World-Class Tanker Safety System (Mar-Times Newsletter, February 2015)

The Tanker Safety Expert Panel (the "Panel") concluded Phase II of their review, which focused on spill preparedness and response requirements for the Arctic as well as hazardous and noxious substances ("HNS") nationally. Although the Phase II report has not been released by the Panel, Transport Canada published a synopsis of the key issues explored, and provided information on stakeholders, sites visited, and submissions received.

The Panel's review of spill preparedness and response requirements for the Arctic involved considering waters north of 60o north latitude including the Mackenzie River and Delta, as well as Great Slave Lake, Hudson Bay, James Bay, and Ungava Bay. The review did not consider preparedness and response to spills that may result from oil and gas exploration or drilling. Many of the questions posed by the Panel attempted to isolate issues specific to the Arctic and its unique environment that make it difficult to effectively prepare for and respond to spills. The Panel's questions fell into one of the following six Lines of Inquiry: the arctic environment, prevention, existing response capacities, preparedness and response, roles, responsibilities and legal framework and research and development. It was noted that Lines of Inquiry did not limit the breadth of the discussions, but merely provided a general framework when speaking with stakeholders.

Since Canada has signalled its intent to ratify the 2010 HNS Convention, which outlines a comprehensive liability and compensation scheme, the Panel's review of hazardous and noxious substances focused on preparedness and response for Shipsource HNS incidents. Vegetable and animal oils, liquefied natural gas and liquefied petroleum gas, among many other substances were deemed HNS for the purpose of the Panel's review. As a result of the Inter national Maritime Organization's adoption of the Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances, 2000 (OPRC-HNS Protocol), it was noted the Panel's review will likely influence the Government's decision regarding accession to the OPRC-HNS Protocol. As a result, many of the questions asked by the Panel contained reference to a potential national Shipsource HNS Incident Preparedness and Response regime. The Panel employed the following Lines of Inquiry: coverage, prevention, existing response capabilities, preparedness and response, roles, responsibilities and legal framework and research and development.

Enforcement Update: Asian Gypsy Moth Protection Policy

In August 2014, the Canadian Food Inspection Agency (CFIA) and the United States Department of Agriculture (USDA) together issued a joint bulletin that confirms a harmonized approach to suppression of Asian Gypsy Moth ("AGM") in North America. In Canada, commencing on January 1, 2015, any vessel that enters Canada without the required documentation will incur an automatic penalty. Specifically, non-compliant vessels will be issued an administrative warning under section 7 of the Agriculture and Agri-Food Administrative Monetary Penalty Act, SC 1995, c-40 ("AMP Act") and may be subject to further regulatory action under the AMP Act or the Plant Protection Act, SC 1990, c-22 ("PPA").

The bulletin does not make any substantive changes to the Plant Protection Policy for Marine Vessels Arriving in Canada from Areas Regulated for Asian Gypsy Moths, D-95-03 (the "Policy") but reminds shipping lines and agents of the potentially serious (and now automatic) consequences of non-compliance. It also reiterates that certification and reporting requirements are mandatory during the relevant AGM risk period.

Environmental Impact of Asian Gypsy Moths

AGM are prevalent in temperate and subtropical parts of the world, including China, Korea, and Japan. They have no known predators in Canada. AGM are known to proliferate quickly in cold climates and defoliate a wide range of plant and tree species, putting forestry, horticulture, and agricultural industries at significant risk. As a result of the environmental risks of transmission, AGM has been deemed a "pest" under the PPA. Consequently, the admission into Canada of anything (including vessels) that contains AGM is prohibited under section 7 of the PPA.

Ships are at particular risk for infestation because AGM are nocturnal and are attracted to the lights aboard vessels and in port areas. Once eggs are laid on a vessel or ship's cargo, they can easily survive an ocean crossing and are tolerant of extremes of both temperature and moisture.

When an infested vessel enters Canada, AGM can be discharged along with the cargo or dispersed onto surrounding vegetation through a process called "ballooning", through which larvae can travel long distances on air currents. This makes eradication difficult, and past incursions in Canada and the United States have necessitated costly and intensive eradication efforts.

Vessel Entry Requirements Under The Policy

The Policy applies to any marine vessel entering Canada during the risk period that has called on a port in a regulated area during the last two years. The risk period in Western Canada runs from March 1 to September 15 of each year. Thus far in 2014, 15 vessels have been found with AGM, with the majority of occurrences taking place on the West Coast. The regulated area is comprised of all ports in China north of Shanghai, all ports in North and South Korea, various ports throughout Japan, and ports in far-East Russia.

The Policy requires all regulated vessels to obtain a certificate declaring them to be free of AGM, and to notify and provide the CFIA with certain documents four days prior to arrival in Canadian waters. Certification and travel records are not required for ships entering Canada outside the risk period but vessels will still be subject to inspection and will be considered non-compliant if AGM life forms (larvae, pupae, or adults) are discovered. Likewise, vessels that have not called at a regulated port remain subject to inspection and will be found non-compliant if infested with AGM.

Certification

Regulated vessels must obtain a phytosanitary certificate or other recognized certification prior to departure from their final port of call in a regulated area during the risk period. To satisfy the Policy, the certificate must state that the vessel was inspected and found free of AGM and must be available for review upon request. In Russia, Korea, and China, only a single certification agency may undertake the inspection, making it crucial for shipping lines to plan ahead to prevent delays.

Certification should take place as close to the vessel's departure date as possible, as the risk of re-infestation is high when inspections are conducted too early. This is a particularly important precaution given that certified vessels that are found to be infested with AGM are considered non-compliant, and are subject to expulsion from Canadian waters and administrative fines.

A failure to obtain certification will render a vessel non-compliant and will lead to mandatory inspection at a designated offshore site. Only if an inspector is satisfied that the vessel is free from AGM will it then be allowed to proceed to a Canadian port. If the vessel is permitted entry, it must depart promptly after unloading, and its movements will be monitored by the CFIA.

If a vessel arrives in Canada without appropriate certification a second time, it may be refused entry for up to two years during the risk period.

Reporting

The Policy mandates that during the risk period, a regulated vessel (or its agent) must provide the CFIA with ninety-six hours advance notice of the vessel's arrival and must supply a summary of the ports that the vessel has called on in the past two years. Only upon the master of a vessel receiving CFIA confirmation of receipt of the appropriate documents may the vessel enter Canadian waters.

Inspection

All vessels, regardless of certification, port of call history, or time of year, are subject to inspection for AGM and are responsible for paying the associated regulatory fees.1 Vessels traveling from Japan and certain ports in Siberia and those that have been infested with AGM in the past are considered "high-risk" and are more likely to be inspected.

If AGM life forms are discovered, the CFIA has the discretion to permit the vessel to conduct a thorough cleaning in international waters or ten kilometres from shore, then return for re-inspection. If the inspector is satisfied that the risk of AGM transmission has been sufficiently mitigated, the ship may proceed to port, but will be monitored by the CFIA for the duration of its stay in Canada. If the inspector determines that the risk of AGM persists, the vessel will be ordered out of Canada and refused entry during the remainder of the risk period or until the Policy requirements are fulfilled.

In recognition of the harmonization of American and Canadian policies regarding AGM, vessels that hold valid certification and have been inspected in the United States following their departure from the regulated area are exempt from inspection in Canada, provided they produce confirmation from American authorities that the vessel is free from AGM.

The CFIA recommends that in addition to compliance with the certification and reporting requirements, vessels conduct a thorough self-inspection prior to arrival. Given the economic consequences associated with delays and the substantial risk of re-infestation, it is of utmost importance that crews, vessel masters, and shipping lines consider implementing this strategy.

Consequences of Non-Compliance

Any vessel that is found to be non-compliant is subject to administrative penalties under the AMP Act as well as prosecution under the PPA. While the CFIA retains discretion to impose penalties, it has signalled that fines will be more likely when a vessel is non-compliant due to failure to abide by pre-arrival...