USA

Coast Guard Publishes Non-Tank Regulations

The U.S. Coast Guard is issuing interim guidance for the development and review of oil spill response plans for nontank vessels. For this purpose, a nontank vessel is a self-propelled vessel of 400 gross tons or greater, other than a tank vessel, that carries oil of any kind as fuel for main propulsion and that is either a vessel of the United States or a foreign vessel that operates on the navigable waters of the United States (internal waters and the 3-nm wide territorial sea). Note that gross tonnage is measured in accordance with the International Tonnage Convention (ITC).

In accordance with the Coast Guard and Maritime Transportation Act of 2004 (Pub.L. 108-293), a nontank vessel of 400 gross tons or greater (as defined by the Act) must submit to the U.S. Coast Guard for approval a response plan that is consistent with requirements of the National Contingency Plan and applicable Area Contingency Plans; identify the qualified individual (QI) having authority to implement removal actions and require immediate communications between the QI and appropriate federal officials and response personnel; identify and ensure by contract or other approved means the availability of private personnel and equipment necessary to remove to the maximum extent practicable a worse discharge; describe the training, equipment testing, periodic unannounced drills, and response actions by crew members; be updated periodically; and be resubmitted for approval of each significant change. The nontank vessel response plan must be submitted to the Coast Guard not later than August 8. 2005. Vessels of the United States that do not operate in the U.S. navigable waters or EEZ are not required to identity and have available response resources to response to spills.

The Coast Guard may issue a two-year authorization letter allowing the nontank vessel to operate without an approved response plan if the plan submitted meets the above detailed requirements and is accompanied by a certification by the owner or operator that the availability of response personnel and resources has not ensured by contract or other approved means. In the event that the Coast Guard lacks sufficient time to determine whether the submitted plan meets the above detailed requirements, the agency may issue a short-term interim authorization letter for nontank vessels where the submitted plan appears to meet the requirements and is accompanied by the certification. This interim authorization letter will be valid until the review process has been completed. As the Coast Guard expects that it will take at least one month to conduct an initial review of submitted plans just to determine whether the requirements appear to have been met, owners and operators are strongly encouraged to submit their nontank vessel response plans no later than July 9, 2005.

The nontank vessel oil spill response plans will closely resemble those required for tank vessels. There are some differences, though. For a small vessel, the plan must address response to the vessel's average most probable discharge and salvage resources. For a vessel with a fuel capacity of 250 barrels or more, the plan must also address response to the vessel's maximum probable discharge and salvage and lightering resources. For a vessel with a fuel capacity of 2,500 barrels or more, the plan must address response up to the Tier I worst case discharge volume to the maximum extent practicable and salvage, firefighting, and lightering. Vessels carrying very heavy fuel oil (group V petroleum oil) as fuel will have additional planning requirements.

Expenses related to this new requirement are not addressed in the guidance, but may be relatively substantial - particularly for small operators with minimal infrastructure. Arrangements will have to be made for the 24-hour availability of an individual or several individuals to serve as QI. Response contractors (generally referred to as oil spill removal organizations - OSROs) will have to be retained. Training and drills will have to be developed and implemented. Bear in mind, though, that following enactment of the Oil Pollution Act of 1990 (OPA 90), the volume of oil entering U.S. waters from tank vessels dropped dramatically.

For those with long memories, the Oil Pollution Act of 1990 (OPA 90) included similar short deadlines for preparation and submittal of oil spill response plans for tank vessels. Then, as now, the regulatory process was insufficiently agile to allow for promulgation of the response plan regulations in a timely manner. Then, as now, the Coast Guard issued unofficial guidance on how to prepare and submit response plans. Tank vessel response plans submitted in accordance with that unofficial guidance were deemed by the Coast Guard as meeting the regulatory requirements when those regulations were eventually issued. Owners and operators of nontank vessels should follow the lead of the owners and operators of tank vessels and prepare and submit oil spill response plans consistent with the guidance contained in Navigation and Vessel Inspection Circular (NVIC) 01-05.