United States: U.S. Coast Guard Marine Casualty Reporting Guidance

MARITIME

NEW DEVELOPMENTS

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.

BACKGROUND

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Jeanne M. Grasso
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions