by Baker Donelson

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.

In the meantime, however, the second of the four January 10, 2017 MOUs contemplates further stop-gap coordination between the USCG and BSEE (in lieu of unification across the two agencies’ respective regulations) to stave off any regulatory catch-22’s.

A refrain of the “One Gulf, One Standard” approach, the SEMS/SMS MOU seeks to establish areas within the shared regulatory spaces on the OCS where “joint policy or guidance is needed” and to “[e]nsure coordination between the agencies regarding the development of any future guidance on safety and environmental management systems [SEMS] by BSEE and [the USCG].”

To this end, both BSEE and the USCG will designate respective coordinators for SEMS, who will meet regularly to develop policy toward the following goals:

  • identifying and developing joint policy for areas covered by 33 C.F.R. Subchapter N (the USCG’s OCS regulations) and 30 C.F.R. Part 250 (BSEE’s OCSLA regulations);
  • determining “the interface between a vessel’s ISM Code Compliant SMS and an operator’s [BSEE-required] SEMS program,” including identifying areas in the ISM Code and 33 C.F.R. Part 250 Subpart S that may require joint policy;
  • coordinating and facilitating joint BSEE/USCG inspections vis-à-vis 33 C.F.R. and Subchapter N and 30 C.F.R. Part 250 requirements for further development/identification of joint policy concerns
  • discussion/coordination between the USCG and BSEE regarding future regulatory projects of each agency.

Of all the January 17, 2017 MOUs, this fourth regarding SEMS is paradoxically the most concrete, insofar as it concerns well-established, specific SEMS/SMS requirements promulgated by BSEE and the USCG, respectively; and the most indefinite, insofar as it expressly contemplates future regulatory changes/adjustments to the existing SEMS structure on the OCS.  Nonetheless, the signaled joint approach to future regulatory change should be welcomed with cautious optimism by industry interests that have been faced for years with potentially overlapping compliance concerns.

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.

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