In a sweeping move that has been widely and vociferously praised by supporters and passionately decried by opponents, the Customs and Border Patrol Agency (CBP) on the second-to-last day of the Obama administration’s tenure, issued a “General Notice” in its weekly “Customs Bulletins and Decisions” publication (dated January 18, 2017) proposing the in globo revocation of prior CBP (and/or its predecessor entities’) rulings – some specified in the Notice, others merely generally referenced – issued over the last nearly forty years concerning the coastwise carriage of oilfield equipment/materials (i.e. from U.S. ports to coastwise points on the Outer Continental Shelf (OCS)) by foreign-flagged, non-Jones Act/non-coastwise eligible vessels in the Gulf of Mexico oilfield. This proposed change, which hinges on whether such equipment/materials qualify as “vessel equipment” under applicable regulations and prior CBP rulings, would affect what has developed over the years into a niche fleet of specialized foreign flag vessels used in the Gulf of Mexico for deepsea and subsea construction and maintenance projects – i.e. pipelay vessels, heavy-lift vessels, and IRM (inspection/repair/maintenance) vessels used for construction/decommissioning of offshore facilities, laying/maintenance of pipelines, and similar deep-water projects. (more…)
Following on this week’s series regarding the new batch of four USCG-BSEE MOUs, this post will discuss the fourth, concerning safety systems.
Perhaps one of the most confounding and critical areas of overlap between the USCG and BSEE has been in the competing/complementary Safety and Environmental Management System (SEMS) regulations issued by BSEE at 30 C.F.R. Subchapter B, Subpart S and the USCG’s general vessel safety regulations throughout 46 C.F.R. and – more particularly – the Safety Management System regulations issued at 33 C.F.R. Subchapter F, which apply to many vessels operating on the OCS (pursuant to 46 U.S.C. §§3201 et seq.). Whether a vessel operator might have to comply with both BSEE’s SEMS regulations and/or the USCG’s separate (potentially conflicting) safety regulations and/or SMS requirements has always presented a potential compliance conundrum. In fact, the USCG has even formally suggested (via a notice of proposed rulemaking) simply adopting BSEE’s SEMS regulations for all “vessels engaged in OCS activities” in an effort to avoid this conundrum. (more…)
Following on this week’s series regarding the new batch of four USCG-BSEE MOUs, this post will discuss the third, concerning incident reporting.
Hand in glove with the civil penalties and SEMS/SMS MOUs (the latter to be discussed in the last post in this series) – each of which focuses on specifically divvying up the shared regulatory spaces between the USCG and BSEE – the agencies have made an effort in the third of the January 2017 MOUs to formalize the in-the-field application of these newly divvied-up responsibilities by formalizing each agency’s incident investigation responsibilities. (more…)
Following on this week’s series regarding the new batch of four USCG-BSEE MOUs, this post will discuss the second, concerning oil spill planning, preparedness and response.
The second of the January 17, 2017 MOUs concerns oil spill response on the OCS, and in this regard supersedes a prior MOU entered in April 2012. That said, the January 17, 2017 more or less tracks the April 2012 MOU, with various updates based on the agencies’ experiences since 2012 and with the most substantial updates appearing in a newly added section regarding “Oil Spill After Action Reviews.”
This PPP MOU sets up (yet another) matrix defining which agency has spill response authority for certain types of OCS assets (i.e. fixed v. floating facilities, MODUs, FPSOs, etc.) and for what phase of the response (i.e. planning, preparedness, response, source control). (more…)
For the past few years, this blog has attempted to chart the fraught and developing regulatory overlap between the United States Coast Guard (USCG) and Bureau of Environmental Enforcement (BSEE) in the fallout from the DEEPWATER HORIZON disaster and ensuing ramped up regulatory action on the Outer Continental Shelf (OCS). As part of these increased regulatory enforcement efforts, the USCG and BSEE entered a series of Memoranda of Understanding (MOUs) in the months and years following the April 2010 DEEPWATER HORIZON blowout in an attempt to circumscribe each agency’s distinct sphere of authority. These MOUs, however, left many gray areas and blurred lines as to whether one entity – or both – may hold sway on certain enforcement issues, none of which is good for a technologically complex and constantly evolving industry that requires precision in order to ensure compliance.
As part of the continued effort toward the (arguably) “white whale” goal of establishing a “One Gulf, One Standard” approach to regulating the OCS, the USCG and BSEE recently entered four additional MOUs (effective January 10, 2017) in an effort to “increase collaboration, clarify responsibilities, and streamline information sharing.” This post will be followed by a series in the coming days that will provide a brief discussion of each of these MOUs. (more…)
“And there’s a mighty difference between a living thump and a dead thump.”
Moby Dick, Herman Melville
In a dramatic reversal of a prior and equally dramatic, watershed administrative decision of the Interior Bureau of Land Appeals (IBLA) upholding the Bureau of Safety and Environmental Enforcement’s (BSEE) regulatory jurisdiction over offshore contractors on the Outer Continental Shelf, the United States District Court for the Western District of Louisiana has overturned the IBLA’s ruling and stripped BSEE of that jurisdiction. Island Operating Co. v. Jewell et al., Case No. 16-145 (W.D. La. Dec. 23, 2016). Thus, under the Island Operating decision, BSEE may no longer wield what this blog has previously described as “the universal thump [it has previously] passed around” on offshore contractors; it has been rendered, at least for now, a “dead thump.” (more…)
– Moby Dick, Or The Whale, Herman Melville
The past eighteen to twenty-four months have seen a tectonic shift of focus (as well as a plethora of industry-generated white papers) by virtually every governmental regulatory entity, NGO, and industry group in the maritime world (up to and including the President of the United States) to the amorphous and dynamic issue of maritime “cybersecurity,” a term that covers a large waterfront of potential threats. (more…)
In an eminently reasonable, but apparently (surprisingly) res nova decision, the United States Fifth Circuit Court of Appeal has clarified that the maritime collateral source rule does not allow for recovery of medical amounts billed but later written down by the medical providers. Deperrodil v. Bozovic Marine, Inc., —F.3d —, 2016 WL 6810728 (5th Cir. Nov. 17, 2016). (more…)
In 2006, the Fifth Circuit issued a landmark controversial opinion in Texaco Exploration & Production, Inc. v. AmClyde Engineered Products Co., 448 F.3d 760, 770 (5th Cir.) amended on reh’g, 453 F.3d 652 (5th Cir. 2006). The case concerned the loss of the 3,605 ton, $70 million South Deck Module of Texaco’s compliant tower Petronius platform (then the tallest man-made structure in the world, from seafloor to above-surface platform height) due to failure of a wire rope component during transfer of the module from a deck barge via a barge-mounted crane. Despite the fact that the operation involved the use of two vessels and the crane-assisted movement of the South Deck Module over water in the middle of the Gulf of Mexico, the Fifth Circuit held that admiralty tort jurisdiction did not apply, and that the incident fell within the exclusive jurisdiction of the Outer Continental Shelf Lands Act (“OCSLA”). Accordingly, the case was remanded for a jury trial (after a prior improvidently conducted bench trial in admiralty) pursuant to the law of Alabama (the state adjacent to the platform site), instead of general maritime law. (more…)
The United States Coast Guard Rear Admiral Paul Thomas recently penned an article for the Marine News magazine, February 2016 edition, highlighting the Coast Guard’s “priorities” for 2016. The article is available at the Coast Guard’s Maritime Commons blog, as well as at the Marine News website. (more…)