Ballast Water Management Convention enters into force imminently: recent developments

Ballast
The IMO International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004 (“the Convention”) now has 61 contracting states, representing 68.46% of the world merchant shipping fleet. With the Convention entering into force on 8 September 2017, the IMO’s Marine Environment Protection Committee (“MEPC”) has agreed a new implementation schedule for ballast water treatment system requirements for existing vessels to give shipowners up to two years of additional time to comply with the Convention’s requirements and providing the international shipping community with certainty as to the required compliance dates for the treatment of ballast water.

The Convention, which was adopted in 2004, aims to establish an international regime to regulate ballast water management to prevent, reduce and control pollution to the marine environment. Once the Convention enters into force, all vessels will need to comply with various requirements, from having on board and implementing a Ballast Water Management Plan (Regulation B-1), to having on board a Ballast Water Record Book (Regulation B-2) to needing to carry out Ballast Water Management and Ballast Water Exchange in accordance with certain standards (Regulation B-3 and B-4). The Convention also imposes an obligation on signatory countries to apply the requirements of the Convention on non-signatory countries “as to be necessary” to ensure that non-signatory countries are not given more favourable treatment.

Under the Convention, all relevant vessels are required from, 8 September 2017 onwards, to carry out ballast water exchange at least 200 nautical miles from the nearest land and in water at least 200 meters in depth, if possible. If this is not possible, the ballast water exchange must take place as far as possible from the nearest land and, in all cases, at least 50 nautical miles from the nearest land and in water of at least 200 meters in depth (Regulation B-4 and Standard D-1). This regime is only designed to be a temporary solution and it is envisaged that eventually all the relevant vessels will have to have on board an IMO-certified Ballast Water Treatment System (“BWTS”). The requirement of a BWTS is known as Standard D-2.

Originally, the Convention required all new vessels to be fitted with an IMO approved BWTS and all existing vessels to have one fitted by the first International Oil Pollution Prevention (“IOPP”) survey drydocking after the Convention enters into force. Regarding existing vessels, when the Convention was adopted in 2004, it contained a gradual implementation schedule providing for approved systems to be installed by the end of 2016. However, as that schedule expired before the Convention has even entered into force, the issue arose as to whether shipowners should be given more time to comply with these requirements.

This was discussed during the IMO’s Marine Environment Protection Committee (“MEPC”) 71st meeting, which took place in July 2017. Many countries made submissions calling for a two-year delay on the application of the Convention to existing ships. Japan, however,  has already incorporated the Convention into its domestic legislation and submitted that the extension would have negative effects.

After deliberation, MEPC 71 reached an agreement on amending the required deadlines for compliance with Standard D-2, and the relevant dates are now as follows:-

  • All vessels constructed (i.e. with their keels laid) on or after 8 September 2017 will need to have a BWTS installed and comply with Standard D-2 on delivery.
  • All vessels constructed before 8 September 2017, but delivered after that date, will need to have a BWTS installed and comply with Standard D-2 by the first IOPP renewal survey.
  • All existing vessels are required to comply with Standard D-2 by the first IOPP renewal survey after 8 September 2017 if:-
    • that survey is completed on or after 8 September 2019; or
    • a renewal survey was completed on or after 8 September 2014 but prior to 8 September 2017.
  • All vessels that have their first IOPP renewal survey after the Convention has entered into force, but before 8 September 2019, and did not have one between 8 September 2014 and 8 September 2017, are required to comply with Standard D-2 by their second IOPP renewal survey following the entry into force of the Convention.
  • All vessels constructed before the entry into force of the Convention that do not have to have an IOPP renewal survey must comply with Standard D-2 by no later than 8 September 2024.

It is also worth noting that the IMO has said that vessels having their IOPP renewal surveys due after 8 September 2019 are not allowed bring a renewal survey forward in order to “buy” a further five years before they are required to comply with Standard D-2.

This new implementation schedule clarifies the dates by which shipowners with current vessels need to have a BWTS installed and eases the pressure on the shipyards and other facilities where installation can take place, as well as on the manufacturers of the systems themselves. The new schedule approved by MEPC is expected to be officially adopted at the next MEPC meeting in April 2018. In the meantime, all parties were requested to acknowledge the new implementation schedule.

However, as the USA has a regime that is separate from the Convention, and that imposes more stringent conditions on BWTS in order for those to be US Coast Guard-approved, MEPC 71’s outcome has no bearing on the applicable US legislation. Therefore, shipowners whose vessels trade in the US will still need to ensure that they comply with the ballast water management requirements imposed by current US legislation.

In addition to setting out the new timetable for compliance with Standard D-2, the MEPC  focussed on the implementation of the Convention in general. For example, it adopted the 2017 Guidelines for ballast water exchange; approved a manual on “Ballast Water Management – How to do it”; approved a circular on application of the Convention to ships operating in sea areas where ballast water exchange in accordance with regulations B-4.1 and D-1 is not possible; and granted final approval to one, and basic approval to two, BWTS.

Pavlo Samothrakis, Anna Fomina, Monika Humphreys-Davies

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