Tag: MARPOL

Regulatory Developments: Maritime Emissions

Vanessa C. DiDomenico ●

Maritime environmental regulations have become increasingly prominent internationally as concerns over climate change and air pollution intensify. The shipping industry is under mounting pressure from governments, environmental organizations, and the public to reduce its environmental footprint. This pressure is compounded by the complexity of navigating a rapidly evolving regulatory landscape, making compliance a critical and challenging priority for maritime stakeholders. International cooperation has been essential in shaping these regulations, as countries and organizations work together to establish unified standards and enforcement mechanisms.

Specifically, the International Maritime Organization (“IMO”) has introduced several amendments to MARPOL Annex VI (emissions) that are entering into force within the next few months and are expected to significantly influence vessel operations and compliance strategies worldwide. These regulatory developments are expected to have far-reaching effects on global shipping practices, driving innovation and operational changes across the industry. Below is a selection of recent and upcoming maritime emissions-related regulatory developments, which demonstrate the global impact and growing importance of these regulations.

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The Arctic Shipping Frontier: Regulatory and Operational Challenges to Consider

Vanessa C. DiDomenico ●

Heavy fuel oil (“HFO”), commonly known as bunker fuel or residual fuel oil, has been widely used by vessels for decades due to its low cost and ready availability. However, due to its high sulfur and heavy metal content, the International Maritime Organization (“IMO”) has steadily enacted regulations to limit the sulfur content in fuels, and the ability to burn or carry HFO in sensitive areas, such as the Arctic.

Recently, on July 1, 2024, an international ban on the use of HFO in the Arctic went into effect. This ban, implemented by resolution MEPC.329(76), was adopted on June 17, 2021, by the IMO’s Marine Environmental Protection Committee. The resolution amended Annex 1 of the International Convention for the Prevention of Pollution from Ships (“MARPOL”), adding Regulation 43A, “Special requirements for the use and carriage of oils as fuel in Arctic waters.” Regulation 43A prohibits the use and carriage for use as fuel of oils having a density at 15°C higher than 900 kg/m3 or a kinematic viscosity at 50°C higher than 180 mm2/s in Arctic waters.[1] However, there are several exemptions and waivers to the HFO ban. First, ships engaged in securing the safety of ships, or in search and rescue operations, and ships dedicated to oil spill preparedness and response are exempt. Additionally, ships that meet certain construction standards[2] for fuel oil tank protection, must comply on or after July 1, 2029. Lastly, a Party to MARPOL with a coastline bordering Arctic waters may temporarily waive the requirements for ships flying its flag while operating in waters subject to that Party’s sovereignty or jurisdiction through July 1, 2029.

With increasing geopolitical tensions affecting shipping lanes in the Middle East, the possibility exists more ships may consider using the Northern Sea Route through Arctic waters to avoid risks near areas in conflict. In fact, according to the Arctic Council Working Group on the Protection of the Arctic Marine Environment (“PAME”), “[t]he number of unique ships entering the Arctic Polar Code area from 2013 to 2023 increased by 37%, [to] around 500 ships.”[3]

The Northern Sea Route, most commonly used in September between the western part of Eurasia and the Asia-Pacific region, is shorter than the journey through the Suez Canal, or detour around Africa’s Cape of Good Hope. Yet that route presents its own regulatory and operational considerations. In particular, as discussed above, ship owners and operators must ensure their vessels meet the construction standard requirements of Regulation 43A to use HFO or use alternative fuel to remain compliant. Additionally, the sensitive Arctic environment imposes more stringent requirements in other MARPOL Annexes, such as Annex II, control of pollution by noxious liquid substances in bulk; Annex IV, sewage; and Annex V, garbage. Vessel owners and operators should also ensure compliance with the operational and structural requirements of the Polar Code when operating in this region.

Notably, due to the harsh weather conditions, and limited aid in the region, operating in the Arctic requires specific compulsory vessel documentation and certificates, training and manning, and life-saving appliances, among other prerequisites. As political forces shift maritime trading patterns, vessel owners and operators should exercise added due diligence in evaluating their vessels’ ability to meet the regulatory and operational requirements for transiting the Northern Sea Route, which, while now open, at times remains an unforgiving realm.

[1] Arctic waters are defined in MARPOL Annex 1 Regulation 46.2.

[2] MARPOL Annex I, Regulation 12A; or Polar Code Chapter 1, part II-A, Regulation 1.2.1.

[3] PAME, Arctic Shipping Update: 37% Increase in Ships in the Arctic Over 10 Years, (Jan. 31, 2024), available at: https://arctic-council.org/news/increase-in-arctic-shipping/.

EPA’s Long-Anticipated VIDA Proposed Rule Now Available

Jeanne M. Grasso and Dana S. Merkel

NEW DEVELOPMENT

The U.S. Environmental Protection Agency (“EPA”) made available its long-anticipated standards for discharges incidental to the normal operation of vessels pursuant to the Vessel Incidental Discharge Act (“VIDA”) on October 6, 2020. Signed into law on December 4, 2018 as part of the Frank LoBiondo Coast Guard Authorization Act of 2018, VIDA established a new framework for the regulation of discharges incidental to the normal operation of vessels in an attempt to bring consistency and certainty to the regulation of discharges from U.S.- and foreign-flag vessels.

The first step in implementing VIDA requires EPA to develop federal performance standards for “marine pollution control devices,” which includes any equipment or management practice (or combination thereof) to manage incidental discharges from vessels. After some delays, EPA posted its notice of proposed rulemaking on October 6, available here, to set standards for 20 types of vessel discharges incidental to normal operations. The program implemented under VIDA will replace EPA’s Vessel General Permit and certain U.S. Coast Guard (“USCG”) regulations for ballast water a few years from now, after the USCG finalizes regulations to implement EPA’s standards, including compliance, monitoring, inspections, and enforcement.

BACKGROUND

VIDA was the culmination of years of discussion, debate, and litigation concerning discharges incidental to the normal operation of vessels. Although back in the 1970s EPA initially exempted these discharges from the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”) permitting program due to the burden of permitting every vessel entering U.S. waters, a federal court ruled in 2006 that EPA must issue permits for vessel discharges. In response, EPA developed the 2008 Vessel General Permit (“VGP”). The 2008 VGP was eventually replaced by the 2013 VGP, which contained some more stringent requirements, such as numeric limits on ballast water discharges, a requirement to use environmentally acceptable lubricants, and new monitoring requirements for ballast water, bilge water, and graywater.

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Electronic Recordkeeping—The Maritime Industry, Including in the United States, Sails Forward

Jeanne M. Grasso and Dana S. Merkel

NEW DEVELOPMENT

Long-awaited amendments to the International Convention for the Prevention of Pollution from Ships (“MARPOL”) entered into force on October 1, 2020, which expressly permit the use of electronic record books for certain MARPOL required logs. Although the United States reserved its decision regarding adoption of the amendments when they were approved by the International Maritime Organization (“IMO”) in May 2019, the United States ultimately accepted their adoption in accordance with the tacit acceptance procedure. Nonetheless, it is yet unclear how the amendments will be implemented in the United States or what additional security safeguards the United States may require. Bottom line, this is a significant and welcomed development.

BACKGROUND

Electronic record books have been the subject of much debate and consideration at the IMO and within the United States for a number of years. During MEPC 74 in May 2019, amendments were approved, revising MARPOL Annexes I, II, V, and VI to allow the use of electronic record books approved by the vessels’ Administration for the Oil Record Book (“ORB”), Cargo Record Book, Garbage Record Book, and Annex VI air pollution prevention recordkeeping requirements. In adopting the amendments, the IMO stated the use of electronic record books “should be encouraged as it may have many benefits for the retention of records by companies, crew, and officers.” These amendments entered into force on October 1, 2020, although a number of flag States believed the previous MARPOL language provided them with the discretion to allow the use of electronic record books and had already approved their use on vessels for some years. Even so, the permissibility of using electronic record books to meet MARPOL requirements is now clear.

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New Developments in MARPOL Annex VI Compliance and Implementation

Jeanne M. Grasso, Jonathan K. Waldron, and Dana S. Merkel

 

The International Maritime Organization (“IMO”), in preparing for the global 0.5 percent fuel oil sulfur limit, recently adopted an amendment to MARPOL Annex VI to support consistent implementation and enforcement of the new requirement. At the same time, the IMO rejected a proposal for an “experience building phase” during the first months of implementation. This put to rest any rumors of a delay in implementation. Meanwhile, the U.S. Coast Guard published procedures by which owners may seek authorization to operate engines that do not meet MARPOL Annex VI NOx Tier III requirements for qualified vessels.

New Developments

The IMO adopted an amendment to support consistent implementation of the forthcoming 0.5 percent limit on sulfur in ships fuel oil on October 26, 2018, during the recent session of its Marine Environment Protection Committee (“MEPC 73”). This amendment, effective on March 1, 2020, prohibits the carriage of non-compliant fuel oil for use on the vessel unless the vessel is outfitted with an exhaust gas cleaning system, often referred to as a scrubber. The amendment does not alter the January 1, 2020 implementation date for the 0.5 percent sulfur limit.

Also related to MARPOL Annex VI, the U.S. Coast Guard published an enforcement Work Instruction formally addressing how the U.S. Coast Guard will enforce the Annex VI nitrogen oxides (“NOx”) Tier III standards within the North American and U.S. Caribbean Sea Emission Control Areas (“ECAs”). See Exercise of Enforcement Discretion with Regard to MARPOL Annex VI Regulation 13.5.1.2; CVC-WI-014(1) (October 17, 2018). Because engines meeting the NOx Tier III standards were largely unavailable after the Tier III standards took effect in 2016, the U.S. Coast Guard is allowing impacted vessels to instead be certified as meeting U.S. Environmental Protection Agency (“EPA”) Clean Air Act Tier 3 requirements pursuant to 40 C.F.R. Part 1042. Once individually recognized by the U.S. Coast Guard, such engines may be used indefinitely, even after NOx Tier III compliant engines become available.

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