Jonathan K. Waldron, Jeanne M. Grasso, and Stefanos N. Roulakis
Action Item: Although the ratification of the IMO’s Ballast Water Convention will not alter U.S. compliance obligations, industry stakeholders must now consider their obligations under international law to ensure compliance with both regimes. Until the U.S. Coast Guard type-approves a ballast water management system (“BWMS”), owners and operators of both U.S. and foreign-flag vessels trading in U.S. waters should take steps to evaluate the compliance obligations under both regimes before making capital investments in BWMSs that may not comply with U.S. law.
With the accession of Finland, the International Maritime Organization’s (“IMO”) International Convention for the Control and Management of Ships’ Ballast Water and Sediments (the “Convention”) has met the threshold for ratification and will enter into force on September 8, 2017. Many have questioned whether the U.S. Coast Guard, the agency charged with implementing U.S. ballast water standards, and the IMO will harmonize their testing protocols so that ship owners can buy one BWMS and feel confident that they will be able to comply with both regimes. The U.S. Coast Guard, however, recently confirmed that it does not plan to change its approach to regulation of ballast water. While this does not preclude harmonization, any resulting delays may be challenging. Accordingly, U.S. flag vessels and other vessels that trade in U.S. waters will still need to comply with the U.S. Coast Guard requirements for ballast water management, which may differ somewhat from IMO requirements.
After decades of research, debate, and consensus-building, the IMO adopted the Convention on February 13, 2004. Prior to Finland’s accession, 51 countries had ratified the Convention, fulfilling the minimum of 30 required. However, for the Convention to come into force, 35 percent of the world’s registered gross tonnage had to be represented among the Parties. This long proved to be a barrier to the Convention coming into force, but Finland’s accession provided the required tonnage after more than 12 years.
As we have covered in past advisories and articles (March 2016, November 2015), the U.S. Coast Guard’s Final Rule for Standards for Living Organisms in Ships’ Ballast Water Discharged in U.S. Waters (the “Final Rule”) went into effect on June 21, 2012. The Final Rule applies to all vessels equipped with ballast tanks operating in U.S. waters. In order to discharge ballast water into U.S. waters (i.e., generally within 12 miles of the U.S. coast), vessels are required to use an approved ballast water management method in accordance with a phased-in schedule based on their ballast water capacity. Under the Final Rule, vessels have five options to achieve compliance: (1) installing a U.S. Coast Guard type-approved BWMS; (2) installing an IMO approved and U.S. Coast Guard authorized Alternative Management System (“AMS”); (3) using water from the U.S. public water system; (4) using shoreside reception facilities; or (5) not discharging ballast water in U.S. waters. None of these options are practical for most ships trading in the United States.
No BWMS systems have been type approved by the U.S. Coast Guard, although three complete applications have been recently submitted for type approval, with others undergoing testing. Understandably, vessel owners have been reluctant to invest in BWMSs that may not ultimately obtain U.S. Coast Guard type approval, resulting in over 11,000 requests for extensions of compliance dates to date. At the same time, the three recent complete type approval applications signal that type approvals may be on the near horizon, and that the U.S. Coast Guard may be close to granting a type approval, likely this year. One of the key differences between the IMO regime and the U.S. Coast Guard regime centers on the testing standard for BWMSs and the interpretation of “viable” and “living.” In particular, while the IMO’s metric centers on the number of “viable” organisms, the U.S. Coast Guard’s metric is based on “living” organisms. This principally has led to a “conundrum” for vessel owners and operators when trying to comply with both regimes as there is no guaranty that the BWMSs currently on the market will satisfy the more stringent U.S. Coast Guard testing requirements.
Once the U.S. Coast Guard type approves some BWMSs, the extension program will have to be modified to ensure a measured and practical path to compliance. According to the U.S. Coast Guard, it intends to issue a Marine Safety Information Bulletin, which will confirm that any extensions issued will be honored through their expiry, which will buy owners and operators some time. In addition, it will provide guidance related to increased documentation requirements to demonstrate the inability to comply in order to obtain additional extensions, based on such things as the appropriateness of the BWMS for a particular ship, the availability of that BWMS, and the availability of a shipyard to install the BWMS in a timely manner, if it is appropriate for that ship.
Stakeholders are not likely to be comforted by the U.S. Coast Guard’s assurances that its approach to regulating ballast water endeavors to avoid “disrupt[ing] the continuous flow of maritime trade which drives the global economy.” The fact that the U.S. Coast Guard signaled that it would continue an independent course in regulating ballast so soon after ratification of the Convention indicates that the process in harmonizing testing standards between the United States and the IMO may continue to be difficult and may be months, if not years, away.
Further, the fact that the U.S. Coast Guard has yet to type approve a BWMS more than four years after promulgation of the Final Rule gives owners and operators little time to make appropriate plans. While some flag states are offering innovative solutions to move up the date for the renewal survey for the vessel’s International Oil Pollution Prevention (“IOPP”) Certificate, which triggers compliance with the Convention, to allow more time to comply, this is a stopgap measure that is not a substitute for the global consistent approach to managing ballast water that the Convention intended to bring about.
Regardless, given the lack of agreement between the U.S. Coast Guard and the IMO and the imminent coming into force of the Convention, industry stakeholders must prepare to enter into compliance with both the Final Rule and the Convention. Given the cost and risk associated with installing a BWMS without a U.S. Coast Guard type approval, vessel owners and operators must evaluate their options to maintain compliance.
With the upcoming entry into force of the Convention, vessel owners and operators must face not only the large costs of installing BWMSs, but also ensuring compliance with two different regimes that are not wholly compatible at this time. Getting a compliance date extension from the U.S. Coast Guard and seeking approval from flag states and classification societies to move up the IOPP renewal survey may provide an additional window of time in which to comply with the Convention and the U.S. Coast Guard requirements. Hopefully a bit more time will provide owners and operators with the necessary tools to make reasoned decisions to ensure compliance with both regimes in a cost-efficient manner.