ask that you develop a control of hazardous energy 
 7   program and associated regulations by working with the 
 8   affected stakeholders, including vessel representatives 
 9   like us and our OSHA alliances.
10        One other item I'd like point out after listening to 
11   this morning's talks are I'd like you to just keep in 
12   mind that ships -- and I know you know this, but ships 
13   are significantly different than buildings.
14        1910 really applies mostly to industries that work 
15   out of buildings, not ships.  Employees can walk away 
16   from a building.  We can't do that when we're underway on 
17   a vessel.  Ships are fully self-sufficient entities when 
18   they're underway.  And OSHA does apply to us when we're 
19   within the three-mile limit, and we do operate there at 
20   times.  The environment moves.  It's complex, and it's 
21   concentrated, and I know some of you already have a good 
22   understanding of that.
23        Thank you for the opportunity to take part in these 
24   hearings.  Trident Seafoods and others in the industry 
25   look forward to working with you to produce an updated 
0141
 1   version of the shipyard employment regulations that meet 
 2   our common safety goals.
 3               ALJ:  Ms. Conrad?
 4               MS. CONRAD:  Thank you.  Hello, I'm Karen 
 5   Conrad, and it's C-O-N-R-A-D, and I'm the Executive 
 6   Director of North Pacific Fishing Vessels Owner's 
 7   Association.  I appreciate you coming to Seattle and 
 8   giving us the opportunity to comment today on the 
 9   proposed shipyard rule.
10        I have spent my entire working career in the fishing 
11   industry.  I started out working at sea on the foreign 
12   processing fleet, and then spent 20 years as a human 
13   resource manager and claims manager.  I am currently the 
14   Executive Director at NPFVOA, the vessel safety program.
15        We currently have 217 vessel members, 90 associate 
16   members and 37 individual members.  Attendance at our 
17   numerous safety classes have exceeded 34,000, and 70 
18   percent of that training is voluntary.  We have a very 
19   safety conscious group of mariners and fishermen in this 
20   area.
21        The commercial fishing industry does not want to 
22   have two separate lockout/tagout hazardous energy control 
23   systems onboard one vessel.  This would create undue 
24   burden and confusion among workers that could lead to 
25   additional hazards. 
0142
 1        Instead we would propose that we add language and 
 2   content to 1915.89 to both meet the intent of a hundred 
 3   percent worker protection, and assure a simple, 
 4   reasonable and easy to follow standard.
 5        OSHA makes a number of mistaken assumptions about 
 6   fishing vessels.  I believe that the reason these 
 7   assumptions were made is the lack of consultation or 
 8   collaboration on the part of OSHA with the fishing 
 9   industry despite alliances that exist between the two. 
10        The most important of these are, one, OSHA assumes 
11   that fish processing equipment onboard vessels is 
12   serviced almost exclusively by fish processing employees 
13   and not others who regularly service ships' systems.
14        In fact, processing equipment on processing ships is 
15   maintained and repaired by the same engineers that 
16   service all the equipment onboard the vessel. 
17        To make it even more complicated, the larger vessels 
18   will usually have a technician who only works on certain 
19   equipment.  Some of that equipment falls under 1910, and 
20   other equipment falls under 1915.  Now you have an 
21   employee who must understand two separate regulations and 
22   figure out which one to apply when they are working.  
23   This, I am sure, is not what you intended to happen.
24        OSHA also believes these vessels usually set anchor 
25   in the fishing grounds for weeks or months at a time 
0143
 1   processing fish and seafood that fishing boats unload 
 2   onto them.
 3        According to my records, the Washington fleet that 
 4   works in Alaska has over 200 trawler catchers, 36 freezer 
 5   longliners and 38 catcher processors, three mother ships 
 6   and 12 processors, so only 4 percent of these vessels set 
 7   anchor and process. 
 8        OSHA believes that the vessels change out their 
 9   processing deck between seasons, which, in fact, only 1 
10   percent of the fleet currently change out their 
11   equipment. 
12        OSHA has lumped all unsuspected fishing vessels into 
13   one standard, and this just doesn't work.  When the Coast 
14   Guard writes the regulations, they look at the vessel's 
15   gross tonnage, number of crew, length and where they 
16   operate.  They do this for a reason.  Each type of vessel 
17   is unique, and each differs greatly.
18        First, you have the trawler crabber pot boat.  There 
19   are more than 200 vessels that are less than 200 feet and 
20   catch fish or crab only.  They do not process, and they 
21   have a crew of four to six employees. 
22        You should consider whether they should fall under 
23   this proposed rule.  If they are doing major shipyard 
24   work, they will go into a major shipyard, but the 
25   majority of the stuff they do would just be maintenance.
0144
 1        Second, you have the freezer longline fleet, which 
 2   catches the fish by line and not by trawling.  They do 
 3   machine process their catch, and have an average of 20 
 4   crew members.  There are 36 vessels in this category, and 
 5   almost all of the vessels are members of our 
 6   organization.
 7        And last you have the mother ship floating processor 
 8   and catcher processors.  These are the larger vessels 
 9   that process their catch mostly outside of three miles.  
10   There are about 53 vessels with a total crew complement 
11   of just under 5,000 employees.  These are all members of 
12   our organization. 
13        NPFVOA has an alliance with OSHA.  Why didn't OSHA 
14   come to us and request to work with our membership in 
15   drafting a simple clear and concise lockout/tagout 
16   regulation?  Our members are receptive to doing just 
17   that.  Our members do not want any of their crew members 
18   to get injured. 
19        Remember, 70 percent of their safety training has 
20   been voluntary.  They want a lockout/tagout regulation 
21   they can use and prevent injuries.  They want a 
22   regulation followed not just when they have maintenance 
23   occurring, but one that they can follow during processing 
24   or they can follow them no matter where they are located 
25   and what they are doing.
0145
 1        Most accidents occur during processing, and this 
 2   rule does not cover that period of time.  Most accidents 
 3   occur outside of three miles.  Now, OSHA doesn't have 
 4   jurisdiction past three miles, but the vessels don't 
 5   change their safety practices on whether they're within 
 6   three miles or outside of three miles.  If a vessel is 
 7   able to understand and follow a regulation that works, 
 8   they are going to use it at all times.
 9        There are several reasons that OSHA believes it is 
10   appropriate to apply 1910.147 and not the proposed 
11   1915.89 to the servicing of inherently general industry 
12   equipment onboard vessels.  Fish processing and other 
13   general industry equipment are not core components of a 
14   vessel.  We disagree, and seek Ms. Amy Duz's testimony in 
15   Washington, DC for a backup. 
16        Fish processing equipment is changed typically at 
17   the end of every fishing season.  Less than 1 percent of 
18   the current vessels change out their fish processing 
19   machinery.  The vast majority have the same equipment for 
20   all of their seasons. 
21        It would ensure that the numerous lockout/tagout 
22   publications were usable and immediately available, and 
23   that materials from NIOSH, the State and private 
24   organizations have developed for the general industry 
25   standards could be easily applied. 
0146
 1        We believe that even if companies and the Government 
 2   had to rewrite handouts and booklets to support the new 
 3   regulation of 1950.89, it is worth it to have a strong 
 4   usable regulation.
 5        OSHA should not compare fish processing vessels to 
 6   land side operations.  Yes, they generally perform the 
 7   same operation and use the same type of processing 
 8   equipment, but they have larger differences.
 9        Vessels operate in remote areas with no outside 
10   support.  They are gone for an extended period of time 
11   and do not have unlimited resources.  They are 24/7 
12   operation with everyone onboard having the same goal.  No 
13   one is hired to do one job.  Each position layers into 
14   another position.
15        We would recommend OSHA step back and ask themselves 
16   what they are trying to accomplish with this 
17   lockout/tagout rule and how to best achieve that goal.  
18   We would suggest you work with NPFVOA through the 
19   alliance and address these challenges.  We would suggest 
20   drafting one rule under the 1915.89, and use a current 
21   product as a guide.  Make it simple and effective. 
22        Thank you for your interest in hearing our opinion, 
23   and we look forward to working in the future.
24               ALJ:  Thank you. 
25        Ms. Duz? 
0147
 1               MS. DUZ:  I don't have comments to make.
 2               ALJ:  All right.  Mr. Bohannon?
 3               ETHAN BOHANNON:  My name's Captain Ethan 
 4   Bohannon, and that's spelled B-O-H-A-N-N-O-N. 
 5               ALJ:  Thank you.
 6               MR. BOHANNON:  Good afternoon.  I am 
 7   currently employed by Supreme Alaska Seafoods as their 
 8   port captain.  I'd like to give you a little background 
 9   on myself.
10        I come from a fishing family with a long history in 
11   the maritime and fishing industry.  As such, my father 
12   started taking me to sea at the age of 7.  With the 
13   exception for breaks for education and military service 
14   as a paratrooper, I have been employed in the fishing 
15   industry, towboat industry, deep water industry of the 
16   maritime overall industry to the present day. 
17        I first held the position of captain at the age of 
18   24.  Until then I worked my way up from cook, cabin boy 
19   through the deck department and had two years as an 
20   engineer.  I tell you this only to emphasize the fact 
21   that I am no stranger to the maritime environment, its 
22   various departments and its hazards. 
23        Today I would like to speak of OSHA and the proposed 
24   rules regarding the fishing industry in general, and the 
25   lockout/tagout program specifically.
0148
 1        First, any governing regulation that applies to 
 2   safety and lockout/tagout must be clear, concise and 
 3   consistent.  It must apply to all the departments aboard 
 4   ship equally and without exception. 
 5        I would like to paraphrase or quote Ms. Amy Duz's 
 6   comments at a previous time:  OSHA assumes that fish 
 7   processing equipment onboard vessels is serviced almost 
 8   exclusively by fish processing employees and no others, 
 9   who regularly service ship systems, when, in fact, 
10   processing equipment on the vast majority of the 
11   processing ships is maintained and repaired by the same 
12   engineers that service all the equipment onboard, 
13   unquote.
14        I would also like to paraphrase or quote Mr. Alan 
15   Davis of American Seafood's comments at a previous time.  
16   Quote:  There is a fundamental assumption within OSHA 
17   that the ship's systems and the factory processing 
18   equipment are completely segregated, and so are the 
19   engineers and technicians that are responsible for their 
20   maintenance and repair.  I can testify that this is an 
21   erroneous assumption.  Commercial fishing vessels are the 
22   epitome of a lean organization.  And the smaller the 
23   vessel, the leaner the organization, unquote. 
24        I would like to say that both of these individuals 
25   are absolutely correct in their comments.  All personnel 
0149
 1   onboard ship are sailors first and foremost.  Regardless 
 2   of department, rank or time at sea, all personnel are 
 3   responsible for maintaining the ship.  The term ship 
 4   encompasses her hull, all machinery and its cargo.
 5        Some sailors are more skilled than others, but those 
 6   of less skill will be used as helpers on the same 
 7   machinery or systems.  Furthermore, personnel from 
 8   different departments will be called upon to work in 
 9   other spaces on other machinery, or transferred to other 
10   departments as the needs of the ship dictate.
11        This practice is not exclusive to the fishing 
12   industry, but it is standard and common practice in the 
13   maritime world and has been since the very first ship set 
14   sail.  This applies any time a sailor is under articles 
15   or contract, whether at sea, anchor or pier side.
16        Under the proposed OSHA rules 1910 and 1915, the 
17   ship would have two standards of safety that apply to 
18   different spaces or departments.  As a ship's captain or 
19   master, I cannot endorse this.  I can only speculate that 
20   this was proposed without a full understanding of the 
21   maritime industry.
22        It must be understood that when we have a problem 
23   with the ship's systems or machinery, we don't just leave 
24   the building, go home for the day or call a repairman.  
25   We are there for the duration, and make all repairs 
0150
 1   ourselves and very rarely go to port for repairs.  Rarely 
 2   will a technician be brought out to sea.  And they, too, 
 3   must fall under the same safety standard as the rest of 
 4   the crew while onboard. 
 5        A multi-standard will create confusion.  Any 
 6   standard aboard ship must apply to everyone and at all 
 7   times regardless of location or operation.  Anything 
 8   short of a single standard will increase the chance of 
 9   injury to the individual and jeopardize the safety of the 
10   crew as a whole.
11        This standard must apply to both operations at sea 
12   and be able to transition into shipyard or major repair 
13   periods.  We need one standard that we can adopt to be 
14   used at all times regardless of whether we fall under 
15   OSHA jurisdiction or not. 
16        Lockout/tagout in its most basic and fundamental 
17   form is easy to understand.  If the individual is going 
18   to service, repair or maintain a piece of machinery, can 
19   be injured by its activation during this process, then it 
20   must be physically disabled, and that's all energy 
21   sources, by all individuals involved and in such a manner 
22   that it's obvious to all, regardless of location or 
23   department aboard ship.
24        This is especially important to operations with 
25   multi-shifts of personnel, and any standard must convey 
0151
 1   this in a manner that even the most green individual can 
 2   understand and work with. 
 3        The proposed rule 1910 and 1915 combined as a 
 4   standard will not work for our industry.  For various 
 5   reasons already stated in comments, neither 1910 nor 1915 
 6   on its own will satisfy the needs of our industry.  1915 
 7   properly revised and rewritten with the maritime and 
 8   fishing industry in mind would. 
 9        The question comes up, so how do we come up with a 
10   standard that is effective for the maritime and fishing 
11   industry?  First, I would like to say that the 
12   participants of the fisheries in the North Pacific and 
13   Bering Sea have long been an advocate of safety.  This 
14   became evident in the 1980s when the North Pacific 
15   Fishing Vessel Owner's Association was formed.  I know 
16   so.  My father was a plankholder. 
17        The industry by its own initiative identified safety 
18   concerns and training to combat injuries and loss of life 
19   at sea, many times using NPFVOA as a vehicle for training 
20   and legislation.  Its members and the industry at large 
21   have adopted safety equipment and training long before it 
22   was required by the regulating agencies.  This continues 
23   to this day.
24        I would strongly suggest that OSHA form a committee 
25   that includes assets from our industry.  A representative 
0152
 1   from NPFVOA being one, Ms. Amy Duz being a second, 
 2   Mr. Alan Davis a third, if they are willing.
 3        I have suggested these for the following reasons, 
 4   NPFVOA for their consistency and longevity in the 
 5   industry; Ms. Amy Duz for her unparalleled knowledge of 
 6   maritime safety and compliance.  Her ability to simplify 
 7   in terms that can be understood by all crew members is 
 8   invaluable; and Mr. Alan Davis for his specific knowledge 
 9   of safety in a multi-shift work environment, and 
10   experience in the difficulties of implementing new 
11   standards, both fleet and industry wide.
12        There are others that are well-qualified, but these 
13   three have a knowledge base and have worked well with 
14   each other in the past.  Because of our close working 
15   relationship with our vendors and shipyards, many times 
16   we consider them just the same as crew.  A fourth member 
17   should represent these organizations.
18        So let's say we come up with a standard that is 
19   adequate for our industry.  How do we implement a new 
20   standard in our maritime industry?  First, it must be a 
21   standard that meets the needs of the crew and those that 
22   work on our vessels.
23        Second, it must have the ability to be implemented 
24   by the organization, both in practice and financially.  
25   Implementing a blanket standard without a phase-in period 
0153
 1   will be difficult at best, impossible at worst.  Most of 
 2   our vessels in the North Pacific and Bering Sea are 20 
 3   years or older, some 30 years or older with some being 
 4   built in foreign shipyards.  That being said, a ship is 
 5   an ever evolving process of refit and modification. 
 6        It has been generally regarded in our Government 
 7   that the U.S. Coast Guard is the leading Government 
 8   authority of maritime matters, ships' operations, 
 9   construction and the enforcement of these governing 
10   regulations.
11        May we take a page from their precedence?  When the 
12   Coast Guard makes a new regulation concerning a ship's 
13   system or construction, they make allowances and 
14   exemptions for vessels constructed at an earlier date.  
15   The Coast Guard understands that a ship is integrated 
16   throughout as one unit.  A ship is designed as a whole, 
17   not as a bunch of pieces thrown into one hull. 
18        They further understand that it is not economically 
19   feasible for an organization to remove their vessel from 
20   operational status to modify these basic structures and 
21   those systems at one time to comply with a regulation or 
22   standard that did not exist at the time of construction.  
23   What they do require is that any new construction, system 
24   or machinery added or modified be brought up to standard.
25        As a general example that we can all understand, I 
0154
 1   will attempt to draw a parallel from the housing 
 2   industry.  Could any one of us who own older homes 20 
 3   years or older afford to modify our houses every time 
 4   there's a new or modified building code?  This includes 
 5   construction, electrical and plumbing.
 6        Now, imagine what the financial burden would be if 
 7   our houses were made of steel, constantly on the move, 
 8   and held 200,000 gallons plus of petroleum products.  For 
 9   good measure, let us add a fish processing facility 
10   inside the structure. 
11        Staggering to think of the financial burden this 
12   would entail.  Some may think this is a bit extreme, but 
13   hopefully the point can be understood that this is not 
14   just a matter of buying some generic lockout/tagout 
15   devices and training the crews to use them.  It is far 
16   more reaching and costly than appears on the surface.
17        That's the end of my written comments, but there are 
18   some things that have come up today that I've listened to 
19   that I'd like to comment to also. 
20        Snow and ice:  Our environment is not ideal.  It's 
21   not perfect.  Every sailor in the whole world wishes he 
22   could make his living down on the equator.  It doesn't 
23   happen, no fish down there.  They're all up north.  
24   That's where we make our money.
25        Fish is worth the most in the middle of February in 
0155
 1   the Bering Sea.  It's not a nice place.  We talk about 
 2   walking on docks with some ice on it, quarter inch, half 
 3   inch, three quarters of an inch.
 4        My question to you is all of a sudden I've got a 
 5   boat that I'm bringing in from sea, and it's got six 
 6   inches of ice on it.  Is that extreme? 
 7        My rail is 42 inches.  By what standard and by whose 
 8   standard?  42 inches in a factory in a building that's 
 9   standing still?  Okay.  My vessel, which is The 
10   Excellence, and I'm fully responsible for that boat, was 
11   built in 1973 in Shimonoseki.  The day it was delivered 
12   it was the most state-of-the-art vessel that was going 
13   fishing on the ocean.  It's a pretty neat boat. 
14        It's also probably one of the most stable vessels up 
15   there.  It doesn't move.  This actually creates problems, 
16   believe it or not, because it is so stable.  Many times 
17   throughout the year I can set a coffee cup up on the 
18   counter and expect it not to move. 
19        Unfortunately, this breeds bad seamanship practices.  
20   So every now and then I take and I clear everybody out of 
21   the freezer.  I clear them out where anything can fall on 
22   them.  And I put the boat in the trough, and shake it for 
23   a while and shake it all loose, so that way when I hit 
24   heavy weather it's not unexpected and the boat's ship 
25   shape. 
0156
 1        On my comments here, I very seriously have to put to 
 2   you people, I don't know if you consulted anybody in the 
 3   maritime industry.  I hope you did, but it sure isn't 
 4   evident here, and I hope you will.  We live in a 
 5   different world, but it is very inherent that we seek 
 6   safety. 
 7        As a captain, I'm responsible for my crew, but I am 
 8   wholly as dependent upon them as they are upon me.  If 
 9   something happens when you go to sea with people, they 
10   become brothers and they become sisters.  Even the guy 
11   that only shows up for one trip, when he goes home he'll 
12   never forget the rest of the crew on that boat.  We work 
13   together.  We play together, and we sleep together. 
14        So anything you enact or you do here, please do your 
15   research on this.  There's a lot more to this than just 
16   meets the eye and what you're taking from the general 
17   industry standard and trying to apply it to a ship.  I'd 
18   like to thank you for hearing my comments.  Thank you.
19               ALJ:  Thank you, Mr. Bohannon.  Are there any 
20   questions for the panel from the audience?  All right.  
21   How about from the OSHA panel?
22               MS. SHORTALL:  Your Honor, before we start 
23   asking questions, do any of the three have copies of 
24   their written testimony that they would like to enter 
25   into the record? 
0157
 1               MS. LEE:  I can bring mine tomorrow.
 2               MS. SHORTALL:  You don't have to.  That's 
 3   fine.  You don't have to if you have one. 
 4        Your Honor, I would like to then mark the exhibit 
 5   of Karen Conrad as Exhibit 0172, and the testimony of 
 6   Mr. Bohannon as Exhibit 0173 in the afore-mentioned 
 7   docket.
 8               ALJ:  Thank you.  It so ordered.
 9               MS. SHORTALL:  Thank you.  We'd like to begin 
10   the questioning with Amy Wangdahl.  Amy, feel free to 
11   comment on any of the questions that we ask, but the way 
12   the panel goes is some questions will be specifically 
13   directed to one of the four of you.  Feel free to add 
14   something to talk about your specific company if you feel 
15   it's pertinent. 
16               MS. WANGDAHL:  So, Karen, you talked about 
17   your training program through NPFVOA.  And that's a lot 
18   of people that have come through there, and it's great 
19   that it's voluntary.
20        Do you provide any sort of model programs to the 
21   industry?  Do you help them develop any programs, 
22   specifically lockout/tagout?
23               MS. CONRAD:  Pertaining strictly to OSHA, one 
24   of the things that we do is we do an OSHA compliance 
25   class, and Amy does as our instructor.  So we will do 
0158
 1   that at various times throughout the year, but that 
 2   covers not just lockout/tagout.  That covers a whole 
 3   range of OSHA regulations.
 4        We have in the past when there is a situation or an 
 5   issue where we've had a major injury in the industry 
 6   under lockout/tagout, we've held -- and here, again, Amy 
 7   was our instructor.  We held a total of seven 
 8   lockout/tagout specific classes to cover as many people 
 9   in the industry as we could at that time.
10        So if there's something that comes up that maybe is 
11   a hot point or maybe we see as a trend or even something 
12   that we feel could be a problem, that might be identified 
13   by a regional office or by Scott Ketchum up in Anchorage.  
14   We will hold seminars for our members, or we will hold 
15   classes for the crew.  It just depends what is happening 
16   out there.
17               MS. WANGDAHL:  Okay, great.
18               MS. LEE:  Can I add something, too?
19               MS. WANGDAHL:  Sure.
20               MS. LEE:  The other thing Karen didn't 
21   mention is that with the OSHA alliance they have -- we 
22   did start kicking off a look at the OSHA -- the 
23   lockout/tagout program, so that was started three or four 
24   years ago.  Three years ago? 
25               MS. CONRAD:  It was done in the fall of '06, 
0159
 1   or fall of '05.
 2               MS. LEE:  The fall of '05.
 3               MS. WANGDAHL:  Can you tell us a little bit 
 4   about that.  What do you mean by you kicked off looking 
 5   at --
 6               MS. LEE:  Well, Region 10 came in and talked 
 7   with us about it.  And we had a couple, at least one 
 8   meeting -- you were there -- to discuss what 
 9   lockout/tagout -- Terrill was there, and he told us that 
10   these rules, the 1915 rules were coming down the pike, 
11   and that we should start looking at them and see if we 
12   could apply them to our industry, and at that point we 
13   did start looking at them.
14               MS. WANGDAHL:  What were you doing before 
15   that time? 
16               MS. LEE:  Did we have lockout/tagout?  We had 
17   lockout/tagout, but it wasn't as organized.
18               MS. WANGDAHL:  Was it modelled after 1910?
19               MS. LEE:  In a way, yes.  But again, I can 
20   tell you we can't meet some of the things of 1910.  We 
21   need some broader flexibility in it.
22               MS. WANGDAHL:  What specifically can't you 
23   meet? 
24               MS. LEE:  It's very difficult to meet the 
25   group lockout/tagout, whether it's working on our dock 
0160
 1   side on some of the vessels, or whether it's doing 
 2   cleanups for the processing decks. 
 3        Our vessels -- in fact, we have a vessel that was 
 4   built in 1938, another in 1945.  Some of the breaker 
 5   boxes and isolation points for hydraulics are located in 
 6   other areas.
 7        So it wouldn't make sense to have 10, 15 processors 
 8   trudging someplace else in the vessel to go do a lockout, 
 9   and then come back when we have system experts that can 
10   guarantee they're locked out.  They go back in before 
11   they let people work and make sure everything's secured.  
12   They can push any button, turn any valve they want that 
13   may energize to assure themselves that it is locked out. 
14        And then they let them do their cleanup, do the work 
15   if it's on a dock side maintenance job, do their work.  
16   And then when they come back, get ready to reenergize, it 
17   has to go back to the system expert to reenergize and 
18   redo things.
19               MS. WANGDAHL:  So that's what you're doing 
20   now?  You're relying on the systems expert?
21               MS. LEE:  Yes, we are.
22               MS. WANGDAHL:  And what kind of background or 
23   qualifications does that person have?
24               MS. LEE:  It'll either be an electrician, an 
25   engineer with knowledge of the systems, somewhere along 
0161
 1   those lines.  They know where all the areas are.  And we 
 2   do have things labeled as such, but I really can't ask a 
 3   processor to go out and do that, or a common laborer to 
 4   go out and do that as well that's not familiar with our 
 5   boat if we're doing dock side maintenance.
 6               MS. WANGDAHL:  And they're able to maintain 
 7   control?
 8               MS. LEE:  Yes, they can, absolutely.
 9               MS. WANGDAHL:  Ethan, how about you?  What 
10   are you currently doing right now?
11               MR. BOHANNON:  We have basically a full-blown 
12   lockout/tagout program onboard the boat.
13               MS. WANGDAHL:  And is it modelled after 1910 
14   as well?
15               MR. BOHANNON:  Yes, it is.
16               MS. WANGDAHL:  You said several times that 
17   it's just not meeting your needs.  So what specifically 
18   can you tell us?  Are we too specific?  Is it too 
19   general?  Are there certain things such as the group 
20   lockout that Lurilla was referring to?
21               MR. BOHANNON:  It doesn't take into 
22   consideration the ship's systems.  Some areas you can't 
23   access it.  We have -- electrical is my biggest problem 
24   right now.  I have panels that weren't designed with that 
25   in mind.
0162
 1        When this vessel was designed, it was considered 
 2   adequate enough to shut the breaker off and put a little 
 3   tag or something on it, and everybody was supposed to 
 4   know better.  It's no longer acceptable.
 5        So it won't take a blockout device.  These little 
 6   Brady things -- this is the real interesting thing.  
 7   These little Brady things just can't get through until 
 8   you have time or you're going to change the system out 
 9   and put something more positive in.  They work for the 
10   most part.
11        On a stationary type platform, a factory shore side 
12   where the boat's not rolling and people aren't going to 
13   bump into it, well, you can just defeat those.  Like I 
14   tell the whole crew, these can be defeated.  You know, 
15   it's if I take a breaker and pop it off.
16        There are things -- they destroy the breaker.  After 
17   a while the guys really get them cranked on, because they 
18   don't want anybody accidently hitting it.  Well, pretty 
19   soon it eats through. 
20        Well, the problem is one of my cabinets where the 
21   breakers are you can still open the cabin.  All right, 
22   hmm, okay.  The cabinet's now open, looking back at 
23   everything else. 
24        What about the cabinet that has a breaker inside 
25   that can't be accessed unless you open the cabinet, but 
0163
 1   then you put the Brady lockout on it and you can't open 
 2   the cabinet door.  And I have gotten a violation for 
 3   restricting access to an energy source, because that was 
 4   the only way we could control it. 
 5        So it doesn't meet our needs, all right?  And the 
 6   thing is -- the first thing someone says is, well, can 
 7   you change it?  Yeah, we can change it.  But there's so 
 8   much of this throughout the boat that to do it in one 
 9   blanket-type process -- my biggest one is when I go to 
10   start changing machinery out, breaker panels, the problem 
11   is that space where they're all housed were designed for 
12   that set of breaker panels.  It might not be big enough, 
13   so now I'm cutting into a hull, or I'm cutting into 
14   bulkheads or some sort of -- the problem is all the 
15   wiring goes to it.  So once I get there, where does that 
16   leave me?  Where does that leave us?
17        So as we constantly upgrade the boat, the one 
18   example I'll use now is I'm redoing the back end of my 
19   factory, the last 10 percent of it.  That's where all our 
20   fish are directed and sorted for size and then sent to 
21   the processing.  We put in about a million dollar's worth 
22   of new conveyors.  I think 43 of them in there.
23        We got rid of the electrical and put hydraulic in.  
24   It is the only way within that space -- I mean, I hate 
25   putting hydraulic because of the environmental concerns.  
0164
 1   I'd much rather have the electrons chasing me around a 
 2   little bit than have to get oil in the water because of 
 3   an accident.
 4        But the space won't limit -- it's completely 
 5   limiting me, and every one of those conveyors has to be 
 6   able to be worked on in its own and be completely 
 7   isolated from the rest of the system.
 8        So that leaves little -- they're beautiful little 
 9   ball valves.  They're $90, right?  They're stainless, and 
10   here's the really bad part.  They come with these little 
11   slide lockout things on the handles.  Everybody on the 
12   crew looks at that.  Yeah, it'll be there a couple weeks, 
13   and it's going.  It'll be gone.
14        So now I'm building these $25 little tabs just to 
15   have them built that bolt onto this thing.  So now I've 
16   increased a quarter of the cost of the valve itself so it 
17   positively locks up, but it will be there for the 
18   duration. 
19        And that's basically what we do is we go through the 
20   boat.  We keep this in mind.  I would not be surprised if 
21   this is just a start.  What you guys are proposing is a 
22   start, but make it a foundation that is solid, because I 
23   have a feeling within this industry you're going to see a 
24   standard set. 
25        And we all keep track of each other.  We all know 
0165
 1   each other's injuries or anything that's happened, asking 
 2   how this happened, how'd that happen, what can we do.  
 3   Sometimes what happens is you'll see a big run on this or 
 4   that.  Well, we got to get that. 
 5        All of a sudden we're all jumping in survival suits 
 6   to redo all our training.  Now we're all putting extra 
 7   SCBA tanks onboard and our own Cascade systems.  This is 
 8   stuff not required of us.  Oops, all of a sudden we might 
 9   just need that.
10        So, like I say, whatever you guys do here, put it 
11   real solid, because these -- our needs are -- we're going 
12   to start changing this a little bit on our own.  
13   Remember, our first priority is the safety of the crew, 
14   not compliance. 
15               MS. WANGDAHL:  This might not be a fair 
16   question to ask, but do you think the industry would 
17   prefer a performance-based standard or more specific 
18   requirements where we kind of lay out one, two, three, 
19   this is what you need, or a perform-based standard where 
20   we say this is what you have to do and we leave it up to 
21   you to achieve that?  And anybody can --
22               MR. BOHANNON:  You know, I'm thinking both 
23   ways it could apply, but, you know, I don't -- I have not 
24   looked at this that deep to be able to answer that 
25   professionally, but that's what I pay Ms. Amy Duz for a 
0166
 1   lot of money. 
 2               MS. DUZ:  Could I add something to that?
 3               MS. WANGDAHL:  Sure.
 4               MS. DUZ:  I don't know of any vessel that's 
 5   following 1910 a hundred percent, not even one.  And the 
 6   reasons -- the first reason is probably that they just 
 7   can't physically lock everything out, so it gets more 
 8   complicated.
 9        And like Ethan's saying, he's got a foreign-built 
10   ship, and it's a -- it's really an enormous problem.  And 
11   some vessels it's with a few specific pieces of 
12   equipment, and some vessels it's -- the problem is 
13   throughout the whole vessel.
14        So people are doing the best they can with it, and 
15   trying to use 1910 and trying to make it fit, because 
16   it's really all anyone has it for is a guidelines.
17               MS. WANGDAHL:  So they're basically starting 
18   with 1910, but then altering it for their specific vessel 
19   or situation?
20               MS. DUZ:  Right.  They try to use 1910 until 
21   they get to the point where, oh, it won't work here.  Now 
22   what?  And that happens I think on every vessel in this 
23   industry.
24        The other thing is the remote location that Lurilla 
25   spoke of particularly, and Ethan also.  A lot of these 
0167
 1   panels are in authorized personnel only areas, and then 
 2   it creates a situation where you do group blackouts where 
 3   you have an expert employee doing it anyway, but there is 
 4   a lot of confusion and a lot of people working in a tight 
 5   space around the lockout box and the tracking of those 
 6   people when you're running three shifts 24 hours a day.  
 7   That might make things more hazardous, so there's some 
 8   challenges there.
 9        Also, with the 1910 approach, 1910 is pretty basic.  
10   It's got that large compliance directive now attached to 
11   it, and it has these letters of interpretation that have 
12   evolved over time.  And a lot of those situations that 
13   were considered, were certainly considered related to 
14   buildings and not ships.  And so some of those are 
15   valuable for guidance, and some of them are worthless.  
16   So I think those are the primary challenges applying 
17   1910.
18               MS. WANGDAHL:  Okay, great.  Ethan, do you 
19   also rely on a systems expert similar to Lurilla?  I know 
20   you were talking about that everybody on your vessel work 
21   in different departments.  Your fundamental function is 
22   that everybody maintains the vessel, so --
23               MR. BOHANNON:  Define expert.  A safety 
24   officer?  Yes, our second mate's a safety officer if 
25   that's what you had meant.  But I mean as far as him 
0168
 1   being an expert on a ship's system, him specifically?  
 2   He's got, what, 45 years in the fishing industry, been up 
 3   and down, top to bottom on boats, rebuilt engines and 
 4   everything else. 
 5        I would say that, yes.  But on that specific boat?  
 6   The chief or the electrician.  Yeah, the chief's going to 
 7   tell me to go to hell if I don't -- if they don't think 
 8   it's right.
 9               MS. WANGDAHL:  Okay.  I'm sorry, where did 
10   you say your vessel was built?
11               MR. BOHANNON:  Shimonoseki, Japan.
12               MS. WANGDAHL:  So what types of problems have 
13   you run into when it's sent for repair?  Is there certain 
14   equipment that you can't obtain, or do you run into any 
15   problems just because it is a foreign vessel?
16               MR. BOHANNON:  Man, my custom-built parts 
17   cost a lot.  Everything's metric.  Most of it quit being 
18   built years and years ago.  Thank God it was all built 
19   twice the size it needed to be. 
20        But, no, I'm getting ready to start a $200,000 
21   custom run on getting some shafts for my crane.  We're 
22   going to build about 30 of them for the hell of it.
23               MS. DUZ:  Amy, one last thing.  What a lot of 
24   vessels have done are trying to manufacture their own 
25   hasps or obtaining hasps from an electrical distributor 
0169
 1   or some way something can accept a lock on the breaker 
 2   panel.
 3        Of course, there's a letter of interpretation that 
 4   OSHA has issued prohibiting that, because then the panel 
 5   isn't UL listed.  And the UL listing, of course with the 
 6   jurisdiction, that probably isn't a factor on boats, but 
 7   it's one of the things that might be an unintended 
 8   consequence when you make -- when you have people 
 9   building things in order to get them to accept a lock.
10        Also, you have concerns will the breaker still trip 
11   if there's an overload?  If there's something there that 
12   that's not being used for lockout, the breaker's in the 
13   on position, but the ship moves, swings, it falls into 
14   place and now the breaker handle won't operate as 
15   designed and we have a fire.
16        So there's some unintended things like that that 
17   make this complicated.
18               MS. WANGDAHL:  What other piece of equipment 
19   besides breakers cannot accept locks?
20               MS. DUZ:  I would say most of the hydraulic 
21   valve handles and most of the ships.  Is that a fair 
22   statement?
23               MR. BOHANNON:  All valves are a real problem.
24               MS. DUZ:  Of course, you can do a globe valve 
25   with a chain and that kind of thing.  What else?
0170
 1               MR. BOHANNON:  But even a globe valve can be 
 2   partially turned with a chain on it.
 3               MS. DUZ:  Oh, the other thing that is very 
 4   difficult is OSHA spent some time talking about like a 
 5   double block and bleed instead of just locking out a 
 6   valve.  That is not very attainable. 
 7        To find a bleed point in the line that you've double 
 8   blocked or have enough isolation valves where you can 
 9   block out two, you'd have to have a gauge port or a 
10   little quarter-inch Henry or something in that line in 
11   order to do the bleed. 
12        And also to pull a flange apart unnecessarily, 
13   you're getting sometimes into refrigeration systems that 
14   can have hazardous chemicals, and perhaps a double block 
15   and bleed strategy would make it more dangerous than just 
16   merely locking out the valve and getting it -- you know, 
17   being prepared before you do that and getting the work 
18   done as quickly as possible to get it back on line.
19        So that's another thing is if it's applied to 
20   vessels, I just think it isn't going to happen.
21               MS. WANGDAHL:  Lurilla, are you using tags at 
22   all?
23               MS. LEE:  Yes, we do.
24               MS. WANGDAHL:  In what sort of situations?
25               MS. LEE:  It would be similar to what was 
0171
 1   discussed earlier today on a breaker that -- I'm even 
 2   seeing in all valves that aren't supposed to be open 
 3   they'll tag it out.  Do they remove the valve handle?  I 
 4   haven't seen that happen.
 5               MS. WANGDAHL:  So they're not necessarily 
 6   taking an additional step?
 7               MS. LEE:  Right. 
 8               MS. WANGDAHL:  It's just the tag instead of 
 9   the lock?
10               MS. LEE:  It's just the tag.
11               MS. WANGDAHL:  Okay.  I know that in Amy's 
12   comments, and I think they also came out in Lurilla's, 
13   you talk about the complexity and just the challenges of 
14   the industry. 
15        Can you elaborate on that just a little bit about 
16   why this industry is just so much more complex, and then 
17   how we can address that?
18               MS. LEE:  You're talking about vessels?
19               MS. WANGDAHL:  Mm-hmm.
20               MS. WATSON:  Let's see, for example, with the 
21   systems onboard a vessel you may have various different 
22   aspects of whether it's processing or power supply to 
23   somewhere, a separate area.  It may all come into the 
24   same breaker box, for example, or a line may supply more 
25   than one piece of equipment from a breaker.  That's part 
0172
 1   of the complexities of it. 
 2        The systems themselves -- a ship is made to throw 
 3   the lines off from the dock, and it's basically like a 
 4   city in and of itself or a town in and of itself.  You 
 5   have everything from sewer systems, hotel services, which 
 6   includes that, propulsion systems, steering systems, 
 7   communication systems, all this in one place, and all 
 8   intertwined some way somehow through your engineering 
 9   department, auxiliary and parts departments supporting.
10        So it's not as simple as having a building, for 
11   example, that's producing something, and their power's 
12   coming in from the city supply or things like that, 
13   water's coming in from the municipal supply all in and of 
14   itself, so it's a very different thing.
15               MS. WANGDAHL:  Okay.  Thank you. 
16        In the processing vessels, all of that equipment is 
17   hard wired into the vessels?
18               MS. LEE:  Yes.
19               MS. WANGDAHL:  So it would be considered ship 
20   systems?
21               MS. LEE:  Yes.
22               MS. WANGDAHL:  What kind of changes are made 
23   because of the change in the seasons?  Do you change the 
24   equipment at all? 
25               MS. LEE:  On some of our vessels, yes.
0173
 1               MS. WANGDAHL:  Can you give some examples?
 2               MS. LEE:  We may change out from processing 
 3   -- I don't think on any of ours we take everything out, 
 4   but we can take components out.  We shift from processing 
 5   crab over to processing cod, for example, or we shift 
 6   from doing herring over to processing salmon.
 7               MS. WANGDAHL:  And you're just taking out one 
 8   portion?
 9               MS. LEE:  One portion, but usually whatever 
10   is supplying it, whether it was electricity and/or 
11   hydraulics, that'll plug into something else.
12               MS. WANGDAHL:  Okay.  What types of injuries 
13   are you seeing? 
14               MS. LEE:  On the vessels? 
15               MS. WANGDAHL:  Mm-hmm.
16               MS. LEE:  It varies, various.
17               MS. WANGDAHL:  There's not anything --
18               MS. LEE:  We have no trending.  Trust me, our 
19   insurance company would love to find out more, but I can 
20   tell you we have no trending.  I can talk more to our 
21   ship maintenance side.  And most of those, what we're 
22   seeing, which is a very low number, we're still seeing 
23   strains are the biggest things we see.
24               MS. WANGDAHL:  And is that in dock side?
25               MS. LEE:  Yes, the dock side maintenance 
0174
 1   side.
 2               MS. WANGDAHL:  Okay.  Ethan, are you seeing 
 3   any trends?
 4               MR. BOHANNON:  No trends to speak of.
 5               MS. WANGDAHL:  Have you had any accidents 
 6   related to hazardous energy control?
 7               MS. LEE:  Not that I can recall.
 8               MS. CONRAD:  I was the HR manager for two 
 9   different fishing companies on a boat that carries 128 
10   people, and the other one carries 150, and for the last 
11   10 years I have not had a hazardous energy injury on 
12   either one.
13               MS. WANGDAHL:  Great.  That's everything I 
14   have.  Thank you all very much.
15               MS. SHORTALL:  All right.  Mr. Daddura has 
16   questions next.
17               MR. DADDURA:  Good to see you again, Amy.
18               MS. DUZ:  Good to see you, too.
19               MR. DADDURA:  The question is about the 
20   training program that you conducted, the lockout and 
21   tagout.  Do you still have that material?
22               MS. DUZ:  Yes.
23               MR. DADDURA:  Can you supply it to us with 
24   your written comments, please?
25               MS. LEE:  That should be all right.
0175
 1               MS. DUZ:  Yeah, no problem.
 2               MR. DADDURA:  Okay.  Thank you. 
 3        Captain Bohannon, I sympathize with your issues and 
 4   your problems, and you have my condolences when the 
 5   accident happened.
 6        Prior to that accident, what type of lockout and 
 7   tagout program did you have?
 8               MR. BOHANNON:  Which accident are we 
 9   referring to?
10               MR. DADDURA:  The one where the lady got 
11   caught.
12               MR. BOHANNON:  You mean Ms. Rosenbart? 
13               MR. DADDURA:  Yes.
14               MR. BOHANNON:  Okay.  We had a 1910 program 
15   going.
16               MR. DADDURA:  And after the accident?
17               MR. BOHANNON:  A full 1910 program going.  
18   Before it was a tagout program.
19               MR. DADDURA:  Okay.  Thank you. 
20        Is the program on your vessel the same throughout 
21   the company, the entire fleet?
22               MR. BOHANNON:  Yes, it is.
23               MR. DADDURA:  Okay.  Could you please provide 
24   that to us, your written comments? 
25               MR. BOHANNON:  Amy?
0176
 1               MS. DUZ:  Okay.
 2               MR. DADDURA:  Thank you. 
 3        What's the size of your vessel?
 4               MR. BOHANNON:  374 feet.
 5               MR. DADDURA:  How many people do you employ?
 6               MR. BOHANNON:  Anywhere from 96 to 147 
 7   onboard.
 8               MR. DADDURA:  Does that depend on what season 
 9   or what your catch is?
10               MR. BOHANNON:  Mostly, yes.  Part of the 
11   season we run heavy because of roe.
12               MR. DADDURA:  Okay.  You mentioned about a 
13   phase-in period that we put our standard out.  We don't 
14   expect you to change everything. 
15        What do you think a good phase-in period would be 
16   for a vessel of your type?
17               MR. BOHANNON:  On an actual program, the 
18   program itself without machinery changes or changes in 
19   the ship's construction, we could probably implement it 
20   in a couple of years as far as lockout/tagout goes.
21        Now, remember, it's easy to comply.  It's real easy 
22   to comply, but to comply with the intent for safety is 
23   the difficult part and work all the little bugs out.
24        I can throw a breaker switch on anything.  I can 
25   throw a little piece of plastic on a valve with a little 
0177
 1   pinch deal on it and a lock, but, you know, you're 
 2   talking about putting it in a maritime environment, all 
 3   this stuff. 
 4        You talk about tags with a 40-pound pull on it, all 
 5   right?  The wiring is 40 pound, but it's still black 
 6   iron.  How long do you think it takes for salt to eat 
 7   that down to a 10-pound pull?
 8               MR. DADDURA:  Good point.  Doing your 
 9   maintenance, say, electrical, focus on electrical or any 
10   hydraulic or pneumatic or whatever, do your employees 
11   when they're performing a maintenance, do they test 
12   before they actually go?
13               MR. BOHANNON:  Oh, absolutely.
14               MR. DADDURA:  So there's a requirement that 
15   your company requires them to test to make sure the 
16   electricity's still killed or hydraulic is still secure? 
17               MR. BOHANNON:  When I'm sailing as captain it 
18   is not uncommon for me to go kick everybody off a piece 
19   of machinery and start pushing buttons.
20               MR. DADDURA:  Okay.  Thank you.  That's all I 
21   have.
22               MS. SHORTALL:  Ms. Watson will ask questions 
23   next.
24               MS. WATSON:  Hi, I just have a few questions.  
25   The first one is for Lurilla.  You had mentioned, and 
0178
 1   just as we heard from other people's testimony, that a 
 2   lot of the fish processing equipment is hard wired.  And 
 3   then you had mentioned with the different seasons 
 4   changing out certain things.  I just want to make sure I 
 5   understood.
 6        It's the same processing equipment, but do you 
 7   change out the actual attachments, or are you actually 
 8   taking out this equipment that's hard wired and putting 
 9   something else in place?  And if so, how is that done? 
10               MS. LEE:  Well, they can unwire it just as 
11   easy as they can wire it in.  So, yeah, they can take and 
12   unplug it or unwire and rewire at the location right 
13   there in the machine.
14               MS. WATSON:  And that's the common practice 
15   usually?
16               MS. LEE:  That can be.  We do have some that 
17   -- like, for example, we have -- on some of the decks 
18   we're processing roe.  We do have where we'll plug in for 
19   those, because there are temporary shelters of that on 
20   the other decks.
21               MS. WATSON:  And my second question is just 
22   for the whole panel.  As part of your lockout/tagout 
23   program, do you have some sort of documentation for 
24   hanging and removing tags or placing locks?  Is there 
25   some sort of lockout/tagout log like a lot of the Navy 
0179
 1   vessels use, or is it just kind of, oh, we have to hang 
 2   this tag to provide repairs? 
 3               MS. LEE:  We have logs.
 4               MS. WATSON:  Is that for all?
 5               MS. LEE:  I can't say it's for across to our 
 6   smaller vessels, but our larger vessels do have 
 7   lockout/tagout logs.
 8               MS. DUZ:  I generally discourage the use of a 
 9   log, because it places the reliance on the paperwork, 
10   that someone's going to look at the piece of paper to 
11   find out what's going on instead of putting the resources 
12   to making sure the equipment is really locked out and 
13   being able to see it right when you walk up that there's 
14   a tag on it.  It has someone's name on it.  It's firmly 
15   attached.  The equipment they're actually working on is 
16   locked out.
17        So I see sometimes when there's logs it can be 
18   useful to the engineer to know where the locks have gone 
19   and what his people are working on. 
20        And I've also seen logs used in factory work where 
21   they've adopted that 1910 kind of interpretation 
22   compliance thing where they use a sign-in/sign-out log 
23   instead of using physical locks.
24        But in general it creates a lot of paperwork.  For 
25   instance, maybe a factory trawler will have 150 pieces of 
0180
 1   equipment, and they clean it every -- they do a thorough 
 2   cleanup where they lock things out every maybe 10 days 
 3   and you have a hundred people working on it.  The 
 4   paperwork ends up standing in the way of safety in those 
 5   instances.
 6               MS. LEE:  And maybe I should clarify.  We 
 7   don't do it in that type of detail.  The lockout/tagout 
 8   happens as it's supposed to physically, but then the log 
 9   that this has been locked out, tagged out is not signed 
10   off by every person.
11               MS. WATSON:  So there's usually like one 
12   person that signs off and says, yes, you can hang a tag 
13   or --
14               MS. LEE:  No, it doesn't work that way, just 
15   that -- just as a log of what has been locked out and 
16   tagged out.  Does that make sense?
17               MS. WATSON:  Yes.  That's all I had.  Thank 
18   you.
19               MS. SHORTALL:  Mr. Bolon will ask questions 
20   now.
21               MR. BOLON:  Captain Bohannon, you said that 
22   you had a tag system, and then you'd moved to a more full 
23   general industry process.  And I guess that means that 
24   you are locking where you can?
25               MR. BOHANNON:  Yeah.
0181
 1               MR. BOLON:  And where you tag, do you take 
 2   extra isolation steps where you can?
 3               MR. BOHANNON:  Where we can, yes.  There's a 
 4   fundamental flaw we've noticed here, okay?  
 5   Lockout/tagout, the term lockout/tagout, you use that as 
 6   a blanket term.  It's lockout/tagout.  It is a false 
 7   sense of security.
 8               MR. BOLON:  You mean the lock is?
 9               MR. BOHANNON:  No, lockout/tagout.  If you're 
10   using just tagout, it still falls under the 
11   lockout/tagout program.  It's a false sense of security.  
12   Everybody thinks it's locked down.  It's not.  There's 
13   not a physical means on it.
14               MR. BOLON:  I have a question for Ms. Lee.  
15   You had described that you have a fair amount of dock 
16   space where you work on your vessels. 
17        Is that true of a lot of fish processors that have 
18   vessels that they'll also have dock space where they come 
19   in and work on their vessels? 
20               MS. LEE:  Well, I've only worked for Trident 
21   Seafoods, so I really can't address what the other folks 
22   do.  I know some work where they tie up, so whether they 
23   own it or not, but they do work on their own vessels.
24               MR. BOLON:  And, Ms. Conrad, how many members 
25   of NPFVOA have lockout/tagout programs?  Do they all 
0182
 1   pretty much or most?
 2               MS. CONRAD:  Well, we have 217 vessel 
 3   members, and we hope that all of them have a 
 4   lockout/tagout of some sort.  They all receive the 
 5   information from us.  They all have been invited to 
 6   seminars, and the majority of all the factory trawlers 
 7   have been to either an OSHA compliance class or one of 
 8   the lockout/tagout classes.
 9               MR. BOLON:  And, Ms. Duz, I was going back 
10   over the testimony in DC, and you were describing a 
11   tagout program as a multi-step thing, which included 
12   disabling, and then testing and then tagging. 
13        If disabling just consists of closing a valve or 
14   flipping a breaker, does that constitute disabling for 
15   you?
16               MS. DUZ:  It doesn't to me, but it -- I think 
17   that lockout/tagout is commonly misunderstood in the 
18   industry or it was.  In recent years it's gotten better  
19   to where people thought it just meant turning off the 
20   breaker and putting a tag on it or closing a valve and 
21   putting a tag on.
22        I think the 1910 standard does an incredibly poor 
23   job at communicating that there has to be another step.  
24   So what I would really suggest is renaming the standard.  
25   Of course, this is a big global comment that's beyond 
0183
 1   probably the scope of all of us, but I think it should be 
 2   lockout or disable, test out and tag. 
 3        It should be -- it should say in the standard -- 
 4   like Ethan was saying, you get this false sense of 
 5   security like you're doing everything.  Oh, we have a 
 6   lockout/tagout program, and you're going to get that from 
 7   shipyards.  We have a lockout/tagout program.
 8        But when you really dig in and you see do they 
 9   really understand what lockout/tagout means the way you 
10   think it -- the way that it's commonly accepted by safety 
11   professionals to mean, they don't.  They think it means 
12   put a lock on it or put a tag on it.  So that naming 
13   right there I think is actually hazardous.
14               MR. BOLON:  In your course work when you 
15   train on lockout and tagout programs, do you advocate 
16   always if they tag that there's an extra isolation step 
17   where it's possible?
18               MS. DUZ:  Yes, and every time I recommend 
19   that and I say that that's part of the 1910 standard, I 
20   look at the room and I feel sorry for everyone, because I 
21   know that they can't -- with their system they can't 
22   actually do it very easily. 
23        So I know that that leads them to go back and face a 
24   conundrum on their vessel.  Okay.  This won't accept a 
25   lock.  Now what?  Are we going to open up a 480-volt 
0184
 1   panel and start pulling wires and exposing people to the 
 2   live bus?  What is the next step? 
 3        And certainly we're not going to do that without the 
 4   use of an expert employee, and to do that in a cleanup 
 5   situation is for all practical purposes impossible.
 6        So, yes, I think that -- I tell everyone that.  I 
 7   think people understand that.  Some people understand it 
 8   well, and we're all left with a little bit of a problem 
 9   in really trying to apply it.
10               MR. BOLON:  Thanks.  Also, in DC we talked 
11   about the NSRP report.  And I looked at it again 
12   recently, and I realized in its recommendations for an 
13   effective program it really advocates tags, tags alone 
14   without the extra step. 
15        But we would say that's really not sufficient, that 
16   is, where you can take the extra step and isolate -- 
17   disconnect the wiring junction box beyond a breaker or 
18   whatever, that that's really necessary. 
19               MS. DUZ:  I don't know without looking at it 
20   globally.  I think that we -- it's a difficult situation 
21   that needs a lot of study in this industry to come up 
22   with something good. 
23        I'm more comfortable if I was working on it if it 
24   was padlocked than if it just had a tag.  I'm certain 
25   about that.  However, if my other option was opening up 
0185
 1   the panel and pulling the wirings, then I would get more 
 2   comfortable with the tag rather quickly.
 3        So it's just kind of all what's in the realm of 
 4   possibility.  And I wish I could give you an easy answer 
 5   and say, hey, this would really solve that.  I think we 
 6   have to effectively disconnect the energy.  We have to 
 7   effectively do that.
 8        And there may be a form of tagout with some 
 9   authorization and maybe some authorized areas and some 
10   other things where you'd be pretty sure none would run 
11   into the breaker handle and turn it on while you were in 
12   it.
13        I myself was almost involved in an accident in a 
14   shore facility where the equipment was supposed to be 
15   locked out by an engineer, and it had been every day for 
16   nine months.  And when I went to clean the piece of 
17   equipment, the electronic eye activated the cutter blade.  
18   And I was lucky enough to pull my fingers out in time, 
19   because the engineer got busy that night.
20        So you know of thousands of those stories.  So those 
21   are all things to consider.  And the shipyards -- from 
22   what I heard in DC, some of the shipyards in the Navy 
23   have spent decades working out lockout procedures, and 
24   I'd be very interested in studying what they're doing to 
25   try to apply it.
0186
 1               MR. BOLON:  There's a case where you really 
 2   should say tagout.
 3               MS. DUZ:  Okay.  Yeah, and maybe it's 
 4   working.  I know that when OSHA included tagout as a 
 5   possibility in the original lockout/tagout standard, of 
 6   course, it's not preferred, but there were some companies 
 7   where it was actually working.  And I think we really 
 8   have to boil down where it's working and try to find out 
 9   what it is and apply it here, too.  I have a general 
10   preference for locks, but I realize they can't always be 
11   used.
12               MR. BOLON:  Thank you.
13               MS. DUZ:  Can I be allowed one comment, 
14   Mr. Bolon, about a question you asked earlier?  It'd be 
15   short.
16               MR. BOLON:  Sure.
17               MS. DUZ:  The question was about the shipyard 
18   standard.  When people say, for instance, if a 
19   housekeeper slips on ice or something like that in 
20   clearing the docks when people are working on them, 
21   off-loading, there are issues that we're not maintenance 
22   employees, and this is a shipyard hearing.
23        But I think the reason that you're getting the 
24   confusion or the reason that keeps coming up is because 
25   the next person to go up the ladder is the engineer doing 
0187
 1   maintenance.  So even though -- or the next person to 
 2   walk across the dock is the engineer doing maintenance.
 3        So what we're getting is even though examples are of 
 4   housekeepers and those kinds of things, the engineers and 
 5   the people doing repair are traversing the same area, so 
 6   then we get sideswiped by the shipyard standard, even 
 7   though it's kind of a fringe element for you, because you 
 8   don't want to spend too much time studying the fishing 
 9   industry because it barely swipes them. 
10        But for us, basically we get pulled in on the fringe 
11   of the regulation.  We're not fully considered or fully 
12   understood, and we get sued.  And then all of the regs 
13   that have that we pull from 1910, 1918 and 1915 don't 
14   really address our hazards very well either.
15        So you're getting a frustration from that, and 
16   that's why, and also these regs do affect the vessels 
17   just by the nature of the maintenance personnel walking 
18   around.  Thank you. 
19               MS. WATSON:  I'll follow up real quick.
20               MS. SHORTALL:  You have another question?
21               MS. WATSON:  No.  I just want to follow up.
22               MS. SHORTALL:  All right.
23               MS. WATSON:  When I was getting at the logs 
24   before, what I was trying to get to was what happens when 
25   you guys are just using tags?  If it falls off, how do 
0188
 1   you ensure that somebody is not energizing, going to 
 2   energize a piece of equipment?  That's just what I was 
 3   getting at.  So if somebody can -- can you answer that?
 4               MS. LEE:  I can't answer that.
 5               MS. WATSON:  Okay.
 6               MS. DUZ:  The logs usually aren't used just 
 7   for tagging.
 8               MS. WATSON:  Right.  I understand that, 
 9   but --
10               MS. DUZ:  So the tag wouldn't fall off, 
11   because it's actually locked.  The logs are really used 
12   for the engineer to see what equipment's being worked on, 
13   for the chief engineer to see what equipment's being 
14   worked on and who's working on what, would you say? 
15        And so if you're using tagout, it could still fall 
16   off.  In fact, I don't know if you would -- would you 
17   lock tagout?  That would probably be locked, too, if it 
18   was just a tagout? 
19               MS. LEE:  Yes.
20               MS. DUZ:  So it's not -- if someone came 
21   along and there was no tag on the breaker, they could 
22   still operate it.  They might not necessarily go to look 
23   for the log.  If you saw a breaker, you wouldn't think, 
24   oh, I'm going to go look at the log before I turn it on 
25   to make sure it's not being worked on.
0189
 1               MS. WATSON:  Right, I understand.  I just 
 2   wanted to make sure to see if there was any provision in 
 3   place for that in case it falls off.  Okay, that's it.  
 4   Thank you.
 5               MS. SHORTALL:  Ms. Brinkerhoff has questions 
 6   now.
 7               MS. BRINKERHOFF:  Ms. Duz, I think I heard 
 8   you say that when you talk about tags plus when you're 
 9   giving a talk to people in the industry that you feel 
10   sorry for them, because you think that they can't comply 
11   with tags plus and their equipment won't allow them to 
12   take the extra step.  Did I hear that correctly?
13               MS. DUZ:  No.  I meant just the 1910 part 
14   where you would lock out.  They can't comply.  They can't 
15   lock out everything on a ship.  And if they can't lock it 
16   out, the requirement is that they not only tag it, but 
17   they disable it.  They physically disable it somehow, and 
18   that's where I think they can't practically comply.
19        Now, with tags plus, I don't really know what tags 
20   plus is, so I can't address that.
21               MS. BRINKERHOFF:  All right.  Also, when you 
22   were testifying in DC, you talked about -- I think you 
23   were talking about kind of the complexity of Appendix A, 
24   the typical minimum lockout procedures.  And I think that 
25   you discussed your own system of training people for 
0190
 1   lockout/tagout or controlling hazardous energy, and you 
 2   spoke about some spreadsheets that you put together that 
 3   are simple to understand for the people who were actually 
 4   going to be doing it.
 5               MS. DUZ:  Yes.
 6               MS. BRINKERHOFF:  And I'm hoping that you 
 7   might be willing to submit some of those to us as part of 
 8   your post-hearing comments.
 9               MS. DUZ:  Sure.  I'll submit a generic set.  
10   I identified both.
11               MS. BRINKERHOFF:  Okay.  That would be great.  
12   Thank you.
13        Also in your DC testimony, you discussed essential 
14   elements that are the foundation of a hazardous energy 
15   control system.  And one of the things you talked about, 
16   one of the elements was a permit system for complex 
17   tasks.  Can you describe that? 
18               MS. DUZ:  In the NSRP report, one of the 
19   common themes that the vast majority of the shipyards who 
20   participated in the report or in that survey, one of the 
21   things that they did across the shipyards was to have a 
22   type of permitting system where basically if the job is 
23   complex and you're going to lock out multiple systems, 
24   you would have a permit, which would be similar to a hot 
25   work permit that you would go through to make sure 
0191
 1   everything is secured.
 2        And perhaps you could hang the permit in the area of 
 3   the job while you're in the shipyard that would list what 
 4   has been secured, and who's in charge of that procedure 
 5   and that type of thing. 
 6        And I think that that is as protective or even more 
 7   proactive, because it's on the front end of the procedure 
 8   and then allows you to do the analysis preprocedure than 
 9   just doing a log that says this is locked out or just 
10   putting a bunch of locks on it.
11               MS. BRINKERHOFF:  Okay.  And that's part of 
12   the tiered approach that I think several of you referred 
13   to described in the National Shipbuilding Research 
14   Program report where they have the system expert, and 
15   there are several levels of people, depending on the 
16   complexity of the system.
17        Is it possible to kind of draft a generic program 
18   based on having a tiered system that's going to be 
19   appropriate for all sizes of vessels? 
20               MS. DUZ:  You mean the vessel would have to 
21   use a generic program, or like a generic form that would 
22   be a permit?
23               MS. BRINKERHOFF:  Well, just some sort of -- 
24   no.  I mean a lockout or tagout or energy control program 
25   that's going to be kind of adoptable by smaller vessels 
0192
 1   as well as larger vessels.  I know that the one size fits 
 2   all approach, several of you have expressed concerns 
 3   about that.
 4        So does that mean a better approach would be to have 
 5   two different lockout/tagout programs or three depending 
 6   on the size of the vessel, like smaller vessels would 
 7   have a certain program?
 8               MS. DUZ:  Well, I have a general -- 
 9   personally, only speaking on behalf of myself, I have a 
10   general preference for locks.  However, if the procedure 
11   is complicated, and I'm thinking particularly about 
12   factory cleanup on a factory trawler, we have a lot of 
13   people involved, and there may be a lot of different 
14   energy sources that have to be restrained.
15        It seems to me that a person could come up with a 
16   permit for that vessel that lists all of the equipment 
17   that is -- that needs to be secured during a cleanup, 
18   make sure a specialized employee does the securing, and 
19   maybe have a double check of another person who comes 
20   along and visually verifies that each thing has been 
21   secured, and then people are allowed to work on the 
22   equipment.
23        Of course, they're allowed to test it, and then 
24   maybe that's even part of the procedures where people 
25   test it, go through the factory and then say, okay, we're 
0193
 1   cleared to work.  And at the end of the cleanup period 
 2   say, okay, we're done.  And there's some signal or some 
 3   sweep that's done through the factory. 
 4        You know, going through this process, I have a lot 
 5   of ideas about how to handle that.  None of them are -- I 
 6   could say, oh, we're ready to roll this out, and this 
 7   would work for everyone, because basically we'd have to 
 8   hear from a lot of people to see where the pitfalls were 
 9   in it.
10        But something like that seems to be more safe than 
11   having every processor in rain gear, who's been up 16 
12   hours a day, running around with a lock.  You see the 
13   challenges with that. 
14        So I'm interested in that permit process for complex 
15   procedures like a ship cleanup.
16               MS. BRINKERHOFF:  But on a small ship, too?  
17   I'm thinking about a vessel that has three or four or 
18   five crew members.
19               MS. DUZ:  On a small ship also there could be 
20   a provision where -- I think there's probably some ways 
21   to control hazardous energy that could be effective that 
22   aren't like the 1910 standard where maybe there is a 
23   permit, and it's at the engine room door on a very small 
24   ship.  And it says this is the equipment that's secured, 
25   and that equipment is locked or tagged, and everyone's 
0194
 1   trained not to touch any of it, and contractors are 
 2   trained that that's what the process is.
 3        And so there could be some security I think on 
 4   smaller vessels, too, with the permit system when they're 
 5   in a yard or when they're doing major repairs.  I think 
 6   for repairs of individual equipment or kind of repairs on 
 7   the fly or here and there things a lock would be better 
 8   than doing paperwork, you know, making the procedure 
 9   simple, but these complex ones of a permit system maybe 
10   could work if we could work out the details.
11               MS. BRINKERHOFF:  Thank you.  I don't have 
12   any other questions.
13               MS. SHORTALL:  I have very few questions.
14        Ms. Lee, I wanted to ask you a couple questions 
15   about your written testimony.  In your written testimony 
16   you said that your maintenance facilities and your 
17   vessels have trained first aid, CPR personnel, and you do 
18   refresher training approximately every two years.
19        How many persons on each vessel do you tend to have 
20   trained to provide CPR and first aid?
21               MS. LEE:  Well, on the vessels we follow 
22   Coast Guard rules, because they dictate what we have to 
23   have.  We probably have more than what the minimum 
24   standard is set by the Coast Guard.  Usually our primary 
25   -- of course, our captain's mates.  We try to get our 
0195
 1   engineers, our licensed engineers into it.  And then we 
 2   also try to get it down to the level of some of the leads 
 3   that work on the processing deck.
 4               MS. SHORTALL:  And why do you feel that it is 
 5   so important for you to have more than the minimum number 
 6   that the Coast Guard said need to be trained?  As I 
 7   recall, their requirements include things like the number 
 8   of personnel on, but it also sort of stops at one point.
 9               MS. LEE:  Yes, it does.  It stops at four, 
10   probably just through the shear number.  So if we have 
11   something happen, somebody cuts themselves, for example, 
12   on a processing line or working down in the engine room, 
13   it's nice to have somebody locally that can take initial 
14   proper steps, but it's just something that we like to do 
15   in our company.  That might not work for everyone, but 
16   that works for us.
17               MS. SHORTALL:  And by doing this, what is 
18   your general response time able to be by having the 
19   additional persons trained in CPR on your vessels?
20               MS. LEE:  Well, you know, I don't -- other 
21   than having somebody right there at the moment, none of 
22   our vessels are so large that we can't get somebody to 
23   them within -- you know, definitely within five minutes 
24   or less.  I mean, none of our vessels are that large.
25               MS. SHORTALL:  And do your vessels also have 
0196
 1   AEDs onboard?
 2               MS. LEE:  Yes, they do.
 3               MS. SHORTALL:  Just one per vessel?  Several 
 4   per vessel?
 5               MS. LEE:  It's one per vessel.  That's all we 
 6   have.
 7               MS. SHORTALL:  Okay.  And where is that 
 8   usually located?
 9               MS. LEE:  It's usually located -- it's either 
10   going to be located in the medic's office or up on the 
11   bridge.
12               MS. SHORTALL:  Up on the bridge?  All right. 
13        You also had some concerns about the quick 
14   drenching/flushing provision that was in the standard, 
15   especially our proposed definition of hazardous or toxic 
16   substances as indicated when you'd need to provide that.
17        We had an interesting comment come in from another 
18   company that does actually provide quick drenching 
19   facilities for broader than corrosives, because we 
20   understand people can have acute and a serious injury, 
21   permanent damage occurring by other than corrosives.
22        If we were to change the language to indicate 
23   something more towards that element, you must have quick 
24   drenching when there is a potential for someone to be 
25   splashed or something that could cause immediate, 
0197
 1   serious, permanent damage, would that help to address 
 2   part of your concerns?
 3               MS. LEE:  Yes, it would be.
 4               MS. SHORTALL:  What about for you, 
 5   Mr. Bohannon?  Would that help address any concerns you 
 6   might have over that requirement?
 7               MR. BOHANNON:  Yes.
 8               MS. SHORTALL:  Okay.  Thank you. 
 9        I'm also trying to understand.  You said that the 
10   major ship repair that is done is usually done by the 
11   ship's engineer?
12               MR. BOHANNON:  No.
13               MS. SHORTALL:  All right.  It's not done by 
14   the ship's engineer?
15               MR. BOHANNON:  No.  It's done by all crew.
16               MS. SHORTALL:  All crew?
17               MR. BOHANNON:  Now, a comment here.  Any day 
18   that I'm at the dock, it's an opportunity for me.  I can 
19   have 20 welders down in that boat cutting pipe.  I can 
20   have 15, 20, 30, 40 people chip in and paint, some of 
21   them vendors, some of them crew, but it's an opportunity 
22   for me. 
23        Basically, I'm in the process of rebuilding the 
24   ship.  I'm going to do it, plus make an income while I'm 
25   at it, too.  I'm going to do it in steps, but it's the 
0198
 1   way it is.  The boats, we're constantly changing and 
 2   improving it, even when we're underway, too, at times.
 3               MS. SHORTALL:  Do you ever have -- for 
 4   Ms. Lee or Mr. Bohannon -- employees that ever say to you 
 5   the ship's engineer is tagging this and disabling the 
 6   system or putting the blank in or putting the hasps in, 
 7   but this ship engineer has now been on duty for 18 hours 
 8   or 24 hours straight, and I have some concern over 
 9   whether I'm really fully protected if I go in there and 
10   clean this valve right now?
11               MS. LEE:  I'll just make a comment.  For any 
12   of our vessels that are large enough to have a licensed 
13   engineer, they also have to have an assistant licensed 
14   engineer, plus we have electricians onboard.
15        And additionally we normally have somebody that's 
16   also a different type of system expert; for example, 
17   hydraulics.  We have somebody that is expert in that 
18   area, too, and knows those systems.
19               MS. SHORTALL:  It's more the concern that an 
20   employee might have that you run the vessel and its 
21   processing for very long hours, and the fatigue factor 
22   that might work itself into mistakes possibly being made 
23   and employees having concern, especially if you use only 
24   a tagout system or only a tagout in this procedure that 
25   they don't have the individual employee doing the 
0199
 1   cleaning or the lubricating doesn't feel they have a 
 2   sense of control over the machinery really being shut 
 3   down and not re-upped.
 4               MS. LEE:  Well, again, most of our vessels 
 5   have to have a 12 on, 12 off rotation, whether that's six 
 6   on, six off, but only 12 hours in a day.  That's a 
 7   requirement for the larger vessels, and I have not ever 
 8   gotten that type of comment.
 9               MS. SHORTALL:  What about you, Captain 
10   Bohannon?
11               MR. BOHANNON:  This is -- I'm a little 
12   confused here about the question.  For starters, I always 
13   have a licensed chief and a licensed first engineer 
14   onboard, all right?  The last trip I had two licensed 
15   chiefs and three licensed engineers.  It just happened 
16   with the vacation schedule and everything else.
17        But when you say that a person is afraid to work on 
18   a piece of machinery, because they're worried about 
19   release of energy? 
20               MS. SHORTALL:  They're worried about the 
21   person who was responsible for deenergizing the system 
22   has been on duty an awful long time today, and they just 
23   have some gnawing feeling that they just don't feel fully 
24   protected, which is part of one of the reasons under the 
25   general industry standards we had every person putting 
0200
 1   their own tag or lock on something to have their own 
 2   sense of some element of control over whether that 
 3   machinery was really deenergized or may be deenergized. 
 4        Have you had any employees who express those type of 
 5   concerns due to the nature of --
 6               MR. BOHANNON:  Yeah, I can actually think of 
 7   one today.  You know what the comment was? 
 8               MS. SHORTALL:  No.
 9               MR. BOHANNON:  Push a button.  Let's see what 
10   happens.
11               MS. SHORTALL:  Okay.  I hope you told them 
12   no.
13               MR. BOHANNON:  Huh?
14               MS. SHORTALL:  I hope you told them no.
15               MR. BOHANNON:  What do you mean?  Nobody's 
16   around.  They're worried about it starting up.  That's 
17   the one foolproof way to make sure.  Hey, if your fingers 
18   or your toes or you're afraid of getting hurt, anything 
19   can happen to you, get your foot out of there.  It's not 
20   supposed to be in there until you make sure it can't 
21   happen.  You just do it in a manner that it's perfectly 
22   obvious to all those around you.
23               MS. SHORTALL:  Okay.  Ms. Duz, I wanted to 
24   ask you one question, and for no other reason to get one 
25   thing on the record here today.  And that is, it's enough 
0201
 1   that I said it to you in private, but I think the 
 2   permanent record should reflect this.
 3        When Ms. Duz was testifying in Washington, DC, my 
 4   husband happened to come in, sit down and listen to her 
 5   testimony.  And after the hearing was over, he came up to 
 6   me.  And I thought the first thing he'd do was 
 7   congratulate me on my wonderful work.  And the first 
 8   thing he did was say, that Ms. Duz was one of the best 
 9   witnesses I've ever heard testify in an OSHA hearing, and 
10   I want to get that on the record.
11        Ms. Duz, have you seen that as fishing vessels are 
12   going through the normal replacement of equipment, that 
13   they are trying to take steps to get lockable equipment 
14   to replace it when they're able to do some of their 
15   normal changeover of equipment?
16               MS. DUZ:  Most are.
17               MS. SHORTALL:  Okay.  And to what extent do 
18   you find that now that they're asking for lockable 
19   equipment, that manufacturers are making it available?
20               MS. DUZ:  It's barely a trickle right now.  
21   Hopefully, that'll grow and people will ask for it more, 
22   but I'd say right now it's just -- it's tiny.
23               MR. BOHANNON:  May I?
24               MS. SHORTALL:  Go ahead.
25               MR. BOHANNON:  One of the things, like I 
0202
 1   said, with all the work that we've got going on, that's 
 2   one of the standards that they have to comply with.  They 
 3   have to comply with lockout/tagout. 
 4        And, no, I'm not talking about the little cheesy 
 5   tinny stuff that these guys all of a sudden throw on a 
 6   handle.  I'm talking about something that one of my 
 7   300-pound gorillas out on a deck can't break.  Literally, 
 8   we give them equipment.  Break it, tell me how long it 
 9   took you to do it.  What's wrong with it?  I mean, that's 
10   -- that's how -- that's how we test things.  If it's not 
11   big, heavy, can't beat it, bite it, throw it against the 
12   wall, now we know what it'll do.
13               MS. SHORTALL:  Ms. Conrad, could I ask you 
14   the same question?  The vessels who are members of your 
15   organization, have they told you as we are replacing 
16   equipment, we have or have not been able to find lockable 
17   equipment to replace it? 
18               MS. CONRAD:  Not with this organization where 
19   I was the HR manager.  I think there's -- the majority, 
20   it's part of their research when they're replacing their 
21   equipment, and something they look for.
22               MS. SHORTALL:  Thank you very much. 
23        Do you want to add something, Ms. Duz?
24               MS. DUZ:  Yes.  If you wouldn't mind, Sarah, 
25   I'd like to respond to your earlier question about what 
0203
 1   if someone's really tired after a long shift, and they 
 2   don't want to rely on them.
 3        I've thought that through to the point where we have 
 4   the same problem if there's a group lockout.  So you have 
 5   an expert employee who actually places locks on all the 
 6   breakers and on the disconnects and on the energy sources 
 7   and they put their keys in the box.  And everybody's sure 
 8   that they've locked up those keys, but what if he didn't 
 9   put his lock on the right breaker when he did the group 
10   lockout? 
11        So it's a problem.  It would be a concern of mine, 
12   too, but it's also a concern within the 1910, I think.
13               MS. SHORTALL:  Yes, it is.  It does remain. 
14        On behalf of OSHA and the Solicitor's Office, we'd 
15   like to thank all of you again for appearing today.  Your 
16   testimony has been invaluable, and we look forward to any 
17   other comments you'll be adding in your post-hearing 
18   comments.  Thank you again.
19               ALJ:  Thank you.  Let's take a 10-minute 
20   break, and we'll start with the next panel after the 
21   break. 
22                        (Recess taken.)
23               MS. SHORTALL:  I'd like to enter the 
24   following item into the record as Exhibit 0174, and that 
25   is Sample Fishing Vessel Lockout Procedures.
0204
 1               ALJ:  All right, so ordered.
 2               MS. SHORTALL:  Thank you, Your Honor.
 3         PANEL 2 - COMMERCIAL FISHING VESSELS INDUSTRY
 4               ALJ:  Our next panel consists of Mark Weed, 
 5   Chris Kline, Kurt Gremmert and Teri O'Leary.
 6               ALJ:  All right.  Mr. Weed, you may begin.  
 7   Please introduce yourself and identify your affiliation. 
 8               MARK WEED:  My name's Mark Weed.  I don't 
 9   know if you need that spelled.
10               ALJ:  It probably wouldn't hurt.  Just spell 
11   your last name.
12               MR. WEED:  Okay.  My last name's W-E-E-D.  My 
13   first name's Mark, M-A-R-K.
14               ALJ:  Thank you. 
15               MR. WEED:  I'm the President of Seven Seas 
16   Fishing Company, and until about a week ago I operated a 
17   floating processor.  We've had -- I've worked 17 years on 
18   shore side to operate seafood plants, and I've spent 19 
19   years with vessels in the seafood industry.
20        I am currently the President of the company.  Over 
21   that period of time we've operated two mother ship 
22   processors.  One was 235 feet long with about, oh, 105 
23   people onboard.  The other one was a 315-foot long 
24   processor that had up to 335, 150 people onboard.  So 
25   that's my specific background.
0205
 1        And the vessel that I had has recently been sold to 
 2   the guy sitting next to me.  So his company Icicle 
 3   Seafoods has purchased it, and I believe it's on the list 
 4   of the ones that they've put up for the tour.
 5        What I am here to talk about is -- you got the two 
 6   issues.  One I wanted to talk about, the ice and snow, 
 7   and the other one is on the stretchers.  I believe I'll 
 8   be fairly brief.  I wanted to add another couple brief 
 9   comments after that. 
10        To start with, on your proposed rule 1915.87(f)(1) 
11   it states, the employee shall ensure that there are an 
12   adequate number of baskets, stretchers or the equivalent 
13   readily accessible where work is being performed.
14        My question is what is an adequate number?  In my 19 
15   years of vessel management, we have never needed more 
16   than one.  If we have an incident that now requires 
17   three, assuming I only have one, am I now in violation 
18   would be my question. 
19        We are not a shipyard.  We are a single vessel.  
20   After reading the regulations, it sounded like you were 
21   -- it was predicated on what's needed in a shipyard.  I 
22   prefer that there be a limit of two used in the old 
23   regulation. 
24        Then my next question is what is the meaning of 
25   equivalent?  Proposed rule 1915.87(f)(2) requires the 
0206
 1   employer shall ensure each stretcher is equipped with one 
 2   permanent lifting bridle that enables the stretcher to be 
 3   attached to hoisting gear that are capable of lifting at 
 4   least 5,000 pounds. 
 5        This rule in (f)(1) states that you can have the 
 6   equivalent of a stretcher.  Section (f)(2) states that it 
 7   must have a lifting bridle.  In other sections you leave 
 8   the solution up to the discretion of the employer, and my 
 9   question is why not here? 
10        It is our experience that one size stretcher may not 
11   always work.  Because of the confined spaces, narrow 
12   walkways, and the abundance of stairs you may need other 
13   types of devices to move people through the ship.
14        For transporting employees off the ship, most 
15   medical service providers want to use their stretchers to 
16   move the injured off the ship.  Also, if our stretcher is 
17   used, it may be difficult to get it back due to the 
18   distance the employee is transported away from the vessel 
19   and the logistics of getting the stretcher returned. 
20        And I didn't write that, but an example would be we 
21   operate frequently up off St. Paul Island, which is quite 
22   a ways north up in the Bering Sea.  A great deal of the 
23   time we were operating up there, we were operating very 
24   close to the island, within a mile of the island.  But 
25   the harbor was frozen, so you couldn't get a ship or 
0207
 1   anything to the island. 
 2        We did have a Coast Guard helicopter stationed 
 3   there, and we did have an injury once where the 
 4   helicopter flew one of other employees off the vessel.  
 5   And then they took him into St. Paul, which I'd say we 
 6   were a mile from, so it didn't take long.  And then they 
 7   medivaced the employee from there in a -- I want to say a 
 8   jet, but it may have been smaller -- from there to 
 9   Anchorage. 
10        With the person being on the stretcher, if that 
11   ended up in Anchorage it would have been extremely 
12   difficult to get that back to us, because there's very 
13   little freight service that goes from Anchorage out to 
14   off St. Paul Island.  So that would have been an issue 
15   also, so those are my comments on that.
16        On the housekeeping side, 1915.81(g), the employer 
17   shall ensure that slippery conditions such as snow, ice 
18   and on walking and working surfaces are eliminated as 
19   they occur.
20        This section was with shore side shipyards in mind.  
21   It was not written to take into account the working of a 
22   ship.  This does not work on a ship.  We operate in the 
23   Bering Sea during the winter.  It is usually cold and 
24   windy.
25        If a vessel is traveling, one of the hazards is the 
0208
 1   icing of the ship due to freezing spray.  The way this is 
 2   dealt with is to keep people off the decks and wait until 
 3   the weather warms enough to melt it, or you wait until 
 4   you are at anchor or moored before you deal with the 
 5   problem.  Dealing with it immediately creates more of a 
 6   safety issue.
 7        And then I guess the part that I didn't add in there 
 8   was it's more of a safety issue, because if you're 
 9   getting freezing spray, that means you're in rougher 
10   weather.  So you're going to be bounding about more, and 
11   you wouldn't want anybody on that deck because of the 
12   slippery condition.
13        The other issue is docks.  Most of the docks that 
14   are used are not owned by the vessels.  We do not have 
15   any control over the owners of the facility and the 
16   amount of snow removal they provide. 
17        In the background for lockout/tagout on page 72499, 
18   you have exempted shipyards from some lockout/tagout 
19   plans because they do not own the vessels they are 
20   working on. 
21        This section should be given the same type of 
22   response.  We should not be responsible for the snow 
23   removal of facilities we do not own or have control of. 
24        That's the gist of my testimony, although I do have 
25   a couple other comments from listening to things today.  
0209
 1   The first one is in the training.  In reading the 
 2   background, there were some assumptions made that because 
 3   there were incidents where people were injured, were not 
 4   provided first aid immediately, that there were 
 5   references made that sounded as if training had not been 
 6   provided.
 7        I can tell you from my standpoint as the president 
 8   of a company that works to provide training for 
 9   employees, especially in the first aid side of things, 
10   it's difficult.  And I'll give a specific example, 
11   because this example also deals with an AED. 
12        We had an AED onboard.  I had my chief steward, who 
13   had had AED training, and my medical person, who had been 
14   through some advance medical training provided by NPFVOA, 
15   and who has dealt with our medical situations for a 
16   number of years.
17        The chief steward had a heart attack or was having a 
18   heart attack.  We were in Canadian waters.  There was a 
19   period of time -- it took -- I don't remember exactly, 
20   but it was a couple -- I want to say two to three hours 
21   before they could actually get him moved off the vessel.
22        And in discussing this with the Coast Guard with 
23   their medical people and with both of these people that 
24   had been trained in the use of the AED, for some reason 
25   the AED was not used.  I've never understood quite why, 
0210
 1   and I never had a really good explanation as to why, but 
 2   we found specifically with the AED that people are 
 3   reluctant to put it on someone in the event that they 
 4   have an issue.
 5        We've had that on the ship -- we got a very early 
 6   one when they got down into the $4,000 range.  We had one 
 7   on the ship.  And at that point in time we had, as our 
 8   medical person was an RN, and the only time that I'm 
 9   aware in the period of time that we've had it that that 
10   was used was in the case where an actual person off 
11   another fishing vessel was having a heart incident and 
12   they used it. 
13        And because this RN was there, she put the AED on 
14   him.  And they transported him with that as far as I 
15   recall, and that was quite a while ago.  But that's the 
16   only time that I'm aware of that the AED has been used.  
17   We had -- so I guess that would be my comment on that.
18        I would also like, just based on the last panel, one 
19   of the questions or one of the issues that was discussed 
20   is the difficulty of retrofitting the old vessels with -- 
21   making them compliant with lockout/tagout.
22        But one of the other issues I don't know that was 
23   clearly mentioned was the fact that a number of the 
24   vessels or an awful lot of the vessels in our industry, 
25   as they were saying, are old vessels, and they're old 
0211
 1   because they were used for something else.  A lot of them 
 2   -- some of them dating back to World War II, but their 
 3   use was -- their original design was either for some 
 4   military applications, a number of oil field 
 5   applications, supply boats for oil fields and things, so 
 6   that the boat was originally designed to do something 
 7   else, and then it was converted to becoming a processor.
 8        And our processing operations require an awful lot 
 9   of equipment beyond what these vessels were originally 
10   required to support. 
11        And so you're using, at least specifically in our 
12   vessel when we converted it, you had the original ship, 
13   which was a freighter.  And then we added another entire 
14   engine room to add electrical generation to provide 
15   support for the rest of the processing operation of the 
16   ship.
17        And so then you get into issues with even getting 
18   power back and forth between those two systems that would 
19   cause issues, so I -- that's my testimony.
20               ALJ:  Mr. Kline, when you're ready, it's your 
21   turn.
22               MR. KLINE:  Okay.  My name's Chris Kline, 
23   C-H-R-I-S, K-L-I-N-E, and I'm the Safety Director for 
24   Icicle Seafoods.  I'm here representing a hard-working 
25   group of employees, who are the working end of the 
0212
 1   standards we're talking about here today.  They're the 
 2   people who live with the end result of your countless 
 3   assessments, collaborations and meetings that create our 
 4   work rules.  I represent a company with five floating 
 5   fish processors, seven fishing boats and four land-based 
 6   canneries, and a work force that peaks around a few 
 7   thousand.
 8        I've been working in this industry for about 14 
 9   years.  I started in college as a way to make spending 
10   money, and I worked for several companies before landing 
11   a job with Icicle Seafoods in the management capacity I 
12   have now.
13        I feel my understanding and experience of working 
14   alongside these people give me a unique insight as to how 
15   they operate, and how they work with rules and 
16   regulations.  I think it's very easy to say we could 
17   create a great program on paper, but implementing that 
18   takes some time and takes some understanding of the 
19   people that are going to use that.
20        Today I would like to comment on the language found 
21   in Subpart F pertaining to snow and ice.  I know you've 
22   heard that quite a bit, but apparently we're all hung up 
23   on that, and also a little bit about lock and tagout and 
24   the control of energy.
25        On page 72456 under Section 4, the summary and 
0213
 1   explanation of proposed standards reads the following:  
 2   OSHA proposes to revise and update the standards in 
 3   Subpart F to reflect advances in technology and industry 
 4   practices, and to add requirements that will provide 
 5   employees with protections of hazardous working 
 6   conditions not currently addressed by the existing 
 7   standard.
 8        Unfortunately, part of the proposed revision for 
 9   many seafood processing vessels is that the equipment 
10   upgrades and improvements to our equipment are not moving 
11   at the same paces as technology.  I typically joke that I 
12   don't have a Blackberry, and just recently stowed my 
13   stone tablets when communicating with certain people, but 
14   so be it.
15        Much of our processing equipment has not been 
16   upgraded to accept current industry standards pertaining 
17   to locks on devices, nor is that something that seems to 
18   be on the front burner.
19        In working with and around the men and women of our 
20   company, I've found that consistency is the key to 
21   success.  The proposed standards approach to lock and 
22   tagout will be confusing.  Consistency, that's what 
23   people operate best under is a consistent condition.  
24   Having to flip flop between two standards will only breed 
25   indifference and non-compliance.
0214
 1        Asking an engineer to first determine what system 
 2   he's working on before he's deciding how it should be 
 3   locked out is asking too much.  This is like asking my 
 4   grandmother to follow one set of traffic laws on the 
 5   weekend, and drive by a completely different set of laws 
 6   during the week, and she's not a good driver.
 7        Most of the companies' vessels spend very little in 
 8   an official dry dock.  For example, our barges do dry 
 9   dock every five years.  It'd probably be longer if we 
10   could get away with it, but we're required to get in 
11   there every five years.  So the majority of our work is 
12   outside of shipyards.
13        If our vessels are required to comply with two 
14   separate sets of standards while at sea, it would become 
15   problematic when they're required to interact with a 
16   shipyards' lockout/tagout policy that is using different 
17   safeguards. 
18        Doesn't it make sense to have everyone on the same 
19   page using one well thought out consistent program?  
20   We've been given a golden opportunity to create a better, 
21   safer set of regulations.  Creating a cloudy and vague 
22   standard is not an option.  We can eliminate needless 
23   cross-training, eliminate confusion and focus on a safer 
24   united front. 
25        I believe OSHA has made some assumptions about the 
0215
 1   seafood processors and how they operate.  These 
 2   assumptions that the fact of our fish processing 
 3   equipment is maintained by fish processing employees is 
 4   completely false. 
 5        The mark of a valuable employee in our industry is 
 6   the ability to wear many hats, and an industry is built 
 7   on the backs of this type of employee.  I'm sure it'd be 
 8   a dream for an engineer to be able focus solely on one 
 9   particular part of the ship; however, that will remain a 
10   dream.
11        A second misconception is that our vessels return to 
12   port and install new equipment for the next season.  On 
13   the processors that change from season to season, most 
14   changeovers would consist or rearranging pieces of 
15   equipment to direct flow of product. 
16        Next, I would like to highlight some language of 
17   Subpart F pertaining to the winter conditions and walking 
18   surfaces.  I'll read it again in case you haven't heard 
19   it enough today.  It reads, the employer shall ensure 
20   that slippery conditions such as ice and snow on working 
21   surfaces are eliminated as they occur. 
22        I find this near impossible when dealing with the 
23   winter conditions in Alaska.  I'm sure many midwest 
24   companies experience the same problems.  We can't be 
25   expected to catch every snowflake, and I know that's not 
0216
 1   OSHA's intent.
 2        However, to properly interpret a standard, it needs 
 3   to be clear and concise.  I suggest changing the language 
 4   to better reflect the intention.  For example, replacing 
 5   the term as they occur with monitor for hazards or remove 
 6   as conditions require.  Those are two simple changes that 
 7   keep us from being unnecessarily cited for having 
 8   snowflakes in Alaska, and that's all I have today.  Thank 
 9   you. 
10               ALJ:  Thank you. 
11        Mr. Gremmert? 
12               MR. GREMMERT:  My name's Kurt Gremmert.  I'm 
13   with Spartan Limited, and my last name is spelled 
14   G-R-E-M-M-E-R-T.
15        Ladies and Gentlemen, distinguished guests, Judge 
16   Gee, colleagues and interested parties, my name is Kurt 
17   Gremmert.  And along with my wife Ashley, we own a small 
18   business called Spartan Limited here in Seattle, 
19   Washington.
20        Our company is involved in the investigation and 
21   adjustment of maritime personal injury claims in the 
22   Pacific Northeast region and Alaska.  I have personally 
23   been involved in this capacity for the past 21 years, 
24   working primarily with the fishing, tug and barge, and 
25   small passenger vessel fleets in these regions.
0217
 1        For the past several years I've also been a board 
 2   member of the non-profit safety training organization 
 3   called the North Pacific Fishing Vessels Owner's 
 4   Association.  Accordingly, I've come to testify to this 
 5   esteemed panel concerning my views on the proposed OSHA 
 6   rules covering general working conditions in shipyard 
 7   employment. 
 8        I would like to draw your attention to several areas 
 9   where I want to be sure that the hearing panel and OSHA 
10   has fully considered the impact and implications of those 
11   proposed rules on various fleets that I work with.
12        I would also like to point out that most of the 
13   businesses that would eventually be responsible for 
14   keeping these proposed rules are not here today.  In 
15   fact, I would venture to say that very few of them are 
16   even aware that the new regulations are being proposed, 
17   that there are new regulations being proposed, which 
18   would impact their businesses in a very significant way.
19        To give the panel an idea of the number of vessels 
20   that these proposed regulations will cover, I would refer 
21   you first to the State of Alaska Department of Fish and 
22   Wildlife Web site that covers commercial fishing permits 
23   for vessels registered in Alaska. 
24        The link can be found at -- and I've given you a 
25   copy of my notes, which have the link there.  I won't try 
0218
 1   to read it, which has a downloadable PDF file with all 
 2   permits issued by the State of Alaska for 2008.  You will 
 3   note when you review this list there were 24,476 permits 
 4   issued in 2008. 
 5        Granted, there are occasions in this listing where 
 6   the same vessel has up to five or more permits per 
 7   vessel.  Even dividing by five would result in a fleet 
 8   numbering of approximately 4,895 individual craft. 
 9        I would remind the panel that this listing is only 
10   for the State of Alaska, and only involves commercial 
11   fishing vessels.  Of course, there are some vessels that 
12   also fish in Washington State waters and even Oregon 
13   State waters that are on the same list, but there is also 
14   a fishing fleet in any geographic area of the United 
15   States that would not be included in this list.
16        To give an additional example of the size and scope 
17   of the fleet you're considering, and I should point out 
18   fishing fleet you're considering, I would refer you to 
19   the 2002 report prepared for the Governor of Texas 
20   concerning just the shrimp fleet in that state. 
21        This report can be found at -- I've also given the 
22   Web site citation for that, which notes over 5,000 
23   vessels participated in Texas shrimp fishery in 2002.  
24   Again, I would note that's only shrimp fishery.  That's 
25   not any other fishery that might have occurred in Texas.
0219
 1        As a final example I would refer the panel to the 
 2   State of Massachusetts Division of Marine Fisheries Web 
 3   site.  I've also given the citation here.
 4        For an additional overview of the size and scope of 
 5   the fleet you're planning to regulate, reviewing just the 
 6   vessels listed whose names start with the letter A, I 
 7   note there are over 260 vessels that were permitted by 
 8   that state to fish in 2008.
 9        A quick refresher on my geography lessons from 
10   school indicate that there are at least 23 states that 
11   have a maritime presence in the United States.  Given the 
12   three previous examples, there may conservatively be as 
13   many as 50,000 fishing vessels of various sizes operating 
14   in the United States as I speak to you today. 
15        The final point to consider is that I have discussed 
16   only fishing vessels thus far, and have not estimated the 
17   full extent of the fleet you're proposing to cover if I 
18   were to include all commercial vessels of any size or 
19   trade. 
20        I'd also like to comment on the small business 
21   aspect of these proposed regulations.  As noted earlier 
22   in my remarks, my wife and I operate a small business 
23   where we employ four people.  I cannot fully explain to 
24   you how difficult and challenging this is.  I have a 
25   business degree from Seattle University, and consider 
0220
 1   myself to be fairly competent to be able to assist my 
 2   wife in the running of our small business. 
 3        As you can no doubt imagine, the typical small 
 4   vessel owner does not have the business or background 
 5   experience that I have.  This is not to say they're not 
 6   competent or capable of running their fishing or other 
 7   maritime-related business, just that it's challenging.
 8        As I also mentioned before, the vast majority of 
 9   these owners have no idea these proceedings are even 
10   occurring, much less how deeply it may impact their 
11   business. 
12        I'm not an expert in these proposed rules, and would 
13   not purport to be.  However, you have thus far and will 
14   continue to hear testimony at these proceedings by others 
15   that will discuss the tremendous cost in both time and 
16   money in order to comply with these proposed regulations. 
17        I would implore you to ponder the length and breadth 
18   of the responsibility you will place on these small 
19   business owners if these regulations are enacted as 
20   proposed.  Many of these owners will be forced to 
21   discontinue operations because they will either be 
22   physically unable to retrofit their vessels to comply, or 
23   simply will not be able to afford it. 
24        As you review the list of vessels that have 
25   commercial permits at the Web site links I have given 
0221
 1   you, please pay particular attention to the size and the 
 2   age of various vessels. 
 3        Yes, a 16-foot skiff is considered a commercial 
 4   fishing vessel right along with the state-of-the-art 300 
 5   plus foot factory trawler.  I was trying to imagine how 
 6   you would implement lockout/tagout on some of the small 
 7   fishing vessels that I've been on.
 8        I hope there are more creative minds than mine who 
 9   will be able to assist small vessel owners with complying 
10   with the proposed regulations as drafted.
11        One of the more classic segments of the Alaska 
12   fishing fleet is the halibut schooners.  Their graceful 
13   lines and classic construction is admired in the fleet to 
14   this day.  To consider that most of these vessels were 
15   built in the 1930s and still operate today are a 
16   testimony to the craftsmanship of the original builders, 
17   and the care taken by the current owners and operators.  
18   These vessels are just one more part of the fleet you're 
19   proposing to regulate.
20        I've seen firsthand over the past 21 years the human 
21   and financial cost of accidents and injuries in the 
22   maritime industry.  I've sat across coffee tables from 
23   families who are trying to grasp the fact that their 
24   loved ones will never be coming home.
25        I'm a vociferous advocate of safety and avoiding 
0222
 1   accidents, injuries and death in the maritime world.  I 
 2   would ask you not to misconstrue mine and my colleagues' 
 3   opposition to these new proposed regulations as an 
 4   attempt to skirt the issue of safety.
 5        I would only ask that you draft these or any 
 6   regulations with a full and precise knowledge of how, 
 7   when, why and what the effect will be on the full 
 8   spectrum of the fleet or fleets that you propose 
 9   regulating. 
10        These regulations will also be used against the 
11   vessel owners in the highly-litigated area of seamen 
12   personal injury claims as has or will be discussed by 
13   Mr. Richard Nielsen.  I add my voice to his in asking 
14   this esteemed panel to consider all aspects of these 
15   proposed regulations and the full extent of their impact 
16   on these vessel owners.
17        In closing, please keep in mind that a candy 
18   manufacturing plant is not a shipyard and never will be.  
19   Similarly, a ship at sea is neither a shipyard, nor a 
20   candy manufacturing plant; never was, never will be. 
21        To attempt to lump all these varied businesses and 
22   different types of facilities into one homogenous group 
23   is not only impossible in my view, but simply not fair.  
24   Thank you very much for the opportunity. 
25               ALJ:  Thank you, Mr. Gremmert.
0223
 1        Ms. O'Leary? 
 2               MS. O'LEARY:  Thank you.  My name is Teri 
 3   O'Leary, and I'm here on behalf of Golden Alaska Seafoods 
 4   to testify on the proposed changes to the lockout/tagout 
 5   standard for processing vessels, fishing vessels and 
 6   other vessels.
 7        I'll be brief as my knowledge of lockout/tagout is 
 8   not what probably anybody else's is, but I have been with 
 9   Golden Alaska for 10 years.  I started out at the front 
10   desk, went to a purchasing assistant position, and just 
11   recently was moved into HR. 
12        So not a lot of safety knowledge here, but I did -- 
13   was able to spend some time talking with our vessel over 
14   the last couple of weeks about -- to see how they feel 
15   about these new proposed issues.  And the one resounding 
16   theme that I kept coming back to was the idea of having 
17   two separate lockout/tagout programs on the same vessel 
18   just wasn't going to work. 
19        Golden Alaska agreed the existing OSHA regulations 
20   do work to a pretty good extent.  We have a safety manual 
21   that Amy actually put together for us, or, no, actually 
22   we have had one for some years, but Amy updated it about 
23   a year ago.  And it's basically -- it's almost completely 
24   based on the OSHA standards, and that's what we use 
25   anywhere outside three miles, and they do stick to it 
0224
 1   pretty religiously. 
 2        The crew of the Golden Alaska basically stated that 
 3   streamlined clear information is really what works best 
 4   for us.  The gray area that's normally caused when you 
 5   have more than one regulation -- or when you have more 
 6   than one regulation in one work space, it will just bring 
 7   about too much confusion and just won't work. 
 8        And then from an HR standpoint, I have to -- I'll 
 9   also add that this kind of confusion brings about 
10   accidents, which is just absolutely the last thing you 
11   want, and could also be pretty damaging if a lawsuit 
12   should occur, because if you had one piece of equipment 
13   and it could go either way, you had to make a judgment 
14   call, you know, which standard to go by, it really 
15   wouldn't matter in the hands of the prosecuting attorney 
16   which decision you made.  It's going to be the wrong one, 
17   and not really that much -- it's just too vague, so it'd 
18   be too hard to back up. 
19        As I was -- when I was a purchasing assistant for 
20   the last probably six or seven years, I had a lot of 
21   chance to just chat with the department heads on a 
22   regular basis, daily basis most of the time.  They would 
23   tell me about -- like our ship's electrician, for 
24   instance, he would tell me almost daily what he was 
25   working on and where he was working on it.  And I think 
0225
 1   that guy has worked on every single piece of equipment on 
 2   our boat from the engineering control room to the plate 
 3   freezers to the strapping machine and to the steam table 
 4   in the galley. 
 5        He has to be in 10 places in an hour sometimes, and 
 6   he has to -- I mean, just to ask him to make a judgment 
 7   call on which -- you know, what he needs to -- which 
 8   standard he needs to apply every time he has to go to 
 9   another job is just -- it wouldn't work either. 
10        Our engineers on the Golden Alaska are sometimes 
11   called to -- or actually often do a lot of the work on 
12   the factory equipment.  It's not just the factory techs 
13   working on the factory equipment.  They'll work on galley 
14   equipment, state rooms.  It just goes across the board.
15        Sometimes the techs will come up and fabricate a 
16   piece of just, you know, some stainless steel metal thing 
17   they need on deck for something.  There's no really clear 
18   way to differentiate between where an engineer's 
19   responsibilities start and a factory tech's 
20   responsibility ends. 
21        So all of our departments -- all the departments 
22   complement each other, and they're all there to support 
23   the factory basically.  Without the factory, there 
24   wouldn't be a Golden Alaska.  You just can't separate it 
25   that way. 
0226
 1        Another point I wanted to touch on was the statement 
 2   that OSHA made about the idea that the same standards 
 3   that could apply to shore plants could also apply to the 
 4   ship's factory as if they were really similar.  They're 
 5   not similar, and they're hardly similar.  They just 
 6   really aren't very much alike. 
 7        Things like confined spaces, really minimal storage 
 8   space for anything, including product, and the constant 
 9   movement being on the water, storms, it's just a 
10   completely different work environment than on land. 
11        There's just no room for wasted space, and no room 
12   for any kind of expansion on a ship.  So if you -- it's 
13   just there's no room to move.  If you need to rerun a 
14   bunch of wiring, there's no place to do it really. 
15        On your tour on Thursday, when you tour the boats 
16   that you're going to -- when NPFVOA is going to take you 
17   around, I hope that you can kind of think about -- like 
18   on the factory trawler you're going to be on, try to 
19   imagine yourself there with several dozen other people.  
20   It's already kind of a small space.  And if you think 
21   about it with all these people working all the time, it's 
22   really small. 
23        I guess that's about it.  That's about all I had to 
24   -- really had to say, just mainly the Golden Alaska 
25   wanted me to express two standards on one ship just won't 
0227
 1   work. 
 2               ALJ:  Thank you, very much, Ms. O'Leary. 
 3        Are there any questions from the audience?  OSHA 
 4   panel?
 5               MS. SHORTALL:  Your Honor, first a couple of 
 6   things.  We were wondering if Mr. Kline and Ms. O'Leary 
 7   have additional copies of their written testimony that 
 8   they would like to have entered into the record. 
 9               MR. KLINE:  I will, but can I give that to 
10   you tomorrow?  I kind of threw out my -- the copy I had.
11               MS. SHORTALL:  If you give it to us, we'll 
12   put it in.  Would you like to submit yours now, 
13   Ms. O'Leary?
14               MS. O'LEARY:  Could I actually -- could I 
15   e-mail -- or could I bring mine tomorrow as well?
16               MS. SHORTALL:  That would be fine.  Your 
17   Honor, then right now I would request that Mr. Gremmert's 
18   opening statement here be entered into the record as 
19   Exhibit 0175 in the previously mentioned docket.
20               ALJ:  Okay.  Thank you.  It's so ordered.
21               MS. SHORTALL:  And we will begin our 
22   questioning with Ms. Watson.
23               MS. WATSON:  Good afternoon.  Thank you for 
24   coming.  I appreciate your testimony.  Most of my 
25   questions will be for the panel across the board, and 
0228
 1   then some of them will be just individual based on your 
 2   testimony.
 3        I'd like to start off with Ms. O'Leary.  If you 
 4   don't mind, could you state what Golden Alaska Seafoods 
 5   consists of, how many vessels, the number of employees, 
 6   that sort of thing?
 7               MS. O'LEARY:  We are just the one mother ship 
 8   actually, 305 feet.  Right now she's in the Bering Sea 
 9   with about 130 people onboard.  We're doing -- we do 
10   pollock filet.  Originally built in Germany, we're little 
11   by little changing out the metric stuff and the old 
12   stuff, trying to get pretty well caught up to date with 
13   lockout/tagout type stuff.
14               MS. WATSON:  Now, you mentioned that 
15   lockout/tagout program that was -- you said outside of 
16   three nautical miles.  I wasn't sure if you misspoke.  I 
17   mean, you guys have the same lockout/tagout program 
18   regardless of whether you're within three nautical miles 
19   or out or are they different?
20               MS. O'LEARY:  It's the same.
21               MS. WATSON:  The same, okay.  And just a 
22   minute ago you mentioned that the vessel was built in 
23   Germany.  As a purchasing assistant, do you help with 
24   ordering of equipment when repairs are necessary?
25               MS. O'LEARY:  I did.  Not so much now.
0229
 1               MS. WATSON:  So did you find that there were 
 2   issues with ordering this equipment since the vessel was 
 3   built overseas?
 4               MS. O'LEARY:  It is kind of a pain to order 
 5   European parts and Japanese parts.  European countries 
 6   take a lot of vacation time, and it's all metric.  I 
 7   mean, you have to -- I got pretty good at figuring out -- 
 8   doing metric conversions in my head after a while, but 
 9   yeah.
10               MS. WATSON:  This question is for 
11   Mr. Gremmert.  In your line of business that you're 
12   investigating injuries and claims, what have you found to 
13   be the most injuries in the maritime industry or fishing 
14   in general?
15               MR. GREMMERT:  Sprain and strain from 
16   repetitive motion.
17               MS. WATSON:  Have you run into any electrical 
18   shock?
19               MR. GREMMERT:  One electrical shock, and a 
20   couple of incidents that involved not deenergizing 
21   hydraulic systems.  I think maybe two that I can remember 
22   a while ago.  It just doesn't happen very often. 
23        Some of the ones that you've heard about I wasn't 
24   personally involved in.  I can only speak to what I've 
25   been involved with, but I've probably dealt with 10,000 
0230
 1   incidents.  And I can only think of a couple of hydraulic 
 2   systems that weren't deenergized properly and one 
 3   electrical system.
 4               MS. WATSON:  Okay.  This question will be 
 5   mainly to Mark and Chris.  Can you talk a little bit 
 6   about your lockout/tagout programs? 
 7               MR. WEED:  I could talk on a lot of our 
 8   programs, but the lockout/tagout, because of the nature 
 9   of the lockout/tagout, I took my chief engineer and our 
10   production engineer -- I mean not the manager, our ship 
11   production engineer, who was one of the better engineers 
12   on the ship.  We sent them to NPFVOA through Amy's class.  
13   They came back, and then they worked on the 
14   lockout/tagout. 
15        And I am not very familiar with it, because, again, 
16   I'm not -- my vantage point isn't that specific to be 
17   able to identify how do I shut down a piece of machinery.  
18   So I left it up to the people that know, which is my 
19   engineering staff.
20        And so they're the ones that have done that, 
21   although the comments they made and some of the issues 
22   that came up where I know we did some rewiring on our 
23   process deck to change it so that we had -- we added a 
24   breaker panel so we could isolate machinery better so you 
25   wouldn't have to shut down the ship, or shut down the 
0231
 1   entire process deck to be able to lock out a specific 
 2   piece of equipment.
 3        So with that knowledge, they tried to come up with a 
 4   plan to isolate specific pieces of equipment through 
 5   breakers to do that. 
 6        And as other people said, you get into the whole 
 7   issue of retrofitting an existing piece of equipment to 
 8   do that based on pieces that are out there through the 
 9   vendors was one of the things that I know my chief 
10   engineer and his staff worked diligently on for a great 
11   deal of time, and it was an extremely difficult effort on 
12   their part because of the nature.  It's not a simple -- 
13   it's not simple to just go say isolate it.
14        And then also with the complications of the 
15   groupings, trying to get it, as Amy was saying, so that 
16   you can isolate during cleanup, that was where a lot of 
17   the issues come in, and the groupings with people walking 
18   out and then not unlocking and becoming issues that way.
19        I can't speak to a lot of detail, but I know those 
20   were some of the issues that I had heard through my 
21   engineering staff.
22               MR. KLINE:  At Icicle we have a 
23   lockout/tagout program on every vessel and every land 
24   plant.  I guess before you ask specifically, it's loosely 
25   modelled after 1910.  I wish I could say that we're 
0232
 1   actually a hundred percent compliant, and every single 
 2   time a situation arises we're doing exactly what we need 
 3   to do.  That doesn't happen. 
 4        We're not in compliance with 1910, and we can't be.  
 5   You know, we're talking about system experts, and I think 
 6   we actually end up doing that through default.  In 
 7   certain situations it was the only thing that we could 
 8   think of that works, or we've talked about cleanup, which 
 9   can be a fairly dangerous time in our factories.  We're 
10   actually cleaning knives, machines that have the 
11   potential to rip arms off and cut your fingers off.
12        Most system experts -- I'll call them a system 
13   expert.  It's normally our factory foreman who's going 
14   through and ensuring that people are -- can work safely 
15   around these pieces of equipment. 
16        You know, we have written procedures for every piece 
17   of equipment that we can think of, and we've reviewed 
18   them.  Does that get pulled off the shelf when a chief 
19   engineer is working on a crane or working on a grinder in 
20   the factory?  I sure would like to be able to say, yeah, 
21   but I don't think so.
22        They might look at it in certain situations, but I 
23   don't think that they do.  And I think that having a -- 
24   you know, two sets, having a 1910 and a 1915, depending 
25   on where you are in the factory is going to make it even 
0233
 1   worse.  I mean, we got to make this as simple as 
 2   possible.
 3        I think our company and the companies that are 
 4   represented here in this room today are probably far and 
 5   away better than all the other companies that didn't 
 6   bother showing up or even want to be here or submit 
 7   anything.
 8        So I'm here to say that we have a lot of room for 
 9   improvement.  We haven't had any injuries.  And, you 
10   know, maybe part of that's luck, and part of that's just 
11   enough of a program in place to keep most people safe.
12               MS. WATSON:  Okay.
13               MR. WEED:  Well, could I answer one more 
14   thing?
15               MS. WATSON:  Sure.
16               MR. WEED:  There's a difference between the 
17   two.  The way I read the regulation, you get talking 
18   about permanent equipment and removable equipment.  If 
19   it's removable, then it was under one.  If it was 
20   permanent, it was on the -- considered a ship system.
21        So you get into our ship, and our ship as opposed to 
22   what a lot of the testimony, that 1 percent that Karen 
23   was referring to of ships that move equipment on and off, 
24   was probably more directed at our ship, the Stellar Sea. 
25   We had -- actually, the one we operated before was even 
0234
 1   more so.
 2        We had a crab line and a salmon line.  Those were 
 3   the two main different lines.  We did have some other 
 4   ones that would come up at varying times, but we had a 
 5   herring line that was -- it was more like a fin fish line 
 6   and then a crab line, because there -- the fin fish -- we 
 7   had different types of fin fish, but you'd have some 
 8   different pieces to those, but they weren't major, major 
 9   changeovers, but between crab and salmon was where we had 
10   big conversions. 
11        The vessel was designed so that some of the big 
12   stuff, which would be the tanks we use for cooking and 
13   freezing the crab, were permanent fixtures on the vessel.  
14   Some of our salmon butchering equipment was kept 
15   originally on an area where it wouldn't have to be moved 
16   out.
17        But the area that had to be moved out was the 
18   packing area.  So you had actually the butchering area 
19   for crab, and where we process some salmon eggs during 
20   the salmon season.  And then we had a packing area for 
21   both salmon and crab that were different, so they would 
22   get completely moved on and off the ship.
23        So if I'm understanding this correctly, I've got a 
24   -- if I have some piece of equipment that's dealing with 
25   my crab tanks, because they're permanently on the boat, 
0235
 1   that falls under one regulation.  And if I'm dealing with 
 2   the packing line, then I'm dealing with another 
 3   regulation.
 4        And as people have said, that gets -- putting too 
 5   much of a burden on the people you've got day to day down 
 6   there working, and it would be nice to get to where 
 7   that's simplified so that it's one regulation covering 
 8   the whole thing, because it is the main purpose of that 
 9   vessel is to process.  And to try to make a distinction 
10   that there's some other distinction there where the 
11   ship's systems are more important than that or more of a 
12   higher priority or whatever I think is -- as stated 
13   earlier, I think that's not correct.
14               MS. WATSON:  So you think regardless of 
15   whether a system or a piece of equipment is hard wired or 
16   just plugged in, it should just follow the same rules? 
17               MR. WEED:  Yes.
18               MS. WATSON:  Just kind of back to another 
19   question regarding lockout/tagout, is there any way to 
20   give a percentage of equipment or systems that are 
21   lockable on your vessels?  Do you have an idea?
22               MR. WEED:  If you're looking at me --
23               MS. WATSON:  Both.
24               MR. WEED:  I don't.  Again, I turn that over 
25   to my engineers, because I'm not the one that -- I 
0236
 1   couldn't tell you specifically on most of that if it's 
 2   hard wired or plugged, but that's not my responsibility.  
 3   That's engineering's.
 4               MR. KLINE:  Yeah, I couldn't even give you a 
 5   good guess, sorry.
 6               MS. WATSON:  Would you guys mind in the 
 7   post-hearing comment providing your logout/tagout program 
 8   so we'd have an idea or --
 9               MR. WEED:  I'm not in possession of them.  
10   They're now Chris'.
11               MS. WATSON:  Well, would you mind --
12               MR. KLINE:  Sure.
13               MS. WATSON:  Okay.  I'd appreciate it. 
14        Earlier this morning -- actually, Mr. Fraser had 
15   talked a little bit about his lockout/tagout program, 
16   that it was just a small vessel.  It just had a piece of 
17   duct tape that wrote on there do not turn on or do not 
18   energize. 
19        This is for the whole panel.  Do you feel that there 
20   should be a distinguishing factor on the side of the 
21   vessel, or do you think that no matter what size the 
22   vessel they should have the same lockout/tagout standard?
23               MR. WEED:  Well, I guess depending on -- the 
24   distinctions that I would think from my standpoint is the 
25   size of the vessel, when you start getting smaller.  For 
0237
 1   me smaller would be probably 60 feet and below, because 
 2   you're starting to get into smaller fishing vessels where 
 3   just the different types of hazards or the number of 
 4   hazards I would think would be reduced.
 5        When you get into the bigger processing ships, just 
 6   because of the nature of what they're doing, the 
 7   sophistication is such that there are a lot more hazards 
 8   to deal with, and you're dealing with a crew that has 
 9   more specialization probably to it. 
10        Specifically, I mean, we've talked earlier -- there 
11   has been comment earlier on the makeup of a crew of a 
12   small fishing boat where the purpose is fishing, and 
13   engineering and cooking and things like that are more of 
14   a secondary, but you would have people that can do both.
15        On our ship -- on our big ships that I've been 
16   involved in, you have an engineering staff, and they're 
17   the main responsibility for the bulk of the maintenance.
18        There's also been comment that the other people on 
19   the crew are responsible for maintenance.  And according 
20   to the definition of maintenance, yes, that's true.  
21   You've got -- you know, because maintenance could be down 
22   to painting, something as simple as that, but the bulk of 
23   the sophisticated maintenance on the vessel is done by -- 
24   at least in our case was done by our engineering staff. 
25        They are on a rotation that basically takes them 
0238
 1   year round on the vessel dealing with engineering issues, 
 2   whether the vessel is up north in Alaska operating or 
 3   down in Seattle for -- where we consider that our 
 4   maintenance time.
 5        Normally we would be operating in roughly eight 
 6   months, plus or minus a month, and we would be down for 
 7   -- down for the maintenance in Seattle for probably four 
 8   months, and I'd say plus or minus a month depending on 
 9   the year.
10               MS. WATSON:  Okay. 
11               MR. GREMMERT:  Could I make a comment on 
12   that, too?
13               MS. WATSON:  Sure.
14               MR. GREMMERT:  More of my experience has been 
15   with the smaller vessels.  They're typically -- you know, 
16   I hate to say it, but they seem to have a higher 
17   incidence of accidents and injuries than the larger 
18   vessels do per capita, meaning that, you know, they don't 
19   have them that often, but there's a lot more of them.
20        So you'll see more -- in my business we see a lot 
21   more accidents and injuries on the smaller vessels, and 
22   it isn't because they're more dangerous.  It's because 
23   there's so many more of them.
24        And I think Mr. Fraser quoted some statistics that I 
25   don't have, but I believe that if you were to look at the 
0239
 1   fishing fleet as an example -- don't forget, we're not 
 2   just talking about fishing boats.  That's something 
 3   that's not come through today very much.  We're not just 
 4   talking about fishing vessels.  You know, we're talking 
 5   about small passenger vessels. 
 6        Somebody mentioned six-pack charter boats.  You've 
 7   got tug and barge operations.  There's a whole other 
 8   world that's not even being talked about today.  Those 
 9   folks aren't here.  Why?  I don't know.  It may be 
10   because of the NPFVOA organization that has spearheaded 
11   most of us being here. 
12        Be that as it may, a lot of these smaller vessels, 
13   you have to understand that the engine room of a small 
14   fishing boat is the size of a bathroom, and they've got 
15   everything in there that most of these larger vessels do.  
16   You've got your main propulsion engine.  You've got gen 
17   sets, generators.  You've got pumps.  You've got all of 
18   this stuff crammed into a very small area.
19        So when somebody's working on, you know, sort of a 
20   lockout/tagout kind of a scenario on a small boat, it's 
21   the guy that's the engineer, whatever his level of 
22   training is, and you can pretty much reach every piece of 
23   equipment standing in one place.
24        There are -- there is deck equipment, like the 
25   larger vessels, too, and certainly the incidents I've 
0240
 1   been involved with were hydraulic systems were not 
 2   deenergized before somebody was doing something.  Those 
 3   occurred on deck.  One was a crab pot launcher and one 
 4   was a trawl breach. 
 5        So those things do happen.  They don't happen very 
 6   often, but be that as it may, I am a proponent of having 
 7   some kind of sliding scale, so to speak, of regulations 
 8   for different size vessels.  That's the way the Coast 
 9   Guard's always done it.  There's certain thresholds and 
10   cut-offs, and the reason they do that is because that 
11   works.
12        And the type of things that you would want to 
13   regulate and monitor on a Stellar Sea-type vessel versus, 
14   you know, a 75-foot trawler are very different.  And part 
15   of my comments were you really need to understand that 
16   what's going to happen is people probably aren't going to 
17   follow that stuff. 
18        If you try to set up the same system for all boats 
19   across the board, they're not going to be able to do it 
20   really, because the duct tape over the control in the 
21   wheelhouse is probably really good and better than most. 
22        The electrical panels I've been told -- for example, 
23   in these smaller vessels, a lot of which are also foreign 
24   built, you can't just replace the panel.  You're talking 
25   about possibly having to rewire the entire ship, which 
0241
 1   would be more than the ship's worth, so it's not feasible 
 2   for that to happen.
 3        And as far as the lockout/tagout programs and that 
 4   type of thing, again, my advice and my suggestion is to 
 5   make it as simple as possible so that everybody can 
 6   understand what happens. 
 7        Now, also look at what's available in the market.  
 8   We had some discussions in our NPFVOA meetings about what 
 9   items are available to use for this, and I don't think 
10   there's a real good understanding of what may be 
11   available to use to create a lockout/tagout program in 
12   whatever vessel size and class you're talking about.
13               MS. WATSON:  Thank you.  I just have one more 
14   question.  Chris, in your lockout/tagout program, do you 
15   guys use any other means like -- actually, I meant to say 
16   more just tags.  Do you guys use blanks or any other 
17   means to make sure that nobody's going to be 
18   electrocuted?
19               MR. KLINE:  Yes.  We have a very impressive 
20   array of tags and devices and whatnot, and they've been 
21   taught how to use them. 
22        On my tours of vessels, when I go up and audit a 
23   location, sometimes they do tags.  They are being used.  
24   Are they being used appropriately?  Not always, but, 
25   yeah, we do use those.
0242
 1               MS. WATSON:  But in addition to tags, do you 
 2   use any blanks or --
 3               MR. KLINE:  Like a locking device on a --
 4               MS. WATSON:  Not necessarily a locking 
 5   device.  Blanks or something so that no one can flip a 
 6   breaker or --
 7               MR. KLINE:  I wouldn't say blanks, but we do 
 8   lockout in an individual breaker in a panel in some 
 9   instances.
10               MS. WATSON:  So you're using locks?  Okay.
11               MR. KLINE:  Just locks.
12               MS. WATSON:  That's all I had.
13               MS. SHORTALL:  Ms. Wangdahl has questions 
14   now.
15               MS. WANGDAHL:  I just have one question.
16        Mrs. O'Leary, you kept saying that they didn't want 
17   two standards for one ship.  I just want to make sure 
18   we're only talking lockout/tagout, or are you talking 
19   something else?  I've heard it a couple times today, and 
20   I just need to clarify that. 
21               MS. O'LEARY:  Lockout/tagout, yes.
22               MS. WANGDAHL:  And that's the same opinion of 
23   everybody, that we're really only talking about 
24   lockout/tagout when we're talking about two standards? 
25               MR. KLINE:  Yes.
0243
 1               MS. WANGDAHL:  Okay.  Thank you. 
 2               MS. SHORTALL:  Ms. Brinkerhoff has questions 
 3   now.
 4               MS. BRINKERHOFF:  I really only have one 
 5   quick one for Mr. Weed and Mr. Kline and Ms. O'Leary.
 6        Do you also supply your crew with like clamp-ons or 
 7   grippers or something when they're on icy surfaces?  
 8   Somebody here mentioned earlier today that that's what 
 9   they --
10               MR. KLINE:  We don't.  We typically aren't 
11   off-loading like -- some of these vessels come in, and 
12   they will process and hold all of their product in their 
13   fish holds.  So they come to a dock with a million pounds 
14   in 50-pound boxes, and they're full and then need to be 
15   off-loaded.  So you have a whole group of people outside 
16   standing on the dock handstacking or putting them on 
17   pallets that would go into a truck.
18        Our company typically doesn't do that.  So, no, I 
19   don't -- we don't really -- I don't see that exposure.  
20   Of course, they'd be impossible on our steel decks of our 
21   ships.  That's much worse.  It'd be like ice-skating.  
22   So, no, we don't provide that.
23               MS. O'LEARY:  We do have -- you know, they 
24   have harness equipment.  If they have to go out on deck 
25   for any reason, if they have to -- for some reason and 
0244
 1   it's just really bad weather, they can lock onto 
 2   something as they go.  But, no, no clamp-ons, not that 
 3   kind of thing.
 4               MR. WEED:  My comment on that was similar to 
 5   Chris'.  Our ship operates offshore, and we transfer our 
 6   product over to trampers or freight ships, so most of our 
 7   off-loading is happening there.
 8        From what I've understood, while we are actually 
 9   operating, because, as I said, we were one of the people 
10   you were describing in that we operate most of the time 
11   at anchor.
12        So we didn't normally -- from what I've -- I was 
13   actually asked by our production manager this, because I 
14   don't spend much time on the vessels, especially if the 
15   weather's nasty.
16        Actually, part of the problem is from my standpoint 
17   getting up to the ship is so difficult that it wasn't 
18   feasible for me to go up and visit when they're in crummy 
19   weather.
20        But it's -- but from what I've understood, that's 
21   not much of an issue.  If they do get some icing on the 
22   deck while we're operating, they use salt to get rid of 
23   it and would get it off that way. 
24        The bigger issue was actually -- would be icing on 
25   cranes normally where then you'd get chunks of ice coming 
0245
 1   off a crane.  And in one instance he said that the fellow 
 2   had a hard hat on, and actually did get hit by a chunk of 
 3   ice that was more serious than what they would run into 
 4   with issues on actual ice on the deck.
 5        Our main thing would be just not to have people go 
 6   out when the deck was icy, if at all possible, and get to 
 7   a point where you can deal with it that way as opposed to 
 8   dealing with it when you're underway.
 9               MS. BRINKERHOFF:  Thank you.
10               MS. SHORTALL:  I have a few questions I'd 
11   like to ask, too, and I'd first like to start with 
12   Mr. Gremmert.  First of all, I want to thank you for 
13   referring to us as the esteemed panel.  I'm not sure 
14   we've ever received that accolade during a hearing, so I 
15   thank you very much.
16               MR. GREMMERT:  My pleasure.
17               MS. SHORTALL:  I've seen you here throughout 
18   the day, so I know you were here when Ms. Duz was 
19   testifying.  And she was indicating her preference for 
20   locks and a lockout/tagout program for vessels.  Do you 
21   share her opinion on that?
22               MR. GREMMERT:  The only thing I could tell 
23   you about that is since I don't really have expertise in 
24   that area is that I found with clients that I work with 
25   or many of these companies here and others also, that Amy 
0246
 1   seems to be the expert in this area.  And if Amy says 
 2   this is what we ought to do, then I would ratify that a 
 3   hundred percent.
 4               MS. SHORTALL:  All right.  What about the 
 5   rest of the panel?  Would you support a preference for 
 6   locks in a lockout/tagout standard for fishing vessels?
 7               MR. KLINE:  I would absolutely.  It's the 
 8   only real way to assure since you have individuals 
 9   working around equipment. 
10        Our work force is very diverse.  At any given time 
11   we could have 30 different nationalities onboard and 
12   probably as many languages spoken.  We do require a 
13   fundamental understanding of English, but we don't even 
14   require people to read English if you are an American for 
15   that matter.
16        So in our orientations, you know, we cover 
17   lockout/tagout with everybody that comes onboard, and we 
18   show them locks and explain what that is.  But, you know, 
19   if you take somebody from Somalia that has never been on 
20   an airplane, suddenly fly them to Alaska and introduce 
21   them to fish or crab that they've never seen before and 
22   stuff them in a room with 50 other wild and crazy people, 
23   I don't think they're getting everything we're saying all 
24   the time.
25        And so I think locks are -- as Amy said, I certainly 
0247
 1   would feel much more comfortable having a lock on 
 2   something than having a tag.
 3               MS. SHORTALL:  What about you, Mr. Weed?
 4               MR. WEED:  I would also defer to Amy.  She's 
 5   the one that we've used up to this point on this issue, 
 6   and that's where I would refer for questions.
 7               MS. SHORTALL:  And you, Ms. O'Leary?
 8               MS. O'LEARY:  We use a lot of locks.  Amy 
 9   actually has a lot to do with our safety program, so we 
10   do use a lot of locks.
11               MS. SHORTALL:  All right.
12               MR. GREMMERT:  I have one comment on that, a 
13   caveat to what I said. 
14               MS. SHORTALL:  Sure.
15               MR. GREMMERT:  Again, kind of going back to 
16   square one, the other thing that you can have a problem 
17   with is that there is a significant number, especially 
18   smaller vessels aren't capable of using locks, at least 
19   not with the technology that we have now.  Without a 
20   retrofit they wouldn't be able to use an actual physical 
21   lock on their electrical system, as an example.
22        Some of the other devices maybe they could use, but 
23   I know the electrical panels are a huge problem because a 
24   lot of them are very old, and they don't accept the kinds 
25   of aftermarket lockout mechanisms that are available on 
0248
 1   the market right now.
 2               MS. SHORTALL:  Well, then would you say if 
 3   it's not possible to actually add the lock, do you then 
 4   support other methods such as removing a handle, other 
 5   types of methods that would simply disable being able to 
 6   activate the energy?
 7               MR. GREMMERT:  I would say use the best 
 8   possible method of deenergizing hazardous energy, 
 9   whatever level that could be, even if it's simply a lock 
10   or a piece of duct tape.  I would definitely advocate 
11   using that.
12               MS. SHORTALL:  Okay.  Mr. Weed, I have a 
13   couple questions for you, and this goes back to the 
14   housekeeping issue that you were bringing up again.
15        We had a person at our Washington, DC hearing, who 
16   suggested instead of saying to remove ice and snow 
17   accumulations or slippery conditions as they occur, that 
18   instead they would suggest rewriting the standard that 
19   simply said you don't have to remove it, but you have to 
20   restrict or not allow employees to enter or be in that 
21   area.
22        Would that idea take care of what your concern is 
23   about this provision?
24               MR. WEED:  Yes.  My main concern is -- one is 
25   the word "immediate" to start with.  You're referring to 
0249
 1   getting it immediately done.  I think what you're 
 2   proposing is what I've understood from a captain is what 
 3   has happened. 
 4        They say if, in fact, we've got icy conditions, 
 5   people are not supposed to be going out on deck.  So 
 6   that's my understanding of the -- is what we -- the 
 7   approach we would take, so yes.
 8               MS. SHORTALL:  So that would take care of it?  
 9   You don't have to clean off immediately?  You just have 
10   to restrict access?
11               MR. WEED:  Restrict access, or even deal with 
12   it as an issue when it becomes a -- as a hazard, but to 
13   say it has to be dealt with immediately is my concern.  
14   That's where I've got problems where, again, if somebody 
15   goes out there, they can sue you because you didn't take 
16   care of it immediately.  I mean, I don't want to get hit 
17   for that.
18               MS. SHORTALL:  I have another question.  What 
19   all did you sell to Mr. Kline?
20               MR. WEED:  The entire ship with all the 
21   plans.  He took most of my employees, all except a couple 
22   employees.  I didn't actually sell the employees.  They 
23   were actually very nice, and they offered to take them 
24   all because they wanted to keep an ongoing operation out 
25   of it.
0250
 1        But my plans -- the safety plans for -- my OSHA 
 2   plans, we also have a number of HACCPP plans, which are 
 3   Hazard Analysis Critical Control Point plans, which are 
 4   used -- which are FDA regulations, and for USDC for our 
 5   sanitation site for our processing.
 6        There are a number of those type of plans, plus a 
 7   number of Coast Guard plans relating to everything from 
 8   how do you deal with ballast water.
 9               MS. SHORTALL:  That all went over to him?
10               MR. WEED:  That all went over to him with the 
11   understanding that they will use them.
12               MS. SHORTALL:  What do you have left in terms 
13   of --
14               MR. WEED:  I've got an office full of a lot 
15   of paper.
16               MS. SHORTALL:  I see.  Are you intending to 
17   purchase any additional vessels or any vessels at this 
18   time or down the road?
19               MR. WEED:  I actually do own a pollock 
20   catcher boat that is chartered to somebody else.  So I 
21   don't actually operate it, but I do own another vessel.  
22   It makes more money than the processing ship did, by the 
23   way.
24        So, no, I don't have that.  And I would expect that 
25   after I close down the company that I'm in, which -- 
0251
 1   well, there's a lot of mainly Government reporting for 
 2   employees that has to take part at the end of the year, 
 3   that we have a year end that's the end of March.  At that 
 4   point the company will probably get closed down, and then 
 5   I'll move on to something else.
 6               MS. SHORTALL:  Okay.  Thank you very much.  I 
 7   also want to thank the panel for coming here to testify 
 8   today.  I know it's been at the end of a long day that 
 9   you're testifying, and I appreciate your comments so 
10   much, and we look forward to your post-hearing comments 
11   as well.  Thank you again.
12               ALJ:  Thank you very much.  Our last witness 
13   today is Alan Davis, so we'll take a five-minute break. 
14                        (Recess taken.)
15               MS. SHORTALL:  Your Honor, while we're 
16   waiting, I'd like to enter into the record a hard copy of 
17   Mr. Davis' power-point presentation as Exhibit 0176 of 
18   the previously mentioned docket.
19               ALJ:  All right.  It's so ordered. 
20        Our next witness is Alan Davis.  Mr. Davis will you 
21   please state your name, spell your first name and your 
22   affiliation.
23   ///
24   ///
25                           TESTIMONY
0252
 1                         BY ALAN DAVIS
 2               MR. DAVIS:  My name is Alan Davis, A-L-A-N.  
 3   I am with American Seafoods, and I have also been asked 
 4   to speak on behalf of the North Pacific Fishing Vessels 
 5   Owner's Association and the Puget Sound Shipbuilders 
 6   Association.
 7               ALJ:  Thank you.  You may begin.
 8               MR. DAVIS:  Thank you for having me today.  
 9   With me today is Tim Duyasuk, D-U-Y-A-S-U-K.  He is an 
10   intern with American Seafoods from the Bristol Bay 
11   Economic Development Corporation. 
12        First, I would like to introduce myself.  My name is 
13   Alan Davis, and I would like to thank you for the 
14   opportunity to share some of my views and opinions on 
15   OSHA's proposed rules affecting general working 
16   conditions and shipyard employment.
17        A brief note about my background, I have a 
18   Bachelor's degree in Occupational Safety and Health from 
19   North Carolina A & T State University, and 18 years of 
20   occupational safety and health management in various 
21   industries.  This experience includes textiles, chemical 
22   manufacturing, higher education, health care and 
23   commercial fishing.
24        In the nine years I've been involved with commercial 
25   fishing, I've sailed multiple times on at least nine 
0253
 1   vessels and have been involved with inspections and 
 2   repairs on approximately 49 vessels. 
 3        I'm a certified safety professional and a 
 4   professional member of the American Society of Safety 
 5   Engineers.  I've served the Puget Sound chapter in a 
 6   variety of roles, including chapter president and 
 7   regional board member.  I've also spoken to two 
 8   international fishing industry safety and health 
 9   conferences. 
10        In 2007 I was honored to be appointed by the 
11   National Academy of Science to represent the commercial 
12   fishing industry on a panel reviewing 15 years of NIOSH 
13   research in agriculture, forestry and fishing.
14        I've also served for three years on the United 
15   States Coast Guard's Commercial Fishing Industry Vessel 
16   Safety Advisory Committee as the Vice Chairman and as the 
17   Chair of the Risk Management Subcommittee.
18        I'm a corresponding member of the NIOSH Agriculture, 
19   Forestry and Commercial Fishing Research Sector Council, 
20   and a peer reviewer for scientific research on commercial 
21   fishing vessel safety.
22        As the Safety Manager for American Seafoods Company, 
23   I'm responsible for the health and safety for 14 vessels 
24   and 1,100 hundred men and women that work on them.  It's 
25   been my distinct pleasure to participate in improving 
0254
 1   health and safety in commercial fishing, and my hope is 
 2   that these hearings will assist OSHA in better 
 3   understanding our industry and our challenges.
 4        American Seafoods Company is firmly committed to 
 5   being an industry leader in occupational safety and 
 6   health, and invests a significant portion of its time and 
 7   operational budget in its occupational safety and health 
 8   program.  We consistently strive to improve on our 
 9   efforts.
10        Likewise, a member of the Puget Sound Shipbuilders 
11   Association and the North Pacific Fishing Vessel Owner's 
12   Association are steadfastly committed to protecting our 
13   employees and our crew. 
14        We do not fear new rules, nor do we believe that we 
15   should blindly fight them.  We do, however, believe that 
16   new rules affecting ship repair and maintenance need to 
17   be drafted with all the affected parties in mind and 
18   represented.
19        Upon studying the package of proposed rules titled 
20   General Working Conditions in Shipyard Employment, it 
21   appears to us that those parties that contributed to the 
22   body of work had little understanding and contact with 
23   commercial fishing operations and small shipyards. 
24        For instance, MACOSH has no one on it from 
25   commercial fishing.  Instead it seems that the bulk of 
0255
 1   contributions have been made from the perspective of 
 2   major shipyards employing thousands of people. 
 3        Our challenge and your challenge, with all due 
 4   respect, we believe that our greatest challenges in 
 5   maritime safety and health are not in major ship building 
 6   and repair facilities.  Instead we believe our challenge 
 7   and your challenge is in creating simple, easy to 
 8   understand and implement affordable rules and guidelines 
 9   that the average vessel owner and operator can easily put 
10   into practice. 
11        While we are not driven to scratch at the details of 
12   statistics and costs, there are a few points that 
13   immediately caught our attention while reading the 
14   proposed rules for general working conditions. 
15        We're not sure where OSHA came to the conclusion in 
16   the preamble that there are 200 plus fishing vessels with 
17   crews sizes of 110 to 120, but counting on our fingers, 
18   we can assure you that there is -- that number is much 
19   closer to 30 vessels.
20        That said, the preponderance of the 79,565 
21   commercial fishing vessels are much smaller with crew 
22   sizes under 10 people.  And, therefore, the preponderance 
23   of the repair and maintenance work done on these smaller 
24   vessels is in smaller boat yards and repair facilities.  
25   Indeed, unless work requires lifting a vessel out of the 
0256
 1   water, most fishing vessels are repaired by their owners 
 2   and operators while at a dock.
 3        While we would not suggest that OSHA target small 
 4   vessels and small vessel operators, it does behove OSHA 
 5   to consider their needs and challenges when drafting new 
 6   rules.  Will they be able to understand them?  Will they 
 7   be able to implement and use them?  Will they be able to 
 8   afford them? 
 9        Again, we're not sure how the estimated costs were 
10   derived.  OSHA's Table 7 represents that the annualized 
11   cost of full compliance with all portions of this 
12   proposed package would be just over a million dollars 
13   with $606,000 of that cost attributed to lockout/tagout 
14   materials, implementation and training. 
15        Having implemented such programs on numerous vessels 
16   and in general industries, I can tell you from personal 
17   experience that number is low.  Such programs require 
18   constant training, and the materials necessary for 
19   conducting lockout/tagout must be constantly replenished.
20        I can think of nothing involved in the program that 
21   is durable and will last 10 years.  We do believe that 
22   lockout/tagout is worthwhile and necessary, but it is not 
23   an insignificant cost to implement on any scale.
24        A starter order for my seven larger vessels was over 
25   $7,000 per vessel.  That's just to get started.  The 
0257
 1   basic lockout kit that we have over here on the table is 
 2   purchased from a large commercial vendor.  Those few 
 3   materials were $400, and that is not enough on that table 
 4   to lock out most ships' systems.  You would need far more 
 5   than that.  This kit actually only came with two locks 
 6   and two tags.  So, again, getting started is uphill. 
 7        One of the things with AEDs as was questioned in the 
 8   proposed rulemaking, yes, we believe it is worthwhile to 
 9   have the equipment, but this one item alone far surpasses 
10   OSHA's total estimated cost and economic impact for the 
11   entire notice of proposed rulemaking.
12        If an appropriate AED and peripherals cost $3,193 
13   each -- and the reason that this one is the one that I 
14   selected and the price that I chose is this one is made 
15   for firefighters.  It's made for a tough environment.  
16   This is the one that we have on my vessels.
17        American Waterways Operators estimates that there 
18   are 31,449 vessels, including towboats, tugboats and 
19   barges active in the towing industry as of December 2002.  
20   Of these, 3,932 are tug and towboats. 
21        The U.S. Coast Guard lists 79,565 commercial fishing 
22   vessels and acknowledges that number is not complete.  
23   These two categories alone account for 111,000 vessels.  
24   Even paired down, if as few as 75,000 commercial fishing 
25   vessels, ships and work boats have to buy AEDs in order 
0258
 1   to have one readily during repair activities, that cost 
 2   totals $239,000,000 in initial AED purchases alone. 
 3        Add to that the training cost of $85 per person --  
 4   and, again, this is using our cost, the cost that we have 
 5   incurred in the past for CPR, first aid and AED training, 
 6   approximately $60 per person for the class, also an 
 7   average from an Internet search I did.  Approximately $15 
 8   per person for a facemask, because I believe if you're 
 9   training them you might as well equip them.  And $10 per 
10   person for lunch, because if you ask them to come to 
11   training and you don't feed them, they're not going to 
12   stay.
13        Add the wage cost of $60 per hour times eight hours 
14   times 150,000 -- that's just two people per vessel -- and 
15   you have a training cost of $73,500,000 that must be 
16   partially repeated annually according to the American 
17   Heart Association and the American Red Cross.  Factor in 
18   the annual purchase of new electrode pads and the 
19   bi-annual purchase of $200 batteries, and you can begin 
20   to see money adding up.
21        All this is without factoring in lost production 
22   from the time the workers are away from their normal 
23   duties.  In business that is a cost that we incur.  If 
24   the estimates of costs and impacts are off in these 
25   areas, what other areas might be underestimated? 
0259
 1        The little guy, while the intention of OSHA's 
 2   proposed rules in these categories is honorable, the 
 3   wording reflects a lack of understanding of the 
 4   operational challenges and reality in ship repair and 
 5   maintenance, both in ship repair facilities and work done 
 6   onboard vessels.
 7        While aircraft carriers and container ships are 
 8   built and hauled out for servicing in huge shipyards with 
 9   thousands of employees, many more vessels in the 
10   commercial fishing and work boat category are serviced by 
11   the owners and operators while tied to the dock.
12        All across America thousands of small boat yards, 
13   repair facilities and maintenance technicians are 
14   involved in repair and maintenance activities while it 
15   seems they have either been ignored or misunderstood in 
16   the process of drafting these proposed rules. 
17        Everyone wants to go home safely.  First and 
18   foremost it should be understood that we all want our 
19   crews to go home safely.  We live together eight or nine 
20   months out of the year, 24 hours a day.  We are a family.  
21   Sometimes a dysfunctional family, but a family 
22   nevertheless.
23        By and large businesses are willing to comply with 
24   rules and regulations that they can understand and are 
25   practical.  One should not draft rules that require 
0260
 1   people to go back to the preamble for interpretations and 
 2   understanding or reference other rules and other 
 3   publications.  Doing so frustrates people that are making 
 4   an honest effort and requiring that they run back and 
 5   forth through a maze of confusion.  Regulatory prose 
 6   complicates the process.
 7        On my vessels alone, all the CFRs that we would have 
 8   to purchase annually to cover everything that we do costs 
 9   over $1,200 annually. 
10        Some of the areas that I've been asked to speak on 
11   are the housekeeping, sanitation, AEDs, CPR, AED, first 
12   aid training, basket stretchers, lockout/tagout, eye 
13   washes and quick drenching facilities.
14        First, sanitation, 1915.88(c)(2):  The employer 
15   shall clearly mark non-potable water supplies and outlets 
16   as not safe for health or personal use. 
17        This is a little bit wordy, and I fear it would be 
18   unclear to persons who are not native English speakers, 
19   do not drink, do not bathe.  An appropriate pictogram is 
20   a much better option.  My company employs 1,100 people 
21   from approximately 80 different countries.  Simple signs 
22   are the best signs. 
23        Sewered toilet facilities, 1915.88(d)(2):  The 
24   employer shall provide at least the following number of 
25   sewered toilet facilities for each sex, see Table 2, 
0261
 1   Subpart F.
 2        For many small and medium vessels this is impossible 
 3   as many moorages do not offer sewer connections, and the 
 4   vessels do not have adequate tank capacity to store 
 5   sewage and waste water onboard.
 6        Providing sewered toilet facilities can at times be 
 7   impossible for larger vessels as well due to systems 
 8   being shut down for service and repair.  Frequently these 
 9   needs are met by having portable facilities placed 
10   onboard or near the vessel or by having access to sewered 
11   toilet facilities somewhere in the moorage area, but 
12   frequently a goodly distance away from the vessel. 
13        1915.88 (d)(3):  In addition to the required number 
14   of sewered toilet facilities, the employer may also 
15   provide portable toilet facilities.  I believe what some 
16   people have mentioned earlier is the devil's in the 
17   details and the wording is what can bite us later.  
18   Having "in addition to" here creates the understanding 
19   and the expectation that portable toilet facilities can 
20   only be used in conjunction with sewered facilities.
21        The only reason we can imagine that anyone would 
22   ever want to supply portable toilet facilities is that 
23   there are no sewered toilet facilities available, and 
24   that they are not available in adequate numbers.
25        With the terms "in addition to," and "may also 
0262
 1   provide" included in this section, OSHA has placed a 
 2   greater burden on vessel owners and ship repair 
 3   facilities than is placed on organizations conducting 
 4   concerts, sporting events, political speeches and other 
 5   public gatherings.
 6        Instead it should be something to the effect of 
 7   "wherever it is not possible to meet the guidelines for 
 8   sewered toilet facilities, the employer may provide 
 9   portable toilet facilities in adequate numbers based on 
10   the service provider's guidelines for use." 
11        Adequate venting and as necessary lighting and 
12   heating, 1915.88 (d)(3), we're not sure where OSHA did 
13   their portable toilet facility shopping, but a quick call 
14   to the largest supplier in Washington State revealed the 
15   following:  There are no heated units available in 
16   Washington State.  Units with solar-powered lighting cost 
17   4.5 times as much as the standard model.
18        Something that made me think about my colleagues in 
19   Alaska, if bears like hot tub covers and warm car hoods, 
20   what are they going to think of heated port-a-potties?  
21   By the way, I think that guy made it.
22        A personal note on portable toilets:  I have never 
23   encountered a portable toilet facility anywhere in the 
24   world that was adequately ventilated.  On consultation 
25   with a local expert, he stated that it all comes down to 
0263
 1   servicing the facility frequently enough that the waste 
 2   material does not exceed the level of water and chemical 
 3   in the system.  They do not have systems with powered 
 4   ventilation.
 5        Medical services and first aid, there were questions 
 6   earlier today about 1915.87(a), the general requirement 
 7   that medical services and first aid are readily 
 8   accessible.
 9        While we are all for performance standards and 
10   having the leeway to accomplish safety goals and 
11   objectives ourselves, the way this is written makes some 
12   feel that should an accident occur, an OSHA inspection 
13   officer would criticize our preparations and fine us for 
14   not having services to the level they think are required 
15   or as accessible as they feel or necessitated by an event 
16   that no one anticipated.
17        Does that mean a person with a -- medical services, 
18   does it mean a person with an eight-hour first aid CPR 
19   class or a board-certified emergency room physician? 
20        Readily accessible, in a city with an average 
21   emergency medical response time of under four minutes is 
22   that adequate? 
23        Large versus small, these are perhaps easy questions 
24   to answer for a shipyard with 10,000 employees and three 
25   internal clinics staffed by doctors and nurses, but for 
0264
 1   the guy with the crab boat tied up at a marina the 
 2   answers are not always clear.
 3        "Shall ensure that there is an adequate number of 
 4   employees at each work location during each shift who are 
 5   qualified in CPR/first aid."  Again, we're faced with a 
 6   crisis of definition, and it is perhaps because there is 
 7   such a huge amount of variability in the size and scope 
 8   of maritime ship and repair industry.
 9        On a hundred-foot vessel with a crew of 12 working 
10   on maintenance and upgrades, is one person with first aid 
11   and CPR training enough? 
12        On a 400-foot vessel with three regular crew working 
13   on a project, how many CPR and first aid trained people 
14   would OSHA expect, and if there were 12 outside 
15   technicians working on various projects around the 
16   vessel? 
17        Imagine that you're a company owner that has a 
18   hundred employees and 10 of them have CPR and first aid 
19   training.  You would think that 10 percent would be an 
20   adequate number.  How does the company assure that with 
21   vacations, sick leave and off-site assignments and 
22   situations that might arise that they have all corners of 
23   all areas covered at any one point in time.  It does 
24   become a logistical nightmare.
25        Work location, how do we determine this?  If the 
0265
 1   chief engineer of a 90-foot vessel is designated first 
 2   aid provider, then is the entirety of that vessel one 
 3   work location? 
 4        If the chief engineer of a 900-foot vessel is 
 5   designated first aid provider, then is the entirety of 
 6   that vessel one work location?  It's difficult to manage 
 7   this.  It's not an easy issue.  And our fear is that no 
 8   matter how hard we try, if an accident occurs we will be 
 9   taken to task by someone with the benefit of 20/20 
10   hindsight.
11        Valid first aid and CPR training, 1915.87(c)(2), 
12   maintaining our current CPR/first aid training can be a 
13   nightmare, even for those of us that get recertified as 
14   professionals annually.  Does valid mean within the 
15   expiration date of the last training?  Could it also be 
16   construed to mean that one must retrain everyone as soon 
17   as the Red Cross or the Heart Association announces a 
18   change?
19        I became a firefighter when I was 16.  I think I 
20   have gone through 20 different changes in CPR since I was 
21   16 years old. 
22        Cost of training and maintaining the training, if a 
23   company determines that they need 10 people with valid 
24   first aid and CPR training and they pay those people an 
25   average of $60 per hour for the eight hours plus $85 per 
0266
 1   person for the trainer and materials, et cetera, that 
 2   comes to $5,650 annually at a minimum. 
 3        The Coast Guard already has a CPR training rule.  
 4   One, it's a requirement for licensing for those vessels 
 5   that have licensed personnel.  The Coast Guard already 
 6   prescribes the number of people in commercial fishing, 
 7   and to our understanding that means that the Coast Guard 
 8   would preempt the OSHA rule for vessels even operating 
 9   within three nautical miles.  The chart's fairly simple.  
10   More than two persons you need one.  More than 16 you 
11   need two.  More than 49 you need four. 
12        AEDs, the question was raised in the proposed 
13   rulemaking about automatic external defibrillators, and 
14   if they should be required and under what circumstances 
15   they should be required.  This is a difficult question 
16   because there are potential life-saving benefits to 
17   having AEDs available.
18        As a former firefighter and EMT, I am a passionate 
19   proponent of AEDs and have encouraged people far and wide 
20   to purchase them, but not all things are as easy to 
21   accomplish as they are easy to write into the rule. 
22        Again, we come to readily available.  On a 90-foot 
23   vessel is an AED in the wheelhouse close enough?  On a 
24   120-foot vessel is one AED enough?  How about on a 
25   345-foot vessel?  How many does this thing need?  Does 
0267
 1   this vessel really need an AED?  How about this one?  
 2   This is a fishing vessel, and the way the rules are 
 3   written my understanding is it would fall under it. 
 4        Safety and EMS professionals worldwide dream of 
 5   having AEDs everywhere mounted all over the place within 
 6   an arm's reach of any and every location, but we are not 
 7   there yet.  The cost and logistics of managing them are 
 8   still too high to enable complete saturation. 
 9        While prices have come down in recent years, I would 
10   advocate caution to anyone in purchasing an AED that 
11   isn't ready for a harsh maritime environment. 
12        The initial cost of $2,500 to $3,100 isn't the end 
13   of the issue either.  Electropads have to be replaced 
14   annually, and they require -- most require battery 
15   replacement every other year.  Owning and maintaining 10 
16   or 20 of them can add up quickly.
17        At this point we would encourage OSHA not to require 
18   AEDs and perhaps to recommend and suggest that they be 
19   considered.  The industry is actually getting into this 
20   on its own. 
21        Quick drenching and flushing facilities, 1915.87(e):  
22   Where there is the possibility that an employee could be 
23   injured if splashed with hazardous or toxic substances, 
24   the employer shall provide facilities for quick drenching 
25   or flushing the eyes and body located within each work 
0268
 1   area. 
 2        This is a huge change in scope for eye wash and 
 3   drenching facilities.  For some reason OSHA has chosen to 
 4   expand its requirement in this area from corrosive to all 
 5   hazardous or toxic substances.  This will radically 
 6   expand the number of places drenching and flushing 
 7   facilities would be needed, and on ships this is already 
 8   a huge challenge as it stands. 
 9        On the table before you, you can see a few items 
10   that, based on our understanding of OSHA's definition of 
11   hazardous and toxic, would fall under this provision.  
12   Common household items, things that are used in every 
13   workshop and everyone has in their garage or at their 
14   desk in their office.  We don't believe this was OSHA's 
15   intent. 
16        Following our understanding of the wording, we did a 
17   survey on a 255-foot long factory trawler, something that 
18   you've heard also called a catcher processor.  How do we 
19   fit an eye wash in here?  By the way, this is an 
20   emergency generator.  There are electrical panels in 
21   here.  Do we really want to be plumbing potable water in?  
22   Yet there are chemicals and batteries in here. 
23        Do we need an eye wash in this space?  It's 
24   essentially a storage closet.  Under the proposed rule, a 
25   literal interpretation, we would need one because there's 
0269
 1   WD40 there.
 2        Would we need an eye wash and a deckhand in a break 
 3   room?  Again, we have a substance that might be 
 4   considered hazardous or toxic. 
 5        Eye wash and hazardous material, my understanding 
 6   under OSHA's broad definition is that these things would 
 7   apply.  Would we need an eye wash in every state room, 
 8   bathroom, storage closet and even outside on a deck 
 9   because they both clean and paint on the deck? 
10        I've also been told that plumbed are preferred 
11   wherever possible.  So on our 255-foot fishing vessel, 
12   applying the 10 seconds unimpeded, we get eye wash costs 
13   of $445.  118 eyewashes would be needed.  That's $52,000.
14        Talking to our engineering staff, that's 1,770 feet 
15   of pipe at a minimum, stainless or copper depending on 
16   location.  That gives us a cost of $3,000 to almost 
17   $6,000.  Guessing at least eight man hours of plumbing 
18   and dismantling and repairing per unit, you get 
19   approximately $66,000. 
20        Replacing wall materials and other things that are 
21   damaged in the process of getting access to the plumbing 
22   and plumbing in the units, another $11,000, almost 
23   $12,000, so there's an estimated cost for one vessel of 
24   $136,000.  And I can tell you, just asking my engineering 
25   staff this question made them look at me like I was 
0270
 1   insane.
 2        If you add in drenching, given the water demand for 
 3   a drenching system and adding in the need for it to be 
 4   tempered, OSHA has a proposed rule that simply cannot be 
 5   met by the majority of vessels in existence, and at a 
 6   cost far above the ability of most vessel operators to 
 7   meet.  How would we apply that to a cruise ship or an 
 8   aircraft carrier? 
 9        Water supply shortages, we do not have an unlimited 
10   access to fresh potable water.  By the nature of one of 
11   the products that we make, our ships produce an enormous 
12   amount of fresh water for our process, more than some 
13   Navy ships with five times the crew, but ships are not 
14   plumbed with fresh potable water in every space 
15   throughout the vessel.  And in those areas that do not 
16   have a pipe running through them, the pressure and volume 
17   is unlikely to meet the need, or that do have a pipe, the 
18   pressure and volume is very unlikely to meet the needs 
19   outlined in ANSI Z358. 
20        How does a shipyard deal with doing work on a vessel 
21   that is not theirs and meet the requirement?  One of the 
22   suggestions I heard was portable systems, which can be 
23   very bulky and difficult to maintain in a ship's 
24   environment.
25        You see before you a rated 15-gallon portable 
0271
 1   system.  It weighs 151 pounds.  It requires that it be 
 2   checked or tested weekly, requires that it be drained 
 3   monthly and washed out with soap and water. 
 4        Again, all these things take time, and simply 
 5   getting that big thing from one project to another is a 
 6   hazard in and of itself.  By the way, the cost of this 
 7   handy-dandy unit delivered to you, $1,200.
 8        10-gallon eye wash, you've got the same issue.  This 
 9   would be the least -- the smallest system that you could 
10   have that would actually meet the requirements for 15 
11   minutes of eye flush, a thousand dollars and weighs 91 
12   pounds.
13        Self-contained emergency eye wash stations for 
14   places that don't have plumbing would seem like an easy 
15   answer, provides 15 minutes of constant flow, costs $400 
16   give or take and seems like a perfect solution.  This is 
17   going to sound silly, but what if your employees drink 
18   it?  Seriously, no matter how many signs, lectures, 
19   training, it's all been to no avail when eye wash bottles 
20   and the contents of self-contained units disappear.
21        Emergency eye wash cartridge sets, the longest of 
22   any of the systems I've seen have a shelf life of two 
23   years.  I can guarantee you when you order them and they 
24   arrive, it's not going to have two years left on the 
25   expiration date.  The weight is about 70 pounds, and it's 
0272
 1   $220 per pack.  So your annualized cost per unit would be 
 2   $111, assuming that you could actually get two years out 
 3   of them.
 4        We would ask that OSHA stick with the language used 
 5   in 1910.151(c) to avoid unmanageable and unachieving 
 6   expansion of the areas requiring flushing and drenching 
 7   facilities.  We all share concerns about acids and 
 8   caustics, but we do not believe that paints and greases 
 9   are the biggest issues we face. 
10        Basket stretchers, 1915.87(f):  The employer shall 
11   assure that there are adequate number of basket 
12   stretchers or the equivalent readily accessible where 
13   work is being performed onboard a vessel or a vessel 
14   section. 
15        There are a number of questions that arise from this 
16   proposed standard that seem to lose sight of some of the 
17   common sense provisions of 1915.98(b).  How do we define 
18   adequate number, because assuredly you could survey five 
19   OSHA inspectors and five vessel owners and operators and 
20   get at least 10 different answers on any given day. 
21        "Where work is being performed constantly onboard 
22   every vessel and in every section," so a literal 
23   interpretation of this statement leaves us with a need to 
24   purchase basket stretchers for every space. 
25        Would a Sked and an Oregon spine splint be 
0273
 1   considered equivalent?  It's not defined here.  I 
 2   understand you can't name everybody's product, and you 
 3   have to actually avoid naming products, but one of the 
 4   things that we found to be most practical is this 
 5   particular product.  It rolls up into the little bundle 
 6   you see on the floor before you.  It is actually rated 
 7   for lifting 5,000 pounds, and it's a combination of 
 8   rescue equipment that's used by military and civilian 
 9   teams the world over.  We need to make sure that OSHA 
10   would consider that this system be equivalent, whether 
11   it's an inspector in Florida or an inspector in Alaska.
12        Perhaps there's more reasonable wording.  1915.98(d)  
13   says, available for each vessel, and no more than two 
14   required for each location.  Perhaps this is more 
15   reasonable wording, especially in light of the fact that 
16   they will almost never be used. 
17        1915.98(d) also recognizes the futility of this 
18   requirement in some case.  In any area served by an 
19   emergency medical response system, OSHA can rest assured 
20   that any fire service emergency medical service rescue 
21   team or Coast Guard responders are going to refuse to use 
22   any basket stretcher or its equivalent that they 
23   encounter onboard a vessel or in a shipyard.  They don't 
24   know where it's been.  They don't know if its 
25   certification has been tested.  They will not use them. 
0274
 1        In addition, anyone within the jurisdiction of a 
 2   fire or emergency medical service with any standards of 
 3   professionalism would be heartedly discouraged by such 
 4   services from attempting to move a patient, except under 
 5   the most dire of circumstances.  In short, the 
 6   professionals don't want us to use them, so more than one 
 7   or two per vessel is a complete waste of resources. 
 8        A few comments on a variety of areas within the 
 9   proposed standard, handheld portable lights, 1915.82(c), 
10   in any dark area that does not have, please just call it 
11   a flashlight.  I read this twice before I realized OSHA 
12   wasn't referring to drop lights or other systems powered 
13   by ships' electricity.
14        And we've heard that some have suggested changing 
15   this to helmet-mounted lights.  Folks, people tend not to 
16   wear hard hats inside of ships, and helmet-mounted 
17   intrinsically safe lights aren't cheap.
18        Life boats, 1915.86(b):  The employer shall not 
19   permit any employee to be in a lifeboat while it is being 
20   hoisted.  Lifeboats and motor lifeboats require periodic 
21   maintenance and service that necessitate lowering them 
22   into the water, exercising or testing the equipment, and 
23   then hoisting them back into their normal positions. 
24        This is commonly done while in a bay or a location 
25   protected from the weather, but to require the 
0275
 1   technician, engineer or deckhand to board and exit the 
 2   lifeboat while it is in the water exposes them to a far 
 3   greater risk of falling into the water or being injured 
 4   in some other fashion.
 5        For those that want to try climbing down a boarding 
 6   ladder and climbing back up in calm conditions, we can 
 7   arrange a demonstration on Thursday. 
 8        This section should perhaps be reworded to state:  
 9   The employer shall not permit any employee to be in a 
10   lifeboat while it is being hoisted unless doing so has 
11   been determined to be the safest method for the employee 
12   or crew member to reboard the vessel. 
13        It is also understood that it may be necessary for 
14   crew members to be inside a lifeboat during its 
15   deployment, and return to the vessel for the purpose of 
16   emergency drills. 
17        There's been a lot of talk today about 1915.89, 
18   control of hazardous energy.  I have a long history of 
19   championing and guiding principles of hazardous energy 
20   control, and I like to think I've had some small part to 
21   play in the principles being as wide spread in the North 
22   Pacific fishing fleet as they are today.
23        As others have or will be speaking on this today and 
24   tomorrow, I'll not take up a great deal of time on a line 
25   by line analysis, but I do feel strongly that there are 
0276
 1   several fundamental assumptions in the proposal that are 
 2   in error and need to be addressed.  Efforts are under 
 3   way.  Progress is being made. 
 4        Commercial fishing does not need two separate 
 5   hazardous energy control regulations and procedures.  We 
 6   need one well thought out and up-to-date system in which 
 7   everyone in maritime can be trained, and which leads us 
 8   all to the ultimate goal of preventing injuries and 
 9   fatalities.  The idea of having one program for factory 
10   spaces and a different program for ship systems is 
11   fundamentally flawed.
12        There is a fundamental assumption within OSHA that 
13   the ship's systems and factory processing equipment are 
14   completely segregated, and so are the engineers and 
15   technicians that are responsible for their maintenance 
16   and repair.  I can testify that is an erroneous 
17   assumption.
18        As stated earlier, commercial fishing vessels are 
19   the very epitome of a lean organization.  The smaller the 
20   vessel, the leaner it is.  In even the largest of factory 
21   trawlers and processing ships you will find engineering 
22   staff helping the factory technicians with issues, and 
23   you will find factory technicians helping with 
24   engineering issues.  You will also find deck, bridge and 
25   even office staff pitching in to resolve mechanical 
0277
 1   crises of all kinds.
 2        Some examples of crossing this imaginary line:  The 
 3   sump pump in the factory fails.  Under the proposed 
 4   standards, is this a ship system problem or is it a 
 5   factory problem?  It is a problem for both, and the 
 6   solution involved an engineer, an oiler, a factory 
 7   technician and a safety manager swinging a hammer.
 8        A plate freezer's foundation breaks free.  Is this a 
 9   ship system issue or a factory issue?  Again, it is 
10   everyone's issue, because the equipment poses a hazard, 
11   is connected to the deck and to the refrigeration plant.  
12   The solution involved the chief engineer, a deckhand, the 
13   factory technician and the safety manager from the 
14   office, who happened to be at sea at the time.
15        A leak in the through-hull fitting, this is 
16   obviously a ship's system problem, right?  Well, if 
17   you're on the boat, a leak in a through-hull fitting is 
18   everybody's problem.  On a boat with water coming in 
19   everybody's going to be concerned and willing to help, 
20   but the solution in this case involved the chief 
21   engineer, the first engineer and an oiler, at least three 
22   technicians from the factory, a bosun and a deckhand.  In 
23   this case the office staff were busy at the office 
24   praying for them.
25        Electrical problem, computer problem, programmable 
0278
 1   logic controller problem, generator problem, one 
 2   electrician covers it all throughout the ship and the 
 3   factory.  Will he have to follow two different guiding 
 4   rules? 
 5        Our ship's crew is fully integrated.  Not only are 
 6   the ship's systems and the factory's production equipment 
 7   all integrated, but the ship's crew from top to bottom as 
 8   well. 
 9        Essentially, we are one organism with each part 
10   completely interdependent with the other.  We cannot 
11   operate smoothly with two separate rules or systems for 
12   hazardous energy control.  It would cause too much 
13   confusion and unnecessary cross-training. 
14        1910.147 is not necessarily the latest and greatest.  
15   The foundations were written and laid in the '70s and 
16   '80s, and there are numerous suggestions that it can be 
17   improved upon.
18        OSHA should step away from trying to stuff maritime 
19   into 1910.147, or stuff 1910.147 into maritime, and 
20   instead take an in-depth look at the 2004 NSRP review of 
21   current best practices for energy control, and the ANSI 
22   Z244.1 that was updated in 2003.
23        Please redraft 1915.89 with these more current 
24   products as a guide, and do not continue to divide a 
25   commercial fishing vessel with some imaginary line. 
0279
 1        One of the things that we have as a concern with 
 2   1910.147 and having that put on top of the factories and 
 3   commercial fishing vessels is that the collateral impact 
 4   of years of interpretation could have numerous unforeseen 
 5   issues for maritime and commercial fishing if OSHA 
 6   continues to pursue this path of dividing a ship and 
 7   placing the processing portion under a general industry 
 8   standard.  Will that automatically mean that almost 20 
 9   years of judgments and rulings will be enforced on our 
10   vessels under circumstances that were never even 
11   considered or contemplated when they were implemented? 
12        Let's make a clean simple rule for all of maritime 
13   that incorporates the lessons learned from almost 20 
14   years of lockout/tagout implementation and utilize the 
15   input and expertise available from the full breadth of 
16   the maritime industry of which commercial fishing is a 
17   significant part.
18        1915.81, housekeeping, deck and dock surfaces, you 
19   guys have heard quite a bit about this one today.  I'll 
20   provide you some visual examples. 
21        "The employer shall ensure slippery conditions such 
22   as ice, snow on walking and working surfaces are 
23   eliminated as they occur."  I'm not sure what OSHA's 
24   parking lot looks like in the winter.  Actually, I grew 
25   up in North Carolina.  I kind of have an idea what 
0280
 1   happens when it snows in DC, but let me show you a few 
 2   pictures of my office parking lot. 
 3        We can't control the weather.  We try to keep it 
 4   clean, but mother nature has a habit of getting ahead of 
 5   us.  Again, we can't control the weather.  There's a guy 
 6   there trying.  We wish we could.  Our offloads would be 
 7   much more pleasant if the snow wasn't blowing sideways at 
 8   70 miles an hour and filling up my right ear. 
 9        Nature's challenges, this is after the dock was 
10   plowed.  Icy conditions are our reality.  You want 
11   somebody to go out and clean the ice off?  That means 
12   somebody has to go out in the ice to clean it off.  In 
13   this case, it's a pretty urgent issue because too much 
14   ice is not a good thing.
15        In closing, Ladies and Gentlemen, I would like to 
16   thank you both for your efforts to help make the maritime 
17   industry and its employees safer, and for allowing me the 
18   time to provide input and insights from a variety of 
19   areas that you may not have had the opportunity to 
20   consider earlier in the process.
21        I understand that this is an arduous process for 
22   you, and I can only hope that our comments have helped in 
23   some way.  Unless you have any questions for me at this 
24   time, I would like to step aside and allow others to 
25   contribute, but I wrote this before I knew I was going to 
0281
 1   be last.  So in conclusion, welcome to our office. 
 2               ALJ:  Are there any questions from the 
 3   audience?  Yes.  Can you step up, identify yourself and 
 4   your affiliation?
 5               PHILIP DOVINH:  Yes.  My name is Philip 
 6   Dovinh, and I'm with Sound Testing.  I'd like --
 7               ALJ:  Will you spell your name, please?
 8               MR. DOVINH:  Yes.  P-H-I-L-I-P, last name 
 9   D-O-V-I-N-H.
10               ALJ:  Thank you.
11               MR. DOVINH:  Alan, how do you handle that in 
12   the cold to keep the water from not getting frozen?
13               MR. DAVIS:  Actually, I just got that for 
14   show and tell, and I'm not exactly sure how I would keep 
15   it from freezing.  There are numerous areas on our vessel 
16   that if it was left there, it would wind up swelling up 
17   and busting.
18               MR. DOVINH:  Thank you.
19               ALJ:  Any other questions from the audience?  
20   Okay, OSHA panel?
21               MS. SHORTALL:  Yes, we do have questions.  
22   We'll start with Ms. Wangdahl.
23               MS. WANGDAHL:  I guess you can blame me for 
24   making you go last.  I was in charge of the schedule, but 
25   thank you for sticking around and your presentation. 
0282
 1        In your comments you stated that you had 14 vessels.  
 2   Can you tell me a little bit about those vessels?
 3               MR. DAVIS:  We now have eight factory 
 4   trawlers.  Catcher processor may be another term you've 
 5   heard used for them.  Six of them fish for pollock in the 
 6   Bering Sea and off the coast of Washington and Oregon.  
 7   Some of them fish for a fish called hake. 
 8        They catch the fish.  They bring it onboard.  They 
 9   disassemble it.  They freeze it at sea, and they will be 
10   out for approximately 14 days.  They will come in.  They 
11   will off-load, and they will go do it again.
12        We have seven freezer longliners.  They are 
13   approximately 120, 125 feet in length.  They have a crew 
14   of around 18.  They go out.  They put a rope on the 
15   bottom of the ocean or near the bottom of the ocean with 
16   a bunch of baited fish hooks on it.  They come back and 
17   pick it up, take the fish off, cut their heads off, 
18   freeze them, and they will be out for about 30 days at a 
19   time.
20        We also have several small catcher boats, only one 
21   of which is in service right now.  It actually goes out, 
22   catches cod, and then takes the cod and transfers it over 
23   to another vessel as you heard described earlier in a 
24   mother ship operation.
25               MS. WANGDAHL:  Okay.  Any dock side 
0283
 1   facilities?
 2               MR. DAVIS:  We lease dock space from the Port 
 3   of Seattle.  So that's where we tie up, and we do our 
 4   repairs and maintenance for our vessels.
 5               MS. WANGDAHL:  And your employees are doing 
 6   the repairs? 
 7               MR. DAVIS:  We have employees.  And as was 
 8   mentioned earlier, there's probably 190 vendors in the 
 9   local area and around the world that may be called in to 
10   assist with working on specific pieces of equipment.
11               MS. WANGDAHL:  Okay.  We'll do lockout/tagout 
12   first, and then we'll get into some of the other issues.
13        In your testimony you said that you've implemented 
14   several lockout/tagout programs.  I'm sorry, you've 
15   implemented lockout/tagout programs on numerous vessels.
16        Can you tell me what were those programs modelled 
17   after, and just go into a little bit about the program 
18   itself.
19               MR. DAVIS:  Those programs were basically 
20   built on the guidelines and general principles of 
21   1910.147.  However, there are significant challenges into 
22   implementing the full program. 
23        The way the programs are written, group lockout is 
24   virtually necessitated.  With factory cleaning, which 
25   occurs every three days in order to maintain sanitation 
0284
 1   standards, you have, oh, 50 people at a time that are 
 2   scrubbing away trying to keep things clean.
 3        As we stated earlier, many of those people are from 
 4   all over the world.  So there's a significant challenge 
 5   in training somebody to go lock out 50 or 60 different 
 6   places.
 7        So what we do is we have areas.  The technicians 
 8   that are responsible for those areas go through and apply 
 9   technician locks or expert locks, however you want to 
10   call it.  They put the keys in a box, and then the 
11   individuals that would be exposed lock the boxes. 
12        They then go out and sort of challenge the process 
13   by poking buttons and turning valves and trying to get 
14   things to go to see whether -- it's verification of a 
15   successful lockout. 
16        Other challenges that we have, like Captain Bohannon 
17   mentioned earlier, we have, I think when we did the 
18   survey, approximately 17 different breaker, breaker 
19   manufacturers, breaker types, and you see a few doodads 
20   over there that are supposed to fit on them, but I can 
21   guarantee you that we've got some that none of them will 
22   go on. 
23        I actually hadn't read that letter that was in the 
24   letter of interpretation, so I think some of my guys may 
25   have drilled a hole or two in a panel trying to meet the 
0285
 1   intent, oops.  But basically that's what they're modelled 
 2   on, and that's the area -- that's one of the areas that 
 3   it's a challenge.
 4        The other area is in locking out valving.  As 
 5   Captain Bohannon said earlier, a lot of the valves that 
 6   are available that have little safety devices on them, in 
 7   about two weeks those little safety thingies are rusted 
 8   up, the springs don't work anymore and they're useless.
 9        I would like to make an editorial comment.  I've 
10   heard a couple of questions today about removing the 
11   handles.  Most people that I know in the industry do not 
12   like the concept of removing a valve handle, because it's 
13   going to get lost.  And then people are going to get in 
14   the habit of using pliers on the valve stem or a wrench.  
15   And then people are going to get in the habit of using 
16   the pliers, and they're going to do it at the wrong time.
17        I believe that they should be tagged.  If there's 
18   any way to chain them or lock them, then by all means do 
19   so, but it is a significant challenge in our industry.  
20   And as Captain Bohannon said earlier, there's a local 
21   vendor that is now making $25 a piece stainless steel 
22   adaptors to fit two types of valves, and they're 
23   different sizes.  And I know the fellow that designed 
24   them.  He works for me.
25               MS. WANGDAHL:  Are you using tags at all?
0286
 1               MR. DAVIS:  Yes.  We use tags more so than 
 2   locks, because we have a significant number of places 
 3   that you can't actually affix a lock.
 4               MS. WANGDAHL:  Are you using additional 
 5   measures when you're using tags?
 6               MR. DAVIS:  Additional measures such as 
 7   removing valve handles?  No.
 8               MS. WANGDAHL:  Blanking, blocking, anything 
 9   or just tagged?
10               MR. DAVIS:  Blanking and blocking was 
11   mentioned earlier, and I believe Amy Duz made a few 
12   comments about it.  Ship systems at sea, you have a pipe 
13   that carries water.  Every time you open that pipe and 
14   blank it and then open it and close it up again, you're 
15   risking having a failure in the future.
16        On refrigeration systems like ammonia, I would say 
17   that blanking and blocking are much more hazardous than 
18   not.  So, no, we're not using extraordinary measures.
19               MS. WANGDAHL:  Would you recommend that we 
20   not have additional measures if we changed the rule to 
21   allow tags?  You don't necessarily see a need to have 
22   additional measures?
23               MR. DAVIS:  I see the need to put in a 
24   caution about leak by for valves and things like that.  
25   But again, if you start getting into requiring blanking, 
0287
 1   I really wouldn't get into removing valve handles.  If 
 2   you start requiring those kind of things, I believe that 
 3   you have some unintended consequences that could create 
 4   problems down the road. 
 5               MS. WANGDAHL:  You say that you have AEDs on 
 6   your vessels?
 7               MR. DAVIS:  Yes, ma'am.
 8               MS. WANGDAHL:  How many per each vessel?
 9               MR. DAVIS:  We have one per vessel, and it 
10   was my first purchase six and a half years ago after 
11   coming to the company.
12               MS. WANGDAHL:  And where are they located?
13               MR. DAVIS:  For the most part, they are 
14   located on the bridge of each vessel.
15               MS. WANGDAHL:  Are only trained employees 
16   allowed to use them?
17               MR. DAVIS:  That's sort of a trick question.  
18   If I'm the one having a heart attack, I don't care who's 
19   using it.  We have a number of people onboard each vessel 
20   that have the training in how to use them. 
21        As a state patrol first responder EMT kind of 
22   person, I believe that they're simple enough that they 
23   can talk you through it. 
24               MS. WANGDAHL:  Right.
25               MR. DAVIS:  So I don't know that I would get 
0288
 1   upset if somebody that wasn't currently certified tried 
 2   to use it.
 3               MS. WANGDAHL:  So if that was your first 
 4   decision you made, why did you feel it was so important?
 5               MR. DAVIS:  One of the things that I found 
 6   over the years of going from place to place and 
 7   instituting safety in places that have never had a safety 
 8   manager is trying to get buy in. 
 9        And during my second interview with the company, a 
10   captain who has a reputation of being particularly gruff 
11   and I were locked in a room with each other.  We'd never 
12   met each other, and one of the things that he said he was 
13   concerned about was the fact that they didn't have AEDs 
14   onboard.
15        So my first day with the company I went around and 
16   talked to some other captains and found out he wasn't the 
17   only one with the concern.  So then I went to the vice 
18   president of operations and told him that the captains 
19   had this concern that they'd expressed to me, and they 
20   thought it was because he was cheap and I didn't think 
21   that was why.
22        The next day I bought $37,000 worth of AEDs, pulse 
23   oximeters and blood glucose meters.  You might as well 
24   squeeze everything out of the purchase that you can.
25               MS. WANGDAHL:  So we're seeing the trend in 
0289
 1   many industries that they're starting to get into AEDs, 
 2   and you mentioned that in your testimony.  Can you 
 3   explain how much of an increase you've been seeing?
 4               MR. DAVIS:  I can't really quantify it, 
 5   because I don't sell them or represent them.  I do know 
 6   that we purchased them, another large company purchased 
 7   them, a small company here purchased them, another 
 8   company there purchased them.  It sort of becomes an 
 9   issue of the Joneses and the Smiths.  You have to keep up 
10   with each other.
11        And I know that attorneys call around every once in  
12   a while asking what kind of safety equipment you have, 
13   kind of hoping that you don't have it so that they can 
14   better defend their client in a case.  So it's sort of 
15   become a self-perpetuating cycle.
16               MS. WANGDAHL:  In some of your comments I got 
17   the impression that you prefer that we had more specific 
18   requirements versus performance-based standards.
19               MR. DAVIS:  It's always a challenge because 
20   performance-based standards kind of leave you open for 
21   the variability of how this inspector or that inspector 
22   is going to interpret a standard. 
23        So in some cases specificity is good, in some cases 
24   some recommendations or guidelines for it so that it may 
25   not be written in stone and give somebody a performance 
0290
 1   standard, but makes it clear enough in interpretation 
 2   that you can make a reasoned decision and not worry too 
 3   much about having somebody second guess it in 20/20 
 4   hindsight.
 5        And actually to editorialize about another one that 
 6   was asked earlier, there was a question about were there 
 7   any other rules where 1910 would not be very easy to 
 8   apply on fishing vessels or ships.  And I would have to 
 9   say that the walking and working surface standard would 
10   be one of those where we have encountered problems in 
11   interpretation. 
12               MS. WANGDAHL:  Okay.  And then you also 
13   referenced the Coast Guard CPR training rule.  Do you 
14   feel those numbers are adequate? 
15               MR. DAVIS:  I do believe that it provides a 
16   good guideline.  I try to exceed those minimum 
17   requirements; one, to make sure that when we have people 
18   rotating off or coming on, that we are able to say that 
19   we meet that guideline at all times.
20        Two, as an EMT and firefighter, I believe everybody 
21   should be trained as an EMT, but that's not really a 
22   practical real world scenario.
23               MS. WANGDAHL:  And, I'm sorry, you made 
24   reference that you had to file that for -- I'm sorry, was 
25   it the size of the vessel?  Was it the number of the 
0291
 1   crew?
 2               MR. DAVIS:  It's the number of the crew.
 3               MS. WANGDAHL:  Thank you very much.
 4               MR. DAVIS:  You're welcome.
 5               MS. SHORTALL:  Mr. Bolon has some questions 
 6   now.
 7               MR. BOLON:  Just a couple.  You mentioned in 
 8   relation to lockout/tagout that you bought a starter kit 
 9   for -- I think it was $7,000.
10               MR. DAVIS:  Yes, what I call our starter kit.
11               MR. BOLON:  What was that?  Could you just 
12   describe that?
13               MR. DAVIS:  What we did was our company was 
14   already going into lockout/tagout and was developing the 
15   idea of trying to do it as completely as possible.  So 
16   what we did is we brought in a vendor, and we brought in 
17   a manufacturer.  And we went through every one of our 
18   boats trying to identify all the different doodads, 
19   thinga-majiggies, adaptors and the number of locks that 
20   we would need.
21        We already had some of these things onboard our 
22   vessels, but one of the things that we ran into is you've 
23   got this breaker that's made in France or a valve that's 
24   made in Denmark.  And the one thing that they ordered 
25   from the catalog didn't fit, so what do we do?
0292
 1        So we brought the manufacturers in, brought the 
 2   local representatives in and went through each of the 
 3   vessels and ordered what I call the starter kit, because 
 4   it's just a start.
 5               MR. BOLON:  So those were vendors and 
 6   manufacturers of hardware?
 7               MR. DAVIS:  A safety vendor, safety company, 
 8   and the manufacturer that we brought in was the Brady 
 9   representative for this region.
10               MR. BOLON:  And you did an estimate of the 
11   training costs on first aid, CPR and AED training, and 
12   you listed the hourly cost of the people's time as $60 
13   per hour?
14               MR. DAVIS:  Yes.
15               MR. BOLON:  Where did that come from or from 
16   who?
17               MR. DAVIS:  It comes from my company in using 
18   a round number for our captain's mates, engineers.  It 
19   includes their benefit loads rate, because all those 
20   accounting people that I deal with want to include the 
21   total cost of somebody's time, so it came from that.
22               MR. BOLON:  Okay.  And so that's all in 
23   relation to people on vessels?
24               MR. DAVIS:  Yes.
25               MR. BOLON:  Thank you very much.
0293
 1               MS. SHORTALL:  Mr. Perry has a question now.
 2               MR. PERRY:  A couple.  Yes, Mr. Davis, you 
 3   showed us a number of photographs.  I think it's your 
 4   slide 67 through 71 of some of these and other hazardous 
 5   materials being stored, presumably in some areas of the 
 6   ship where you believe the language in our proposal would 
 7   require eye wash stations.
 8        Could you describe operations that occur in these 
 9   areas where there is a potential employees could be 
10   splashed with materials?
11               MR. DAVIS:  Certainly.  This slide 67 is an 
12   emergency generator space.  The chemicals in there are 
13   piped in.  Either one of them would be lubricating oils, 
14   diesel fuel.  There is a bank of batteries that are in 
15   there that require service every quarter or something 
16   like that, like car batteries, except bigger and more 
17   studly.
18        This space is basically big enough for the generator 
19   that's in it, and almost enough to squeeze yourself all 
20   the way around it.  It has electrical panels in it, 
21   because it is an electrical generator.
22        So under my understanding of OSHA's hazardous and 
23   toxic definitions from other areas, you've got fuel and 
24   lubricating oil, neither one of which I think are really 
25   going to eat your skin off in a short-term exposure.  And 
0294
 1   I would think that having a shower and an eye wash in 
 2   there might have some other hazards with the electrical 
 3   equipment.
 4               MR. PERRY:  The kinds of materials that you 
 5   describe being present in this location, what is your 
 6   recommendation then for ensuring that somebody who does 
 7   get these materials in their eyes are not going to be 
 8   acutely injured?
 9               MR. DAVIS:  My recommendation -- well, my 
10   recommendation would be that somebody have a few bottles 
11   of eye wash or something perhaps with their kit if they 
12   were going in there to work on it or have it mounted on 
13   the wall and be able to get outside of that space to a 
14   fresh water supply.
15        I wouldn't necessarily advocate even having a shower 
16   in this kind of a situation, because I can guarantee you 
17   right outside that space is the trawl deck.  A safety 
18   shower and eye wash wouldn't survive out there. 
19        In this particular space, it's a storage space.  The 
20   guys do a little bit of lubricating and maintenance.  
21   It's essentially a closet for the mechanical shackles and 
22   hooks that they have for use on deck.  And the only 
23   chemical I saw in there was WD40, something that we have 
24   all over everybody's garage and house, and it's probably 
25   one of the most ubiquitous chemicals in the country. 
0295
 1        However, my understanding is under this new 
 2   guideline it would necessitate having an eye wash in that 
 3   space.
 4               MR. PERRY:  Because the material is used in 
 5   that space?
 6               MR. DAVIS:  Because the material is used in 
 7   that space, and because it's stored in that space.
 8               MR. PERRY:  Okay.  Do you believe that 
 9   there's a real potential for employees to get splashed 
10   when using this material in that space?
11               MR. DAVIS:  Well, if you're spraying it 
12   around and using it, you could get some exposure.  But do 
13   I believe that it's going to eat your eyes out and make 
14   you blind forever?  No.
15               MR. PERRY:  Okay.  It sounds then like what 
16   you would recommend for the engineer room might serve in 
17   this other area as well?
18               MR. DAVIS:  What I would recommend would be 
19   to have the standards say corrosive as it has in the 
20   past, and let us try to meet that standard, because that 
21   in and of itself is a large challenge on vessels that 
22   don't have fresh potable tempered water plumbed all over 
23   the place.
24        And then as we are currently doing, anywhere where 
25   we believe that there is an issue, have the temporary 
0296
 1   measures of eye wash bottles.
 2               MR. PERRY:  Okay.  I think I understand what 
 3   you're saying now.  That clarifies it.
 4               MR. DAVIS:  If you get a little WD40 in your 
 5   eyes, you might not necessarily need a full 15-minute eye 
 6   flush.  So you can get it started, and then get out of 
 7   the space and get some assistance.
 8               MR. PERRY:  I understand, but you're not 
 9   saying that you don't need to do something?
10               MR. DAVIS:  No, I'm not saying you don't need 
11   to do something.  I've had WD40 in my eyes.  It stings a 
12   little bit.
13               MR. PERRY:  Yes, okay.  That's what I wanted 
14   to clarify for the record.  Thank you.
15               MS. SHORTALL:  Ms. Brinkerhoff has questions 
16   now.
17               MS. BRINKERHOFF:  Just a couple.  On your 
18   slide 15 you state a number of 79,565 commercial fishing 
19   vessels.
20               MR. DAVIS:  Yes, ma'am.
21               MS. BRINKERHOFF:  Where did you get that 
22   number?
23               MR. DAVIS:  I got that number from the United 
24   States Coast Guard Fishing Vessel Safety Office in 
25   Washington, DC, Captain Mike Rosekranz.
0297
 1               MS. BRINKERHOFF:  Thank you.  And when you 
 2   talked about the 14 vessels of your company, I think 
 3   they're grouped in the three different classes or sizes 
 4   of vessels, one of which is catcher boats, and I don't 
 5   think you've told us how large or how small those are and 
 6   what their crew size is.
 7               MR. DAVIS:  Our catcher boats, actually one 
 8   of them -- only one of them is in operation currently.  
 9   The Foreign Star, which you'll have the opportunity to 
10   see on Thursday, is 94 feet long.  It usually has a 
11   captain, an engineer and two deck hands, maybe three, so 
12   it's a complement of four to five.
13               MS. BRINKERHOFF:  Okay.  And do use the same 
14   kind of lockout/tagout program for all of your vessels?
15               MR. DAVIS:  Well, that vessel is fairly new 
16   to our fleet, but I'm trying to get them there, yes.  We 
17   try to use the same principles from one end to the other.
18               MS. BRINKERHOFF:  So that would be considered 
19   a small vessel it seems to me.
20               MR. DAVIS:  It depends on your perspective.  
21   Tim lives in Alaska and has worked on a 32-foot 
22   gillnetter most of his life.  The Foreign Start looks a 
23   little bit big to him, except I've seen him fishing on 
24   the one you see on the screen here.
25               MS. BRINKERHOFF:  So you're able to use the 
0298
 1   lock box on your catcher boat?
 2               MR. DAVIS:  Yeah.
 3               MS. BRINKERHOFF:  Okay.  I think that's all.
 4               MS. SHORTALL:  I have a few questions I'd 
 5   like to ask, too.  On how many of your vessels do you 
 6   have 16 or fewer employees? 
 7               MR. DAVIS:  One.
 8               MS. SHORTALL:  Just that one?  And on that 
 9   particular one, do you just follow the Coast Guard 
10   recommendations on how many trained first aid providers 
11   to have?
12               MR. DAVIS:  Basically, yes.  We follow the 
13   Coast Guard recommendations on that, so there would be 
14   two people that I think we have sent to first aid/CPR.
15               MS. SHORTALL:  According to your slide --
16               MR. DAVIS:  Yeah, for that vessel it would 
17   only require one.
18               MS. SHORTALL:  But you do more than that?
19               MR. DAVIS:  Yeah.  I'm not a minimum 
20   standards kind of guy.
21               MS. SHORTALL:  So you exceed the 
22   recommendations?
23               MR. DAVIS:  Yes.
24               MS. SHORTALL:  And on your other vessels, 
25   what would you say is the minimum number of trained first 
0299
 1   aid providers you have?
 2               MR. DAVIS:  Trained?  I would say that we 
 3   probably have -- with the various rotations we probably 
 4   have six or seven people on each vessel that are trained 
 5   to one level or another, especially with the larger 
 6   vessels.  The captain, the mate and the engineer are 
 7   required to have that type of training.
 8        The challenge comes where you've required that it be 
 9   up to date.  The U.S. Coast Guard doesn't require that it 
10   be up to date, just that they've had it.
11               MS. SHORTALL:  Are you aware of any time 
12   where the American Red Cross or the American Heart 
13   Association has said that a person's valid certificate is 
14   now rendered invalid for the pendency of its validity 
15   because there's been a change in the recommendations of 
16   the Heart Association or the American Red Cross?
17               MR. DAVIS:  I'm not aware of them saying it's 
18   invalid, but it is a question that I would have if 
19   anybody said current and up to date.
20               MS. SHORTALL:  All right.  Did we say current 
21   and up to date or did we say valid? 
22               MR. DAVIS:  I don't know.
23               MS. SHORTALL:  I have to refresh my memory, 
24   too, here.  It says, a valid first aid certificate. 
25        So you're not aware of any point where American Red 
0300
 1   Cross or American Heart Association has withdrawn the 
 2   validity of a certificate during pendency of --
 3               MR. DAVIS:  No.  Usually, they expire within 
 4   one to two years, and I'm not aware of any point in time 
 5   where they have told non-professionals that they have to 
 6   -- everybody's invalid and has to come in after six 
 7   months or whatever.
 8               MS. SHORTALL:  On your vessels, how many 
 9   quick drench facilities do you have?
10               MR. DAVIS:  I wouldn't know.  It depends on 
11   each vessel and where we've been able to put them in.
12               MS. SHORTALL:  Could you give me a range of 
13   minimum to maximum number that you have?
14               MR. DAVIS:  I'd say we probably have at least 
15   three, whether they are plumbed or portable.
16               MS. SHORTALL:  And where do they tend to be 
17   located on the ships?
18               MR. DAVIS:  They tend to be located in the 
19   engine room near a corrosive or caustic chemical, in the 
20   fishmeal processing area, because they have corrosives 
21   and caustics, and one or two places in the factory, 
22   depending on the factory design and where they store 
23   their chemicals.
24               MS. SHORTALL:  Are there any other substances 
25   other than corrosives that could cause immediate or acute 
0301
 1   serious damage to the eye or skin?
 2               MR. DAVIS:  I don't know.
 3               MS. SHORTALL:  All right.  We've had a 
 4   comment or it was suggested that we change the language 
 5   to indicate that quick drench facilities would be 
 6   required where there is a potential to be splashed with 
 7   substances that could use acute or immediate and serious 
 8   damage.  Would that take care of part of your issue?
 9               MR. DAVIS:  It would not for me, because then 
10   it leaves it open-ended for which of the million 
11   chemicals out there that are not corrosive might cause 
12   acute and immediate damage.  What are those chemicals, 
13   and how would I or Tim or anyone else be able to identify 
14   those?
15               MS. SHORTALL:  So have you done any analysis 
16   on your vessels of the substances that are present that 
17   could result in acute, immediate and serious damage?
18               MR. DAVIS:  Other than acids and caustics, I 
19   am unaware of any other chemicals on our vessels that 
20   would be capable of causing acute and immediate damage.
21               MS. SHORTALL:  Okay.  What arrangements do 
22   you have with the dock in Seattle to ensure that dock 
23   sites are cleaned and snow and ice are removed?
24               MR. DAVIS:  I'm not aware of what the 
25   contracts are with the Port of Seattle, but I have seldom 
0302
 1   seen that here in Seattle it would become an issue.  It 
 2   happens every couple years, and I would say that they are 
 3   probably not very prepared to rush out and snowplow the 
 4   docks when we have a foot or two that drops on it 
 5   overnight.
 6               MS. SHORTALL:  Do you have contracts that 
 7   specify certain things in your lease agreement?
 8               MR. DAVIS:  We have contracts and leases with 
 9   the Port of Seattle, but I am not one of the people that 
10   generally sits down in those meetings and writes those 
11   contracts, so I'm not sure if there's anything about snow 
12   removal in the contracts.
13               MS. SHORTALL:  Is there anything that would 
14   prevent you as the safety person for the vessels and for 
15   the dock site from saying to those contracting officials 
16   for your company, we need to get that worked into the 
17   contract to ensure none of our employees are injured on 
18   the dock?
19               MR. DAVIS:  We could talk to them about that, 
20   yes.
21               MS. SHORTALL:  Okay.  Several people who have 
22   talked here today indicated that they support the concept 
23   that Ms. Duz talked about today, a preference for locks.  
24   Do you share that same opinion?
25               MR. DAVIS:  Yes.  When I'm climbing into a 
0303
 1   piece of equipment, I want to make sure my lock is on it, 
 2   because it is a very sure way of making sure that someone 
 3   can't activate it without a willful act of malice.  
 4   However, it is difficult to accomplish in some cases.
 5               MS. SHORTALL:  Okay.  On slide No. 43 what 
 6   does four-minute response time mean?  Four minutes to get 
 7   to the site, or four minutes to get to the injured 
 8   employee wherever they might be located?
 9               MR. DAVIS:  You would have to ask the City of 
10   Seattle's Fire Department that keeps their statistics 
11   whether they're talking about from the time 911 is called 
12   and they get to the gate, or if they're talking about 
13   from the time 911 is called and they get to the person.  
14   My impression from the way that they have them posted is 
15   it's to the time they get to the person.
16               MS. SHORTALL:  On your vessels how long does 
17   it take you to get to the top of your vessel to the 
18   bottom of the vessel?
19               MR. DAVIS:  Well, it would depend on whether 
20   I was in a rush.  If I was in a rush, I can get from the 
21   wheelhouse to the engine room in about 45 seconds.  I 
22   wouldn't advocate that because it's not safe.  It takes 
23   me longer to get uphill.
24               MS. SHORTALL:  Okay.  I noticed in this 
25   particular pressurized portable emergency eye wash 
0304
 1   station the indication of -- what did you say was -- how 
 2   heavy was it?  About 91 pounds?
 3               MR. DAVIS:  That one's 151.
 4               MS. SHORTALL:  Are you aware of any other 
 5   portable eye wash systems that are non-metal that are 
 6   also approved under the ANSI eye wash standard?
 7               MR. DAVIS:  It's not the metal that makes it 
 8   heavy.
 9               MS. SHORTALL:  Pardon?
10               MR. DAVIS:  The other approved one I showed 
11   in the slides here that meets the minimum of 15 minutes 
12   at the flow required weighs 91 pounds.  And that's at the 
13   very minimum, and it doesn't come near meeting the drench 
14   hose requirement for the standard.
15               MS. SHORTALL:  I may be wrong, but I'm not 
16   sure we specified a 15-minute water run in the standard.
17               MR. DAVIS:  You didn't in the standard, but 
18   classically everywhere else that OSHA has cited the need 
19   for an eye wash or a drenching facility, they have 
20   referenced to an ANSI guidance document, and the ANSI 
21   guidance document requires 15 minutes at 0.3 gallons per 
22   minute as a minimum, I think.
23               MS. SHORTALL:  Okay.  I probably won't need 
24   -- I'll probably check with that and ask you if --
25               MR. DAVIS:  And for the shower, the hitch is 
0305
 1   it requires I believe 30 gallons a minute for 15 minutes, 
 2   so that's a whole lot of water.
 3               MS. SHORTALL:  I guess my final question is 
 4   as you were going through replacing equipment on your 
 5   vessels, have you been able to obtain equipment that is 
 6   lockable?
 7               MR. DAVIS:  In some cases we have, in some 
 8   cases we haven't.  When we're looking at high pressure 
 9   valves that are metric that cost $90 a piece and come 
10   from somewhere in Europe, they don't have a lockable 
11   option. 
12        That's why Captain Bohannon mentioned that some of 
13   us in the industry have talked to a local steel 
14   fabrication place, and they've actually come up with 
15   stainless steel adaptors, which I'm terrified are going 
16   to wind up in my bilge pumps that cost $25 a piece, and 
17   we're going to need a lot of them on each vessel.
18        When it comes to electrical equipment, electrical 
19   disconnects, our factories are wet processes, so we have 
20   to meet a certain standard in order to keep it from 
21   failing.
22        In looking at going in and adding some of these 
23   things when we weren't replacing equipment so that it 
24   would be easier to disconnect one piece of equipment at a 
25   time instead of going back to a panel some distance away, 
0306
 1   I believe those switches were around $950 to $1,000 a 
 2   piece.
 3        So it is something that we're striving to do, but at 
 4   the rate that equipment's replaced, it would take 10 
 5   years or more to replace it all.  And even then I 
 6   couldn't be sure, because our electrical panels and those 
 7   breakers, a lot of those things, especially on the big 
 8   side of things, they're 25, 30 years of life expectancy.
 9               MS. SHORTALL:  So do you anticipate that if 
10   even over a 10-year period you could have the normal 
11   equipment replaced, over a 10-year period that you could 
12   have a substantial reduction in the number of 
13   non-lockable equipment aboard your vessels?
14               MR. DAVIS:  I think it could make a -- in 10 
15   years we would probably have great inroads, but one of 
16   the challenges is a lot of the equipment manufacturers 
17   simply aren't making things to this guideline or to that 
18   concept, even the manufacturers here in the United 
19   States.
20        Outside of lockout/tagout, a citation that I have 
21   personally received on one of my vessels is for a heater, 
22   the kind of heater that you see hanging in garages and 
23   shops all over the country. 
24        You can order it from a variety of vendors.  You can 
25   hang it up and put it in.  And you think everything's 
0307
 1   fine, and then an OSHA inspector comes in and sees that 
 2   it's below the seven-foot limit and somebody could 
 3   actually stick their finger in the fan.
 4        So we can't trust necessarily that what we order is 
 5   going to be within the guidelines that'll keep us out of 
 6   question.
 7               MS. SHORTALL:  I have one final question 
 8   concerning your arrangement with the docks of Seattle.  
 9   On the docks do they have sewered toilets available for 
10   employees to use?
11               MR. DAVIS:  No.  They would not -- they don't 
12   have the ability to connect a ship's system into the 
13   sewer system.  So you can't pull in like you do with an 
14   RV at an RV park and hook your pipe up. 
15        Each dock facility in one way or another has a 
16   sewered toilet facility somewhere, but that would not 
17   meet the volume required under this guideline.
18               MS. SHORTALL:  Okay.  Thank you very much.  
19   We appreciate very much you coming and testifying today, 
20   being the final person and also all the great 
21   audio-visuals.
22        I think we have one more --
23               ALJ:  Another question?
24               MR. DOVINH:  May I ask one more questions?
25               ALJ:  All right.
0308
 1               MR. DAVIS:  Remember, I know you.
 2               MR. DOVINH:  My name is Philip Dovinh with 
 3   Sound Testing. 
 4        Alan, I come on your vessel and do inspection from 
 5   time to time.  And during the process of ship repair, I 
 6   normally see your guys wear eye protection during 
 7   grinding, needle gunning and prepping. 
 8        In your expert opinion, would you say that if your 
 9   workers are inside the machinery space or storage area or 
10   the generator room, if they were to wear some kind of 
11   goggle or eye protection would that be adequate in your 
12   opinion versus an eye wash station?
13               MR. DAVIS:  It would greatly reduce the 
14   hazard in a lot of those areas where you're not really 
15   dealing with something that's violently corrosive.
16               MR. DOVINH:  Thank you.
17               ALJ:  Thank you very much, Mr. Davis.  That's 
18   a great presentation. 
19        This hearing is adjourned, and we will reconvene 
20   tomorrow at 9:30. 
21                  (Whereupon the hearing
22                   adjourned at 6:16 p.m.)
23   
24   
25   
0309
 1   STATE OF WASHINGTON )
 2                       ) ss.
 3   COUNTY OF KING      )
 4   
 5   
 6   
 7             I, the undersigned Notary Public in and for the 
 8   State of Washington, do hereby certify:
 9             That the foregoing proceedings held on the date 
10   indicated on the caption sheet were reported 
11   stenographically by me and thereafter reduced to 
12   typewriting under my direction;
13             I further certify that the transcription of the 
14   hearing is true and correct to the best of my ability.
15             Signed this          day of 
16                         , 2008.
17   
18   
19   
20   
21                                                     
22                       Notary Public in and for the
                         State of Washington, residing
23                       at Seattle.
                         My Commission expires 4/29/09.
24                       CCR No. 2052
25