Page 10: of Maritime Reporter Magazine (June 2020)

Government Update smm-hamburg.com /trailer the leading international

Salvage: SMFF Regulations maritime trade fair he Federal Water Pollution Control Act services would be recouped through the retention by a vessel (FWPCA, often called the Clean Water owner or operator when a casualty occurred.

Act), as amended by the Oil Pollution Act The SMFF regulations met both requirements. Those reg- of 1990 (OPA 90), provides: ulations mandated that a vessel owner or operator sign an

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If a discharge, or a substantial threat enforceable contract for SMFF services only with a service of a discharge, of oil or a hazardous sub- provider that could meet the high standards provided for in stance from a vessel, offshore facility, or the regulations. Further, they mandated that the proposed onshore facility is of such a size or character as to be a sub- SMFF contract, including the funding agreement, be submit- driving the stantial threat to the public health or welfare of the United ted for consideration by the Coast Guard before the vessel

States (including but not limited to fsh, shellfsh, wildlife, response plan (VRP) would be approved. The funding agree- other natural resources, and the public and private beaches ment provision is unique in that in no other portion of the maritime and shorelines of the United States), the President shall direct VRP regulations is the vessel owner required to share with all Federal, State, and private actions to remove the discharge the Coast Guard such commercially important information. or to mitigate or prevent the threat of the discharge. 33 USC The rationale for this requirement relates back to the need for transition §1321(c)(2)(A) (emphasis added). an effcient and expeditious response. Because the up-front

The offcial legislative history of OPA 90 is replete with costs of SMFF services are astronomically higher than that 2–5 feb 2021 evidence that Congress meant exactly that. No more would for other response efforts, negotiations over response pric- responsible parties or others direct the response measures. ing (always undertaken on a time and materials basis) can be hamburg

Rather, the responders became answerable only to the Presi- complex. Since pricing is negotiated in advance, response can dent or the Federal On-Scene Coordinator (FOSC). It is the commence immediately. For commercial purposes, the pro- nondelegable responsibility of the federal government to posed SMFF contracts, including the funding agreements, are

SMM fuels change in the maritime industry by bring about the effective and immediate removal of a dis- submitted for consideration and approval by the International bringing together its most influential players and presenting charge or threat of a discharge. The duties of the responsible Group of P&I Clubs (IG) prior to submission to the Coast solutions that make shipping greener, smarter and safer. party are to cooperate with and assist the FOSC and to pay all Guard.

Be part of it and see what’s technologically possible, connect damages and response costs. To provide the SMFF response resource providers with the

This mandate was reinforced with the adoption in 1996 of comfort their high costs can and will be recouped, the law and with peers and get fresh impetus for your business: the Chafee Amendment, which requires a responsible party regulations establish an exceedingly high bar for deviation to act under the National Contingency Plan (NCP) and its from the approved SMFF provisions of the VRP. It should • 2,200+ exhibitors from the entire maritime value chain applicable response plan. The responsible party may deviate be noted that the deviation justifcation requirement is only

SMM • 50,000 industry professionals from 120+ countries from its response plan (but not from the NCP) if and only if found in the SMFF regulations, not in those regulations ap- • Top-notch conferences and first-class networking events rescheduled for the President or the FOSC determines that deviation would plicable to other response service providers.

2 – 5 feb 2021 provide for a more effective or expeditious response to the During the SMFF rulemaking process, the Coast Guard re- discharge or mitigation of its environmental effects. ceived several comments recommending that the rule focus save the date

Detailed regulations to implement the salvage and marine on ensuring adequate participation in the casualty response by frefghting (SMFF) provisions of OPA 90 for tank vessels the fnancial stakeholders, which are often the insurers of the were not promulgated until 2008 and its application was not responsible parties. The Coast Guard dismissed those com- extended to non-tank vessels until 2013. This long gestation ments, noting that they were outside the scope of the rule- period involved much negotiation by all the stakeholders, making and would introduce a new aspect to the overarching most especially by the established salvage companies based incident command structure. in the United States. Those salvage companies were con- Nevertheless, in the response to the capsized car carrier cerned with many aspects of the rulemaking, particularly with GOLDEN RAY, the vessel’s fnancial guarantor was allowed ensuring that companies offering themselves for this impor- to participate in the Unifed Command (UC) process. A sal- tant service could actually perform and that the vast sums of vage consultancy was supposedly hired by the responsible money expended in developing the capacity to provide SMFF party to provide advice on the salvage operation. It was soon twitter.com/SMMfair smm-hamburg.com/news linkedin.com/company/smmfair facebook.com/SMMfair youtube.com/SMMfair #SMMfair 10 Maritime Reporter & Engineering News • June 2020