Category: Marine Regulation

MARPOL Compliance Alert: D.C. Court of Appeals Shuts the Door on APPS Relief

Gregory F. Linsin and Dana S. Merkel

Achieving sustained compliance with the requirements of Annex I of the International Convention for the Prevention of Pollution from Ships (“MARPOL”) has been a challenge for the commercial maritime industry. In far too many situations, the detection of noncompliant activity by the U.S. Coast Guard has resulted in criminal prosecutions with devastating consequences for the vessel operator, owner, and crew, and the risks for the maritime industry are only increasing as the deadlines for Annex V compliance loom. This article explains a proven system for commercial vessel owners to minimize or even eliminate these substantial enforcement risks.

APPS Violations and Angelex

The Act to Prevent Pollution from Ships (“APPS”), which implements MARPOL in the United States, authorizes the Coast Guard to detain any vessel if there is reasonable cause to believe the “ship, its owner, operator, or person in charge” may be liable for APPS violations. There have been many legal challenges over the years to the U.S. Coast Guard’s enforcement authority, including its jurisdiction over the vessels, bond amounts demanded, and non-monetary bond requirements, but all have failed. In December 2018, in the case of Angelex Ltd. v. United States, the D.C. Court of Appeals rejected the last untested avenue for potential relief for a vessel owner under APPS. Continue reading “MARPOL Compliance Alert: D.C. Court of Appeals Shuts the Door on APPS Relief”

New Developments in MARPOL Annex VI Compliance and Implementation

Jeanne M. Grasso, Jonathan K. Waldron, and Dana S. Merkel

 

The International Maritime Organization (“IMO”), in preparing for the global 0.5 percent fuel oil sulfur limit, recently adopted an amendment to MARPOL Annex VI to support consistent implementation and enforcement of the new requirement. At the same time, the IMO rejected a proposal for an “experience building phase” during the first months of implementation. This put to rest any rumors of a delay in implementation. Meanwhile, the U.S. Coast Guard published procedures by which owners may seek authorization to operate engines that do not meet MARPOL Annex VI NOx Tier III requirements for qualified vessels.

New Developments

The IMO adopted an amendment to support consistent implementation of the forthcoming 0.5 percent limit on sulfur in ships fuel oil on October 26, 2018, during the recent session of its Marine Environment Protection Committee (“MEPC 73”). This amendment, effective on March 1, 2020, prohibits the carriage of non-compliant fuel oil for use on the vessel unless the vessel is outfitted with an exhaust gas cleaning system, often referred to as a scrubber. The amendment does not alter the January 1, 2020 implementation date for the 0.5 percent sulfur limit.

Also related to MARPOL Annex VI, the U.S. Coast Guard published an enforcement Work Instruction formally addressing how the U.S. Coast Guard will enforce the Annex VI nitrogen oxides (“NOx”) Tier III standards within the North American and U.S. Caribbean Sea Emission Control Areas (“ECAs”). See Exercise of Enforcement Discretion with Regard to MARPOL Annex VI Regulation 13.5.1.2; CVC-WI-014(1) (October 17, 2018). Because engines meeting the NOx Tier III standards were largely unavailable after the Tier III standards took effect in 2016, the U.S. Coast Guard is allowing impacted vessels to instead be certified as meeting U.S. Environmental Protection Agency (“EPA”) Clean Air Act Tier 3 requirements pursuant to 40 C.F.R. Part 1042. Once individually recognized by the U.S. Coast Guard, such engines may be used indefinitely, even after NOx Tier III compliant engines become available.

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EPA’s 2013 Vessel General Permit to Be Continued into 2019

Jeanne M. Grasso, Jonathan K. Waldron, and Emma C. Jones

 

The U.S. Environmental Protection Agency (“EPA”) recently published an update on its website notifying the industry that it would administratively continue the 2013 Vessel General Permit (“VGP”) until a new permit is issued sometime in 2019.

New Development

EPA’s 2013 VGP, which regulates incidental discharges from vessels, is set to expire on December 18, 2018. On October 10, 2018, EPA issued a statement on its website that the current 2013 VGP will not be reissued prior to the expiration date, but will be administratively continued and remain in effect until the new VGP is issued. EPA identifies its target timeframe for publishing a draft VGP, for public comment, as spring 2019. This will likely include a comment period of at least 30 days. This will be followed by a few months of EPA review before a new final VGP is published, likely during the summer. The link to the website can be found at epa.gov/npdes/vessels-vgp.

Practically, this means that vessels currently covered under the 2013 VGP will automatically be covered by the administrative continuance without further action, and new vessels with keels laid prior to December 18, 2018, must file a Notice of Intent (“NOI”) prior to December 18, 2018, to be covered by the 2013 VGP, otherwise they will not be covered until the 2018 VGP is finalized. If new vessels do not file an NOI before December 18, 2018, they will not be able to discharge in the United States, which basically prohibits them from operating in the United States.

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Congress Passes Major Maritime Safety Legislation but Fails to Fund a New Icebreaker or Pass Authorization

Joan M. Bondareff, Jonathan K. Waldron, and Genevieve Cowan*

This article provides an update on the status of several maritime-related bills pending with the 115th Congress as of October 3, 2018, and reviews one major marine safety law that passed Congress and is awaiting presidential signature.

America’s Water Infrastructure Act of 2018

The latest version of “America’s Water Infrastructure Act of 2018” (S. 3021), previously referred to as WRDA, is a product of compromise. The issues that were stalling the legislation for most of the summer have been resolved, resulting in a now far broader version that includes improvements to America’s water resources infrastructure; a streamlined project acquisition process for the Army Corps of Engineers that allows them to accept funds from nonfederal sponsors to advance studies and project elements; an extension of a new Environmental Protection Agency (“EPA”) water loan program for two more years; an EPA study requirement on small water utilities that are repeatedly out of compliance; a Government Accountability Office (“GAO”) study on whether to move the Army Corps out of the Department of Defense and into a civilian agency; and enhancements to oversight and transparency when reviewing water resources development activities by Congress. For a full summary and section-by-section review of the bill, please visit the House Transportation and Infrastructure Committee’s webpage on America’s Water Infrastructure Act of 2018. Continue reading “Congress Passes Major Maritime Safety Legislation but Fails to Fund a New Icebreaker or Pass Authorization”

Significant Opportunity to Provide Comments Concerning Maritime Regulatory Reform

Jonathan K. Waldron, Matthew J. Thomas, and Emma C. Jones

On May 18, 2018, the Office of Information and Regulatory Affairs (“OIRA”), within the Office of Management and Budget (“OMB”), published a Request for Information (“RFI”) seek­ing public input as to how the federal government may best reduce burdens in the maritime sector. Comments are due on July 16, 2018.

This RFI was spurred by Executive Order 13771, published on January 30, 2017, by President Trump as one of his first initia­tives after taking office, which aims to reduce regulation and control regulatory costs, and Executive Order 13777, published shortly thereafter on February 24, 2017, which aims to enforce the regulatory reform agenda. The RFI seeks public comment to help identify existing rules affecting the maritime sector that are inefficient, redundant, obsolete, unnecessary, or otherwise not justified. Ultimately, OIRA intends to communicate any regulatory reform suggestions to the Regulatory Reform Task Force established for the maritime sector. Continue reading “Significant Opportunity to Provide Comments Concerning Maritime Regulatory Reform”

After Flurry of Hurricane Waivers, Calls for Coastwise Changes Recede

Mainbrace | March 2018 (No.1)

Matthew J. Thomas, Jonathan K. Waldron, and Jeanne M. Grasso

 

 

 

In September 2017, in response to Hurricanes Harvey, Irma, and Maria, the Department of Homeland Security (“DHS”) issued a series of widely publicized waivers allowing carriage of cargo by non-coastwise qualified vessels in the Gulf region and to and from Puerto Rico. Public interest in the Jones Act spiked in mid-September, and some members of Congress introduced legislation for longer-term relief, particularly for Puerto Rico. Although controversial, the waivers for the most part seemed to achieve their intended goal, allowing for additional capacity to be available to move certain critical cargoes, particularly in the energy and other bulk sectors. As discussed in more detail below, the way the waivers were granted was rel­atively unique in the context of hurricanes, and some con­troversy arose with regard to the Puerto Rico waiver. The waivers, however, expired as planned with no significant fanfare or controversy, and broader political and public interest in the Jones Act sub­sided after a flurry of activity. Continue reading “After Flurry of Hurricane Waivers, Calls for Coastwise Changes Recede”

Trump and the Maritime Industry: A Look Back and Forward

Mainbrace | March 2018 (No.1)

Joan M. Bondareff and Stefanos N. Roulakis

We have completed one year with the Trump administra­tion, so it is therefore a good time to assess whether he has made any drastic changes in his administration’s approach to the maritime industry. In short, there have not been any major changes. But as with almost everything involving the federal government, minor changes can have great effects.

The First Year

AROUND THE DEPARTMENTS AND AGENCIES
The president has put in place his appointees to key mar­itime positions: Secretary of Transportation Elaine Chao, who has a significant maritime background as the former Deputy MARAD Administrator; Rear Admiral (“RADM”) Mark Buzby, the new MARAD Administrator and former Commander of the U.S. Military Sealift Command; Secretary of the Interior Ryan Zinke, who oversees oil and gas development as well as off­shore wind on the Outer Continental Shelf (“OCS”); and Secretary of Homeland Security (“DHS”) Kirstjen Nielsen, who oversees the Coast Guard (among other agencies). Additionally, Chief of Staff John Kelly is intimately familiar with the Coast Guard from his time undertaking joint operations with the agency while he was in the military. Unlike previous administrations, at least there are political and experienced appointees in place to set maritime policy. We will discuss below what new policies they have put in place. Continue reading “Trump and the Maritime Industry: A Look Back and Forward”

U.S. Coast Guard National Vessel Documentation Center Publishes Criteria for Making U.S. Build and Rebuild Determinations

Jonathan K. Waldron, Jeanne M. Grasso, and Sean T. Pribyl

Action Item: A recently published guidance document issued by the National Vessel Documentation Center (“NVDC”) for the first time provides the public with the key criteria it uses in making U.S. Build and Rebuild determinations. Stakeholders should review this guidance document for application to their interests. Continue reading “U.S. Coast Guard National Vessel Documentation Center Publishes Criteria for Making U.S. Build and Rebuild Determinations”

Recent Hurricanes Wreak Havoc, Produce Bipartisan Congressional Support and Trump Jones Act Waivers

Mainbrace | October 2017 (No.4)

C.J. Zane, Alan Rubin, and Joan M. Bondareff

As we are putting this issue of Mainbrace to bed, our thoughts are with the residents of Puerto Rico, Texas, and Florida who are still recovering from the rarest of U.S. tragedies—three major hurricanes to directly hit U.S. land within a month. These disasters brought unique opportunities for neighbors to help one another and for bipartisanship in Congress, including a new deal with President Trump. Continue reading “Recent Hurricanes Wreak Havoc, Produce Bipartisan Congressional Support and Trump Jones Act Waivers”

Regulatory Stalemate in the Trump Era

Mainbrace | October 2017 (No.4)

Sean T. Pribyl, Jonathan K. Waldron, and Joan M. Bondareff

In the lead up to the general election, then-candidate Donald Trump often repeated campaign promises to massively cut federal regulations that he viewed as stifling to business growth and killing jobs. True to his word, in his first 200 days of office, President Trump has generally delivered on his promise to stymie new federal regulations, including those impacting the maritime industry. Continue reading “Regulatory Stalemate in the Trump Era”