Outcomes of MEPC 74 – Dealing with non-compliance

The 74th session of the IMO’s Marine Environment Protection Committee (MEPC 74) took place on 13-17 May 2019 at the IMO headquarters in London.

One of the main areas of focus was air pollution and in particular the fast approaching global fuel sulphur cap. We look at some of the key outcomes of MEPC 74 and how it could impact your transition to compliance before 1 January 2020. This article focuses on the actions of Port State Control and what happens in event of non-compliance.

Fuel oil non-availability reporting

Guidance on fuel oil non-availability reporting and the format of the IMO FONAR was issued prior to MEPC 74 and was not amended further at the session.

If, despite best efforts, a vessel is unable to obtain compliant fuel, Flag State should be notified as well as the competent authority of the port of destination (who in turn notifies IMO).

The vessel will be required to present a record of the actions taken to attempt to bunker compliant fuel oil and provide evidence of attempts to purchase compliant fuel oil in accordance with its voyage plan. If compliant fuel was not made available where planned, the vessel should provide evidence of sourcing alternatives.

The FONAR should be submitted as soon as it is determined or when the vessel becomes aware that compliant fuel oil will not be available. A copy of the FONAR should be kept on board for inspection for at least 36 months

This isn’t a waiver or an exemption. The authorities will closely monitor any owner who submits FONAR reports too regularly for their liking and may ask for additional information when reviewing a submitted report.

The FONAR template can be found in Appendix 1 of the 2019 Guidelines for consistent implementation of the 0.50% sulphur limit under MARPOL Annex VI which can be downloaded from IMO here.

Guidance to Port State Control

Enforcement is important – but so is ensuring that port state control act with consistency. Therefore IMO will provide guidance documents for port State control in the near future. These are

• Guidance for port State control on contingency measures for addressing non-compliant fuel oil (to be released as MEPC.1/Circ.882); and
• 2019 Guidelines for port State control under MARPOL Annex VI – which covers all aspects of Annex VI – not just fuel and sulphur.

The guidance outlines the scope of an ‘initial inspection’ (checking records, BDNs and written changeover procedures) and the ‘clear grounds’ to escalate to a ‘more detailed inspection’ (in depth documentation check, maintenance verification and fuel sampling/analysis, assessing crew familiarity).

Prior to MEPC 74, there were a couple unresolved items involving Port State:

Firstly, what happens when the BDN says the fuel is compliant, but the vessel’s own test results on commercial samples suggest it is not?

It was argued at MEPC 74 that this is not covered by the FONAR because the vessel was under impression that it had purchased compliant fuel. Others argued that the existing MARPOL text covered this sort of circumstance.

This generated much debate and the guidelines now recommend that in such circumstances the vessel notifies Flag, next port and bunkering port accordingly rather than submitting a FONAR.

Secondly, how to deal with non-compliant fuel remaining on board?

It was highlighted that if a vessel is forced to bunker non-compliant fuel after 2020, it will probably load in excess of the voyage requirements in order to provide for a safety margin. So what to do with this excess?

Interestingly, one of the options proposed was to allow burning of any remaining non-compliant fuel whilst on the high seas. Some raised awareness of the difficulty of debunkering and cleaning tanks – in particular the contents of the settling and service tanks if they are holding non-compliant fuel.

It was finally decided to amend the text of the proposed guidance but it still provides the port State discretion on how they manage these situations and leaves a number of options open.

Some other key points from the guidance to PSC:

• If non-compliance is established the port State may prevent the ship from sailing until the ship takes suitable measures to achieve compliance which may include de-bunkering all non-compliant fuel oil.
• All possible efforts should be made to avoid a ship being unduly detained or delayed. In particular, sample analysis of fuel oils should not unduly delay the operation, movement or departure.
• The Parties, however, may permit, with the agreement of the destination port authority, a single voyage for bunkering of compliant fuel oil for the ship. The single voyage should be one way and minimum for bunkering, and the ship proceeds directly to the nearest bunkering facility appropriate to the ship.
• When a Party finds a non-compliance of a ship or a fuel oil supplier, the information of the non-compliance should be reported to the MARPOL Annex VI GISIS module.

North Comments:

Tank and system cleaning after bunkering non-compliant fuel is not a simple or quick task. It needs planning. How long will cleaning take and how will it be done?

It is important to do it right. If the tanks and system are not properly cleaned, it could contaminate several hundreds of tons of subsequently bunkered fuel.

Safety considerations will be even more important. Tank cleaning may involve physical tank entries and we are all fully aware that too many people die in enclosed or confined spaces. Such operations must be subject to a risk assessment and strict adherence to a permit-to-work system.

Will it be the shipowner or the charterer that is obliged to arrange for and/or pay for the removal of non-compliant fuel and the cleaning of the tanks prior to bunkering compliant fuel? This will depend on the wording of the charterparty. Therefore, if such tank and system cleaning will be undertaken during a charter then it will be important to consider this at the drafting stage.

Scrubber malfunction

As expected, the subject of scrubbers generated debate. Some questioned the ‘equivalent measures’ status afforded to scrubbers and expressed concerns that the proposed guidance for action in the event of a scrubber failure was not sufficiently stringent.

So, a draft MEPC circular was approved: “Guidance on indication of ongoing compliance in the case of the failure of a single monitoring instrument, and recommended actions to take if the EGCS fails to meet the provisions of the 2015 EGCS Guidelines”.

This guidance will include the following key aspects:

• Any scrubber malfunction that lasts more than one hour or repetitive malfunctions should be reported to the flag and port State along with details on the steps the ship operator is taking to address the failure.
• If there is a malfunction that cannot be rectified within an hour then the ship should changeover to compliant fuel oil. If the ship does not have sufficient compliant fuel oil on board, a proposed action plan such as bunkering compliant fuel oil or carrying out repairs, should be sent to next port and Flag, for their agreement.
• The flag and port State have the discretion to take what they consider to be appropriate action in the case of a scrubber malfunction – this of course includes not taking action.
• Short term temporary emission exceedances due to changes in load are recognised and are to be expected – and should not be considered as a breach of the regulations.
• In the event of a single sensor failure, compliance can be evidenced using data from other sensors as many parameters relate to each other.

Little progress has been made on the revised EGCS guidelines. This will be referred to the 7^th session of the Sub-Committee on Pollution Prevention and Response (PPR 7) in February 2020 so the 2015 guidelines will remain in place in the meantime.

A new work programme was agreed to investigate the environmental impact by the wash water. This will be started at PPR 7.

North Comments:

The charterparty should be reviewed so it is made clear who is to supply compliant fuel in the event of scrubber breakdown.

It may be that the fair position will be that the shipowner provides compliant fuel if the scrubber breaks down due to a maintenance issue, but the charterer provides compliant fuel if the scrubbers break down due to a reason for which they are responsible.

Read more about the use of scrubbers as a method of compliance in our ‘Preparing for the Big Switch’ guides which are free to download.

Survey and certification

IACS queried when the new IAPP certificate format should start being used. They advised that unless instructed otherwise, they will start using the new format on the next renewal survey after entry into force.