The U.S. Coast Guard issued a Notice of Availability and Request for Comments (“Notice”) on January 14, 2014 for a draft Navigation and Vessel Inspection Circular (“NVIC”) that is intended to provide guidance for the identification and reporting of marine casualties and provide clear policy interpretations to facilitate compliance with casualty reporting requirements. 79 Fed. Reg. 2466 (January 14, 2014). The Notice is available at: www.gpo.gov/fdsys/pkg/FR-2014-01-14/pdf/2014-00443.pdf. The draft NVIC is available at: www.regulations.gov/#!documentDetail;D=USCG-2013-1047-0002. Comments are due by April 14, 2014.
In addition, on January 10, 2014, the U.S. Coast Guard issued a Notice of Proposed Rulemaking (“NPRM”) that seeks to broaden existing regulatory requirements for reporting marine casualties that occur on the U.S. Outer Continental Shelf (“OCS”). The primary intent of the NPRM is to expand reporting requirements applicable to foreign-flag vessels and units operating on the OCS, similar to those currently required by U.S.-flag vessels operating on the OCS. The NPRM is available at www.gpo.gov/fdsys/pkg/FR-2014-01-10/pdf/2014-00278.pdf. Comments are due by April 10, 2014.
Marine Casualty Reporting and the Proposed NVIC
Under the general marine casualty reporting provisions of 46 C.F.R. part 4, the owner, operator, or person in charge of a vessel must report marine casualties involving a grounding, allision, or loss of propulsion that impacts the maneuverability of the vessel, impacts the vessel’s seaworthiness, or fitness for service or route, loss of life, injury requiring professional medical treatment, property damage in excess of $35,000, or significant harm to the environment. 46 C.F.R. § 4.05-1. The initial report must be made immediately by telephone, followed by a written report (Form CG-2692), which includes any necessary alcohol or drug testing, within five days of the marine casualty.
Confusion as to which marine casualties need to be reported has persisted in the marine industry for years. Confusion also exists as to whether a particular incident qualifies as a marine casualty. Unfortunately, little official guidance has been published by Coast Guard Headquarters regarding its policy interpretation of the reporting requirements. We know the Coast Guard has been working on this policy guidance for quite a while and anticipate that the publication of the final NVIC should go far to alleviate this confusion.
Reporting Marine Casualties on the OCS Today
Reporting requirements for marine casualties occurring on the OCS are currently set forth in Title 33 of the Code of Federal Regulations, Subchapter N, parts 140-147. While the regulations set forth under 46 C.F.R. part 4 establish general maritime casualty reporting provisions for foreign-flag vessels operating in the navigable waters of the United States and U.S.-flag vessels operating worldwide, the regulations set forth in Subchapter N specifically regulate vessels and facilities engaged in OCS activities. The term “OCS activities” is broadly defined to mean “any offshore activity associated with exploration for or development or production of, the minerals of the Outer Continental Shelf.” 33 C.F.R. § 140.10.
Specifically, with regard to marine casualty reporting requirements for foreign-flag facilities, under 33 C.F.R. subchapter N, the owner, operator, and person in charge of an OCS facility (other than a mobile offshore drilling unit (“MODU”)) must report, as soon as possible, any casualties involving death, injury to five or more persons in a single incident, incapacitation of any person for more than 72 hours, damage to primary lifesaving or firefighting equipment, and certain other property damage in excess of $25,000. 33 C.F.R. § 146.30. With regard to vessels, the owner, operator, or person in charge of a foreign-flag vessel, including a MODU, engaged in OCS activities, must report, as soon as possible, casualties involving death, injury to five or more persons in a single incident, or the incapacitation of any person for more than 72 hours. 33 C.F.R § 146.303.
In short, there is a great disparity between reporting requirements for U.S.-flag vessels engaged in OCS activities, compared to foreign-flag vessels and units, because foreign-flag vessels and units are only required to report casualties under 33 C.F.R. Subchapter N, while U.S.-flag vessels are required to report casualties under both 33 C.F.R. subchapter N and the broader requirements under 46 C.F.R. part 4. As a result, the Coast Guard has published this NPRM to address this disparity in reporting.
The Coast Guard specifically noted that because foreign-flag vessels are involved in most of the OCS activity, it has proposed these expanded reporting requirements to address marine casualties that may go unreported under the current regulatory framework. To illustrate this disparity in reporting and to support its NPRM, the Coast Guard highlighted the Deepwater Horizon incident as an example, specifically noting that prior to the explosion that resulted in 11 deaths and the largest oil spill in U.S. history, the foreign-flag MODU operating in the Gulf of Mexico had incidents involving flooding and total loss of power, incidents a U.S.-flag unit would have had to report, but were not incidents a foreign-flag unit had to report under the current marine casualty reporting requirements. According to the Coast Guard, had these incidents been reported and investigated timely, “important contributing factors in the 2010 disaster could have been brought to light and remedied.” As such, the Coast Guard is proposing these expanded reporting requirements to address unreported incidents and increase safety on the OCS.
DISCUSSION OF THE NVIC AND THE OCS NPRM
Key Points in the Draft NVIC
Noting that “marine casualties occur among a wide range of vessel types and operations,” the NVIC was issued in the interest of supporting a “consistent national framework” that establishes expectations and reduces confusion about reporting marine casualties. This draft notice not only provides guidance to assist in the interpretation of current marine casualty reporting requirements, but also provides notice that the Coast Guard is contemplating a rulemaking in this regard. As such, owners, operators, and other persons in charge of vessels and units engaged in OCS activity should review and comment on the draft NVIC to help shape the Coast Guard’s guidance from a practical standpoint and evaluate the potential impact of a proposed rulemaking, should it be initiated.
Key Points in the OCS NPRM
According to the Coast Guard, these regulations are being proposed in an attempt to improve the Coast Guard’s ability to capture data on casualties that occur on the OCS from foreign-flag vessels and units. Such data is essential to analyzing the effectiveness of current Coast Guard regulations on OCS safety and for the consideration of future improvements.
Specifically, in order to position U.S.-flag and foreign-flag OCS vessels and units on the same “regulatory footing” regarding marine casualty reporting, the Coast Guard is proposing amendments that would effectively transfer the reporting requirements for OCS vessels and units from 33 C.F.R. Subchapter N to the general maritime reporting requirements under 46 C.F.R. part 4 by referencing the Title 46 marine casualty requirement in Subchapter N. Subchapter N would then be amended to refer to other Coast Guard regulations addressing reporting requirements for incidents involving commercial diving, hazardous conditions, and occurrences that pose an imminent threat of oil pollution.
These new reporting requirements would apply to all OCS units (which includes vessels). The use of the term “units” in subchapter N broadly encompasses not only foreign-flag units, but also U.S.-flag units not considered vessels (i.e. OCS facilities) that would otherwise not fall within the scope of this regulation.
Ultimately, by including foreign-flag units under the 46 C.F.R. part 4 general reporting requirements, the proposed rule requires, in part, that owners, operators, masters, or persons in charge of foreign-flag OCS units engaged in OCS activities to report marine casualties, to be followed by a complete marine casualty reporting form, Form CG-2692, and CG-2692B (Report of Required Chemical Drug and Alcohol Testing Following Serious Marine Incident) where applicable.
By expanding the current reporting requirements, the NPRM may also raise additional questions regarding the overlapping authority of the Coast Guard and Bureau of Safety and Environmental Enforcement (“BSEE”). Currently, BSEE jurisdiction and marine casualty reporting requirements apply to OCS units that are permanently or semi-permanently attached to the seabed or subsoil of the OCS. Although the NPRM highlights the fact that the Coast Guard and BSEE “work together to ensure that duplicative reporting is not required,” it seems likely that implementation of these expanded reporting requirements may lead to duplicative and confusing reporting procedures as an OCS unit’s reporting procedures will vary depending on the exact nature of its operations and location at the time of the incident.
Jurisdictional questions raised as the result of the proposed rulemaking will add to already existing concerns regarding the overlap of proposed Coast Guard regulations and existing BSEE regulations. As discussed in our previous advisory (available at www.blankrome.com/siteFiles/Mainbrace-Oct13.pdf#page=3), the Coast Guard recently issued an Advance Notice of Proposed Rule Making that would require all U.S.-flag and foreign-flag vessels engaged in OCS activities to develop vessel-specific Safety and Environmental Management Systems (“SEMS”). Similar to the instant matter, the SEMS proposal is in addition to the already existing SEMS requirements implemented by BSEE and the Safety Management System requirements imposed by the International Safely Management Code.
CONCLUSIONS AND RECOMMENDATIONS
The draft NVIC, once finalized, should result in industry-wide uniformity in marine casualty reporting requirements, as well as more consistency in Coast Guard enforcement, in areas in which there has been confusion in the past. Comments should be provided, however, in those areas in which companies may disagree with the Coast Guard’s interpretation as delineated in the draft NVIC.
With regard to the OCS NPRM, the proposed amendments contemplate significant change to existing regulations that would subject both U.S.- and foreign-flag OCS units to reporting requirements much more broadly than those currently in effect. Companies should consider making comments on the NPRM depending on its assessment of impacts on its vessel activities.
In light of the potential impact on the marine industry, owners and operators of vessels operating within waters of the United States and/or vessels engaged in OCS activities, as applicable, are encouraged to review and comment on the Coast Guard’s draft NVIC and OCS NPRM. Comments are due on the draft NVIC by April 14, 2014 and the OCS NPRM by April 10, 2014.
Notice: The purpose of this Maritime Developments Advisory is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. The Advisory should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.