Ballast Water Challenges Continue: Several New Things You Should Know

Jeanne M. Grasso

On December 2, 2016, the U.S. Coast Guard (“USCG”) reached a watershed moment in the implementation of its ballast water management regulations by announcing the first USCG typeapproved ballast water management system (“BWMS”), a filtration/ultraviolet system manufactured by Optimarin AS, based in Norway. This USCG typeapproval has been more than four years in the making, since the USCG’s Final Rule for Standards for Living Organisms in Ships’ Ballast Water Discharged in U.S. Waters went into effect on June 21, 2012 (“Final Rule”). On December 23, 2016, the USCG type approved two more systems—one ultraviolet system and one electro-chlorination system, manufactured by Alfa Laval Tumba AB in Sweden and OceanSaver AS in Norway, respectively.

These type-approvals represent a significant step forward towards compliance with U.S. law and the USCG’s Final Rule. The seascape has changed dramatically with these three typeapprovals, and owners/operators must evaluate whether these three BWMSs are appropriate for their vessels or whether other compliance options may be feasible. If none are appropriate, an owner/operator may still apply for an extension, thus extending a particular vessel’s compliance date. To recap, the compliance options that are now available are: 1) install and operate a USCG type-approved BWMS; 2) use water from a U.S. public water system; 3) use an International Maritime Organization-approved and USCG-authorized Alternate Management System (“AMS”) for up to five years from the vessel’s compliance date; 4) do not discharge ballast water into U.S. waters (i.e., within 12 miles of the U.S. coast); or 5) discharge ballast water to an onshore facility or to another vessel for purposes of treatment.

Prior to December 2, 2016, option 1 was not an option and, principally on that basis, over 13,000 vessels received extensions to their compliance dates from the USCG. Prior to December 2, extensions were fairly easy to obtain; post December 2, it is a whole new ball game.

  • To clarify the compliance issues and obligations, the USCG released the Marine Safety Information Bulletin (“MSIB”) 14-16 simultaneous with the first type-approval announcement, which provides useful guidance. Like before, the USCG may still grant an extension to a vessel’s compliance date if the owner/ operator documents that, despite all efforts, compliance with one of the five approved ballast water management methods is not possible. No longer, however, may an owner/operator simply say a type-approved BWMS is not available, since three are now available. As such, an owner/operator requesting an extension must provide the USCG with an explicit statement supported by documentation that installation of each type-approved system is not possible on each of their vessels. Batch applications will no longer be accepted—extension requests must be for individual vessels. Such documentation may include written correspondence between the owner/operator and the BWMS manufacturers confirming that systems are not available for installation until after the vessel’s compliance date; documentation that there are vessel design limitations with the type-approved systems currently available; documentation regarding safety concerns related to installing the type-approved systems currently available; and any other situation that may preclude a vessel from being fitted with a type-approved system, such as lack of shipyard availability.

The MSIB 14-16 and the USCG’s “Highlights and Tips” for
extensions also provide additional guidance on some key points,
as follows:

  • current extension letters will remain valid until the compliance date specified in the extension letter (it is important to note that extensions expiring on January 1, 2018, are not automatically extended to the vessel’s next drydock after that date);
  • extensions may still be granted, but only for the minimum time needed;
  • the status of submitted extension requests for vessels with compliance dates on or after January 1, 2019, will be changed from “received” to “held in abeyance” and the owner/operator will be required to submit documentation, if it still wants the extension, regarding why the type-approved systems are not appropriate for that particular vessel;
  • any vessel with an AMS may use that AMS for up to five years after the compliance date and the vessel’s compliance date will remain the same;
  • supplemental extensions must now be submitted at least one year in advance, rather than three months in advance as was the case prior to the type-approvals; and
  • priority will be determined based solely on the order an extension application is received and not based on urgency.

Based on the more stringent requirements for extensions, owners/operators must be diligent in planning for their upcoming compliance obligations and evaluating whether any of the three type-approved systems would be appropriate for their vessels. It is imperative that this evaluation be done well in advance of the compliance date, as any requests for extensions, including supplemental extensions, must be submitted at least one year in advance for vessels on an individual basis. Fleet requests or group requests will be rejected.

Finally, during the extension period, it is imperative that owners/operators not become complacent. Because compliance with ballast water requirements is a port state control priority, owners/operators must ensure that accurate ballast water records are maintained onboard their respective vessels, such as the ballast water management plan, ballast water exchange forms, the vessel’s current extension letter, and records verifying the date the vessel entered its last dry dock. Overall, while these typeapprovals are an incremental step in the right direction, it is still a long walk to compliance. Stakeholders therefore must ensure compliance with the shifting and complex ballast water regime or risk civil or criminal penalties.

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