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New California Standards for Fuels and Airborne Control Measures Affect Shipping

Client Advisory

May 15, 2007

Summary of Regulations

Effective on January 1, 2007, California adopted two regulations--(1) standards for fuels for non-vehicular sources (13 CCR §2299.1) and (2) airborne toxic control measures (17 CCR §93118). The purpose of both regulations is to “reduce emissions of diesel particulate matter (PM), nitrogen oxides (NOx), and sulfur oxides (SOx) from the use of auxiliary diesel engines and diesel-electric engines on ocean-going vessels” within the “Regulated California Waters.” 13 CCR §2299.1(a); 13 CCR §93118(a).[1] “Regulated California Waters” includes all California internal and estuarine waters and all California ports, roadsteads, and terminal facilities (collectively, “ports”) and effectively encompasses all waters within approximately 24 nautical miles of the California coast between the California-Oregon border and the California-Mexico border. 13 CCR §2299.1(d)(26); 13 CCR §93118(d)(26). 

The regulations require any person who owns, operates, charters, rents, or leases (collectively “owner/operator”) any “ocean-going vessel”[2] to reduce the air pollution from their auxiliary diesel engines or diesel-electric engines while operating in Regulated California Waters by using cleaner marine distillate fuels, adopting equivalent emission controls or paying a non-compliance fee. 13 CCR §2299.1(b), (e); 13 CCR §93118(b), (e). Specifically, the regulations state that these ocean-going vessels must use either marine diesel oil (DMB)[3] with a sulfur content not exceeding 0.5% by weight or marine gas oil (DMA or DMX) beginning January 1, 2007.  Id. Moreover, the regulations require that the ocean-going vessels further reduce the sulfur content of their marine gas oil (DMA or DMX) to no more than 0.1% by weight by January 1, 2010.  Id.

Alternatively, these ocean-going vessels can comply with these requirements by adopting an Alternative Control of Emissions (ACE) Plan. 13 CCR §2299.1(g); 13 CCR §93118(g). To be permitted to use an ACE, the owner/operator must submit an application demonstrating that the alternative strategies proposed would result in emissions of diesel PM, NOx, and SOx from the auxiliary diesel engines that are no greater than those that would be achieved by use of one of the specified fuels. Id. An owner/operator may only include those vessels which are under his/her direct control[4] in the ACE and each vessel can only be included in one ACE plan. Id. Furthermore, the ACE plan must have a compliance period of no more than one calendar year (or a continuous 12-month period).  Id.

Finally, owners/operators may, with the permission of the Executive Officer of the California Air Resources Board (“CARB”), comply with the regulations by paying a non-compliance fee when:

(1) the owner/operator provides notice to the Executive Officer prior to its vessel entering Regulated California Waters that it cannot meet the regulation requirements and would instead pay the non-compliance fee; and

(2) one or more of the following circumstances applies: (a) there has been an unplanned redirection to a California port; (b) it was impossible to purchase a compliant fuel in sufficient quantity to meet the regulation requirements; (c) a defective fuel was inadvertently purchased; or (d) it was impossible to schedule vessel modifications in time for compliance. 13 CCR §2299.1(h)(1)-(3); 13 CCR §93118(h)(1)-(3). 

The non-compliance fee is payable as follows:

California Port Visits

Diesel-electric Vessel

Other Vessel

1st port visited

$32,500

$13,000

2nd port visited

$65,000

$26,000

3rd port visited

$97,500

$39,000

4th port visited

$130,000

$52,000

5th or subsequent port visited

$162,000

$65,000

13 CCR §2299.1(h); 17 CCR §93118(h). The non-compliance fee can also be used by infrequent visitors that would be required to make vessel modifications to comply with the regulations. “Infrequent” means a vessel that makes no more than two port visits per vessel in any calendar year and no more than four visits in total during the life of the vessel after January 1, 2007. Id. 

Exemptions from Regulations

Exemptions are available for ocean-going vessels that traverse Regulated California Waters without entering California internal or estuarine waters or calling at a port, roadstead, or terminal facility, and stop and anchor only if required by the U.S. Coast Guard, for reasons of force majeure or distress, or to aid persons, ships, or aircraft in danger. 13 CCR §2299.1(c)(1); 17 CCR §93118(c)(1). Additionally, these regulations do not apply to: (1) slow-speed, two-stroke diesel engines[5]; (2) auxiliary engines on-board ocean-going vessels owned or operated by any branch of local, state, or federal government or by any foreign government when on government, non-commercial service; or (3) auxiliary engines operating on liquefied or compressed natural gas. 13 CCR §2299.1(c); 13 CCR §93118(c).

Recordkeeping Requirements

Any person subject to the regulations must, beginning January 1, 2007, retain and maintain records in English for three years following the date the records were made of the following information: (1) the date, local time, and position (longitude and latitude) of each non-exempt entry into and departure from Regulated California Waters and the initiation and completion of any fuel switching procedures prior to entry into and within Regulated California Waters; (2) the type of each fuel used in each auxiliary engine operated in any Regulated California Waters; and (3) the types, amounts, and the actual percent by weight of sulfur content of all fuels purchased for use on the vessel, as reported by the fuel supplier or a fuel testing firm. 13 CCR §2299.1(e); 17 CCR §93118(e). This information must be provided to the CARB upon request, along with other information necessary to determine compliance. Id. Records kept for compliance with MARPOL Annex VI will be accepted.

Penalties for Noncompliance

Any person that violates these regulations is subject to the penalties, injunctive relief and other remedies specified in Health and Safety Code §42400 et seq. as well as any other applicable provisions under the Health and Safety Code, California or federal law for each violation. 13 CCR §2299.1(f); 17 CCR §93118(f). Each failure to comply with a provision, standard, criterion or requirement of the regulations shall constitute a single, separate violation for each hour that a person operates an ocean-going vessel within Regulated California Waters until such provision, standard, criterion or requirement has been met. Id. 

Pending Litigation

Shortly after 13 CCR §2299.1 and 17 CCR §93118 were adopted by the California legislature, the Pacific Merchant Shipping Association (“PMSA”), an independent, not-for-profit shipping association focused on matters of international trade, brought suit in the Eastern District of California against Catherine Witherspoon, in her official capacity as Executive Officer of CARB, seeking to enjoin the adoption and enforcement of the regulations, and to obtain a declaration that the regulations are preempted by federal law and/or are unconstitutional. Pacific Merchant Shipping Ass’n v. Witherspoon, No. Civ. S-06-2791, 2007 U.S. Dist. LEXIS 30166 (E.D. C.A. April 4, 2007). PMSA based this suit on four claims: (1) preemption by Title II of the federal Clean Air Act, 42 USC §§7521 et seq; (2) preemption by the federal Submerged Lands Act, 43 USC §§1301 et seq; (3) preemption by the federal Ports and Waterways Safety Act, 46 USC §§3701 et seq.; and (4) violation of the Commerce Clause of the U.S. Constitution, Art. I, Section 8, clause 3. Id. at *2-3.

Implementation of Marpol Annex VI

Around the same time as or shortly after initiation of this litigation, the House of Representatives passed an implementation bill, the Maritime Pollution Prevention Act of 2007, adopting Marpol Annex VI, an international agreement for limiting air pollution by ships which, like the California regulations, sets limitations on the sulfur content of fuel. The bill confers upon the U.S. Environmental Protection Agency a joint role along with the U.S. Coast Guard in developing and enforcing emission limits on the thousands of domestic and foreign-flagged vessels that enter U.S. territorial waters each year. It has been speculated that ratification by the United States of Marpol Annex VI could help PMSA overturn the California regulations on the grounds that they contravene federal law.[6]   The Senate has yet to consider the bill.

Questions regarding this client advisory should be directed to Clifford P. Case III at (212-238-8798, case@clm.com) or Pamela Shelinsky (212-238-8740, shelinsky@clm.com).


Endnotes


[1] The regulations define a “diesel engine” as “an internal combustion, compression-ignition (CI) engine with operating characteristics significantly similar to the theoretical diesel combustion cycle” and “diesel-electric engine” as a “diesel engine connected to a generator that is used as a source of electricity for propulsion or other uses.” 13 CCR §2299.1(c)(5), (7); 13 CCR §93118(c)(5), (7).

[2] An “ocean-going vessel” is any “commercial, government, or military vessel” that: (1) has a foreign trade endorsement on its U.S. Coast Guard certificate of documentation or is registered under the flag of a country other than the United States; (2) has an overall length greater than or equal to 400 feet; (3) is greater than or equal to 10,000 gross tons pursuant to the convention measurement (as adopted on September 12, 1989); or (4) is propelled by a marine compression ignition engine with a per-cylinder displacement of greater than or equal to 30 liters. 13 CCR §2299.1(d)(21); 13 CCR §93118(d)(21).

[3] DMA, DMB and DMX are marine grades of fuel as defined in Table I of International Standard ISO 8217.

[4] For purposes of this statute, “direct control” includes, but is not limited to, vessels for which the ACE applicant has a contract, lease or other arrangement with a third party for the third party to operate the vessel. 13 CCR §2299.1(g); 13 CCR §93118(g).

[5] The regulations define “slow speed engine” as “an engine with a rated speed of 150 revolutions per minute or less” (17 CCR §2299.1(d)(28); 17 CCR §93118(d)(28)) and “two-stroke engine” as “an internal combustion engine which operates on a two-stroke cycle of operation where the cycle completes in one revolution of the crankshaft” (17 CCR §2299.1(d)(31); 17 CCR §93118(d)(31)).

[6] See Rajesh Joshi, Marpol Annex VI a step closer in US: House of Representatives passes implementation Bill on ship emissions, Lloyd’s List, March 28, 2007, at 3; Marpol Annex VI - How will it affect you?, BunkerWorld (May 2005), available at http://www.bunkerworld.com/news/magazine_features/may2005/p11-14%20-%20MARPOL%20Annex%20VI.pdf.



Carter Ledyard & Milburn LLP uses Client Advisories to inform clients and other interested parties of noteworthy issues, decisions and legislation which may affect them or their businesses. A Client Advisory does not constitute legal advice or an opinion. This document was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. © 2017 Carter Ledyard & Milburn LLP.
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