IMO 2020 compliance: it’s up to us to be good citizens
One of the concerns around implementation of the 0.50% sulphur limit has been, and continues to be, the need for effective enforcement to ensure a level playing field. Of course, we need deterrents, but IBIA would like to stress that while enforcement is up to the MARPOL Annex VI signatory states, compliance is up to the industry. Enforcement will probably be weak in some parts of the world, but that should not discourage industry from complying. After all, just because police aren’t constantly watching us, most of us do not commit crimes. That would make us criminals. We abide by the law because we want to be good citizens.
Sure, many drivers will break the speed limit if they know there is little or no risk of getting caught. We know that speed cameras help, as does the knowledge that police may show up and do speed controls at random. Some parts of the world already have similar controls in place to monitor compliance with sulphur limits, including ‘sniffer’ devices that play a similar role as speed cameras, and random spot checks on fuel samples from ships and/or bunker suppliers to test for sulphur. The European Union has established such regimes under the EU sulphur directive to uphold the 0.10% sulphur limit in emission control areas and for ships at berth in EU ports. I t has worked: compliance levels with the 0.10% sulphur limit in EU ports and ECAs has been good.
Many countries, even those that are party to MARPOL Annex VI, will not be able to enforce because they have haven’t transposed the regulation into national law. In some countries, port State control (PSC) will lack resources such as testing equipment, personnel and training to enforce effectively. However, the IMO is assisting with capacity building and training, and workshops have already been delivered with the support of Denmark and the World Maritime University.
In the meantime, those countries that have experience and/or resources to undertake thorough PSC checks may help by taking on a heavier burden in policing the IMO 2020 regulation, and because shipping is so international, most ships will eventually be checked.
The IMO has given us a tool that means breaking the rule will be harder than simply breaking the speed limit on the highways when there is no speed controls or cameras: the carriage ban.
Flag states have obligations
Apart from ships that have an approved exhaust gas cleaning system (EGCS) or scrubber, use of fuel exceeding 0.50% sulphur will be prohibited from 1 January 2020. That is hard to police and enforce on the high seas, although the ship’s flag State (if it is a signatory to MARPOL Annex VI) has a responsibility to ensure the ship complies. However, as of 1 March 2020, ships without scrubbers won’t even be allowed to carry fuel exceeding 0.50% in their fuel tanks. That will make enforcement significantly more straightforward as authorities, including port State control officers, only need to prove that the ship is carrying non-compliant fuel. This will start by checking documentation and, if they suspect non-compliance, they can take samples for testing.
No ship without a scrubber should have a bunker delivery note (BDN) indicating that it has lifted fuel above 0.50% sulphur after 1 January 2020, as that would mean both the bunker buyer and the supplier have acted in contravention of MARPOL Annex VI.
Ships must have BDNs for each product supplied to the ship documenting the sulphur content. They must also carry an International Air Pollution Prevention (IAPP) Certificate and, if using EGCS/scrubbers to comply, IAPP supplement showing it has “an equivalent arrangement approved in accordance with regulation 4.1 that is at least as effective in terms of SOx emission reductions as compared to using a fuel oil with a sulphur content limit value of 0.10% m/m (in ECA) or 0.50% m/m (outside ECA)”.
Appendix V of MARPOL Annex VI prescribes information to be included the bunker delivery note. This includes the name and IMO Number of the receiving ship, actual sulphur content and a declaration signed and certified by the fuel oil supplier’s representative that the fuel oil supplied is in conformity with regulation 18.3 and that the sulphur content of the fuel oil supplied does not exceed the relevant MARPOL Annex VI limit value, i.e. the ECA limit (0.10%) or the limit outside ECAs, i.e. 0.50% as of 1 January 2020.
There is a provision in the regulation regarding the BDN for supplying fuel to “the purchaser’s specified limit value, as completed by the fuel oil supplier’s representative and on the basis of purchaser’s notification that the fuel oil is intended to be used” either “in combination with an equivalent means of compliance” – in other words a scrubber – or “is subject to a relevant exemption to conduct trials for sulphur oxides emission reduction and control technology research”.
The regulation is clear. It requires bunker suppliers, if asked to provide fuel exceeding the 0.50% sulphur limit, to do so only on the basis of receiving a notification from the buyer that the fuel is intended to be used compliantly. There is no requirement on the supplier to check if this is the case – only to obtain a ‘notification’.
Bunker suppliers could, however, play a more active role in ensuring only ships with scrubbers, or a valid exemption to conduct trials, will receive high sulphur fuel oil (HSFO). They can, for example, check the IMO’s Global Integrated Shipping Information System (GISIS) and look for the MARPOL Annex VI module. Within this module, there is a tab for Regulation 4.2: equivalent compliance method; where you can search for ships by their IMO number to see if they have an approved scrubber. If the ship’s scrubber is very new, it is possible that it hasn’t yet been entered into the GISIS system (this is the responsibility of its flag State). The supplier could, in that case, ask for a copy of the IAPP supplement showing that the ship has an approved scrubber installed, or documentation proving that it has a valid exemption to conduct trials. Some suppliers are doing this as part of their counterparty due diligence checks.
The only other reason a ship without a scrubber could legitimately lift fuel above 0.50% sulphur would be due to a genuine non-availability of compliant fuel. If the ship has not been able to source compliant fuel it needs to provide sufficient evidence for that to its administration (flag State) and relevant authorities at its next port of call. The IMO 2019 Guidelines on consistent implementation of 0.50% sulphur limit under MARPOL Annex VI includes a standardised fuel oil non-availability report (FONAR). The FONAR is not an exemption, but authorities are expected to take it into account as a mitigating circumstance and could decide that the ship won’t be penalised for using non-compliant fuel when, despite best efforts, it wasn’t able to source it.
Some think this is unlikely to occur because of widespread global availability of MGO that meets the ECA sulphur limit, and a 0.10% sulphur product is, of course, also compliant with the 0.50% sulphur cap.
Let’s not forget that MARPOL Annex VI is there to protect our fellow citizens and our children by reducing harmful air pollution. Flouting the rules means those benefits would be lost. We need good citizenship and sensible actions to support the continuing improvement of our environment while ensuring that shipping continues to meet the need for global transportation of goods and maritime services for all.