The oil rig is situated off the coast of Louisana

Authorities were searching for missing workers early Wednesday who evacuated on a life raft after an explosion at an oil drilling platform off the coast of Louisiana.

The United States Coast Guard sent four helicopters and saw the fire out of contril on the floater. There are some workers that are unaccounted for and ther is an active search.

The law firm of Gordon, Elias & Seely, L.L.P. is quite versed in successfully suing Transocean. Just this year alone, they represented the family of one of the most deadly accidents that ever occurred in Transocean's history. If you or a family member has benn affected by this tragedy, contact their lawyers directly at 800-773-6770, 713-668-9999, or 800-491-3377. Their lawyers are licensed in Texas and their offices are situated in Houston where Transocean is situated. Additionally, Steve Gordon is licensed in Louisiana.

CORPUS CHRISTI — A man’s leg was severed in an accident on an offshore oil rig supply vessel Friday, officials said.

Coast Guard Air Station Corpus Christi sent a helicopter rescue crew and a patrol boat to the Sandra Sino, roughly 27 miles offshore about 3 p.m., according to a news release.

The man was working alongside the oil rig when his leg got tangled in a mooring line, officials said.

The Coast Guard took the man to Christus Spohn Hospital Memorial where he was listed in critical but stable condition, the release said.

The Jones Act covers this type of injury. For more information, call Gordon, Elias & Seely, L.L.P. at 800-773-6770.

This Sunday morning , November 1, 2009, the United States Coast Guard had to Medvac two seaman as a result of  a helicopter crash that occurred in the Gulf of Mexico. Coast Guard Galvveston reported a medevac of two men following helicopter crash in Gulf of Mexico. There was a transmission to the USCG-Houston that two men were rescued from the GofM. There were two injuries reported.

Persons are usually unaware that the Jones Act does apply to helicopter crashes of this type. The Jones Act requires that safe ingree and safe egree be provided. Obviously, when a chopper goes down in the transporting of a cremember, then they have a valid Jones Act claim ans, more than likely a claim against the helicopter company, e.g., PHP.

If you or a family member believes that you have a valid Jones Act claim, contact the maritime lawyers of Gordon & Elias, L.L.P. at 800-773-6770. Our phones are answered 24/7/365.

Rep. Gene Taylor, D-Miss., intends to introduce a bill to improve Coast Guard enforcement of the vessel construction requirements of the Jones Act, his staff said Friday afternoon.

During House debate of the 2010 Coast Guard appropriations bill, Taylor offered an amendment that would have set statutory limits on the amount of steel that could be used by a foreign shipyard to repair or rebuild a Jones Act-eligible ship. The House voted the amendment out of order.

According to Stephen Paranich, Taylor's chief of staff, members of the House Ways and Means staff objected to the amendment based on concerns raised by the U.S. Trade Representative. The USTR worried that the changes in the Jones Act would trigger a review of the law by the World Trade Organization.

The Jones Act, which has been the foundation of U.S. domestic maritime policy since the 1920s, requires ships operating between U.S. ports to be owned and manned by U.S. citizens, and built in the United States. The law was grandfathered when the United States adopted the General Agreement on Tariffs and Trade, the WTO's predecessor.

Paranich said that Taylor's amendment had been drafted with the assistance of the Coast Guard. Repairs or rebuilds of Jones Act ships in foreign shipyards are managed by regulation by the Coast Guard's National Vessel Documentation Center.

In June 2008, Taylor held hearings about the Coast Guard's regulatory practice after the agency gave the go-ahead to Matson Navigation and Seabulk to have substantial construction on their ships done at shipyards in China. He called the Coast Guard's approval of the projects "a screw-up.

Wayne Parsons

Malia Zimmerman of The Hawaii Reporter reports on 20 October 2009 that a ""Jones Act Lawsuit Will Test Control of Hawaii's Shipping Monopoly".Jones Act Lawsuit Will Test Control of Hawaii's Shipping Monopoly". Her story is about a bread maker in Hilo who claims that he had to pay $5.50 to ship a 50 lb. bag of flour to Hilo from the mainland and that the cost ruined his busines 

Wait a minute, Malia!

I thought that the Jones Act was a law that allowed injured crew on ocean going vessels to get money for medical bills and wage loss (maintenance and cure), so they can get back to work!?

Here is what happened to O'Keefe & Sons Bread Bakers:

Big Island small business owner Jim O'Keefe operated the O'Keefe & Sons Bread Bakers in Hilo, Hawaii for 13 years before shutting down his extensive operation in 2008. His popular bakery closure left 50 people out of work, retail customers searching for other restaurants to buy deli and baked goods from, and several area businesses, grocery stores and resorts scrambling for other local places to buy wholesale baked foods.

O'Keefe claims that the cost of shipping made it impossible for him to stay in business. Those costs included shipping costs for flour and other food ingredients.

"I would buy a 50 pound bag of flour for $6 or $7 in the mainland, and by the time it landed in Hilo, it cost me $12.50 a bag," O'Keefe says. 

I have to tell you folks, I am not shocked by that shipping cost. I am comparing the 2 oz. letter I just sent to Harriet (my sister) in Michigan for $0.42. A 50 lb bag should cost $168 if the U.S. Postal Service carries it to Hilo. O'Keefe pays $5.50. And he is filing a lawsuit? Get in line Mr. O'Keefe. If regular people paid the equivalent rate of $5.50 for 50 pounds in shipping to Hawaii, a letter would cost 2 Cents in postage. That's right, a letter would cost $0.02, not $0.42 as it is today. 

O'Keefe blames his business failure on the fact that American workers get paid a living wage. I am very interested in what Hawaii working folks - who bought Mr O'Keefe's bread, think about his attack on Hawaii and U.S. workers. He says that the cost of goods are ridiculously high in Hawaii because of the Jones Act. 

The Jones Act is not about bread or bakers. It protects American workers. The Jones Act is a federal law that says all products shipped between American ports must be shipped in American made vessels by a crew that is 75 percent American. The law supports the high quality American work force. O'Keefe wants to use slave labor from foreign countries so he can make more money in his Hilo business. My guess is that American sailors who he wants to put out of work won't be buying his bread. O'Keefe wants to allow competition from what he calls "world shippers" and he complains that using American workers unfairly raises the cost of doing business for his bread company. O'Keefe says that what is running him out of business is being forced to use American workers. 

Another claim he is making is that the cost that is running him out of business is "six figures over the life of his business". Let's think about that. "Six figures" over the life of his business is from $100,000 to $999,999. Let's make it $100,000. My thought is that if it was closer to $999,999, O'Keefe would have used "7 figures". O'Keefe does not state what "the life of his business" is in years. Let's use 10. I'm guessing but O'Keefe or his attorneys can Comment, and I will use their numbers.

$100,000 over 10 years is $10,000 per year. I wonder how much O'Keefe thinks a 50 pound bag of flour should cost to ship to Hawaii? I guess he wants to use a ship that has slave labor, but even that ship charges for shipping. O'Keefe says that the $5.50 that he pays to ship a 50 pound bag of flour should be only one-third of that amount: $1.83. So that means the $3.67 per 50 pound bag of flour cost him his business. And he is filing a lawsuit.

I wonder what his position is about lawsuit abuse and tort reform? Maybe he or his attorneys will write in and Comment.

O'Keefe and his attorney John Carroll are asking Hawaii's Chief U.S. District Judge, David Ezra, to rule, on December 7, 2009, that the Jones Act is "excessively expensive for Hawaii's people and are in violation of the Fifth and Fourteenth Amendments as well as the Commerce Clause of the U.S. Constitution." In essence they claim that using American workers on ships between the west coast and Hawaii is un-American and violates the Constitution of the United States. The Hawaii Reporter summarizes their position:

One of the purposes of enacting the Jones Act, Carroll says, was to ensure the United States of America would be well equipped with a maritime fleet that could compete in a worldwide economy, but it has had the opposite effect: "Unfortunately, it created unconstitutional restrictions on commerce between the state of Hawaii and worldwide shippers as well as on interstate commerce."

Because Hawaii is separated from the continental United States by 2,300 miles of ocean, he estimates "Hawaii is dependent on ocean shipping for at least 90 percent of every commodity used and consumed in the state." That had a compound effect on agriculture and the ranching industry. "The expense of agricultural production became prohibitive, not only because of the inbound shipping cost of fertilizers, herbicides, and farm implements, but also due to the outbound shipping costs for our locally grown fruits, livestock and ornamental plants. Hawaii cattle ranchers are faced with an intolerable situation. They often have to transport their cattle, from Kawaihae to Vancouver B.C. on a Canadian owned Corral Lines to remain profitable. The cattle must then be trucked (often for 500 miles) into the U.S. to be fattened and sold. To go direct, some are flown on Boeing 747 aircraft," Carroll says.

Do we want to support American workers or join the rest of the world and use slave labor?

Former Congressman Ed Case, D-Hawaii (2002-2007) is running for Congress with a platform that agrees with O'Keefe that the law should be changed to eliminate American crew and American law on ships coming to Hawaii. He wants to be elected by saving O'Keefe $3.67 per 50 pound bag of flour. I wonder id Case looked at O'Keefe's financial statements to see if they confirm that the shipping costs did him in and ruined his business. Are all of the bakers in Hilo gone? Was O'Keefe a good businessman. I do not know but I do ask the question.

Case is not shy to attack American workers. According to the Hawaii Reporter story:

In a September 2003 Congressional speech seeking an exemption for Hawaii and other non-contiguous U.S. locations from the Jones Act, Case asked, "Is it fair that our federal government creates a monopoly over any key aspect of life in Hawaii? Is it fair that our federal government provides one company, effectively, with the ability to control, to dominate, the lifeline that we have between here and the Mainland for all of our goods? Because that's exactly what the Jones Act does." 

Case noted that 97 percent to 98 percent of our goods come to Hawaii from the Mainland, all come by shipping. "When somebody gets a hold of our lifeline, that's a dangerous sign for us. And we're paying for it in spades, thousands of dollars for each and every citizen of this country and this state, far more money for businesses that employ people and have to deal with those goods and services. That's not fair, and that's not the way it should be. We have laws in this country against the creation of monopolies, we believe monopolies are bad. Yet in this case, a federal law creates a monopoly."

While Case supports a Jones Act exemption for Hawaii, his primary opponent, Senate President Colleen Hanabusa, supports the Jones Act. Let's be clear here about the difference between Hanabusa and Case: she supports a crew of at least 75% Americans on ships coming to Hawaii with bread flour (and everything else). Case wants to allow boats full of slave labor so that O'Keefe and anyone else can lower their prices.

New Hawaii Lawsuit - Constitutional Challenge to Jones Act

Several Hawaii residents and businesses have brought suit against the federal government challenging the constitutionality of the "Jones Act."  The complaint can be downloaded here.

The suit notes that because the Jones Act requires cargo to be transported on U.S. flagged ships between U.S. ports, Hawaii residents pay more for their goods.  It purports to be class action on behalf of all persons impacted by the Jones Act's application to Hawaii maritime trade.

The complaint alleges claims under Art. I, Section 8 of the Constitution; 42 U.S.C. 1983 and Federal Rule of Civil Procedure 57.  There may be some jurisdictional problems with these claims, so it will be interesting to see if the plaintiffs can survive the government's inevitable motion to dismiss.

Timothy Young

September 17, 2009

In a most recent United States Supreme Court maritime decision, it was ruled that injured seamen could be awarded punitive damages in addition to their maintenance and cure damages. Maintenance is the cost of lodging a person on the boat (food, room and board) after they have been injured. Care is the on-site medical attention received post-injury.

Edgar Townsend was a seaman and crewmember of the Motor Tug Thomas. He injured his arm and shoulder by falling on the steel deck. Afterwards, his Jones Act employer and the owner of the tugboat, Atlantic Sounding informed him that he would not receive maintenance and care. This was an obligation's of the owners under the Lewis federal precedent.

Townsend filed suit alleging maintenance, care and punitive damages for willfull and arbitrary failure to pay maintenance and care. An interlocutory appeal was filed which resulted in the court ruling in favor of punitive damages. This was appealed again and this time the Supreme Court firmly established that punitive damages were not only a general remedy in common law and maritime law, but that willful neglect and/or outrageous conduct was exactly the kind of behavior that punitive damages meant to deter.

The establishment of 45 Sec. (51-60) did not limit the remedies that could be sought. It merely outlined that negligence would be the measuring bar for liability. It in no way limits remedies or bars the common law rule of punitive damages or remedies in general

This new case on maintenance and cure law will help protect injured seaman and allow them to obtain medical treatment and compensation while they are injured. Now a Jones Act employer may think twice before wrongfully denying medical treatment and compensation to an injured seaman.

Jones Act waivers can be granted if speciallized vessels are needed and there are not enough U.S. flagged vessels to fill the void.

According to Ken Wells of the Offshore marine Service Association (OMSA), companies are "outright cheating" to skirt the Jones Act by pushing "the limits of what is legal."

Over 30 foreign vessels are said to be operating in the Gulf with foreign crews. These crews operate at substantially lower wages than American crews.

According to the Coast Guard, 23 foreign exemptions were issued for the Gulf in 2008 and 15 in 2009.

The OMSA has filed protests with the Coast Guard and Maritime Administration to block waiver requests.

In 2005, Hurricane Katrina unleashed a storm surge which overpowered the levees of Lake Pontchartrain.

It also opened up the floodgates for foreign operators to gain a toehold in the offshore oil and gas sector.

Both the Jones Act and the Outer Continental Shelf Lands Act (OCSLA) were enacted to protect the American maritime industry by requiring goods being moved between U.S. ports and offshore sites to be shipped on American built and flagged vessels.

However, both laws allow for waivers or exemptions to be granted in case of national emergency or necessity.

After Hurricane Katrina damaged the Gulf of Mexico's refineries and movement of oil, then Homeland Security Michael Chertoff granted a 19 day waiver to allow foreign vessels to transport oil and gas.

But those 19 days have essentially turned into four years as the presence of foreign vessels has continued-and even increased-to the present day.

PORTLAND (Sep 7): A federal jury has found that a Port Clyde fishing vessel was seaworthy at the time of its sinking in July 2005, which claimed the life of Capt. Gary Thorbjornson.

In July 2008, two cases, one filed by David N. Wilgus and the other filed by Tammy Thorbjornson and Garrett Thorbjornson, were consolidated. Tammy is the wife of Gary Thorbjornson and Garrett is his son and was also a deckhand on the Sirius at the time of its sinking. Wilgus also was a deckhand.

The principal owners of the vessel, a 50-foot wooden fishing boat, were Gary Thorbjornson, his father Ed Thorbjornson and brother Travis Thorbjornson.

The group filed the consolidated case in July 2008 under the Jones Act and the general maritime law of unseaworthiness for personal injuries resulting from the sinking.

After a three-day jury trial, presided over by U.S. District Court Judge D. Brock Hornby, the jury on Sept. 4 found in favor of the fishing vessel Sirius.

In July 2005, Gary Thorbjornson and Garrett Thorbjornson and Wilgus, who were 17 and 19 years old at the time, were on the third day of a fishing trip aboard the Sirius when it began taking on water. Gary Thorbjornson, 41, was last seen heading below deck to retrieve survival suits, when the boat listed to its port side and sank, trapping the captain inside the wheelhouse, according to court documents.

Garrett Thorbjornson and Wilgus were able to deploy an inflatable life raft and after several hours were rescued by another fishing boat.

In June 2005, prior to the July sinking, the vessel was hauled out at Lyman Morse boatyard in Thomaston and brothers Gary and Travis Thorbjornson did extensive work sanding down the hull, recaulking where necessary and painting it, according to the defendant's final pretrial memorandum.

The boat was then taken back to Port Clyde where it sat docked in the water prior to going out on its first trip.

"There is absolutely no evidence that there was any water seeping or leaking into the vessel's hull prior to going out on her first trip," court documents said.

Two weeks after the sinking, Garrett Thorbjornson testified in a sworn statement that on the first trip, prior to the sinking, there was a little bit of water in the fish hold, but it was no concern to anyone on the vessel.

After the first trip, Gary Thorbjornson told his brother Travis Thorbjornson that the bilge pump in the lazarette got plugged up with fish slurry. After it was cleaned out, there was no leaking of water into the vessel, according to the court documents. A diver was hired to check the hull and propeller and everything was satisfactory.

"The F/V Sirius was at the dock in Port Clyde for approximately two and a half days without any leaks," the court documents said. "When she went out again, on the trip of the sinking, she was out for almost three days, again with no leaks in either the fish hold or the lazarette."

The plaintiff's pretrial memorandum paints a different picture.

On the trip prior to the sinking, something struck the underside of the boat while it was hauling in gear, causing a loud banging sound, according to the plaintiff's final pretrial memorandum.

Garrett and Gary Thorbjornson believed that the "doors" of the fishing gear struck the underside hull of the vessel near the stern.

About five or six hours after something struck the underside of Sirius, and while the vessel was steaming back to port, Gary Thorbjornson notified his son and deckhand Garrett Thorbjornson that the vessel was taking on water and said "we're sinking," the court documents said.

Garrett Thorbjornson then went into the fish hold hatch and observed about 18 inches of water above the fish hold deck. He began to bail water out of the fish hold, eventually bringing it under control, and the two were able to make it back to port, according to the court documents.

No further repairs were made to the vessel prior to the trip when it sank.

On the evening of the third day of the last trip, the bilge alarm went off.

"Prior to the bilge alarm going off, nothing unusual had occurred on the trip," according to the court documents. "The F/V Sirius did not hit anything, was not hit by anything and there was no loud and unusual sound. At the time the bilge alarm went off the F/V Sirius was experiencing good weather conditions with seas between two and four feet."

Garrett Thorbjornson witnessed approximately 18 inches of water in the fish hold and started bailing it out with a five-gallon bucket while his father set up two extra bilge pumps in the fish hold.

The vessel started steaming home to Port Clyde and while Wilgus and Garrett Thorbjornson continued bailing, the water in the fish hold started rising and continued to rise and the vessel started listing to the port side.

The list to the port side increased until trays of fish started sliding across the deck toward the port rail and Gary Thorbjornson ordered the trays thrown overboard. While Garrett Thorbjornson was throwing trays overboard, the port rail became submerged in water.

Eventually, the boat rolled onto its port side with its starboard side out of the water. Gary Thorbjornson radioed a mayday, and passed a survival suit to Garrett Thorbjornson through the wheelhouse door and headed down to get additional survival suits.

"Soon after Gary Thorbjornson headed down forward to get additional survival suits, the entire stern and midship of the vessel sank, leaving only the tip of the bow floating above the water and trapping Gary Thorbjornson in the bow compartment," court documents said.

When the stern of the vessel sank under the water, Garrett Thorbjornson became trapped by the pilot house overhead and was dragged underwater, but he was able to break himself free and swim to the surface. He and Wilgus then swam to the life raft and deployed it.

The Thorbjornsons and Wilgus were represented by attorney David F. Anderson of Latti and Anderson, LLP of Boston and the owners of the Sirius were represented by attorney Michael X. Savasuk of Portland.

The impact of proposed changes to the Jones Act and the use of foreign flagged vessels in the US offshore sector is already being felt by seafarers according to international shippingrecruitment agency Faststream, with companies rushing to replace their non-US crews.

Should the proposals by the US Customs and Borders Protection (CBP) first issued in July 2009 be implemented, they would radically change the interpretations of rules for vessels transporting specialised equipment used by the offshore oil and gas industry and revoke foreign flag exemptions to the Jones Act including pipe and cable-laying, diving support work.

"Some of our offshore service companies that we work with are already making moves to man their vessels with US crews in anticipation of the proposed changes," said Fort Lauderdale based Craig Johnson, President of Faststream's US operations.

"Foreign crews are being shifted away from the US and replaced with American citizens. We think that around 70 vessels could be affected by these proposals, but there still remains a good deal of uncertainty as to how far these proposals will go. We haven't as yet seen a jump in salary expectations from crews with salaries remaining relatively stable thus far."

He added: "There are more than enough qualified US seafarers available to man these vessels should the proposals become a reality. Whilst there is a limited pool of qualified personnel for this sort of specialist work, we have around 4000 US mariners on our books and can crew up these ships with ease."

The deadline for submissions to the CBP proposals passed on 17 August and a decision is expected soon.

News - September 2, 2009

The impact of proposed changes to the Jones Act and the use of foreign flagged vessels in the US offshore sector is already being felt by seafarers according to international shipping recruitment agency Faststream, with companies rushing to replace their non-US crews.
 
Should the proposals by the US Customs and Borders Protection (CBP) first issued in July 2009 be implemented, they would radically change the interpretations of rules for vessels transporting specialised equipment used by the offshore oil and gas industry and revoke foreign flag exemptions to the Jones Act including pipe and cable-laying, diving support work.
 
"Some of our offshore service companies that we work with are already making moves to man their vessels with US crews in anticipation of the proposed changes," said Fort Lauderdale based Craig Johnson, President of Faststream's US operations.
 
"Foreign crews are being shifted away from the US and replaced with American citizens. We think that around 70 vessels could be affected by these proposals, but there still remains a good deal of uncertainty as to how far these proposals will go. We haven't as yet seen a jump in salary expectations from crews with salaries remaining relatively stable thus far."
 
He added: "There are more than enough qualified US seafarers available to man these vessels should the proposals become a reality. Whilst there is a limited pool of qualified personnel for this sort of specialist work, we have around 4,000 US mariners on our books and can crew up these ships with ease."
 
The deadline for submissions to the CBP proposals passed on 17 August and a decision is expected soon.

Austal Ltd., the Australian shipbuilder that constructed the Superferry, has posted a profit of only $9 million on $500 million revenue for the first half of 2009, because it wrote off $30 million it lent to Hawaii Superferry.

Austal CEO Bob Browning, interviewed by someone who was busting his chops about the weeny profit, justified the investment in Superferry by saying it enabled the company to build a shipyard in the United States, which in turn allows it to compete for U.S. defense contracts.

The interviewer was in Australia and was focused on the 82% plunge in profits, not exposing anything about Superferry. Browning was focused on explaining that the Superferry project led to other business, thus minimizing the loan loss.

Browning is himself an American and joined the company as head of the Mobile, Ala., shipyard, but now runs the entire company.

I mention all this because Superferry critics continue to portray all military connections to the project as suspicious. I would portray it as an example of something which isn't nefarious but is mildly interesting - reverse dual use.

Austal took a private sector contract with the hope of later winning defense contracts. Dual use usually works the other way around. Hawaii technology companies, including Oceanit, Hoana Medical and Tissue Genesis, seek defense contracts to fund research and development, then look for civilian markets for the same technology. That's dual use.

In the shipbuilding industry, the big money for smaller ships is from military contracts, but the Jones Act prevents foreign shipbuilders from chasing such contracts unless they build or acquire a shipyard in the United States. Austal lent money to Superferry to help the company get started, took the contract to build its first two catamaran ferries, and set up the U.S. shipyard it needed to win other U.S. business.

Affecting The Transportation Industry

On Friday, May 15th, the United States Court of Appeals for the District of Columbia decided a case that is styled BNSF v. Dept. of Transportation that I am sure will have implications for some seamen and Pilots in the future.

From an academic Constitutional Law perspective, it is a radical departure from 4th Amendment "search" law precedent in that it allows a sanctioned strip search of a U.S. Citizen in the United States (as opposed to entering the country) at the time of giving a urine sample even though there is no justification at that moment for the strip. The conclusion's rational is based upon devices being urilized that look like genitalia [Whizzinators] that supply drug free urine so as to pass drug tests.

When juxtapposed to the need to have a drug free workplace in the area of public transportation, the final decision was foreseeable but clearly it is highly intrusive and is now the law of the land. The decision can be appealed to the United States Supreme Court but it is unlikely to be reversed at that level. The Opinion with comment is below:

Only the Westlaw citation is currently available.

United States Court of Appeals,

District of Columbia Circuit.

BNSF RAILWAY COMPANY, et al., Petitioners

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION, Respondent

International Association of Machinists and Aerospace Workers, Intervenor.

Nos. 08-1264, 08-1276, 08-1338, 08-1342, 08-1361, 08-1362, 08-1378.

Argued March 26, 2009.

Decided May 15, 2009.

On Petitions for Review of a Final Rule issued by the Department of Transportation.

Donald J. Munro, argued the cause, for petitioners. With him on the briefs were William F. Sheehan, Jeffrey A. Bartos, Harold A. Ross, Mitchell M. Kraus, Clinton J. Miller, III, Daniel R. Elliott, III, William A. Bon, Michael S. Wolly, Roland P. Wilder, Jr., Lawrence Mann, Larry I. Willis, Bradley T. Raymond, James McCall, James W. Johnson, and Suzanne L. Kalfus.

Louis P. Warchot and Michael J. Rush were on the brief, for amicus curiae Association of American Railroads in support of petitioners.

Mark W. Pennak, Attorney, U.S. Department of Justice, argued the cause, for respondent. With him on the brief were Gregory G. Katsas, Assistant Attorney General, and Leonard Schaitman, Attorney. Lowell V. Sturgill, Jr., Attorney, entered an appearance.

Before HENDERSON, TATEL, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

*1 Under Department of Transportation regulations, employees in the aviation, rail, motor carrier, mass transit, maritime and pipeline industries who either fail or refuse to take a drug test must successfully complete a drug treatment program and pass a series of urine tests as a condition of performing any safety-sensitive duties. To prevent cheating, the Department modified its regulations in 2008 to require that such tests be conducted under direct observation. Petitioners, a railway company and several transportation unions, challenge the revised regulation, arguing that it violates both the Administrative Procedure Act and the Fourth Amendment. For the reasons set forth in this opinion, we find the Department's considered justification for its policy neither arbitrary nor capricious, and although we recognize the highly intrusive nature of direct observation testing, we conclude that the regulation complies with the Fourth Amendment.

I.

Acting pursuant to the Omnibus Transportation Employee Testing Act of 1991, Pub.L. No. 102-143, tit. V, 105 Stat. 917, the Department of Transportation promulgated regulations requiring pre-employment, random, and post-accident drug and alcohol tests for employees throughout the transportation industry. 49 C.F.R. pt. 40. Employees who fail or refuse to take drug tests are barred from performing safety-sensitive duties until they complete a treatment program under the supervision of a substance abuse professional. 49 C.F.R. § 40.285. Employees who successfully complete the program must then pass a “return-to-duty” urine test before resuming safety-sensitive duties. 49 C.F.R. §§ 40.285, .305. During the next twelve months, the employees must also pass at least six unannounced “follow-up” urine tests. 49 C.F.R. §§ 40.307(d), .309.

Prior to the rulemaking at issue in this case, employers had the option of conducting return-to-duty and follow-up tests using so-called “direct observation,” a procedure that requires a same-gender observer to “watch the urine go from the employee's body into the collection container.”49 C.F.R. § 40.67(i) (2007). Concerned that employers were underutilizing this option, especially in light of evidence of a growing proliferation of products that facilitate cheating on drug tests, the Department solicited comment on additional procedures to strengthen testing integrity. In 2008, the Department promulgated a regulation requiring transportation industry employers to use direct observation for all return-toduty and follow-up testing. Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 73 Fed.Reg. 62,910, 62,918 (Oct. 22, 2008) (“Direct Observation Rule”). The regulation also requires that immediately prior to all direct observation tests, employees must raise their shirts above the waist and lower their lower clothing so as to expose their genitals and allow the observers to verify the absence of any cheating devices. 49 C.F.R. § 40.67(i) (2008).

*2 Several transportation industry unions and the BNSF Railway Company, supported by amicus Association of American Railroads, petition for review. Although the partial disrobing requirement became effective on August 27, 2008, we stayed the direct observation requirement pending our resolution of these consolidated petitions. BNSF Ry. Co. v. DOT, No. 08-1264 (D.C.Cir. Nov. 12, 2008). Petitioners argue that the Department's decision to impose these requirements violates the Administrative Procedure Act's (APA) prohibition on arbitrary and capricious agency action and the Fourth Amendment's protection against unreasonable searches. We consider each argument in turn.

II.

Under the Hobbs Administrative Orders Review Act, we evaluate Department of Transportation orders using the familiar standards set forth in the APA. ICC v. Bhd. of Locomotive Eng'rs, 482 U.S. 270, 282 (1987); 28 U.S.C. § 2342(3)(A). Under that framework, agencies must provide a “rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted). Petitioners argue that the Department's promulgation of the revised regulation was arbitrary and capricious under this standard. We disagree.

The Department marshaled and carefully considered voluminous evidence of the increasing availability of a variety of products designed to defeat drug tests. It cited congressional testimony describing the ready availability, through Internet sales, of hundreds of different cheating products, Direct Observation Rule, 73 Fed.Reg. at 62,912, the most elaborate of which is a “prosthetic device that looks like real human anatomy, color-matched,” that can be used to deliver synthetic or drug-free urine, id. at 62,911.The Department also relied on a Government Accountability Office (GAO) report indicating that existing drug testing protocols were inadequate to prevent cheating. According to the report, GAO undercover investigators were able to adulterate their urine specimens even at testing sites that followed then-existing procedures. Id. at 62,912.Based on this and similar evidence, the Department determined it was “not practicable” to ignore the cheating problem. Id. at 62,916.

Petitioners dispute none of this evidence. Instead, they fault the Department for failing to provide direct evidence that employees are actually using cheating devices. Acknowledging that it had no statistics on the rates of actual use of such devices, the Department inferred their use from the anecdotal evidence of their availability. Id. at 62,913.As any successful use of cheating devices would not show up in statistics, the Department reasoned, it was “illogical” to require statistical evidence of cheating.Id . Given that people presumably buy cheating devices to use them, we think this approach quite reasonable. As the Supreme Court said just over two weeks ago, “It is one thing to set aside agency action under the Administrative Procedure Act because of failure to adduce empirical data that can readily be obtained. It is something else to insist upon obtaining the unobtainable.” FCC v. Fox Television Stations, Inc., No. 07-582, 2009 WL 1118715, at * 11 (U .S. Apr. 28, 2009) (citation omitted).

*3 Petitioners devote most of their effort to a separate argument-that whether or not cheating is a problem generally, the Department acted arbitrarily and capriciously in concluding that returning employees are more likely to cheat than employees not subject to direct observation testing. But the Department's approach was sound. Acknowledging the intrusiveness of direct observation testing, the Department sought to limit it to situations posing a high risk of cheating, id. at 62,911, and then concluded-reasonably in our view-that returning employees have a heightened incentive to cheat, and that this incentive, coupled with the increased availability of cheating devices, creates such a high risk, id. at 62,916.

The Department's conclusion that returning employees have a heightened incentive to cheat rested in part upon the heavy sanctions reserved for repeat violations. The Department noted that many employers have adopted “two strikes and out” policies that require termination upon a second drug violation, id. at 62,914, and that in the aviation industry second offenders are subject to a statutory permanent bar on aviation-related employment, id.; see49 U.S.C. § 45103(c). Petitioners object that the Department's reasoning is inconsistent with its treatment of post-accident testing. As petitioners point out, although employees involved in accidents are subject to mandatory testing immediately after the event, see, e.g.,49 C.F.R. §§ 199.105(b); 219.201(a); 382.303(b); 655.44(a), that testing is not directly observed, § 40.67(a)-(c). According to petitioners, treating post-accident and returning employees differently is irrational because the former, subject as they are to civil or criminal liability, have just as great an incentive to cheat as the latter.

Petitioners' argument might have had some force had the Department relied solely on this theory. But it didn't. Substantial additional evidence supports the Department's conclusion that returning employees are particularly likely to cheat. Specifically, several substance abuse professionals submitted comments supporting the direct observation requirement, and the Department reasonably put “a great deal of weight” on their assessments, stressing their expertise and first-hand experience in administering the treatment programs and planning the follow-up testing. Id. at 62,914.To be sure, several substance abuse professionals spoke only generally about the cheating problem, but others expressly stated that returning employees in particular have a heightened motive to cheat. One said that “[p]ersons who have broken trust with the traveling public by testing positive for a prohibited substance, although they knew they would be drug tested, are high risk for using that substance again and motivated to conceal their conduct.”Comments of Evan M. Peterson, Dep't of Transp. Docket No. OST-2003-15245 (Sept. 9, 2008). [J.A. 272.] Another said that “those who have tested positive in the past, and who continue to abuse drugs, are motivated by their addiction to adulterate, substitute, or use prosthetic-type devices to provide a ‘clean’ specimen at the collection site.”Comments of Susan L. Clark, Dep't of Transp. Docket No. OST-2003-15245 (Sept. 26, 2008). [J.A. 323.] Given the experience possessed by these substance abuse professionals, such assessments provide substantial evidence supporting the Department's conclusion that returning employees are particularly likely to cheat on drug tests.

*4 Moreover, the Department supplemented its conclusion about returning employees' motivations with evidence of their actual behavior. To rebut the argument-offered by several commenters and echoed here by petitioners-that returning employees are lower risk because they have successfully completed drug treatment programs, the Department emphasized data showing that “the violation rate for return-toduty and follow-up testing is two to four times higher than that of random testing.”Direct Observation Rule, 73 Fed.Reg. at 62,916. Petitioners point out that these statistics measure only failure, not cheating. Indeed, petitioners claim that data showing returning employees' higher recidivism rates may simply indicate that they are less likely to cheat on drug tests. Theoretically we suppose it might. But the Department was surely entitled to take the contrary view. We can hardly fault the Department for inferring that the reason for higher failure rates is not that returning employees are more honest, but that they are more likely to use drugs. And given that employees who never use drugs are-to say the least-much less likely to cheat on drug tests than those who do, we think it quite reasonable for the Department to see a higher underlying rate of drug use as evidence of a higher risk of cheating.

Finally, petitioners complain that the Department failed to consider less intrusive alternatives. They point out that some commenters suggested that the Department test hair and saliva rather than urine. As the Department explained, however, the Omnibus Testing Act required it to use only testing methods approved by the Department of Health and Human Services, which “ha[d] not approved any specimen testing except urine.”Id. at 62,917;see also 105 Stat. 917, 955, 957, 959, 963. And although commenters suggested other safeguards such as further training of collection personnel and pursuit of additional legislative authority, the Department responded-again reasonably in our view-that it was pursuing these approaches as well but that they could not substitute for the efficacy of direct observation. Direct Observation Rule, 73 Fed.Reg. at 62,916-17.

In their brief, petitioners suggest some additional less intrusive alternatives, pointing out for example that the government has successfully prosecuted makers of one prominent prosthetic device, the “Whizzinator,” for conspiring to defeat federal drug tests. Petrs.' Reply Br. 11. But the mere fact that the government can occasionally prosecute makers of some cheating devices hardly renders irrational the Department's decision to address the risks posed by the host of similar devices still on the market. Petitioners also suggest that the existing regulations, permitting but not requiring direct observation for returning employees, represent an alternative means of adequately ensuring transportation safety. But the Department found that employers, concerned about the effects on “labor-management agreements” and fearing “upsetting employees,” rarely exercise this option. Direct Observation Rule, 73 Fed.Reg. at 62,917. Indeed, amicus Association of American Railroads confirms that direct observation tests “generate resentment and ill will towards management,” Amicus Br. 8, further supporting the Department's conclusion that the status quo was untenable.

*5 Thus, the Department acted neither arbitrarily nor capriciously in concluding that the growth of an industry devoted to circumventing drug tests, coupled with returning employees' higher rate of drug use and heightened motivation to cheat, presented an elevated risk of cheating on return-to-duty and follow-up tests that justified the mandatory use of direct observation. We thus turn to petitioners' argument that the Department's suspicionless use of direct observation for returning employees, as well as the partial disrobing requirement, runs afoul of the Fourth Amendment.

III.

Compelled urine tests are searches for the purposes of the Fourth Amendment's prohibition on “unreasonable searches and seizures,” U .S. CONST. amend. IV. See Skinner v. Ry. Labor Executives Ass'n, 489 U.S. 602, 617 (1989). Although warrantless searches are, “subject only to a few specifically established and well-delineated exceptions,” Arizona v. Gant, No. 07-542, 2009 WL 1045962, at *5 (U.S. Apr. 21, 2009), generally unreasonable, drug tests for transportation safety fall into the “special needs” exception to the warrant requirement. Skinner, 489 U.S. at 619-20. Under this framework, we may uphold a warrantless search serving “special needs, beyond the normal need for law enforcement,” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (internal quotation marks omitted), if, upon conducting a balancing test, we find that the government's interest in conducting the search outweighs the individual's privacy interest, id. at 652-53.

The government's interest in transportation safety is “compelling,” to say the least. Skinner, 489 U.S. at 628. “Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.”Id. Petitioners dispute the extent of the cheating problem, but as discussed above, the Department permissibly found it to be great indeed. Cf. Vernonia, 515 U.S. at 662-63 (reviewing for clear error district court findings of fact regarding the extent of a school's drug problem). And although the effectiveness of a search compared to available alternatives may be relevant to the government's interest in conducting the search, see Delaware v. Prouse, 440 U.S. 648, 659 (1979), there is no per se requirement that the government use the least intrusive practicable means, Vernonia, 515 U.S. at 663. Given the proliferation of cheating devices, we have little difficulty concluding that direct observation furthers the government's interest in effective drug testing.

Petitioners argue that the unannounced nature of follow-up tests diminishes the need for direct observation testing. We think the Department's contrary assessment was reasonable. See Skinner, 489 U.S. at 629 n. 9 (deferring to agency's rejection of less intrusive alternatives). Though the precise dates of follow-up tests are unannounced, returning employees know they will have to face at least six such tests over the first year of their return to work. § 40.307(d). Armed with such foreknowledge, returning employees can easily obtain and conceal cheating devices, keeping them handy even for unannounced follow-up tests. See Direct Observation Rule, 73 Fed.Reg. at 62,912 (noting concealability of cheating products). The government thus has a strong interest in conducting direct observation testing to ensure transportation safety.

*6 The other side of the balance is trickier. Individuals ordinarily have extremely strong interests in freedom from searches as intrusive as direct observation urine testing. In this case, however, those interests are diminished because the airline, railroad, and other transportation employees subject to direct observation perform safety-sensitive duties in an industry that is “regulated pervasively to ensure safety.” Skinner, 489 U.S. at 627. That said, when the Supreme Court recognized the diminished nature of transportation employees' privacy interests and found suspicionless drug testing permissible, it stressed that the tests at issue in that case required no direct observation. Id. at 626;see also NTEU v. Von Raab, 489 U.S. 656, 672 n. 2 (1989) (similar regarding testing of armed customs officers). The Court thus had no occasion to decide whether merely performing safety-sensitive duties in an industry pervasively regulated for safety diminishes employee privacy interests so drastically as to allow direct observation urine testing.

According to the Department, returning employees have diminished privacy interests for reasons over and above their performance of safety-sensitive duties in a pervasively regulated industry. It claims that their privacy interests are diminished by the existing drug testing regulations, which currently permit employers to use direct observation on return-to-duty and follow-up examinations. See supra at 3. To avoid circularity, of course, one's privacy interests can only be diminished by a valid regulation. True, as the Department points out, petitioners don't challenge the existing regulations, but petitioners contend that under those regulations discretionary direct observation is employed only in cases of reasonable suspicion, a claim the Department never rebuts. Petrs.' Opening Br. 9; Petrs.' Reply Br. 17. For our purposes, then, the existing regulations are of limited relevance to the employees' interests in freedom from the suspicionless direct observation searches required by the challenged regulation.

We see more merit in the Department's second reason for suggesting that returning employees' privacy interests are diminished, namely that all have violated the Department's drug regulations by either refusing to take a test or testing positive. As petitioners make no claim that the drug tests suffer from a false positive problem, the violations were, for the purposes of this case, actual and intentional, and in this sense the Department is correct. By choosing to violate the Department's perfectly legitimate-and hardly onerous-drug regulations, returning employees have placed themselves in a very different position from their coworkers. Of course, this does not mean, as the Department claims, that returning employees are akin to convicted offenders on probation or parole; after all, the latter are subject to penal sanctions imposed after criminal process. Cf. Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (“Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.”(internal quotation marks omitted)). Nor is the privacy diminution occasioned by the intentional violation of a drug regulation either everlasting or dispositive-even following a fully informed violation, some searches might still be so disproportionate to government interests as to be unreasonable. That said, we have little trouble concluding that employees who have intentionally violated a valid drug regulation, at least in the relatively recent past, see§ 40.307 (providing a five-year time limit on follow-up tests), have less of a legitimate interest in resisting a search intended to prevent future violations of that regulation than do employees who never violated the rule.

*7 We turn, then, to balancing the individuals' interest with the government's. Although weighing the strength of each is necessarily imprecise, we think that the employees' prior misconduct is particularly salient, especially compared to their choice to work in a pervasively regulated industry. It's one thing to ask individuals seeking to avoid intrusive testing to forgo a certain career entirely; it's a rather lesser thing to ask them to comply with regulations forbidding drug use. True, direct observation is extremely invasive, but that intrusion is mitigated by the fact that employees can avoid it altogether by simply complying with the drug regulations. On the other side of the balance, the Department has reasonably concluded that the proliferation of cheating devices makes direct observation necessary to render these drug tests-needed to protect the traveling public from lethal hazards-effective. Weighing these factors, we strike the balance in favor of permitting direct observation testing in these circumstances.

Petitioners insist that we reached a different result in NTEU v.. Yeutter, 918 F.2d 968, 976 (D.C.Cir.1990). There we held unconstitutional a regulation requiring direct observation for drug tests that rested on reasonable suspicion of drug use but no suspicion of cheating. Id. at 976;see also Piroglu v. Coleman, 25 F.3d 1098, 1101 (D.C.Cir.1994) (citing to Yeutter's holding without further analysis). In Yeutter, however, we expressly left open the question whether direct observation could ever be permissible, instead relying solely on our conclusion that the direct observation procedures at issue “d[id] not significantly improve testing accuracy.” Yeutter, 918 F.2d at 976. That conclusion in turn rested largely on the premise, supported by the record in that case, that standard monitoring procedures-“collecting outer-garments, dying toilet water, listening for urination”-were adequate to detect cheating. Id. But that was before the Whizzinator and its like. Given the proliferation of such cheating devices, here we have a very different record, one that fully supports the Department's finding that standard monitoring procedures are inadequate. We thus conclude that here, unlike in Yeutter, direct observation testing will “significantly improve testing accuracy,” id.

Petitioners also claim that the partial disrobing requirement amounts to a strip search. As they acknowledge, however, the balancing inquiry remains the same regardless of how one characterizes the search. See Bell v. Wolfish, 441 U.S. 520, 559-60 (1979) (analyzing cavity search by balancing interests); Stanley v. Henson, 337 F.3d 961, 964 (7th Cir.2003) (“Whether we ... label the process a ‘strip search’ or merely a ‘search’ is unimportant, as the analysis remains the same.”). Applying that analysis, we recognize the intrusiveness of the partial disrobing requirement, but find it only somewhat more invasive than direct observation, which already requires employees to expose their genitals to some degree. Because of this, and because the Department has permissibly found the requirement necessary to detect certain widely-available prosthetic devices, we conclude that it represents a reasonable procedure for situations posing such a heightened risk of cheating as to justify direct observation in the first place.

*8 At oral argument petitioners claimed that no court has ever upheld suspicionless direct observation testing of non-incarcerated civilians. Maybe so, but they cite no case presenting facts similar to those we face here. Given the combination of the vital importance of transportation safety, the employees' participation in a pervasively regulated industry, their prior violations of the drug regulations, and the ease of obtaining cheating devices capable of defeating standard testing procedures, we find the challenged regulations facially valid under the Fourth Amendment.

We emphasize the limited nature of our holding. Because petitioners bring a facial challenge, we consider only “whether the tests contemplated by the regulations can ever be conducted.” Skinner, 489 U.S. at 632 n. 10. We thus express no view on either the merits of any as-applied challenge to this rule or the constitutionality of any other rule.

IV.

For the reasons stated above, we deny the petitions for review.

So ordered.

C.A.D.C.,2009.

BNSF Ry. Co. v. U.S. Dept. of Transp.

--- F.3d ----, 2009 WL 1350467 (C.A.D.C.)

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