[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 [www.gpo.gov]
[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 https://homeport.uscg.mil/Lists/Content/DispForm.aspx?ID=35215&Source=/Lists/Content/DispForm.aspx?ID=35215.
    \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 https://www.uscg.mil/guidance, 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 https://www.regulations.gov and also at https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Commercial-Regulations-standards-CG-5PS/office-oes/.

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 https://www.dco.uscg.mil/Portals/9/OCSNCOE/References/Policy-Letters/D8/D8-PL-08-2001.pdf?ver=XemXFtSnbUCVYl0M1brmIw%3d%3d.
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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:
     Offshore Installation Manager (Active Ballast FOI);
     Offshore Installation Manager (Passive Ballast FOI);
     Barge Supervisor (Active Ballast FOI);
     Barge Supervisor (Passive Ballast FOI);
     Ballast Control Operator (Active Ballast FOI); and
     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:
     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;
     Barge Supervisor (without restriction to specific MODU or 
FOF types) [46 CFR 11.472]; and
     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 https://www.uscg.mil/guidance, 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 https://www.regulations.gov and also at 
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/.

    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