Introduction
COVID-19 update and vessel reporting requirements
Port and facility operations
Extension of mariner credential endorsements and medical certificates
Vessel inspections, exams and documentation
Guidance for compliance with federal drug testing requirements
Identification of essential maritime critical infrastructure workers
Vessel and facility response plans
Transportation worker identification credential operations
Ballast water management extensions


Introduction

In response to the COVID-19 pandemic, the United States Coast Guard's (USCG's) Inspection and Compliance Directorate has released a series of marine safety information bulletins (MSIBs) to keep the marine industry informed and provide guidance for the continued safe operation of the maritime transportation system.

The MSIBs, outlined below, detail key maritime issues associated with the COVID-19 pandemic including, but not limited to, reporting requirements for illness or death, vessel inspections, exams, documentation and federal drug testing requirements.

COVID-19 update and vessel reporting requirements

Broadly speaking, MSIBs 02-20: Novel Coronavirus – Update (Change 3) (as amended) and 06-20: Vessel Reporting Requirements for Illness or Death provide updates and guidance to commercial vessels in relation to COVID-19 policies and procedures. According to MSIB 02-20, the USCG is requiring commercial vessel crews to immediately notify the USCG captain of the port (COTP) if anyone, regardless of where they have been or who they have interacted with, shows symptoms of COVID-19 or other flu-like illnesses. In addition, "vessels destined for a U.S. Port are required to report to the CDC any sick or deceased crew/passengers during 15 days prior to arrival at the U.S. port" and "U.S. flagged-commercial vessels are also advised to report ill crewmembers in accordance with the requirements of each foreign port called upon". MSIB 02-20 further suggests that vessel owners and operators and local stakeholders review and be aware of the current regulations on vessels during the COVID-19 pandemic, including the no sail order issued to all cruise ships and the policies governing non-passenger commercial vessels entry into the United States.

MSIB 06-20 reiterates the importance of reporting the illness of persons on board a vessel to both the USCG and the Centre for Disease Control and Prevention (CDC). Further, MSIB 06-20 defines an 'ill person' using the criteria of Section 71.1 of Title 42 of the Code of Federal Regulations and states that:

Vessels or masters that do not immediately report illness or death among passengers or crew may face delays and disruption to passenger and cargo operations including a requirement to return to the previous port after sailing.

In addition, vessels and masters may also be subject to USCG enforcement action, including civil penalties, vessel detentions and criminal liability.

Port and facility operations

MSIB 07-20: Novel Coronavirus – Port and Facility Operations provides guidance and clarification to port and facility operators affected by COVID-19. According to MSIB 07-20, the USCG maintains that the facility compliance regulations outlined in Title 33 of the Code of Federal Regulations remains in full force and effect, and facility operators should continue to comply with these requirements. However, the USCG also acknowledges that "the COVID-19 pandemic has resulted in a myriad of unique operating conditions that warrant special considerations". In light of these operational concerns, the USCG issued the following clarifications to help ensure the safety and security of workers, ports and facilities:

  • Declarations of security – those facilities required to complete a declaration of security (DOS) pursuant to Section 105.425 of Title 33 of the Code of Federal Regulations are still required to complete a DOS; however, all communication may be transmitted electronically: "[T]here is no requirement for the coordination of security needs and procedures, signature of the DOS, or implementation of agreed upon measures to be conducted in a face-to-face manner."
  • Declarations of inspection – a declaration of inspection (DOI) meeting or conference required before any transfer of oil or hazardous material to or from a vessel can be completed over the radio, by phone or at a safe social distance as long as the persons in charge at both the facility and vessel communicate before the transfer begins. Further, all parties may electronically sign the DOI.
  • Seafarers' access – maritime facility operators are reminded that they cannot impede the embarkation or disembarkation of crew members as permitted under the seafarers' access regulations. Facilities should contact their local USCG, Customs and Border Protection or CDC offices regarding questions or concerns.
  • Non-compliance with facility security requirements – if a situation arises where a facility will be unable to comply with the security requirements of Section 105 of Title 33 of the Code of Federal Regulations, the facility must contact the COTP to request and receive permission to temporarily deviate from the requirements.
  • Waste reception facilities (garbage and medical waste)ports and terminals must be ready to receive any medical waste from any vessel calling at their facility or must provide a list of persons authorised by federal, state or local law or regulation to transport and treat such wastes. All vessels must notify the COTP and coordinate with the port, terminal or recreational boating facility their needs for reception facilities for medical waste 24 hours in advance of their arrival or immediately, if already arrived.
  • Transportation worker identification credential enrolment centresapplicants should determine if the centre is open in advance of any visit by visiting here.

Extension of mariner credential endorsements and medical certificates

To mitigate the impact of COVID-19 and keep maritime commerce flowing, the USCG issued MSIB 08-20: COVID-19 – Mariner Credentials, extending the deadlines for the following marine endorsements and medical certificates set to expire in the upcoming months:

  • All merchant mariner credentials (MMC), medical certificates (national endorsements only) and standards of training, certification and watchkeeping endorsements that expire between 1 March 2020 and 31 July 2020 are extended until 31 October 2020. However, working mariners should carry the expired credential with a copy of the MSIB notice with them.
  • Administrative measures, including additional information letters, qualified assessor letters, designated examiner letters, proctor approval letters, approval-to-test letters, and mariner-training-course-completion certificates set to expire between 1 March 2020 and 31 July 2020 are extended to 31 October 2020.
  • Course and programme approvals that expire between 1 January 2020 and 31 July 2020 are extended for six months from their current expiration date.
  • All regional examination centres and monitoring units are closed until further notice. Mariners may cancel or reschedule any regional examination centre appointment by contacting the National Maritime Centre.
  • The USCG will not enforce the requirement that pilots undergo an annual physical examination during COVID-19. However, this does not mitigate actual medical standards.

Vessel inspections, exams and documentation

MSIB 09-20: Vessel Inspections, Exams and Documentation outlines the measures that the USCG is adopting during the COVID-19 pandemic with regard to vessel inspections, exams and documentation. According to MSIB 09-20, the USCG will continue commercial vessel compliance activities, to the extent possible, to allow for the continued operation of the maritime training services. In addition, prior to boarding a vessel or conducting a pre-exam or inspection meeting, the inspector or examiner will verify with the vessel representatives that there are no ill persons onboard.

MSIB 09-20 also highlights the various protocols for certain types of inspection. For example, US-flagged vessels and outer continental shelf inspections will be addressed on a case-by-case basis. Recognised organisations and third-party organisations conducting surveys or audits on behalf of the USCG and companies completing internal vessel and management audits may also request extensions on a case-by-case basis. Fishing vessel safety exams will also be addressed on a case-by-case basis. For port state control exams, the USCG will continue to pursue a risk-based programme, but will not issue deficiencies or detain vessels for expired certificates, documents or mariner credentials until 1 October 2020.

Guidance for compliance with federal drug testing requirements

MSIB 10-20: COVID-19 – Guidance for Maritime Operators on Compliance with Federal Drug Testing Requirements aims to provide guidance to marine employers that are tasked with facilitating drug testing. Pursuant to MSIB 10-20, marine employers that must randomly drug test employees pursuant to Section 16 of Title 46 of the Code of Federal Regulations, should continue to randomly drug test employees, but should attempt to adjust the random selection dates and/or use their own office employees to administer the drug tests. While this will present challenges for many employers that do not have in-house testing facilities, the USCG acknowledged in MSIB 10-20 that it would give due consideration to the present challenges when deciding whether to take enforcement action against an employer that failed to reach the required 50% random test rate for all covered employees in 2020.

Further, MSIB 10-20 also provides that all employers must continue to require pre-employment drug tests for newly hired crew members as per Section 16.210 of Title 46 of the Code of Federal Regulations; however:

[i]n consideration of the pandemic and the potential need for employers to backfill crewmember positions rapidly, the Coast Guard, pursuant to 46 C.F.R. 16.107 will consider employer requests to waive pre-employment drug tests for employees that have been covered by a random drug test program for at least 60 days within the last year of the intended hiring date.

Identification of essential maritime critical infrastructure workers

The purpose of MSIB 11-20: Maintaining Maritime Commerce and Identification of Essential Maritime Critical Infrastructure Workers is to provide clarification to state and local officials "when making determinations regarding which MTS workers are considered essential in regions impacted by COVID-19 quarantine and shelter-in-place orders". The list of essential workers created by the USCG in MSIB 11-20 is advisory and includes the following workers:

  • merchant mariners;
  • federal and state pilots;
  • stevedores, longshoremen and line handlers;
  • representatives of seafarers' welfare and labour organisations;
  • marine consultants, naval architects, marine exchanges, surveyors and shipyard workers;
  • classification society and recognised organisation surveyors and auditors;
  • vessel owners, operators, shipping agents and marine dispatchers;
  • technical representatives and contractors;
  • bridge operators and repair personnel;
  • lock and dam operators and workers;
  • lighthouse servicing and repair personnel;
  • equipment, cargo, crane and dredging operators;
  • truck drivers, launch, tug and towing operators and other intermodal transportation workers;
  • vendors and ship chandlers providing ship services, husbandry and provisions; and
  • federal and state agency personnel (eg, USCG, Customs and Border Protection, CDC, Army Corps of Engineers and local health and safety organisations).

This list is non-exhaustive and further examples of categories of essential workers can be found in the original text.

Vessel and facility response plans

The Office of Marine Environmental Response Policy released MSIB 12:20: COVID-19 – Vessel and Facility Response Plans to remind facility owners and operators to "ensure the availability of response resources" within the times specified in Sections 154 and 155 of Title 33 of the Code of Federal Regulations. Vessel and facility owners should continue to communicate with their oil spill response, salvage and marine firefighting providers to assess changes to resource availability, and must immediately contact the COTP of any resource impacts. In addition, those classified as oil spill removal organisations under the 2019 Guidelines for the USCG Oil Spill Removal Organisation Classification Programme, must notify the COTP and the National Air Strike Coordination Centre of any significant changes made to its response resources within 72 hours. A significant change is one that reduces the oil spill removal organisation's capacity by 10% or more for 48 hours or longer.

Transportation worker identification credential operations

The USCG released MSIB 13-20: COVID 19 – Transportation Worker Identification Credential (TWIC) operations to clarify temporary exemptions to credential expiration relating to COVID-19 for merchant mariners and marine facilities and vessels. According to MSIB 13-20, for merchant mariner credentials, the "Coast Guard is providing flexibility with regards to requirements to have a TWIC when applying for a credential or when serving under the authority of a credential". For example, the USCG will not pursue suspension or revocation actions against any mariner with an expired TWIC during the COVID-19 pandemic. In addition, the USCG will accept merchant marine credential applications from individuals who have completed the TWIC application, but have not received their TWIC approval. Lastly, pursuant to MSIB 13-20, a mariner may apply for a renewal, raise of grade, new endorsement or duplicate merchant marine credential even if their TWIC is expired provided that they demonstrate that they have enrolled for a TWIC renewal.

For marine facilities and vessels, MSIB 13-20 provides as follows:

  • TWIC readers – the USCG is not changing the 7 June 2020 implementation date, but will delay enforcement of the TWIC reader rule for vessels and/or facilities with vessels carrying more than 1,000 passengers to 5 October 2020.
  • Escort ratios – a facility may adjust its escort ratios for secure and restricted areas to meet employee shortage or other demands caused by COVID-19. However, this constitutes a change to the facility security plans and/or requires approval from the COTP via non-compliance.
  • New hires – the USCG will not enforce side-by-side escorting in restricted areas for new hires as required by Section 101.105 of Title 33 of the Code of Federal Regulations during the COVID-19 pandemic. A new hire may access restricted areas as long as they present identification per Section 105.515(a) of Title 33 of the Code of Federal Regulations to the vessel security office or facility security officer and a person who holds a TWIC is present and can provide reasonable monitoring.
  • Alternative security programme (ASP) – local users that are unable to comply with requirements in an approved ASP can obtain temporary relief via non-compliance or may submit an amendment to port and facility compliance to cover the entire ASP.
  • Non-compliance – if a vessel or facility cannot comply with the requirements of Sections 104.125 or 105.125 of Title 33 of the Code of Federal Regulations, they must contact the COTP to request and receive permission to temporarily deviate from the requirements.

Ballast water management extensions

As a result of COVID-19, the USCG has acknowledged that "disruptions to supply chains and workforce availability" may "make it difficult for owners and operators to bring their vessels into compliance with the Coast Guard Ballast Water Management Regulations" set out in Sections 151(C) and 151(D) in Title 33 of the Code of Federal Regulations. Accordingly, the USCG issued MSIB 14-20: Ballast Water Management Extensions to outline the adjustments that it is making to the extension policy for vessels installing a ballast water treating system that have been affected by COVID-19. According to MSIB 14-20, the USCG has adjusted its extension policy to provide an extension, upon request, of up to 12 months on the installation of a ballast water treating system for any vessel that conducts a credit drydock before 21 April 2021. If a vessel requires more than a 12-month extension, the master, owner, operator, agent or person in charge of the vessel may request an extension in accordance with Section 151.2036 of Title 33 of the Code of Federal Regulations. Such requests should include documentation showing that:

  • a system was purchased and arrangements made to have it installed;
  • the system could not be installed due to COVID-19 restrictions; and
  • a plan for installing the system is in place.

In addition, MSIB 14-20 also provides that 12-month extensions may be granted to those parties that had made arrangements to convert an alternate management system to a USCG-approved system, but were unable to complete the conversion because of COVID-19. If additional time is needed, a request, along with third-party verification documents showing that arrangements had been made to complete the conversion, but were unable to be completed as a result of COVID-19, must be submitted.

For further information on this topic please contact Katherine W Lynch at Wilson Elser by telephone (+1 504 702 1710) or email ([email protected]). The Wilson Elser website can be accessed at www.wilsonelser.com.