In July 2015, the United States Coast Guard issued a draft guidance governing the use of Alternative Planning Criteria (“APC”) to comply with vessel response plan (“VRP”) requirements for non-tank vessels transiting offshore of western Alaska, while on voyages between Asia and the United States. A copy of the draft guidance is available here. As a result of numerous requests by the maritime industry for additional time to respond to the new guidance, the Coast Guard has delayed publishing the guidance in final form. At the same time, the Coast Guard announced that it intends to expand the scope of the guidance to include tank vessels. It plans to publish its revised draft guidance in the Federal Register in the coming months. Vessel owners and operators whose vessels sail within 200 nautical miles of western Alaska may be affected by the Coast Guard’s proposed new guidance, if it is adopted.
The purpose of the forthcoming guidance is to set forth the Coast Guard’s position on the use by vessel operators of APCs to satisfy the VRP requirements of the Oil Pollution Act of 1990 (“OPA ’90”). The draft guidance indicates that the Coast Guard intends to have the maritime industry pay for improved response capacities in remote areas of western Alaska. The guidance, if adopted, could result in significant new costs on vessel owners and operators, and expose both to increased liabilities in the event of an oil spill from their vessel in western Alaska.
OVERVIEW OF WESTERN ALASKA APCs
OPA ‘90 requires the owner/operator of a vessel that is bound for or departing from the U.S. to have a VRP for those coastal areas of the U.S. along which their vessel transits during its voyage. The VRP must demonstrate that the owner/operator can mobilize specified amounts of response equipment and personnel to the scene of an incident within specified time periods (“national planning criteria”).
If the Coast Guard determines that it is not reasonably possible to meet the national planning criteria in a specific geographic area, the Coast Guard may still accept a VRP if the VRP includes additional prevention and mitigation strategies that are satisfactory to the Coast Guard. An APC is a plan that includes response, prevention and mitigation measures for geographic areas where the national planning criteria for VRPs cannot be met.
It has long been recognized that vessel operators cannot meet the VRP requirements in most of western Alaska, including along the Aleutian Islands. The Aleutian Islands are a chain of volcanic islands that extend more than 1000 miles across the northern Pacific Ocean. Most of the islands in the chain are uninhabited wilderness areas. Only a few of the islands have infrastructure such as runways or port facilities that could be used to provide logistical support for a response to a significant oil spill. In addition, a few islands have very small villages on them with almost no infrastructure. The weather in the Aleutian Islands can be very rough, particularly in the fall and winter months. The combination of remoteness, lack of infrastructure, and poor weather makes it impossible for vessel owners and operators to demonstrate that they can mobilize a response to a spill in this area that meets the national planning criteria.
Recognizing this situation, the Coast Guard has approved APCs for vessels transiting along the shoreline of western Alaska. Many vessels transit close to the Aleutian Islands while following a great circle route between Asia and the United States. A vessel operator can enroll in a Coast Guard-approved APC in order to satisfy OPA ‘90’s VRP requirements for Western Alaska.
Currently the approved APC plans include both response and prevention components. Oil spill response equipment has been stockpiled at port and airport facilities in Dutch Harbor and Adak, Alaska. Additional resources are stockpiled in Anchorage, Alaska and the APC plans anticipate cascading response equipment to the scene of an oil spill from Anchorage and the west coast of the United States, as needed. The APCs require their members’ vessels to maintain specified distances offshore of the Aleutian Islands while transiting through the area. The APCs track their members’ vessels using AIS to monitor compliance with these offshore distance requirements, and may notify the Coast Guard if vessels come too close to shore.
THE COAST GUARD’s PROPOSED NEW GUIDANCE
In the Coast Guard’s July 2015 draft guidance, it expressed the view that an APC is only a temporary measure. The draft guidance indicates that the Coast Guard intends to push APC operators to use membership fees collected from vessel operators to pay to improve response capacities in Western Alaska until sufficient response capacities exist to meet the national planning criteria. The draft guidance requires APCs to tell the Coast Guard how revenues received from vessel operators will be spent. A portion of those funds must be spent to develop enhanced response capacities in western Alaska, with the goal of improving response capacities to the point that APCs are no longer necessary. As additional response resources are developed for the region, the Coast Guard will require that APCs incorporate the new response resources into their plans.
If adopted, this measure will effectively require APCs to charge membership fees that are sufficient to develop enhanced response capacities in the Aleutian Islands. Vessel operators will thus pay to develop new response resources when they pay for membership in an APC. Once the resources are developed, vessel operators will pay to maintain them, since any APC will have to incorporate the new resources in their plans.
To develop new response resources in the area, the draft guidance proposes the creation of small Oil Spill Response Organizations (OSROs) in small, remote villages located on a few islands along the Aleutian chain or in the Bering Sea. Presumably, funds that vessel operators pay to APCs will be used to establish these new, small OSROs, purchase response equipment for the OSROs, and train local personnel to respond to pollution incidents.
Industry representatives are skeptical that the cost of storing response equipment, or training persons living in small villages to respond to oil spills, will provide significant value in the event of an OPA incident. A major spill in this region will likely be the result of a casualty such as a grounding or a collision. The ability of small OSROs to respond to such situations will be quite limited, particularly if the event occurs in poor weather conditions.
The draft guidance also requires vessel operators to authorize APCs to act as their agents in negotiating agreements with local resources to respond to spills on their behalf. This raises concerns that an APC may make binding legal agreements on behalf of vessel operators for the use of local boats and resources that may prove to be unreasonably expensive in the event of an oil spill.
DELAY IN ADOPTION OF DRAFT GUIDANCE
In August 2015, in response to numerous comments requesting additional time to consider the new draft guidance, the Coast Guard postponed adopting the new guidance. It announced it will propose new guidance for APCs that covers both tank vessels and non-tank vessels. Its new proposed guidance will be published in the Federal Register, and the Coast Guard will receive comments from interested parties before deciding whether to adopt the new guidance. As of the date of this alert, the Coast Guard has not published its proposed new guidance in the Federal Register.
If you would like to be notified when the Coast Guard publishes its proposed new guidance in the Federal Register, or have any questions about these developments, please reply to this e-mail.
This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.