Stretching a Point
Euphoria has been short lived for ballast water treatment system makers as shipowners find ways to gain extra time beyond this year’s coming into force but some good news may be on the way as well. Finland’s ratification of the Ballast Water Convention during SMM last September was, as far as the IMO concerned, a welcome culmination to a 12-year marathon effort to garner signatures. For system makers it looked to be an end to the long wait they had endured to be able to begin recuperating development and testing costs and for shipowners and their representative bodies, it was seen as premature because of the unresolved issues surrounding the type approval process and the lack of US type-approved systems. When the Ballast Water Conventions was adopted by the IMO in 2004, the initial time frame for compliance would have seen the first newbuildings being required to fit systems in 2009 and ships built prior to 2009 fitting them when their IOPP certificate came up for renewal. By the end of 2015 all ships should have been equipped with compliant systems. However, by 2008 it had become apparent that while systems were beginning to achieve IMO type-approval the convention was still a very long way from obtaining sufficient ratifications for the needed 35% of the gross tonnage of the world fleet to be exceeded. The IMO agreed a one year deferment of compliance dates pushing the last two categories (ships built prior to 2009 with a ballast capacity below 1,500m3 and ships built prior to 2012 with a ballast capacity exceeding 5,000m) to a new 2017 deadline. Later still, with signatures still lacking the IMO was obliged to recommend that even if the original deadline had passed, ships would be allowed until the next renewal of the IOPP certificate. At the MEPC, Liberia one of the largest flag states that had ratified the convention, stated that with hindsight it may have made the wrong decision and proposed a new extended timetable for installation. That is a position that has been rejected by the IMO but which may change. So as things stand, ships will be obliged to fit systems after 8 September 2017 at the next renewal of their IOPP certificate. That certificate is issued for a period of five years and under the harmonised system of survey and certification (HSSC) rules is normally issued simultaneously with all the other SOLAS and MARPOL certificates a ship needs. The HSSC convention is an IMO document that was adopted in 1988 but did not come into effect until 2000. It was devised to help shipowners to synchronise the dates for all of the various documents so that they did not have to make a stream of visits to drydocks because documents were issued and expired at different times. Most, if not all, flag states have written HSSC requirements into their merchant shipping regulations. For some years now and in anticipation of an imminent coming into force of the ballast water convention, some astute shipowners have brought forward periodic drydockings which has had the effect of putting off the next renewal date of the IOPP. For some of those owners which took that action early, the time is coming around for the next renewal survey. Now a new strategy has been developed that shipowners are embracing enthusiastically and which some flag states have also begun to publicise if not promote. The strategy is something of a backward step to the days before HSSC and involves de-coupling (or as some flag states call it de-harmonising) the IOPP survey and certification date from the other certificates. Faced with a multi-million dollar cost for installing a ballast water treatment system, the possibility of just paying for an IOPP survey and certificate could be very attractive. Especially if the ship involved is within five years or so of a retirement date. Despite having signed up to the ballast water convention, it seems that some flag states are now quite willing to circumvent its requirements by allowing shipowners to de-couple the anniversary of the IOPP renewal from the normal five-year cycle. Norway and St Vincent were among the first to do so and they have now been joined by the Marshall Islands, Liberia and Panama as well as others. Almost certainly more states will follow suit although some will be doing so reluctantly. France for example has said in an official announcement ‘No requirement explicitly prohibits to bring forward/anticipate the IOPP renewal survey and issuance of the IOPP Certificate. However, such a practice would not be fully in line with the IMO HSSC which is implemented by France. Therefore, France cannot accept this as a general practice or principle. - The above general position from France does not forbid or exclude a case-by-case examination, based on well-founded and justified request from the Owner for a given ship’. It will be a brave decision for flag states to prohibit the practice because in many cases, the owner may just decide to change flags instead. Under present trading conditions, delaying the installation and cost of a ballast treatment system is sure to be attractive and there is sure to be a rush by shipowners to take advantage of the chance to put off the inevitable by a further five years. To do so they will have to arrange for the renewal survey to be undertaken before the 8 September so class societies and other recognised organisations look to be in for a busy period over the next nine months. When the IMO next meets at MEPC71 in July, the fact that they have been presented with a fait accompli in the delaying process may either tip them in the direction of accepting Liberia’s new timetable or it could sway them to stick with the current schedule knowing that owners have been given a way round it already. Either way it seems that shipowners have found a delaying tactic and since there are moves afoot to begin the process of establishing regional exemption areas, some ships may now never need to install a system. This development is not one that will gladden the hearts of system makers who were cheering the news of Finland’s triggering ratification during SMM last year but for those makers that have completed the more rigorous US Type Approval and those that are near to doing so, the fact that the retrofit may now be delayed until 2022 may well see off any competitors who have not yet begun the expensive process. One of the reasons why the shipping industry was so keen on a delay was that when the convention was triggered and indeed at MEPC 69 when the date of 2017 was confirmed, there were no systems that had been granted US type-approval. The argument that fitting a system that may never be approved was a financial risk for an owner is a valid one and not negated by the number of ships with systems allowed under the US authorities’ AMS rules. On the other hand, it could be argued that ships which are never likely to trade to the US – and only about one in ten ever do – could not use that defence. The lack of US type-approved systems has been a constant problem that has required the USCG and the EPA to permit ships to operate with unapproved systems provided an exemption had been given. That is a situation that will soon be coming to an end. At the close of 2016, Optimarin became the first maker to achieve US type-approval for its system followed shortly afterwards by Alva Laval and OceanSaver. The first two were notable because they are both UV systems and there have been many accusations levelled at such systems questioning their effectiveness. Those questions come into two categories; method of disinfection is not always designed to kill but to render unviable and secondly the impact of turbid water. That two systems passed the notably rigid US type-approval tests shows that the problem has been exaggerated although issues may exist with some systems that employ low intensity UV irradiation. OceanSaver’s OBS, the third system to achieve type approval is an electrochemical system which have also had problems of their own to overcome centred around the PH value of the water being treated and ambient temperature. In early January, a second electrochemical system manufactured by the Chinese maker Sunrui was put forward for type-approval having completed all US testing, its acceptance had not been confirmed when this article was written. A growing number of systems with US type-approval has implications under the AMS rules for other system makers and ships with other systems installed. In mid-January this year, Rear Admiral Paul F Thomas, Assistant Commandant for Prevention Policy USCG laid out the current position in a statement. According to RAdm Thomas, because there are now type approved systems available the USCG has transitioned to a post-type approval extension regime. Whereas it was previously sufficient for a vessel owner/operator to document that, despite all efforts, compliance with one of the accepted ballast water management methods, including installation of a USCG type-approved system, was not possible, that is no longer the case. Now that three BWMSs have been type-approved, the USCG has changed the way it approaches such requests. Operators can no longer request an extension simply citing there is no USCG type-approved system available. That is not to say that shipowners must immediately install one of the three type-approved systems. Other factors that the USCG considers when evaluating extension requests include the lead time required to contract and install a USCG type-approved system, issues related to limited market and manufacturing capabilities, and limited shipyard capacity. The USCG will no longer accept batch applications for extensions; instead, each vessel must be evaluated individually. RAdm Thomas said the USCG has received over 13,000 requests for extensions to vessel compliance dates, granted just under 12,000 requests and recently denied 9 requests. Due to the volume of these requests and time that it takes to review them, it is extremely important for shipowners to pay close attention to the extension requirements. An extension request must be submitted at least 12 months prior to the vessel’s compliance date, and supplemental requests must be filed 90 days before the termination date specified in the previous extension. Supplemental requests will be granted only for delays caused by unforeseen circumstances or situations beyond the control of the owner or operator. Vessels with an IMO type-approved system that has been accepted as an Alternate Management System (AMS) will likely not receive an extension because they are already considered to be compliant. USCG rules allow vessel to use an AMS for up to five years past the vessel’s compliance date. With systems now beginning to be type approved and the USCG transitioning to a new regime, the time may be running out for owners to fit an AMS system. One interpretation of the current regulation is that an owner contracting for an AMS system before the rules change for fitting at a future date before the extension permitted an individual ship expires may be able to delay fitting until as far in the future as 2027. That is not guaranteed and as more systems gain US type-approval a new regime altogether may be put in place. It is even possible that the USCG may soon accept the testing method for organism viability that it has so far rejected. In late January The Commercial Vessels Incidental Discharge Act introduced by five senators including Marco Rubio was passed by the Commerce, Science, and Transportation committee tasked to study it. it now needs approval to be passed for a vote in the house. After which there are other debating stages before it could be presented to the President for signature. If it successfully completes its voyage through the US judicial process, the Act could permit acceptance of the Most Probable Number (MPN) testing method as well as the vital stain method that the USCG has insisted upon as the only acceptable method to date. The MPN method is used by most testing facilities approving systems to IMO rules and has allowed lower intensity UV systems to gain approval. The vital stain method demanded by the USCG is said by proponents of the MPN method to be unable to distinguish between viable and unviable organisms. To meet the ‘kill’ standard that the US rules presently demand, a higher intensity UV radiation is needed which in turn means the IMO approved systems require modifications and even design changes. At this moment it is not possible to predict if the bill will be successful or if it is what the timetable through the house and senate might be. However, the wording of the Act allows for a maximum 60 days for all testing systems to be publicised after which there is a 60 period allowed for public comment followed by a further period of maximum 30 days for the final ruling to be published. On that basis a late Spring date would not be impossible.