Page 20: of Maritime Reporter Magazine (November 2013)

20 Maritime Reporter & Engineering News ? NOVEMBER 2013 GOVERNMENT UPDATE Nontank VRP RegsThe long-awaited nontank ves-sel response plan (NTVRP) rulemaking was published on September 30, 2013 and came into effect on October 30, 2013. Nei- ther of these are signiÞ cant dates for the owners, operators, and masters of non-tank vessels operating on the navigable waters of the United States. The truly signiÞ cant date is January 30, 2014. This is the deadline for submittal to the US Coast Guard of an oil spill response plan that meets the requirements of the NT- VRP regulation. There are many good things about the NTVRP. Planning for oil spill response and preparation for an actual response ef-fort are important and have been shown to ultimately reduce both the number and severity of oil spills. Space limitations, though, prevent me from summarizing the details of this complex rulemaking. Instead, this article will have to focus on a few aspects of the rule where things have gone astray or there is room for improvement.Wrapped Around the Axle The Coast Guard has unfortunately got-ten itself wrapped around the axle with regard to the geographic coverage of this regulation. Not inconsistently with the enabling legislation, the regulation states in new 33 CFR § 155.5015(a) that the NTVRP regulations apply to each self-propelled vessel that: (1) carries oil of any kind as fuel for main propulsion; (2) is not a tank vessel or is not certiÞ cated as a tank vessel; (3) operates upon the navigable waters of the United States, as deÞ ned in 46 U.S.C. 2101(17a); and (4) is 400 gross tons or more as measured under the convention measurement sys-tem in 46 U.S.C. 14302 or the regula-tory measurement system of 46 U.S.C. 14502 for vessels not measured under 46 U.S.C. 14302. For this purpose, ?navi-gable waters of the United States? means the territorial sea out to 12 nautical miles seaward of the baseline from which the territorial sea is measured and those in-ternal waters subject to the ebb and ß ow of the tide and those non-tidal waters that either are historically navigable by interstate or foreign commerce or are navigable in fact.The new NTVRP regulation then at- tempts to require that the oil spill re-sponse plans prepared for nontank vessels include response planning for waters in the offshore area and the open ocean area as deÞ ned in the original vessel response plan regulations. The original vessel response plan regulations were intended for use with regard to tank vessels. The oil spill response plan requirement for tank vessels, as enacted in the Oil Pollution Act of 1990 (OPA 90), extend- ed out to 200 nautical miles offshore. A vessel, other than a tank vessel, operat-ing seaward of the navigable waters of the United States (as deÞ ned at 33 CFR § 155.5015(a)(3)), is just a vessel. By law, there is no such thing as a nontank vessel further offshore than 12 nautical miles. Therefore, the Coast Guard is acting out-side its authority (i.e., in an ultra vires manner) when it purports to require non-tank vessels (or at least foreign nontank vessels) to prepare and submit response plans that address a spill or the substan-tial threat of a spill that occurs more than 12 nautical miles offshore. That said, it must be recognized that the owners and operators of all vessels (and facilities) from which oil is dis-charged without a permit are responsible under the law responding to that dis-charge if it occurs in waters subject to the jurisdiction of the United States, out to 200 nautical miles offshore. Only tank vessels are required by law to develop, implement, and submit for approval by the Coast Guard oil spill response plans for discharges more than 12 nautical miles offshore. It behooves the owner or operator of a vessel other than a tank vessel to develop and implement a response plan covering discharges of oil more than 12 nautical miles offshore if the vessel regularly op- erates in waters more than 12 nautical miles offshore ? but such a plan is not required by law. Salvage and Marine Fire Þ ghtingThe NTVRP regulations (and now the VRP regulations) include salvage and marine Þ reÞ ghting requirements. In this regard, the recent NTVRP rulemaking has wording that raises some questions.The NTVRP regulation requires re- sponse plans for nontank vessels with a fuel capacity of 2,500 barrels or greater to ?meet the salvage, emergency light- ering, and marine Þ reÞ ghting require- ments found in subpart I?. Subpart I, the salvage and marine Þ reÞ ghting regula- tions, in deÞ ning the term ?assessment of structural stability?, requires that the assessment be consistent with the condi-tions set forth in 33 CFR § 155.240. This latter regulation requires, among other things, that vessel baseline strength and stability characteristics be pre-entered into a computerized, shore-based dam-age stability and residual structural strength calculation program. Numerous nontank vessels have not currently cal-culated their baseline strength and stabil-ity characteristics, let alone have those calculations pre-entered into a shore-based stability and strength calculation program. If those characteristics were ever cal-culated, they generally have not been updated to account for changes and al-terations made to the vessel. Thus, this regulatory requirement may impose an unanticipated burden on many owners and operators of covered nontank ves-sels. To make matters more confusing, new regulation 33 CFR § 155.5035(c)(11) provides that pre-entering of these characteristics is optional. Alternatively, the owner or operator of a nontank vessel may maintain ashore a copy of the vessel plans necessary to perform salvage, sta-bility, and hull stress assessments. The Coast Guard may wish to clarify these provisions. Nontank vessels with a fuel capacity of Dennis L. Bryant, Maritime Regulatroy Consulting, Gainsville, Fla.t: 352-692-5493e: [email protected] clock is ticking toward the deadline to submit to the U.S. Coast Guard an oil spill response plan that meets the requirements of the NTVRP regulation. (Photo courtesy T&T Salvage)MR #11 (18-25).indd 20MR #11 (18-25).indd 2011/11/2013 11:32:56 AM11/11/2013 11:32:56 AM