Rule2022-02707
Guidance Documents: Determining Whether a Floating OCS Facility Is a Vessel or Non-Vessel; Oversight and Manning Requirements
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Published
February 10, 2022
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
The Coast Guard is issuing policies that will guide Officers In Charge, Marine Inspection (OCMIs) in determining if a Floating Outer Continental Shelf Facility (FOF) is a vessel or a non-vessel. As a result of these changes non-vessel FOFs will no longer receive a Certificate of Inspection (CG Form 841), and personnel serving on these FOFs will no longer be required to hold Merchant Mariner Credentials. In association with these changes, the Coast Guard is canceling USCG District 8 Policy Letter 08-2001, Licensing Requirements for Personnel on Non-Self Propelled Floating OCS Facilities.
Full Text
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<title>Federal Register, Volume 87 Issue 28 (Thursday, February 10, 2022)</title>
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[Federal Register Volume 87, Number 28 (Thursday, February 10, 2022)]
[Rules and Regulations]
[Pages 7716-7718]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02707]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Chapter I, Subchapter N
46 CFR Parts 10, 11, 15, and 107
[Docket Number USCG-2020-0049]
Guidance Documents: Determining Whether a Floating OCS Facility
Is a Vessel or Non-Vessel; Oversight and Manning Requirements
AGENCY: Coast Guard, Department of Homeland Security (DHS).
ACTION: Notification of availability of policy.
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SUMMARY: The Coast Guard is issuing policies that will guide Officers
In Charge, Marine Inspection (OCMIs) in determining if a Floating Outer
Continental Shelf Facility (FOF) is a vessel or a non-vessel. As a
result of these changes non-vessel FOFs will no longer receive a
Certificate of Inspection (CG Form 841), and personnel serving on these
FOFs will no longer be required to hold Merchant Mariner Credentials.
In association with these changes, the Coast Guard is canceling USCG
District 8 Policy Letter 08-2001, Licensing Requirements for Personnel
on Non-Self Propelled Floating OCS Facilities.
DATES: CG-OES Policy Letter 01-22, Determination of Whether a Floating
Outer Continental Shelf Facility (FOF) is a Vessel, and CG-MMC Policy
Letter 01-22, Merchant Mariner Credential Endorsements for Service on
Floating Outer Continental Shelf (OCS) Facilities were issued February
4, 2022.
FOR FURTHER INFORMATION CONTACT: For additional information contact
Lieutenant Commander Matthew Meacham, the U.S. Coast Guard Office of
Operating and Environmental Standards, Vessel and Facility Operating
Standards Division (CG-OES-2) at 202-372-1410, or Mr. Luke Harden, the
U.S. Coast Guard Office of Merchant Mariner Credentialing (CG-MMC-2) at
202-372-1206.
SUPPLEMENTARY INFORMATION:
I. Background
Following recent court rulings related to Outer Continental Shelf
(OCS)
[[Page 7717]]
activities the Coast Guard initiated a review of the agency's Floating
OCS Facility (FOF) policies, procedures, and regulations. As part of
this review, the Coast Guard tasked the National Offshore Safety
Advisory Committee (NOSAC) with conducting a detailed review of Coast
Guard OCS regulations. In March 2018 NOSAC provided the USCG with a
final report containing recommendations on Coast Guard regulations
applicable to OCS units operating on the U.S. OCS.\1\ An OCS unit is
any domestic or foreign OCS facility, vessel, rig, platform, or other
vehicle.\2\ One type of OCS unit is a ``floating OCS facility,'' or
FOF. FOFs are buoyant facilities that are securely and substantially
moored, such that they cannot be moved without special effort.\3\ FOFs
come in many different structural configurations with varying degrees
of sea keeping capabilities. They can be either vessels or non-vessels.
Based on NOSAC's recommendations and its own internal review, the Coast
Guard determined that it needed to clarify what Coast Guard regulations
are applicable to FOFs that are not vessels.
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\1\ National Offshore Safety Advisory Committee. (2018). Final
Report for Production Industry. Available at <a href="https://homeport.uscg.mil/Lists/Content/DispForm.aspx?ID=35215&Source=/Lists/Content/DispForm.aspx?ID=35215">https://homeport.uscg.mil/Lists/Content/DispForm.aspx?ID=35215&Source=/Lists/Content/DispForm.aspx?ID=35215</a>.
\2\ 33 CFR 140.10 (definition of ``unit'').
\3\ 33 CFR 140.10 (definition of ``floating OCS facility'').
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Specifically the Coast Guard determined that it needed to clarify:
(1) Which FOFs are vessels and which FOF are non-vessel FOFs and (2)
that non-vessel FOFs are not subject to vessel-manning requirements.
II. Legal Authority
The Coast Guard has broad authority to regulate FOFs under the
Outer Continental Shelf Lands Act, 43 U.S.C. 1331 et seq., and its
implementing regulations at 33 CFR chapter I, subchapter N. FOFs that
qualify as seagoing motor vessels may also be regulated by the Coast
Guard under title 46 of the United States Code and associated
implementing regulations. This document is issued in accordance with 5
U.S.C. 552(a)(1)(D) and 5 U.S.C. 553(b)(A).
III. Policies
1. When is an FOF a vessel?
The Coast Guard is announcing the availability of: (1) CG-OES
Policy Letter 01-22, Determination of Whether a Floating Outer
Continental Shelf Facility (FOF) is a Vessel. CG-OES 01-22 outlines the
procedures for Coast Guard OCMIs to follow in order to determine if a
particular FOF is a vessel or a non-vessel.
The term ``vessel'' is defined in the United States Code at 1
U.S.C. 3. As defined, the term captures every form of watercraft and
artificial contrivance used, or capable of being used, as a means of
transportation on water. In Lozman v. City of Riviera Beach, Fla., 568
U.S. 115 (2013), the Supreme Court of the United States held that to be
a vessel under 1 U.S.C. 3, a structure's physical ``characteristics and
activities'' need to be such that a ``reasonable observer'' would
conclude that the structure was designed to a practical degree to carry
``people or things'' on the water. Rather than relying upon any single
structural characteristic to reach its decision, the Court instead
focused on the phrase ``capable of being used as a means of
transport[.]'' Citing Stewart v. Dutra Constr. Co., 543 U.S. 481
(2005), the Court emphasized that for a structure to be considered
``capable of being used for transport'' it has to have a practical
possibility of transporting people or goods over the water, not just be
theoretically capable of doing so. This holistic test requires the fact
finder to determine if the characteristics and activities of the
structure would convince a reasonable observer that the watercraft is
designed to a practical degree to carry people or things on the water.
In accordance with Lozman, to determine if an FOF is a vessel or a
non-vessel, OCMIs must decide whether a particular FOF was designed to
a practical degree for carrying people or things over the water. Due to
the many existing configurations of FOFs and ever-increasing technology
advancement in the energy exploration field, it is not possible to make
a blanket determination for all FOFs. Determinations need to be
conducted on a case-by-case basis. The policy letter directs OCMIs to
look at the following factors when making determinations.
1. Whether the FOF has a mode of self-propulsion, steering
mechanisms, navigation equipment, dynamic positioning equipment, or
operating station.
2. Whether the FOF has a traditional hull.
3. Whether the FOF was meant to be towed into place and
``securely and substantially'' moored to the seabed for a long
period of time.
4. Whether it takes substantial monetary investment and a long
lead-time to move the FOF from its anchored position or is capable
of emergency disconnect allowing the FOF to float free or be
underway.
The policy letter makes clear that the above list is not exhaustive
and the existence of any one of these factors does not necessarily mean
that an FOF is a vessel. The OCMI must holistically consider all of the
facts, including taking into account the physical characteristics and
activities of the FOF, to determine if it is designed to a practical
degree for carrying people or things over water.
In addition to being available along with other Coast Guard
guidance documents at <a href="https://www.uscg.mil/guidance">https://www.uscg.mil/guidance</a>, a complete copy of
CG-OES Policy Letter 01-22, Determination of Whether a Floating Outer
Continental Shelf Facility (FOF) is a Vessel is available in the docket
at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and also at <a href="https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Commercial-Regulations-standards-CG-5PS/office-oes/">https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Commercial-Regulations-standards-CG-5PS/office-oes/</a>.
2. What documentation will the Coast Guard provide an owner/operator of
a non-vessel FOF?
The Coast Guard will no longer issue a Certificate of Inspection
(USCG Form 841) to FOFs that are not vessels. Instead, OCMIs will issue
non-vessel FOFs a Floating OCS Facility Determination Letter and a
Floating OCS Facility Certificate of Inspection (FOF COI). The Facility
Determination Letter will identify whether or not the unit is a vessel.
The FOF COI letter will identify expectations the Coast Guard has for
the inspection and maintenance of the particular non-vessel FOF, based
on existing Coast Guard regulations. See the enclosures to CG-OES
Policy Letter 01-22 for a sample Floating OCS Facility Determination
Letter and a sample Floating OCS Facility Certificate of Inspection.
This change is being made to account for the fact that non-vessel
FOFs are not subject to inspection under 46 U.S.C. 3301 and thus do not
require a certificate of inspection under 33 U.S.C. 3309. The use of
FOF Determination Letters and FOF COI Letters in place of the USCG Form
841 is in accordance with existing Coast Guard regulations. Section
143.120 of 33 CFR requires an OCMI to issue a ``certificate of
inspection'' but does not require the use of USCG Form 841. FOFs that
are U.S. documented vessels will be issued a USCG Form 841.
3. What are the manning requirements for vessel and non-vessel FOFs?
The OCMI's authority to place manning requirements on an FOF
depends on whether the unit is a vessel.
Vessel FOFs. For FOFs that are U.S. documented vessels, consistent
with current practice, their Coast Guard Certificate of Inspection
(COI) (USCG Form 841) will contain the required
[[Page 7718]]
manning. An OCMI may require manning of vessel FOFs under 46 U.S.C.
3301 and 3306 and regulations promulgated in 46 CFR, chapter I,
subchapter B, part 15--Manning Requirements.
Non-vessel FOFs. OCSLA does not prescribe particular manning
requirements with the exception of 43 U.S.C. 1356, which imposes U.S.
citizenship requirements to units that conduct activities under OCSLA
jurisdiction. For FOFs that are not vessels, OCMI manning authority is
limited to the regulations promulgated under 33 CFR chapter I,
subchapter N--Outer Continental Shelf Activities, which is limited to a
Person In Charge.
In association with this clarification of requirements, the Coast
Guard is canceling: USCG District 8 Policy Letter 08-2001, Licensing
Requirements for personnel on Non-Self-Propelled Floating OCS
Facilities.
4. Credentialing of Personnel Serving on FOFs
The Coast Guard is announcing the availability of CG-MMC Policy
Letter 01-22, Merchant Mariner Credential Endorsements for Service on
Floating Outer continental Shelf (OCS) Facilities. This letter cancels
Eighth District (D8) Policy Letter 08-2001, Licensing Requirements for
Personnel on Non-Self Propelled Floating Outer Continental Shelf (OCS)
Facilities, and outlines the new credentialing policies concerning
personnel serving on FOFs.\4\
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\4\ D8 Policy Letter 08-2001 is available at <a href="https://www.dco.uscg.mil/Portals/9/OCSNCOE/References/Policy-Letters/D8/D8-PL-08-2001.pdf?ver=XemXFtSnbUCVYl0M1brmIw%3d%3d">https://www.dco.uscg.mil/Portals/9/OCSNCOE/References/Policy-Letters/D8/D8-PL-08-2001.pdf?ver=XemXFtSnbUCVYl0M1brmIw%3d%3d</a>.
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Effective 30 days from the issuance of CG-MMC Policy Letter 01-22,
the Coast Guard will no longer issue original MMC officer endorsements
that are restricted to service on specific types of FOFs, referred to
as Floating Offshore Instillations (FOI) in endorsements. This applies
to the following endorsements:
<bullet> Offshore Installation Manager (Active Ballast FOI);
<bullet> Offshore Installation Manager (Passive Ballast FOI);
<bullet> Barge Supervisor (Active Ballast FOI);
<bullet> Barge Supervisor (Passive Ballast FOI);
<bullet> Ballast Control Operator (Active Ballast FOI); and
<bullet> Ballast Control Operator (Passive Ballast FOI).
The Coast Guard will continue to issue the following original
endorsements to mariners meeting applicable service and training
requirements specified in 46 CFR part 11:
<bullet> Offshore Installation Manager (OIM) [46 CFR 11.470]:
[cir] OIM Unrestricted;
[cir] OIM Surface Units on Location;
[cir] OIM Surface Units Underway;
[cir] OIM Bottom Bearing Units on Location; and
[cir] OIM Bottom Bearing Units Underway;
<bullet> Barge Supervisor (without restriction to specific MODU or
FOF types) [46 CFR 11.472]; and
<bullet> Ballast Control Operator (without restriction to specific
MODU or FOF types) [46 CFR 11.474].
There are currently 47 mariners who hold one or more of the
endorsements listed above. Considering that some FOFs may be found to
be vessels, not allowing these endorsements could result in taking
something of present or potential value from the mariners who hold
them.\5\ Accordingly, the Coast Guard will continue to renew the
endorsements listed above.
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\5\ The Coast Guard does not anticipate any currently operating
FOFs will be determined to be a vessel. But, modifications to a
currently operating unit or a new unit that comes on line in the
future could be classified as a vessel.
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Mariners who served aboard FOFs that have been determined to not be
vessels will need to renew their MMCs under provisions in 46 CFR
10.227(e) that are applicable to mariners who do not have evidence of
at least one year of service during the past five years. Mariners who
served on FOFs found to be vessels may use their service to renew their
endorsements under 46 CFR 10.227(e)(1).
The Coast Guard can only credit seagoing service for qualifying for
MMC endorsements if it was obtained on a vessel.\6\ Accordingly,
service on FOFs that are not vessels will not be accepted as service
for qualifying for an original or raise of grade of an MMC endorsement.
Service on FOFs that are not vessels may only be accepted if it is
found to be ``closely related service'' as specified in 46 CFR
10.232(g) to renew an MMC.
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\6\ 46 CFR 10.107 (definition of ``seagoing service''.)
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The Coast Guard will discontinue approving stability and ballast
control courses and courses that substitute for a Coast Guard
administered examination that are valid only for the FOF endorsements
noted in the second paragraph of section four above. These approved
courses will not be renewed upon expiration. If a stability course or
in lieu of examination course is approved for both an endorsement being
discontinued and one or more of the endorsements described in 46 CFR
11.470, 11.472, or 11.474 the course approval will be amended to omit
meeting requirements for the FOF endorsements noted above.
In addition to being available along with other Coast Guard
guidance documents at <a href="https://www.uscg.mil/guidance">https://www.uscg.mil/guidance</a>, a complete copy of
CG-MMC Policy Letter 01-22, Merchant Mariner Credential Endorsements
for Service on Floating Outer Continental Shelf (OCS) Facilities, is
available in the docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and also at
<a href="https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Commercial-Regulations-standards-CG-5PS/Office-of-Merchant-Mariner-Credentialing/CG-MMC-2/CG-MMC-2-New-Policies/">https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Commercial-Regulations-standards-CG-5PS/Office-of-Merchant-Mariner-Credentialing/CG-MMC-2/CG-MMC-2-New-Policies/</a>.
Dated: February 4, 2022.
J.G. Lantz,
Director of Commercial Regulations and Standards.
[FR Doc. 2022-02707 Filed 2-9-22; 8:45 am]
BILLING CODE 9110-04-P
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</html>Indexed from Federal Register on February 10, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.