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IMO 2020: guidelines for consistent implementation of the sulphur cap

Earlier in the year the IMO Marine Environment Protection Committee (MEPC) in its 74th session adopted a comprehensive set of guidance and guidelines to support the consistent implementation of the 0.50% limit on sulphur in ships’ fuel oil, which comes into force from 1 January 2020, including the 2019 guidelines for consistent implementation of the 0.50% sulphur limit under MARPOL Annex VI (Resolution MEPC.320(74)) (the Guidelines).

This article (the first in a series on the guidance issued by MEPC 74) considers some of the key elements of the Guidelines.

The purpose of the Guidelines – for use by flag and port states, owners, shipbuilders and fuel suppliers, as applicable – is to ensure consistent implementation of the sulphur cap and addresses the following matters:

Ship implementation planning for 2020
Impact on fuel and machinery systems
Verification issues and control mechanisms and actions
Fuel oil non-availability
Possible safety implications relating to fuel oils meeting the 0.50% m/m sulphur limit
Ship implementation planning for 2020

The Guidelines refer to MEPC 73, which agreed that flag states should encourage the development of implementation plans for ships flying their flags and approved guidance on the development of such plans (MEPC.1/Circ.878).

A ship implementation plan is not a mandatory requirement. However, it is strongly recommended that one is developed and tailored for each specific vessel. Even though, lack of a ship implementation plan or an incomplete ship implementation plan should not be considered as clear grounds for a more detailed inspection, authorities are entitled to take into account the existence (or not) and detail of any such document, when considering what (if any) control measures should be taken in case of non-compliance.

MEPC.1/Circ.878 lists various items the ship implementation plan (which should be relevant to the specific ship) could cover, including:

Risk assessment and mitigation plan (impact of new fuels)
Fuel oil system modifications and tank cleaning (if needed)
Fuel oil capacity and segregation capability
Procurement of compliant fuel
Fuel oil changeover plan (conventional residual fuel oils to 0.50% sulphur compliant fuel oil)
Documentation and reporting
It is advised that the plan includes a record of actions taken by the ship in order to be compliant by the relevant date.

Verification issues and control mechanisms and actions

This section of the Guidelines provides guidance in relation to actions to be taken by the flag and port states.

Survey and certification by flag states: when undertaking a survey, as required, the flag state should also verify that the ship complies with the implementation of the sulphur limit provisions and in particular check whether the ship carries compliant fuel for use based on the bunker delivery note (BDN) on board, other documents or by way of fuel oil samples. Such sample analysis should be carried out in accordance with ISO 8754:2003 by an accredited laboratory. Further, the flag state is to investigate any report of alleged violation made and inform the reporting party and the IMO of any action taken.

Control measures by port states: port states are to take appropriate measures to ensure compliance by way of initial inspections based on documents and other methods such as remote sensing and portable devices. If there are clear grounds to conduct a more detailed inspection, sample analyses and other detailed inspections can be undertaken. The samples to be analysed may be the representative samples provided with the BDN, MARPOL delivered samples, samples from designated sampling points or other samples obtained by the port state. All possible efforts should be made to avoid the ship being unduly detained or delayed; especially the sample analysis should not unduly delay the operation, movement or departure of the ship.

If non-compliance is established, the port state may prevent the ship from sailing until suitable measures to achieve compliance are taken, including debunkering. There are also reporting obligations of the non-compliance to the flag state. However, the port and flag state may permit a single voyage for bunkering of compliant fuel (with the agreement of the destination port authority) with the ship proceeding directly to the nearest bunkering facility appropriate to the ship.

All relevant circumstances (including the evidence presented by the ship) are to be considered in the determination of the action to be taken, which may include not taking any control measures. As mentioned, the flag state and the port state control authorities may take into account the implementation plan when verifying compliance and this is why it is important for every vessel to have a suitable and comprehensive implementation plan.

Fuel oil non-availability

As soon as it is determined that the ship/operator will be unable to procure compliant fuel oil (and preferably before the ship leaves the port/terminal where compliant fuel oil cannot be obtained) a fuel non-availability report (FONAR) is to be sent to the flag state and the competent authority at the relevant port of destination pursuant to Regulation 18 of MARPOL Annex VI. The Regulation requires that evidence is provided to support such a claim.

In particular, should a ship, despite its ‘best efforts’ to obtain compliant fuel, be unable to do so, the master/operator must present a record of actions taken in attempting to obtain compliant fuel, including attempts made to local alternative sources.

‘Best efforts’ include investigation of alternative sources of fuel oil prior to commencing the voyage. Ships are expected to prepare as far as reasonably practicable to be able to operate on compliant fuel, including fuel oils with different viscocity and different sulphur content, but not exceeding the regulatory requirements.

In general, compliance with the sulphur cap lies with owners. Issues could arise in the context of time charterparties, where it is charterers’ responsibility to supply the vessel with compliant fuel. There may be difficulties for owners in obtaining evidence/supporting documentation from charterers regarding the latter’s ‘best efforts’ to obtain compliant fuel. Further, it is not clear how ‘best efforts’ is going to be interpreted by the authorities (and there could be divergence based on jurisdiction) nor whether owners should make discrete enquiries to find compliant fuel, when those of charterers’ have failed. Therefore, it is strongly recommended that a time charterparty contains express wording to deal with these eventualities. In a voyage charterparty context, this is unlikely to be an issue, since owners are responsible both for the supply of fuel and compliance and therefore owners will be privy to the relevant information and evidence required.

Another important point to note is that a FONAR is not an exemption. The authorities at the destination port are to scrutinise the information provided and take action, as applicable. In case of repeated FONARs by the same ship/operator or insufficiently supported documentation, the authorities may require additional substantiation of the non-availability claims and the ship/operator may be subject to more extensive inspections or examinations while in port.

Appendix 1 to the Guidelines includes a FONAR template. It contains the following headings:

Particulars of ship (name/IMO number/flag)
Description of ship’s voyage plan (including last port of departure and ship’s location at the time of FONAR)
Evidence of attempts to purchase compliant fuel (requesting a description of actions taken to achieve compliance (including by way of alternative sources) and details of suppliers contacted)
In case of fuel supply disruption, details of port which ship was to receive compliant fuel
Operational constraints: if non-compliant fuel has been bunkered due to concerns of the quality of the available compliant fuel which would have caused operational / safety issues, such concerns should be thoroughly documented
Plans to obtain compliant fuel
Previous FONARs: if owners/operator have submitted a FONAR to the country in question in the previous 12 months, a list of the FONARs previously submitted (including information of dates and ports visited while using non-compliant fuel) is to be provided
Master / Company information
A copy of the FONAR is to be kept on board for inspection at least for 36 months. If it appears that there is a pattern of reliance on FONARs, as mentioned above, the relevant authorities may subject the vessel to more cumbersome inspections.
Source: Hill Dickinson LLP – Chris Primikiris

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