This is the latest in a series of reports supplied by the Chamber of Shipping of America (CSA) with the intention of keeping BIMCO members appraised of legislative developments in the US affecting international shipping. BIMCO highlights only the relevant developments that would impact members. The full CSA September report is also provided.
USCG guidance on issuance of BWTS type approval to companies no longer in business
Due to a ballast water treatment system (BWTS) manufacturer which had received a US type approval for their system going bankrupt, the United States Coast Guard (USCG) has now published guidance on the status of such approval post-bankruptcy.
This type approval status remains unchanged for its five year term providing it is installed, operated, maintained and repaired according to the terms of the type approval certificate. If the equipment fails to operate and/or parts from the original manufacturer are no longer available, then the equipment is no longer operating under the terms of its type approval and must be replaced.
It is also important to note that only the manufacturer listed on the type approval certificate can request renewal after the initial five year period and assuming a manufacturer who is out of business will not seek this renewal, the type approval certificate will be deemed “expired”.
The USCG’s guidance also includes situations where another company purchases the original manufacturer ‘s business and wants to retain type approval which will require action on that company’s part in requesting that the type approval certificate be updated to reflect the new company.
MLC 2006 – NVIC update
Though the US has not ratified the Maritime Labour Convention, 2006 (MLC 2006), the USCG has issued change to Navigation and Vessel Inspection Circular (NVIC) 02-13 to provide an explanation on how the 2014 MLC amendments on financial security and shipowners’ liability will conform with existing US laws and regulations, collective bargaining agreements, and established industry practices.
This NVIC continues to be important for US flag ships when trading internationally to countries that are already parties to MLC 2006.
Please go to the BIMCO section to view the 2014 Amendment to MLC 2006 .
Polar Ship Certificate USCG Final Rule
This final rule adds the Polar Ship Certificate to a list of certificates that certain US and foreign-flag ships will need to carry on board if they engage in international voyages in polar waters.
Note that this final rule effective 23 October 2017 will impact US-flagged ships that are commercial cargo ships greater than 500 gross tonnage and passenger ships carrying more than 12 passengers, that operate in polar waters as defined by SOLAS chapter XIV while engaging in international voyages.
Note also that effective 1 january 2018, the Polar Code will apply to existing ships based on their date of the SOLA certificate issued.
Federal Register: Polar Ship certificate Final Rule
USCG Plans for 2018 GIUE Exercises
The USCG has published its fiscal year 2018 requirements for Government Initiated Unannounced Exercises (GIUE). GIUEs are a no-notice exercise required by the National Contingency Plan and are conducted to measure a facility or ship response plan holder’s initial response to a most probable discharge scenario.
A ship which successfully completes a GIUE is exempt from other Coast Guard led GIUE for 36 months.
Click here for a copy of the summary document including a link to the formal “FY18 Government Initiated Unannounced Exercise (GIUE) Requirements”
Regulatory reform – CBP request for comments
As members recall, the Trump administration has issued Executive Order 13777, entitled “Enforcing the Regulatory Reform Agenda”, which, among other things, requires all executive branch agencies including USCG and the US Environmental Protection Agency (EPA), to conduct a review of existing regulations that may be appropriate for repeal, replacement, or modification.
The USCG, US EPA and NOAA have conducted their rounds asking for comments. Now the US Customs and Border Protection (CBP) has published such a request. In this regard, CSA intends to submit comments addressing the following issues:
- Reconsideration of the 29-day rule relating to the landing pass issued to mariners. Crewmembers on foreign flag ships visiting the US carry a valid passport from their country or origin and a US issued C1/D visa. The holder of the C1/D visa when they first “enter” the US is issued a landing pass valid for 29 days. A new landing pass cannot be issued until the vessel on which the crewmember serves calls in a “foreign port or place” and then returns to the United States. Due to some specialized operations needing more than 29 days, the expiry of the landing passes has resulted in two scenarios. Either the crew member is detained on aboard vessel or there is a voluntary departure resulting in revocation of crewmember’s visa and leaving the vessel for repatriation to the crewmember’s country of orgin. Though extension (parole) of the original 29 landing pass permits extended stays of the crewmember in the US and maintains the validity of the C1/D visa, these requirements imposed by the US State department regulations are enforced by the CBP and there is a need for both agencies to revisit this issue.
- Need for better transparency of CBP policy and regulatory decisions advocating that the same should be published in the Federal register instead of through policy letters. Also a call to CBP headquarters to give clearer guidance for their field officers and the regulated community so that there is consistent level of knowledge and application of CBP policies. Past inconsistencies had resulted due to broad discretion given to the field office directors.
Jones Act update
As most are aware, the Jones Act requires cargoes loaded in a US port to be discharged in another US port to be carried in US flag ships. Within the Jones Act is a procedure where a waiver can be requested to carry these cargoes on non-US flag ships which may be granted if the US government determines that no US flag ships are available to meet the specific carriage needs in a given situation. Waivers are granted for national security purposes which in the past has included needs related to national emergencies or catastrophes including hurricanes.
A debate has arisen now due to a waiver being granted to the situation in Puerto Rico as a result of being hit by Hurriance Maria. Whilst CSA and US flag carriers servicing these areas do not oppose the granting of a waiver where US flag tonnage is not available in sufficient quantity to meet the needs of the affected region, CSA does object to the granting of the waiver for Puerto Rico as the problem there was not an insufficiency in number of ships but rather an insufficiency in the shore based infrastructure needed to distribute these cargoes around the island. Now the debate is centering on removal of Puerto Rico from the application of the Jones Act or using this opportunity again to push for the repeal of the Jones Act entirely.
It is expected that the above will not happen but nevertheless, the US House of Representatives Coast Guard and Marine Transportation subcommittee will hold a hearing in early October on these issues. CSA will keep us posted of the development.