Regulation - Gathering experience
Since the last edition of this guide was published, there have been two meetings of the IMO’s Marine Environment Protection Committee (MEPC) where the question of ballast water regulation was a main agenda item. There will be another in May this year when it will again be discussed.
At MEPC 72 in April 2018 it was agreed that, with the Ballast Water Management Convention having come into force in September 2017, a review and amendments would likely take place in the Autumn of 2022. This would allow for three years of data from an earlier experience-building phase (EBP) running from 2017 through to 2020 plus 18 months of analysis of data gathered after that.
Before Finland’s ratification of the convention in 2016 which triggered the coming into force a year later, there was some sign of rowing back by countries that had ratified the convention even earlier. Proposals for a delay were, though, ignored. However, at MEPC 70 in October 2016 – just a month after the triggering – a new proposal for alternative draft amendments that would allow for compliance by the second renewal survey in certain circumstances was put forward. It was agreed that the alternative proposal would be debated at MEPC 71 in July 2017.
Much to the dismay of most system makers, MEPC 71 did adopt the alternative proposal amending regulation B3 but although the coming into effect date of 8 September 2017 remained unchanged, the application to individual existing ships was changed.
For newbuildings, ships with a keel laying date before 8 September 2017 and delivered after that date, need to comply with the D-2 treatment standard at the first International Oil Pollution Prevention (IOPP) certificate renewal survey after delivery. This will mean that for such ships, the earliest date at which a system will be mandatory will be September 2022 but since some ships under construction may not be delivered for two years or more, the date will effectively be five years after eventual delivery.
Ships with a keel laying date on or after 8 September 2017 need to comply with the D-2 standard upon delivery, meaning they will need to be fitted with an onboard treatment system or make use of one of the alternatives such as no-ballast, making use of shore facilities or operating within a same risk area.
For existing ships (delivered prior to September 2017), the dates will vary depending on the IOPP renewal date. This will be the first IOPP renewal following entry into force if the survey is completed on or after 8 September 2019 or a renewal IOPP survey is completed on or after 8 September 2014 but prior to 8 September 2017.
Otherwise ships must be compliant on the second IOPP renewal survey following entry into force, if the first renewal survey following the date of entry into force of the convention is completed prior to 8 September 2019 and if conditions the conditions mentioned above are not met. Effectively this means that a ship which is due for an IOPP renewal survey between 8 September 2017 and 8 September 2019 cannot decouple its IOPP survey for a second renewal before 8 September 2019 without then having to comply with the D-2 treatment standard.
Small existing vessels which are not required to hold IOPP certificates (Oil tankers of less than 150gt and ships other than oil tankers of less than 400gt) will be required to install systems not later than 8 September 2024, although many of these could be exempted as they will not operate internationally.
One consequence of the revised schedule is that those owners that have already decoupled their IOPP certificate may have lost two years of possible postponement. On that basis their gamble may look not to have paid off, but given that some flag states were willing to accommodate owners looking to postpone by decoupling, there is a possibility that the flag states involved may agree to cancel the latest certificate and revert to the earlier certificate date.
The coming into force date of September 2017 does have implications regardless of whether a system is installed or not. All vessels without a system must continue to conduct ballast water exchange in accordance with Regulation D-1 and their approved ballast water management plan until such time as they are required to install a system and meet the D-2 ballast treatment requirements.
Under Regulation B-1, all ships must by now have on board an approved ballast water management plan and adhere to its requirements. The plan must be ship-specific and the crew must record all ballast water operations in a Ballast Water Management Record Book, recording all the information specified in Appendix II of the 2004 convention.
Codifying the TA process
One of the biggest criticisms directed at the IMO regulations has been that the G8 type-approval process has been far less robust and effective than it should have been. As a consequence, many of the systems being marketed were, in the opinion of end users and some experts, not up to the job. Some say that expensive installed systems may have to be removed and replaced for the ships involved to be compliant with the requirements of the convention.
MEPC 72, in April 2018, adopted a new Code for approval of ballast water management systems as well as amendments to the BWM Convention which mandate that systems be approved under this new BWMS Code. For followers of the ballast saga, there is nothing completely new in the code which is technically consistent with the 2016 G8 guidelines adopted by resolution MEPC.279(70), but it sets a mandatory cut-off date after which ballast treatment systems approved under earlier G8 processes cannot be installed on ships.
The code defines that systems should be approved in accordance with:
- the revised G8 Guidelines (as per MEPC.279(70)) are deemed to be in accordance with the code; and
- the earlier versions of the G8 Guidelines (MEPC.125 (53) and MEPC.174(58)) as of 28 October 2018, may continue to be installed* on board ships only until 28 October 2020.
*Through a new Unified Interpretation, ‘installed’ means the contractual date of delivery of the system to the ship or, in the absence of such a date, the actual date of delivery of the system to the ship.
As well as the delay to the installation schedule, MEPC 71 had also adopted amendments to the guidelines on same risk areas (SRAs). Despite some negotiations and discussions by groups of nations from the Baltic and South East Asian regions, no same risk area has yet been established.
The idea of same risk areas, where ships operate solely in areas where the same species exist, has been contained in the convention from the outset. Regulation A-4 contains provision for ships on short-sea voyages between specified ports or locations across international borders to be granted an exemption from installing treatment systems if it is decided that the risk of transfer of invasive species is acceptable. For an SRA to be established, a risk assessment should be carried out and Guideline G7 details the recommended process for this. Furthermore, regulation A-4 allows an exemption to be granted for multiple ships and voyages between specified ports and locations.
It is accepted that aquatic species and pelagic life stages of marine organisms may disperse naturally across international borders, irrespective of other vectors of transfer such as ballast water and there have been many arguments to the effect that risk assessments should have been carried out while the convention was in the ratification process.
There is now some movement to get the risk assessments underway and if such areas are established then ships operating exclusively in SRAs will not need to install treatment systems. Affected shipowners will no doubt be hoping that the delay to Regulation B-3 will allow some progress to be made in establishing SRAs before the installation dates for their ships arrive. Although some national governments have at least initiated discussions, it cannot be taken for granted that they will reach a decision in time and shipowner associations will come under pressure to lobby hard to speed things along.