US regulatory developments to April 2019

Updated 11 Oct 2019

Us Ballast 1

The different approaches to type-approval in the US and IMO processes has meant that there are far fewer systems approved by the US. Norwegian maker Optimarin was the first US-approved system gaining that status in December 2016 and by April 2019 this number had increased to 17.

While the IMO system of type-approval was in disarray and subject to much criticism, the US regime was held up as a better and more robust process, despite it not having any type-approved systems for a considerable period. The Alternate Management System (AMS) programme which permitted certain recognised and IMO approved systems to be operated in US waters for five years beyond their compliance dates until US approved systems became available, was a pragmatic solution to the problem.

In March 2017, the USCG issued its Marine Safety Information Bulletin MSIB 003/17 which laid out the future extensions permitted for vessels to fit approved systems. Under the new rules, vessels not fitted with an AMS and having a compliance date up to and including 31 December 2018 were permitted extensions of just 18 months if one of the approved systems is considered suitable.

If it is determined that no approved system is suitable, the shipowner must provide a strategy and date for compliance and an extension of up to 30 months may be allowed.

For vessels having a compliance date between 1 January 2019 and 31 December 2020, requests for extensions will be considered 18 months prior to the vessel’s compliance date but the USCG has warned that changes in the market or availability of US type-approved systems may impact the requests.

For ships with compliance dates of 1 January 2021 or later, the USCG has said it does not anticipate granting any extensions.

The situation in the US is a little confusing because some individual states retain the right to enact their own requirements with regard to ballast water. California is notorious as one of those states and it has enacted laws imposing discharge standards that are stricter than the US Federal rules. Because of a lack of available technology, the implementation dates have been delayed until 2020.

2018 USCG Authorization Act and its effects

The differences in the US and IMO type-approval processes were nowhere more marked than in the test methods used to determine the viability of organisms subjected to UV radiation. Much of this difference was due to the words used in the different regulations. Under IMO rules organisms surviving treatment were considered ‘viable’ whereas US rules used the word ‘living’.

Those responsible for testing had argued that an organism subjected to UV radiation might be ‘living’ but would not be ‘viable’ because it would have lost the ability to reproduce. Because of this, the results of testing methods used by many systems that had been given IMO type-approval were not acceptable to the US Coast Guard.

In mid-November 2018, the USCG Authorization Act was passed by the Senate with the Vessel Incidental Discharge Act (VIDA). The VIDA Bill included legislative language that amended the USCG regulations to allow for the use of reproductive methods for the testing and approval of ballast water management systems. The amendments explicitly expand the definition of ‘living’ to ensure that organisms that cannot reproduce (non-viable) are not considered to be living. Basically, organisms that cannot reproduce are as good as dead for the purposes of the regulation.

After receiving the signature of US President Donald Trump in early December 2018 the act effectively became the new law. It re-authorises USCG programmes and will almost certainly lead to changes in US ballast water management regulations and the US Vessel General Permit, which covers discharges of ballast water as well as other operational discharges from vessels.

A new VGP had been due to be put into effect in December 2018, replacing one that had been in force since 2013, but has been delayed by the Environmental Protection Agency (EPA) and there is a possibility that no new version will ever be released. The 2013 VGP will remain in force until a decision is made.

The new Vessel Incidental Discharge Act (VIDA), which forms part of the new USCG rules, gives the EPA responsibility for establishing standards for the discharge of pollutants from vessels and the USCG responsibility for prescribing, administering, and enforcing the standards. EPA has a two-year period to promulgate the new regulations after which the USCG has a 60- day window in which to review and concur with it. The new act does require that new rules cannot be any less stringent than current VGP or US ballast water regulations but it prevents individual states from enacting more stringent requirements without approval from the EPA.

The USCG was given 180 days to publish a draft policy letter describing ballast water treatment system type-approval testing methods and protocols for a public comment period. Within one year, the final USCG policy letter needs be published. Therefore, testing systems according to new protocols cannot begin until approximately late 2019.

The Act also authorised $50M a year for a new programme under the EPA for monitoring and responding to outbreaks of invasive species in the Great Lakes and to help develop ballast-control technologies for vessels in the lakes. An unrelated provision of the act will see the creation of a research centre in the Great Lakes to study the impact of oil spills in fresh water.

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