Coast Guard Issues Proposed Regulations and NVIC Regarding Marine Casualty Reporting on the OCS

by Baker Donelson

            In the continuing regulatory response - even more than three years after the fact - to the DEEPWATER HORIZON disaster, the United States Coast Guard (USCG) has led off 2014 with proposed regulations that significantly change the reporting requirements for incidents on the Outer Continental Shelf (OCS). Most importantly, these new regulations broaden the types of reportable incidents for foreign-flagged vessels/units/facilities operating on the OCS.

            It bears noting at the outset that these newly proposed USCG regulations once again raise the thorny issue of the overlapping jurisdiction of the USCG and the Bureau of Safety and Environmental Enforcement (BSEE). Generally speaking, BSEE regulates OCS "facilities," which encompasses all installations and devices permanently or temporarily attached to the seabed. See 30 C.F.R. 250.105 (2011). For its part, the USCG regulates "OCS facilities, vessels, and other units engaged in OCS activities." 33 C.F.R. §140.3; 79 Fed. Reg. 1780, 1781 (Jan. 10, 2014). Thus, both BSEE and USCG have regulatory authority over certain OCS "facilities," while the USCG's authority also extends to "units" and "vessels."

            This express overlap of regulatory spheres creates inherent confusion. For example, the two agencies apparently have joint authority to regulate and investigate "[p]ollution events involving facilities on the OCS; [i]ncidents occurring on jack up or semi-submersible rigs or drill ships that are attached to the OCS via conductors or risers; and [v]essel allisions with OCS platforms." Further, the USCG and BSEE ostensibly share regulatory authority over floating production, storage and offloading ("FPSO") systems, as well as floating tension-leg/Spar platforms (which are tethered to the floor of the OCS). mou/MOA%20OCS%2003_FINAL_Signed_3APR12.pdf. Likewise, this dual-jurisdiction would apparently extend to drillships, which by definition are both vessels and "facilities" capable of and designed to perform drilling and downhole operations; coil tubing jobs performed from lift boats (in which equipment from a support vessel/USCG "unit" may be attached to a BSEE "facility" and thus become part of that "facility"); plug-and-abandonment (P&A) work and/or maintenance work on platforms performed from vessels; well stimulation operations from vessels; vessel-to-platform crane operations (particularly those involving heavy-lift vessels), including decommissioning work (a growth area in the Gulf of Mexico in the wake of 2010 "idle iron" regulations); and the list goes on.

            Under the newly proposed USCG reporting regulations in the January 10, 2014 NPR, incidents on these hybrid vessels/units/facilities may be subject to both USCG and BSEE reporting regimes. The Notice of Proposed Rulemaking (NPR) for the new USCG reporting regulations recognizes and attempts to downplay this inherent overlap at the outset:

Please note that [BSEE] also requires OCS lessees and right-of-way holders to report incidents addressed in BSEE regulations at 30 CFR 250.188. The BSEE’s regulations cover only those OCS units that are permanently or semi-permanently attached to the seabed or subsoil of the OCS, not vessels. The [USCG] and the BSEE work together to ensure that duplicative reporting is not required.

79 Fed. Reg. at 1782. This assurance provides slight solace to operators who may be utilizing these hybrid types of vessels/facilities/units - i.e. those that may in fact be "semi-permanently attached to the seabed or subsoil of the OCS" - over which the USCG and BSEE ostensibly share authority.

            Putting aside the fundamental problem of overlapping authorities, the January 10, 2014 NPR proposes new regulations to extend USCG reporting requirements to foreign-flagged facilities/units/vessels operating on the OCS. Currently, there are three basic sets of slightly different USCG regulations applicable to casualty reporting - two specific to the USCG's authority over OCS operations and one specific to the USCG's more general and traditional authority over vessels on navigable waters:

·         33 C.F.R. §146.30 requires OCS facilities (other than mobile offshore drilling units, MODUs) to report 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 other property damage greater than $25,000. 79 Fed. Reg. at 1782.

·         33 C.F.R. 146.303 requires vessels (including MODUs) engaged in OCS activities to report casualties involving death or injury to five or more persons in a single incident, or incapacitation of any person for more than 72 hours. 79 Fed. Reg. at 1782.

·         46 C.F.R. 4.05-1 generally requires a U.S. flag - but not foreign-flag - vessel to report groundings, allisions, loss of propulsion or vessel maneuverability, impacts to vessel seaworthiness or fitness for service or route, loss of life, injury requiring professional medical treatment, property damage greater than $25,000 or significant harm to the environment. 79 Fed. Reg. at 1782. This reporting requirement is the underlying basis for the commonly used Form 2692 "Report of Marine Casualty" form.

Under this three-part system, foreign-flag vessels are only required (via the USCG's OCS authority) to report incidents involving death/injury/property damage, but are not required (via the USCG's more general vessel authority under Title 46) to report more minor operational incidents.

            The January 10, 2014 NPR expresses the USCG's "concern[] that some marine casualties on the U.S. OCS go unreported because, at present, much of the OCS activity on the U.S. OCS is conducted by foreign-flag OCS units." 79 Fed. Reg. at 1783. As a specific example, the USCG notes that the fully dynamically positioned (DP) DEEPWATER HORIZON MODU had two separate incidents of total power loss, which in turn incapacitated its DP system and rendered the MODU effectively dead in the water (which is particularly problematic vis-à-vis well control/blowout concerns if a MODU is connected to the drill pipe via the riser at the time it loses DP capacity). The NPR suggests that if the more general reporting requirements of Title 46 had been applicable to the foreign-flag MODU DEEPWATER HORIZON with respect to those 2008 DP incidents, "important contributing factors in the 2010 disaster could have been brought to light and remedied." 79 Fed. Reg. at 1783.

            Accordingly, proposed regulation 33 C.F.R. §150.50 would "transfer marine casualty reporting requirements for OCS units from 33 C.F.R. subchapter N to 46 C.F.R. part 4" and would refer parties to other USCG regulations applicable to incidents resulting from commercial diving operations, hazardous conditions, and oil pollution threats. Id. Likewise, the NPR proposes removal of several provisions of 33 C.F.R. relating to marine casualties and accidents. Further, proposed regulation 46 C.F.R.4.01-1 amends the former language to clarify that the reporting requirements of Part 4 apply to all OCS units, not just OCS vessels; and 46 C.F.R. §109.411 is amended to clarify that MODUs, like other OCS units, will be subject to the general marine casualty reporting requirements of 46 C.F.R. part 4. 79 Fed. Reg. at 1783-84. Otherwise, the newly proposed regulations provide for changes/clarifications in various definitions to harmonize the concept of making the general marine casualty requirements equally applicable to vessels and OCS units.

            The comment period for the NPR extends through April 10, 2014.  Additionally, the USCG has issued a contemporaneous Navigation and Vessel Inspection Circular (NVIC), dated January 14, 2014, that provides general guidance to the marine industry regarding the intricacies of marine casualty reporting under 46 C.F.R. Chapter 4. contentStreamer?objectId=090000648150757b&disposition=attachment&contentType=msw8. If the new regulations in the NPR are ultimately adopted, this NVIC will provide additional assistance to industry for navigating the USCG reporting requirements, but does not clarify the issue of shared reporting jurisdiction with BSEE.

             While the USCG's attempt to conform the reporting requires for OCS facilities and vessels is (as a general matter) perhaps commendable in a vacuum, these new regulations are yet another instance of the looming problem of overlapping jurisdiction between USCG and BSEE. If adopted, these proposed additional reporting requirements will continue to create headaches - and cost more time, effort, and money - as operators and contractors attempt to navigate their way through the rat's nest of overlapping jurisdictions on the OCS.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.