• IMO BWMC 2004 entering into force shortly.
  IMO G8 Guidelines under review to make approval standards for BWMS more robust.
• The environmental impact of active substances used in BWMS is being assessed for the purposes of IMO G9 procedures.
• Grace period for "early movers" but IMO have yet to clarify if this is for the life of ship or the life of equipment USCG Final Rule in force but no Coast Guard Type Approved equipment yet.
• USCG not announced any similar grace period for systems currently granted AMS statusFirst US type approved equipment expected in later half of 2016.
• Unclear if  USCG's current terms for granting time extensions will change as a result.  
• Outstanding regulatory and compliance  issues continue to place ship owners in a dilemma.

The IMO is expected to announce shortly the date that the BWMC 2004 finally attained its requisite 35% world gross tonnage and the entry into force (EIF) date of the Convention twelve months thereafter. How can we expect this announcement to be greeted?

Supporters of the Convention who had in recent times begun to fear that the Convention would never see the light of day will no doubt celebrate, as will manufacturers of BWMS who will finally see a real return on the investment made in developing their systems. But what about ship owners? Here, one suspects the news will be greeted with some trepidation and frustration because definite decisions will now need to be taken even though the implications of these decisions still remain unclear.

Time has however finally run out, the countdown has begun, BWMS now need to be selected and fitted onboard ships by the ships' compliance dates failing which the ships will be found non-compliant and subject to fines

.

Below is a summary of the current position on compliance and the outstanding issues:

The IMO BWMC 2004

Under the IMO's revised implementation schedule adopted by Resolution A.1088(28), all ships over 400 GT to which the Convention applies will now need to comply by the ship's 1st IOPP renewal survey after EIF. Ships with keel laying dates after EIF must comply on delivery. This means, except where an Exception under Regulation A-3

¹

is applicable or an Exemption under Regulation A-4

²

is granted, these ships must be fitted with BWMS capable of complying with the IMO D-2 discharge standard.

MEPC 67 adopted Resolution MEPC.253(67) acknowledging that BWMS need to be sufficiently robust and consistent. A Correspondence Group was therefore set up to review the G8 Guidelines for approval of BWMS by updating the guidelines with experience gained to date and to provide Administrations with a streamlined consistent approach for applying the Guidelines. The industry's hope is that the revised guidelines will align the IMO standard with the US ETV protocol. However, for ultraviolet systems which are the most prevalent systems, whilst the IMO accepts assessments based on the reproductive viability of the micro-organisms, US scientists believe that some damaged micro-organisms can repair themselves. The USCG therefore requires these micro-organisms to be dead and not simply rendered non-viable. The G8 Correspondence Group is working on a pragmatic definition for 'Viability' and will be reporting to MEPC 69 in April 2016 but the Group's definition is unlikely to be completely aligned with the USCG's definition.

The G9 Procedures for the approval of BWMS that make use of Active Substances comprise of a two stage approvals process; Basic and Final. The GESAMP BW working group, a joint group of experts on the scientific aspect of the marine environment protection is revising its methodology, particularly in the area of maximum allowable Total Residual Oxidant (TRO) limit in ballast discharge. G9 approvals will be granted based upon the working group's recommendations after the group's careful assessment and consideration of the environmental impact of the active substances used in the BWMS. G8 approval for BWMS using active substances can only be issued after the Final G9 approval has been granted.

The revised G8 Type Approval Guidelines are not expected to be finalised until the later part of 2016. BWMS approved under the revised G8 Guidelines will not therefore be available for the immediate foreseeable future. Ships with compliance dates upon or shortly after the Convention comes into force may not have the luxury of waiting for one of these pieces of equipment. Whilst the time period for retrofitting a BWMS onboard has been getting shorter with experience gained, the process is still estimated to take some eight months. Time for testing, monitoring and training of crew will also need to be factored in. If there is any substance in the rumour that the requisite 35% gross tonnage has already been obtained, ship owners might find themselves with less than a full twelve months' notice once the EIF date is announced.

MEPC 68 assured early movers who have already fitted BWMS approved under the current G8 Guidelines onboard their ships that there is no need to change their systems once the Revised G8 Guidelines are issued. Whether this agreed grace period will be for the life of the ship or the life of the equipment has yet to be finalised and will be discussed at MEPC 69. During this grace period, the ship will need to comply with the D-2 ballast water performance standard for discharge of organisms from ships at all times. It should be noted that Administrations' approval certificates ( G8 approvals ) for BWMS are valid for a maximum of five years and renewals of the certificates for these systems may therefore have to be conducted according to the Revised G8 Guidelines. If higher discharge standards are introduced, there are concerns over whether these systems will be able to comply with the higher standards.

The US Position

Ballast Water Management in the US is administered by both the US Coast Guard ("USCG") and the US Environmental Protection Agency ("EPA"). Individual States also impose their specific BWM requirements and many US States have submitted such requirements with California and New York amongst those with the most stringent requirements.

The USCG derived its authority for BWM in the Great Lakes and all US Ports from inter alia the National Invasive Species Act 1996 ("NISA"). The USCG's Final Rule; "Standards for Living Organisms in Ships' Ballast Water Discharged in US Waters", issued on 23 March 2012, has been in effect since 1 June 2012. It applies, with some exceptions, to all non-recreational US and foreign ships which will have to conduct ballast water operations in the US. The compliance dates vary according to the ship's date of construction and her ballast water capacity (see the schedule below). A ship's first scheduled drydocking for the purpose of compliance with the implementation schedule is the date that the ship enters a drydock.

The EPA derives its authority over the discharge of ballast water into US waters from the US Clean Water Act (CWA) and implements and administers Vessel General Permits (VGPs). On 28 March 2013, the EPA issued VGP 2013 which applies to discharges incidental to the normal operation of a ship, including the discharge of ballast water and ballast water treatment technology requirements. Owners/ Operators must submit a signed and certified Notice of Intent (NOI) seven days prior to a discharge into waters subject to the VGP.

Vessels Compliance Date

Many ships are therefore already subject to compliance under the USCG Final Rule and the ballast water treatment technology requirements of VGP 2013.

Ships may comply with the USCG's Final Rule by having a USCG approved BWMS installed onboard by the ship's scheduled compliance date under the above schedule, by not discharging ballast water within 12 nautical miles of the US, by discharging ballast water to a facility onshore or other ship/ barge for purposes of treatment, by using only water from the US public water system. The Rule does not apply to non-seagoing ships, seagoing ships that do not operate outside the US Exclusive Economic Zone (EEZ) said and are less then 1,600 grt or 3,000 ITC, and to ships that operate exclusively in one Captain of The Port (COTP) zone.

As no equipment has yet to receive USCG Type Approval, the USCG has been granting extensions to ships. Extensions are granted on the basis that a USCG type approved system, shore reception facilities, US public water supplies and retaining ballast water onboard are not available options or are impractical. Requests for extensions must be submitted at least 12 months prior to the ships' original compliance date. Extensions are issued for a minimum time to allow ship owners to acquire a BWMS. If the extensions granted run out, applications may be made for additional extensions. Currently, for ships with implementation dates in 2016, extensions are being granted to 1 January 2018.

As an interim measure, the USCG has accepted IMO Type Approved equipment, and equipment certified by other third parties capable of meeting the same D-2 discharge standard, as Alternate Management Systems (AMS) and have granted manufacturers of such equipment AMS notations for periods of up to 5 years. An AMS can only be employed on a ship for up to 5 years from the ship's ballast water discharge standard implementation date. The USCG has indicated that no systems will be removed from the AMS acceptance list. The USCG does not oblige ships to install AMS and ships may instead simply apply for extensions as above. You will have seen from the above that the IMO have informed early movers who have fitted BWMS approved under the current G8 Guidelines that they do not have to replace their systems when the Revised G8 Guidelines are issued. The US have however expressed no similar assurance for these early movers.

The EPA has also accepted the IMO D-2 Standard and its VGP 2013 has the same schedule of compliance as the USCG. As from 01.01.2014, all captured ships are to have a system fitted after 1st Drydocking after 01.01.2016. The EPA's decision to adopt the D-2 discharge standard has however recently been criticised by the US 2nd Circuit Court of Appeal in New York. In the Court's published decision in the case of the Natural Resources Defence Council versus the US EPA, the Court said that the EPA acted "arbitrarily and capriciously" in issuing VGP 2013 without taking into account available ballast water treatment technologies capable of achieving higher standards than the IMO's D2 standard and in failing to give proper consideration to shore facilities. The EPA has to update the VGP every 5 years and it is therefore due to issue its next VGP in 2018 when a higher standard of compliance can be expected in order to ensure compliance with the Court of Appeal's decision.

Unlike the USCG, the EPA has no power under the CWA to grant extensions. Extensions granted by the USCG are not binding for purposes of the VGP but on 27.12.2013, the EPA issued the following Enforcement Response Policy, "For vessels operating in accordance with the USCG extension which are otherwise in full compliance with Vessel general Permit (VGP) requirements, non-compliance with the 2013 VGP ballast water numeric discharge limits will be considered a low enforcement priority." This statement by the EPA does not offer ship owners sufficient assurance because the CWA can be enforced by any citizen of the United States. So, whilst the EPA has continued to work closely with the USCG, adopting extensions granted by the USCG as extensions to the last BWMS installations schedule stated in the VGP, concerns remain over the different approaches to compliance between the USCG and the EPA.

At the end of last year, we were informed that three companies had submitted applications to the USCG for type approval of their ultraviolet BWMS. However, the manufacturers had used a testing methodology that would result in all treated microorganisms being rendered "non-viable" (IMO standard) whereas the USCG's test standards require these microorganisms to be killed. US scientists believe that some of these microorganisms can repair damage to their reproductive capabilities and merely rendering them non-viable is not sufficient for the purposes of the US ETV protocol. On 14 December, the USCG confirmed its rejection of these systems because the method of testing did not meet the testing method prescribed in the Coast Guard's regulations.

This decision by the USCG has given ship owners some breathing space because there was uncertainty over whether the reasons currently accepted by the USCG for granting extensions, of which one is the non-availability of a USCG typed approved system, would be changed once such a system becomes available. There are currently other ultraviolet BWMS in the final stages of testing using the USCG's prescribed tests. Their manufacturers are expected to submit their test results in early to mid 2016. If the results are found to be in order, the USCG office of Operating and Environmental Standards (CG-OES) will issue full type approvals within 30 days of receiving the same. A USCG type approved system may therefore become available mid to late 2016.

Conclusion

To conclude, whilst some parties eagerly await the EIF date of the IMO's BWMC, the different implementation dates under the IMO Convention and the USCG Final Rule and remaining uncertainties over several issues continue to place ship owners in a dilemma.

The main difficulty for ship owners is that once the EIF date for the BWMC has been fixed, they will have to select and install BWMS onboard their ships at an approximate cost of between $1-5 million per ship in the full knowledge that the system installed may not subsequently receive type approval under the USCG's ETV protocol, that any AMS status obtained may be revoked once the Revised G8 Guidelines come into force and that time extensions for compliance may no longer be available from the USCG once a USCG type approved system(s) become(s) available.

Many ship owners will no doubt try to reschedule their ships' next drydocking to buy more time to install a BWMS onboard. For some ship owners, this may not however be possible.

Ship owners are therefore recommended when selecting their IMO type approved equipment to obtain confirmation in writing from the manufacturers that the system has received notation as an AMS, that the manufacturers have applied for and are strictly following the USCG standards for testing and to find out the stage of the US type approval process the system is currently at. Ship owners are also recommended to negotiate with the manufacturers for suitable guarantees and terms to cover the event that the equipment does not subsequently receive USGC type approval, and needs to be replaced with a USCG type approved equipment.

The UK P&I Club's previous publications on this subject are available below. For additional information on this subject, our Members are directed to the

International Environmental Compliance

page on the UK P&I Club's website. Questions may be directed to

chao.wu@thomasmiller.com

,

jacqueline.tan@thomasmiller.com

or

jeff.lock@thomasmiller.com

.

^{1 Regulation A-3 Exceptions apply to ships that discharge ballast water to specially designed reception facilities, ships using alternative methods to ensure at least the same level of protection to the environment, human health, property or resources and are approved in principle by the MEPC, ships already complying with more stringent/ additional measures imposed by a Party(ies) to the Convention, the uptake or discharge of ballast water and sediment when necessary for the purpose of ensuring the safety of the ship in emergency situations or saving life at sea; the accidental discharge or ingress of ballast water and sediments resulting from damage to the ship or its equipment, the uptake and discharge of ballast water and sediments when being used for the purpose of avoiding or minimising pollution incidents from the ship and the uptake and subsequent discharge on the high seas of the same ballast water and sediments; or the discharge of ballast water and sediments from a ship at the same location where the whole of that ballast water and those sediments originated and provided that no mixing with unmanaged ballast water and sediments from other areas has occurred.
2 Regulation A-4 Exemptions include a Party(ies) in waters under their jurisdiction, granting exemptions to requirements to apply ballast water regulations when such are granted to a ship(s) on a voyage(s) between specified ports or locations, or to a ship which operates exclusively between specified ports or locations, effective for a period of no more than five years subject to intermediate review, and to ships that do not mix ballast water or sediments other than between the abovementioned specified ports and locations based on the guidelines on risk assessment developed by the Organisation}