IMO’s Marine Environment Protection Committee made some important decisions in April, writes Jad Mouawad*
When IMO’s Marine Environment Protection Committee met for its 72nd meeting (MEPC 72) in April, one of its most important decisions was to establish the principle and procedures for mandatory ballast water sampling. This is to check that each ballast water management system (BWMS) installed on a ship complies with the D-2 standard set out in IMO’s Ballast Water Management Convention (BWMC) before the ship receives its International Ballast Water Management Certificate.
The proposal was made during discussions about the revision of IMO’s Guidelines G8 and met large acceptance among the delegates. Previously, procedures were being developed to include this as a mandatory requirement under the convention’s Regulation E, which contains rules about survey and certification.
During MEPC 72, its Ballast Water Review Group (BWRG) agreed to develop guidance on how sampling should take place, but this guidance will not be available for implementation before MEPC 73 in October 2018. The current guidance includes these principles:
• Sample at uptake, without having any requirements concerning the water’s properties and number of organisms
• Sample during discharge to verify compliance with the D-2 standard
The guidance available at this stage indicates that the analysis should be of an indicative nature. But because indicative analysis is not able to establish compliance with the D-2 standard – since it cannot count organisms with such low numbers as is required under the D-2 standard – this text does not make much sense as it stood at the end of MEPC 72. Furthermore, the sampling volumes and representativeness of the samples taken were not adequately specified in the guidance.
In summary, MEPC 72 agreed that sampling for compliance in conjunction with commissioning of BWMSs is already covered in Regulation E-1.1.1, but that more clarification is needed through a sampling procedure. The draft procedure was accepted by MEPC 72, which requested submissions to MEPC 73. The detailed procedures for sampling will be discussed only once, during MEPC 73, with a view to their adoption. They will then become mandatory for all ships, making it necessary for each ship to pass the D-2 discharge standard prior to being issued an International Ballast Water Management Certificate.
While the meeting was in progress, the BWRG addressed other topics including the remaining revisions of guidelines and circulars as a consequence of the revision of Guidelines G8, which will become the Code for Approval of Ballast Water Management Systems (to be known as the BWMS Code). The BWRG also considered contingency measures and items related to details of the convention’s ‘experience-building phase.’ Meanwhile, the plenary sessions at MEPC 72 discussed the adoption of the BWMS Code and how the BWMC would apply to unmanned barges and rescue tugs.
Since MEPC 70 in October 2016, a large number of technical and policy decisions have been made at IMO and in the US, in what seemed like a rush by regulators to anticipate the wide implementation of the BWMC by the worldwide fleet.
This rush was met by intense activity to extend the installation deadline. This was done in conjunction with MEPC 71, which famously decided to push the timeline for ships to comply with the D-2 standard (effectively by installing a BWMS) by two years starting from 8 September 2019 and for the following five years until all renewal surveys for the International Oil Pollution Prevention Certificates have been completed.
In addition to that significant decision, the ‘Experience Building Phase’ concept was adopted, paving the way for a long-term review of the BWMC’s implementation, in the hope that changes to its provisions will be based on feedback on how its different provisions are being rolled out and applied.
In addition to MEPC, the Pollution Prevention and Response (PPR) sub-committee met in February 2018 and discussed the issue of system design limitations and guidance for ports with challenging water conditions.
Parallel to the work done at IMO, since the last issue of BWTT the BWMS market has seen the first type-approval certificates issued based on the 2016 G8 Guidelines, US Coast Guard (USCG) type-approval applications reach double digits and the USCG issuing a revised Navigation and Vessel Inspection Circular 01-18 (NVIC) that included revised guidance on reporting requirements, record keeping, compliance guidance and enforcement.
The USCG also issued a policy letter on inoperable BWMSs and provided guidance for US-flagged vessels on how to comply with the BWMC. In 2018 there has been a sharp decline in extensions issued by the USCG because the bar has been raised much higher for ships to receive such extensions.
A closer look at these developments, which happened in a period of less than 12 months, reveals a clear drift towards the implementation phase of the BWMC. This is not surprising, although, at the time of writing in mid-April, many aspects of the preparation for the BWMC are still underway, such as the official adoption of the BWMS Code and various guidance notes for administrations on how to conduct type-approval.
A clear indication of this impetus in the regulatory field is the number of guidance notes issued by the USCG to shipowners on how ships can comply with the various ballast water management regulations – either foreign-flagged ships planning to discharge ballast water in the US or US-flagged ships planning to comply with the BWMC. Another sign of support for improving understanding of regulatory requirements was seen during MEPC 72 when China received wide support for its suggestion to develop a standard course for seafarers about the BWMC.
But even as the BWMC moves towards implementation and despite efforts by IMO and various administrations to clarify how the BWMC will roll out, there is no unified approach towards its implementation. As examples, one can mention its application to fishing vessels, how to deal with ships that arrive to ports with non-compliant water, how it can be implemented on unmanned barges and how to apply the ‘Same Risk Area’ definitions to obtain exemptions.
*Jad Mouawad is the founder of Norway-based Mouawad Consulting
New dates for the BWMC; no change for USCG
In an effort to give enough time for ships to fit ballast water management systems (BWMSs), IMO decided to extend the implementation dates of the D-2 standard by about two years. This is how the new schedule will apply:
New Ships: Under the agreed amendments, ships constructed on or after 8 September 2017 will have to comply with the D-2 standard at delivery.
Existing ships: Ships constructed before 8 September 2017 must comply with the D-2 standard as follows:
• At the first International Oil Pollution Prevention Certificate (IOPPC) renewal survey completed on or after (a) 8 September 2019; or (b) 8 September 2017, only if an IOPPC renewal survey was completed on or after 8 September 2014 but prior to 8 September 2017.
• At the second IOPPC renewal survey after 8 September 2017 only if (a) the first IOPPC renewal survey was completed prior to 8 September 2019; and (b) an IOPPC renewal survey was not completed on or after 8 September 2014 but prior to 8 September 2017.
• Ships to which the IOPP Certification scheme does not apply must comply with the D-2 standard by 8 September 2024 at the latest.
USCG and EPA regulations
The USCG, and consequently the US Environmental Protection Agency (EPA), has not changed its implementation schedule since it was published in 2012.
Those regulations require all ships built on or after 1 December 2013 to comply with the Ballast Water Discharge Standard (BWDS) using a USCG type-approved BWMS at delivery. For those ships built prior to 1 December 2013, the regulations require them to comply by their first drydock after 1 January 2014 or 1 January 2016, depending on their ballast water capacity.
Due to a lack of USCG type-approved BWMSs, for many years the USCG issued extensions for ships, deferring the application dates to meet the BWDS for up to five years. This practice continued throughout 2017, when shipowners could simply indicate to the USCG that they had made decisions to comply and get an extension.
In 2018, this practice has changed. On 7 March 2018, the USCG published an article on its online Maritime Commons blog outlining how the new policy of extensions will be applied. The USCG is now asking for evidence of definite plans such as purchase orders before a non-USCG type-approved BWMS is installed and for reports that the chosen system is expected to receive USCG type-approval in the following 12 months. It also wants to know the date and location of the retrofit before issuing an extension of a maximum of 12 months from the vessel’s drydocking date.
While this restrictive approach will decrease the applications for new extensions, most operators and owners have had earlier extensions for their ships and will start installing BWMSs on board their vessels as the drydocking dates start approaching.
As if the existence of two implementation schedules was not confusing enough for shipowners, the new BWMS Code (see main article) will have to be followed for ships installing BWMSs after 2020, making it uncertain whether currently approved BWMSs are robust enough to meet the new code’s requirements. BWMS manufacturers are starting to receive questions about their strategy to meet those requirements, which are different from the USCG’s type-approval programme.
The EPA is due to publish a new Vessel General Permit (VGP) for vessel discharges in the US to replace the current 2013 version, which expires on 19 December 2018. While it is not expected that the new VGP will make significant changes to the requirements for BWM, the EPA wanted to take into consideration comments and suggestions from the public on how to improve the current text.
The EPA has confirmed on many occasions that it did not intend to change the discharge standard requirements in the VGP as a consequence of a ruling in American courts in 2015 that seemed to imply they had to do so. In fact, the EPA was asked by the judge to justify the choice of its current standard in a better way, which is what it intends to do when it releases the new VGP.
The BWMS Code
The BWMS Code entered into force in April 2018, and will become mandatory for new BWMSs receiving type-approval and for existing BWMSs that renew their type-approval certificates after October 2018.
Furthermore, all BWMSs to be installed on board ships after October 2020 must be type-approved following the BWMS Code.
For a shipowner that is looking at making purchase agreements for BWMS for a fleet, the decision must now consider the following, in addition to the technical and commercial aspects:
Because the BWMS Code is different from the USCG type-approval programme – and in many areas more stringent – the answer to Question 2 will not always be easy to answer.
At the time of writing just after MEPC 72, only two BWMSs have achieved type-approval with the BWMS Code: SunRui’s BalClor and Alfa Laval’s PureBallast 3.2.
Improvements to IMO’s BWMC will be based on experience
Faced with many uncertainties about how its Ballast Water Management Convention (BWMC) will work in practice, IMO’s MEPC 71 meeting in July 2017 established the experience-building phase (EBP), whose purpose is to allow the MEPC to monitor and improve the BWMC.
The EBP consists of a data gathering stage, a data analysis stage and a BWMC review stage. The EBP started on 8 September 2017 and will end at the entry into force of a package of priority amendments. The EBP is managed and organised by IMO’s secretariat, and uses standard forms to gather and analyse the data.
The EBP does not alter the BWMC’s implementation in any way. It includes the already-agreed ‘trial period’ during which methods for sampling and analysis of ballast water during port state control inspections will be evaluated without penalising the ships in case of non-compliance with the D-2 standard.
Initial data from the EBP is expected to be available for consideration by MEPC 74 in Q2 2019, and the EBP is expected to continue until MEPC 79 in Q3 2022.
Submissions of experiences from the EBP are taking place, with the latest one provided by Saudi Arabia to the fifth meeting of IMO’s Sub-Committee on Pollution Prevention and Response (PPR 5) in February 2018. That submission was based on indicative tests that targeted only phytoplankton in the size range of 10 mm to 50 mm, and found the vast majority of ships tested were compliant with the D-1 (exchange) standard. Of the 45 ships that were actively using a ballast water management system, only five did not meet the D-2 standard.
Uncertainty hangs over specialised ships
There is uncertainty about how some ship types will comply with the provisions of IMO’s Ballast Water Management Convention (BWMC). These include unmanned non-self-propelled (UNSP) barges, rescue tugs, semi-submersibles with extreme ballast flow rates, and pelagic fishing vessels with refrigerated seawater tanks. All these face serious challenges in meeting even the BWMC’s D-1 standard.
Many submissions to IMO have sought exemptions or special treatment for various types of vessels. The usual response from the Marine Environment Protection Committee (MEPC) has been that blanket exemptions for specific ship types are not possible, and that all ships must comply with the BWMC.
This came up most recently during MEPC 72 in April, in a submission by Singapore, Denmark and Turkey. It was clear from the general comments from MEPC’s plenary that there were diverging opinions on how to deal with those vessels. The matter was deferred to MEPC 73 in October 2018, but the reply by MEPC’s chairman to Singapore on whether UNSP barges could be exempted from conducting ballast water exchange was a clear ‘No.’
While MEPC was moving forward with its experience building and USCG was building its stable of type-approved BWMSs, two test facilities ceased testing for BWMS type approval: DHI Singapore and the Maryland Environmental Research Center (MERC).
Both test facilities had conducted IMO and USCG type-approval testing for many years, and MERC was one of the early movers in developing testing protocols. Citing different implementation practices of the USCG Regulations, MERC decided in 2017 to close down its testing barge and concentrate on other ballast water research topics and on research in other areas.
DHI decided to close down its testing facility in Singapore and concentrate its activity on land in Denmark. But it will maintain its shipboard testing capacity in Singapore. DHI stated that the challenges of testing in tropical waters, mainly related to holding time, were the main reasons behind its decision.