Some unresolved issues remaining around IMO 2020 non-availability situations
A standard IMO format for reporting non-availability of compliant fuel oil has been developed along with guidelines for how such reports should be investigated by authorities, but there is no resolution yet regarding how to deal with any bunkers exceeding the 0.50% sulphur limit remaining on board a ship once the carriage ban takes effect. Many member states insist it must be debunkered at the first port of call; however in reality this may not always be possible. The subject was discussed at length during the 6th meeting of the IMO’s Sub-Committee on Pollution Prevention and Response (PPR 6), which agreed on a standard IMO format for a Fuel Oil Non-Availability Report (FONAR).
The FONAR, forming part of a comprehensive set of IMO guidelines for consistent implementation of the 0.50% sulphur limit, will be sent for approval by the Marine Environment Protection Committee in May (MEPC 74).
The FONAR requires a ship to provide detailed documentation to prove why it has, knowingly, taken onboard fuel oil exceeding the relevant MARPOL Annex VI sulphur limits (0.10% or 0.50%). The ship must document that it has made every effort to obtain compliant fuel oil. It can also claim that operational constraints and concerns about the quality of the compliant fuel oil available caused it to take an alternative, non-compliant fuel. This quality clause has been called a “loophole” by some, however, it is important to note that any such concerns would have to be thoroughly documented and a ship would also be expected to specify steps to resolve its operational constraints. In fact, it is difficult to imagine a scenario when a ship might choose to use a non-compliant heavy fuel oil in lieu of a 0.50% compliant marine distillate or fuel oil blend due to operational constraints, unless it can convincingly document that the compliant fuel available would be unsafe to use.
Moreover, the idea that a FONAR is some kind of “get out of jail free” card is misconceived. It is a mechanism for the ship to self-report non-compliance. Port State control is expected to take it into account as a mitigating circumstance and may refrain from penalising the ship; however, the ship will still have a deficiency as it is still non-compliant. The more deficiencies a ship has in its records, the higher the chances of the ship being inspected more frequently. Repeated use of FONARs is also likely to cause suspicion of abuse and hence closer investigations of the ship.
Another situation where clarity is lacking is how to deal with the situation where a ship has a bunker delivery note (BDN) that says the fuel is compliant, but the ship’s own test programme results clearly suggest it is not. This is not covered by the FONAR because the ship thought it had procured compliant fuel oil.
Work also remains with regards to how to reflect FONARs on the IMO’s reporting area, GISIS (Global Integrated Shipping Information System), which already has a module for reporting non-availability of compliant fuel oil. Looking at the current GISIS module, improvements can be made, including efforts to verify the information submitted.
Concrete proposals have been invited to MEPC 74 to address unresolved issues and improvements the GISIS modules.