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New Diesel Emission Regulations for Harbor Craft

Maritime Law News

New Harbor Craft Diesel Emission Regulations

Harbor craft owners and operators are now facing increasingly stringent restrictions on emissions from diesel engines in California. These restrictions can be enforced by heavy fines and possibly jail sentences. The regulation, entitled, "Airborne Toxic Control Measure for Commercial Harbor Craft," applies to all commercial harbor craft, whether they are newly built or already in use.

The regulation, which originally became operative in November 2008, set three requirements that became effective on January 1, 2009:

All commercial harbor craft must have non-resettable hours meters installed on each propulsion engine;
All commercial harbor craft must use CARB-approved low sulfur fuel; and
All owners and operators subject to the regulation must submit an initial report to CARB that records a description of the owner or operator, a description of each vessel, information about each engine, how and where each engine is operated, what, if any, control equipment is on the engine, and provides certain engine maintenance information. The initial report was due on February 28, 2009 for all commercial harbor craft then in operation.

The regulation also imposed requirements on new and in-use engines for complying with Federal emission control standards for diesel engines on a phased schedule.

What craft are covered by this regulation?

The vessels covered by this regulation include all private, commercial vessels that are neither "ocean-going1" or recreational that operate in California waters more than 300 hours per year. A non-exhaustive list of vessels covered includes tugboats, assist tugs, towboats, ocean-going tugs, work boats, pilot boats, fishing vessels, crew and supply vessels, research vessels and ferries. There are a few exemptions, but these are very limited and generally require CARB’s approval2.

Vessels that "expeditiously and continuously" navigate through California waters only have to comply with the low-sulfur fuel requirements. Expeditious and continuous navigation means:

"Ocean-going" is defined as at least 400 feet overall length, or at least 10,000 gross tons (ITC), or having engines with at least 30 liters displacement per cylinder.
Exemptions include vessels nearing retirement, temporary replacement vessels, temporary emergency rescue / recovery vessels, Coast Guard vessels and military tactical support vessels.

that the vessel does not enter, and does not intend to enter, any internal or estuarine water or call at any port, roadstead or terminal facility. The vessel also may not stop or anchor unless directed by the Coast Guard, to render assistance to a person, vessel or aircraft in distress, or made necessary by force majeure or distress. Thus, for example, a harbor craft based in Seattle, could transit California waters en route to Mexico and only be subject to the fuel requirement. Also, a harbor craft based out of state that occasionally enters California waters and calls at a terminal facility would not be subject to the regulation (except as to fuel), so long as it did not operate its engines more than 300 hours per year in California waters.

Where is this regulation operative?

The regulation is operative in what are known as "Regulated California Waters." See figure below:

Essentially, regulated California waters includes all inland and estuarine waters, rivers, ports and roadsteads, and coastal waters within 24 nautical miles of the coast, including waters surrounding the Farallon and Channel Islands.

What does the regulation require?

In addition to the engine hour meter and fuel requirements, the regulation sets specific requirements as follows:

New engines being installed on existing vessels,
Newly acquired new vessels,
In-use engines.

New Engines

In essence, the regulation requires that a new engine being installed on an existing vessel meet the EPA diesel emission standard, Tier 2 or Tier 3, in effect at the time. It does not require compliance with Tier 4 unless the engine being replaced is Tier 4. It also provides a six month “sell-through” period. For newly acquired new vessels, the engines must comply with the EPA standard, Tier 2, 3 or 4 in effect at the time of acquisition.

For newly acquired new ferries capable of carrying 75 or more passengers, the regulation imposes extra requirements that the engines be equipped with best available control technology. CARB approval must be obtained before the keel is laid, and the regulation sets out the procedure for obtaining that approval.

In-Use Engines

This is the real meat of this regulation. CARB has decreed that virtually all diesel engines over 50 hp must be upgraded to Tier 2 or Tier 3 compliance, and has set a schedule for compliance based on engine model year, annual hours of operation and whether or not the vessel is homeported in the South Coast Air Quality Management District (SQAMD) (Los Angeles and Orange Counties and parts of San Bernardino and Riverside Counties). The compliance dates are given in the following tables; the engines must comply with whichever EPA Tier (2 or 3) in effect on the compliance date.

Engine Model Year

Engine model year is generally the year the engine was manufactured, though the regulation permits two variations. The first covers Tier 1 and pre-Tier 1 engines that have a diesel emission control strategy that reduces either particulate matter or oxides of nitrogen (NOx) by at least 25% and that does not raise either particulate matter or NOx by more than 10%. The owner of such an engine is permitted to add five years to the manufacture date. The second variation covers pre-2004 engines that were re-built to conform to Tier 1 standards prior to January 1, 2008. In this case, the engine model year is the date of re-build.

Complain Dates

The first table gives the compliance dates for vessels based outside of SQAMD:

Engine Model Year	Total Annual Hours of Operation	Compliance Date
1975 and Earlier	≥ 1500	12/31/2009
1975 and Earlier	≥ 300 and < 1500	12/31/2010
1976 - 1985	≥ 1500	12/31/2011
1976 - 1985	≥ 300 and < 1500	12/31/2012

Engine Model Year	Total Annual Hours of Operation	Compliance Date
1986 - 1995	≥ 1500	12/31/2013
1986 - 1995	≥ 300 and < 1500	12/31/2014
Ferries Only 1996 - 1999	≥ 300	12/31/2014
Vessels Other Than Ferries 1996 - 1999	≥ 1500	12/31/2015
Vessels Other Than Ferries 1996 - 1999	≥ 300 and < 1500	12/31/2016
2000	≥ 1500	12/31/2015
2000	≥ 300 and < 1500	12/31/2016
2001 - 2002	≥ 300	12/31/2017
2003	≥ 300	12/31/2018
2004	≥ 300	12/31/2019
2005	≥ 300	12/31/2020
2006	≥ 300	12/31/2021
2007	≥ 300	12/31/2022

The second table gives the compliance dates for vessels homeported in SQAMD:

Engine Model Year	Total Annual Hours of Operation	Compliance Date
1979 and Earlier	≥ 300	12/31/2009
1980 - 1985	≥ 300	12/31/2010
1986 - 1990	≥ 300	12/31/2011
1991 - 1995	≥ 1500	12/31/2012
1996 - 2000	≥ 300 and < 1500	12/31/2013
2001	≥ 300	12/31/2014
2002	≥ 300	12/31/2015
2003	≥ 300	12/31/2016
2004	≥ 300	12/31/2017
2005	≥ 300	12/31/2018
2006	≥ 300	12/31/2019
2007	≥ 300	12/31/2020

There are limited circumstances where the owner or operator can request an extension for compliance. These are as follows:

The owner may receive a maximum one year extension to the nominal compliance date, provided he or she demonstrates that the all of the following have occurred:

a.) He or she reasonably determined the vessel engine’s nominal compliance date based on the engine’s hours of operation two years before the nominal compliance date; and

b.) In the year immediately prior to the nominal compliance date, the engine’s annual hours of operation increased significantly from the prior year such that the engine’s nominal compliance date would have been accelerated from one compliance date to an earlier compliance date.
If the owner demonstrates that there is no suitable Tier 2-certified or Tier 3-certified replacement engine available anywhere that can be used in his or her specific vessel, and that he or she cannot otherwise meet the requirements, the owner may be eligible for an annually renewable, one year extension. The regulation goes on to say, though, that any replacement engine is suitable if it is similar in horsepower to the existing engine, that the replacement engine will fit in the vessels’ engine compartment, and if installation of the replacement engine would not cause the vessel to violate U.S. Coast Guard or other applicable safety regulations. Cost, including procurement, installation, drydock fees, downtime, etc. specifically may not be used in determining an engine’s suitability as a replacement.
An owner may be eligible for a six month extension for equipment manufacturer delays or installation difficulties, provided he or she can prove to CARB’s satisfaction (with documentation) that all the following criteria have been met:

a.) The owner ordered the new replacement engine or other equipment necessary to comply with the requirements prior to the nominal compliance date set forth above;

b.) The purchase order for the new replacement engine or equipment was placed with the manufacturer no later than 6 months before the engine’s nominal compliance date;

c.) The new engine or equipment has not been received or installed since it was ordered due to manufacturing delays or excessive difficulties encountered by the engine or equipment installer; and

Simply submitting this documentation may not necessarily result in an extension. The regulation specifically give CARB the authority to consider any information available to rebut the submittal.
A one-year extension is available for fleets of two or more vessels owned by the same person or company. In this case, the owner must submit the request in sufficient time that CARB receives it no later than December 31 of the year immediately preceding the nominal compliance date. The request must identify the engines in each set of engines and the vessels that are subject to the requested extension.

Methods of Compliance

There are four ways of complying with the regulation, as described below:

The primary, and most expensive, compliance method (C-1) is to replace the existing engine with one that complies with the then-current EPA standards. That is, if Tier 3 is the applicable standard for engines of the same size and configuration on the compliance date for the existing engine, the replacement engine must meet Tier 3 standards. Otherwise, the replacement engine must meet Tier 2 standards.
The second method (C-2) is to prove to CARB’s satisfaction that the existing engine already meets Tier 2 standards. This method is available only if the demonstration is made before Tier 3 standards come into effect for engines of the same size and configuration.
The third method (C-3) is prove to CARB’s satisfaction that the existing engine already meets Tier 2 or Tier 3 standards that would be in effect for engines of the same size and configuration.
The final method (C-4) is to prove to CARB’s satisfaction that the engine has not, and will not, operate more than 300 hours per year.

Owners are permitted to rely on any source of reliable and credible information to meet the demonstration requirements of methods C-2 and C-3. CARB, however, has the sole discretion to disregard any information that it regards as unreliable or incredible. Owners are permitted to rebuild the existing engine to a cleaner standard or apply a CARB-approved diesel emission control strategy to aid in achieving the appropriate emission standard. Once a diesel emission control strategy is applied to an engine, it must be kept in operating condition and may not be modified without CARB approval.

Alternative Control of Emissions

The regulation gives the owners and operators of harbor craft the option of complying with the emission standards without replacing or rebuilding their engines by implementing an “alternative control of emissions strategy.” The regulation provides a non-exclusive list of potential alternative strategies, including engine modification, exhaust treatment control, engine re-powering, using alternative fuels or fuel additives, using shore power and applying fleet averaging. Owners and operators may include one or more harbor craft in an alternative strategy, but no vessel may be in more than one strategy. Only vessels under the owner’s or operator’s direct control are eligible.

Alternative strategies require approval by CARB’s executive officer before implementation. The regulation sets out the process for applying for approval.

Required Sports

Initial report – All owners and operators of harbor craft operating in California were required to make an initial report of vessels under their direct control by February 28, 2009.

Compliance plan – Owners and operators must submit a compliance plan to CARB by February 28 of the year that vessel compliance is required. The compliance plan set out in detail what the owner or operator is going to do to comply with the emission standards, including engine replacements, rebuilds, diesel emission control strategies, and any other measures he or she is going to take. CARB will use the plan for information and planning purposes, and neither the owner or operator nor CARB are bound by it. However, any changes to the plan must be submitted to CARB within 10 days of the change.

Compliance demonstration – The owner or operator must submit evidence that he or she has complied with the regulation no later than the compliance date. The regulation describes what evidence is needed and how it may be obtained.

Penalties for Non-Compliance

A failure to comply with the regulation will subject the owner or operator to the penalties and other remedies described in Health and Safety Code §§ 42400 et seq. and §§ 42402 et seq. Under these sections, a violation is a misdemeanor, and may subject the owner or operator to up to one year in county jail and up to $75,000 per violation. Each hour of non-compliance is a separate violation.

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