The Coast Guard's Final Rule on the Standards for Living Organisms in Ship’s Ballast Water Discharged in U.S. Waters was issued on March 23, 2012 in the Federal Register, Volume 7, No. 57 and became effective 90 days after publication, on June 21, 2012. A copy of the Final Rule is available at www.gpo.gov/fdsys/pkg/FR-2012-03-23/html/2012-6579.htm.
The U.S. Coast Guard regulations regarding ballast water management, set forth in 33 C.F.R. Part 151 and 46 C.F.R. Part 162, establish a standard for the allowable concentration of living organisms in ballast water discharged from ships in waters of the United States consistent with the International Maritime Organization’s International Convention for the Control and Management of Ships’ Ballast Water and Sediments (“BWM Convention”), which is not yet in effect. Pursuant to the regulations, all commercial vessels, U.S. and foreign flag, that are equipped with ballast tanks and that operate in the waters of the United States must employ one of the following ballast water management methods, with certain exceptions described below:
Crude oil tankers engaged in coastwise trade and vessels that operate exclusively within one Captain of the Port (COTP) Zone are exempt from the ballast water management requirements, as well as reporting and recordkeeping requirements. In addition, non-seagoing vessels, vessels that take on and discharge ballast water exclusively in one COTP Zone, and seagoing vessels that operate in more than one COTP Zone, do not operate outside the EEZ, and are less than or equal to 1,600 gross register tons or less than or equal to 3,000 gross tons are exempt from the ballast water management requirements. However, these vessels must still comply with all reporting and recordkeeping requirements.
As noted above, the ballast water exchange method will be allowed only until the implementation deadlines for BWMSs. After the applicable implementation date, the option to conduct mid-ocean exchange as ballast water management method is limited to those vessels that are not required to employ an approved ballast water management system. However, the Coast Guard may allow the use of ballast water exchange as a contingency in the case of an emergency. With few exceptions, the alternative methods discussed above are not seen as practicable for most vessel operations.
A vessel’s compliance date varies based on the date of construction and ballast water capacity, and whether the Coast Guard issues an extension as discussed below. All new vessels constructed on or after December 1, 2013, regardless of ballast water capacity, must comply on delivery. Existing vessels with a ballast water capacity between 1500 and 5000 cubic meters must comply by the first scheduled drydocking after January 1, 2014. As such, many vessels are already subject to the Coast Guard’s requirements for BWMSs. Existing vessels with a ballast water capacity less than 1500 cubic meters or greater than 5000 cubic meters must comply by the first scheduled drydocking after January 1, 2016.
Ballast water treatment must be conducted using either a Coast Guard type-approved system or a system type approved by another Administration which the Coast Guard has accepted, referred to Alternate Management System (“AMS”). At this time, there are no BWMSs type-approved by the Coast Guard and there are more than 50 AMSs that have been accepted by the Coast Guard. A vessel with an AMS installed may use that ballast water management system for a period of five years beyond the date when the vessel would otherwise be required to comply with the Coast Guard ballast water discharge requirements noted above.
Although AMSs are approved by other Administrations in accordance with the IMO’s guidelines for approval of BWMSs, known as the G8 Guidelines, it is not guaranteed that they will be type-approved by the Coast Guard, which uses a different testing protocol. The Coast Guard’s testing protocol, called ETV or Environmental Technology Verification, is based on the G8 Guidelines, but includes more stringent requirements, such as independent testing and an emphasis on quality control and assurance. The IMO is also undergoing review and possible revisions to the G8 Guidelines at the request of a number of Administrations.
With regard to the Great Lakes, all non-recreational vessels, U.S. and foreign flag, that are equipped with ballast tanks and that operate beyond the EEZ during any part of their voyage prior to entering the Great Lakes or Hudson River must meet the ballast water management requirements outlined above. Vessels operating solely within the Great Lakes and the Canadian EEZ, and that are less than or equal to 1,600 gross register tons or less than or equal to 3,000 gross tons ITC, are exempt from the ballast water management requirements. Additionally, vessels utilizing BWMSs must also conduct ballast water exchange or saltwater flushing in addition to treating their ballast water in certain cases where the vessel operates outside the EEZ and more than 200 nm from any shore prior to enters the Great Lakes.
The ballast water management regulations allow the Coast Guard to grant extensions to the compliance implementation schedule for up to five years from the vessels’ scheduled implementation date. However, supplemental extensions may be approved for good cause. Applications for extensions must be made at least 12 months before the vessel’s scheduled implementation date and supplemental applications must be made at least 90 days prior to the end of the extension period.
In addition to the Coast Guard’s ballast water management regulations, the U.S. Environmental Protection Agency (“EPA”) includes ballast water management requirements in its Vessel General Permit (“VGP”). The Coast Guard and EPA numeric ballast water discharge limits are the same and the ballast water management methods are similar; however, the EPA is not granting extensions and extensions granted by the Coast Guard are not binding on the EPA for the purposes of the VGP. Unlike the Coast Guard requirement for type approvals, EPA requires the use of “Best Available Technology,” which includes the AMSs. As a result, EPA published an Enforcement Response Policy on December 27, 2013 stating that if a vessel has received an extension from the Coast Guard, is not in compliance with the VGP’s ballast water numeric discharge limit, and is otherwise in compliance with all other provisions of the VGP, EPA will consider such violations of the numeric discharge limit as a “low enforcement priority.”
A number of states have also implemented additional or more stringent ballast water management requirements than those mandated by the Coast Guard and EPA. Twenty-five states submitted specific ballast water management requirements applicable in state waters in addition to the requirements in the VGP. Vessels operating in these states must comply with state specific requirements.
Specifically with regard to California, in addition to federal requirements, California’s Marine Invasive Species Act includes additional ballast water management requirements for vessels over 300 gross tons. Vessels must use one of the following ballast water management options:
Vessels arriving from outside the Pacific Coast Region and vessels with ballast water originating from an EEZ outside the Pacific Coast Region must exchange ballast water more than 200 nm from land in waters at least 2,000 m deep. Vessels arriving from within the Pacific Coast Region with ballast water from the Pacific Coast Region must exchange ballast water more than 50 nm from land in waters at least 200 m deep.
Notably, unlike federal ballast water management regulations which do not require a vessel to deviate from its voyage or delay the voyage in order to conduct ballast water exchange, California does not provide for such an exemption for vessel deviation. Vessels arriving at California ports must therefore conduct ballast water management in accordance with California regulations regardless of whether such management would result in deviation or delay of the voyage.
Vessels must also submit a Ballast Water Treatment Supplemental Reporting form upon departure from a California port or place along with the U.S. Coast Guard Ballast Water Reporting Form, annual California Ballast Water Treatment Technology Reporting and Hull Husbandry Reporting Forms.
ADVICE TO OWNERS AND OPERATORS
Owners and Operators should continue to review the option of either obtaining an extension from the Coast Guard or installing an AMS and consider the attendant risks associated with either option. In addition, owners and operators should monitor developments related to the Coast Guard’s work to type-approve BMWSs.