What happens with any non-compliant fuel oil remaining onboard a ship when arriving at the next port of call after submitting a Fuel Oil Non-Availability Report (FONAR)? The first option is debunkering, but what if that’s not possible at the ship’s first, second or even third port of call? The answer to this question is not very clear-cut and largely leaves that decision to the discretion of the port State where the ship has arrived. If that port State isn’t able to facilitate debunkering, it has to find another acceptable solution in consultation with the ship and the ship’s flag State. Let’s assume that the ship was able to buy compliant fuel for its next voyage, but if it can’t dispose of the remaining non-compliant bunkers prior to departure, that ship will be in violation of the carriage ban as of 1 March 2020.
IBIA was a co-sponsor with Australia and the US on a practical proposal, MEPC 74/10/7, on how to manage any non-compliant fuel oil remaining onboard when arriving at the next port of call after submitting a FONAR. Ships will typically have some fuel left due to taking a safety margin when bunkering. Our paper built on discussions held at the 6th session of the IMOs Sub-Committee on Pollution Prevention and Response (PPR 6) and proposed a hierarchy of options, starting with debunkering, but if debunkering could not be facilitated, the relevant authorities may agree to allow the ship to burn the remaining non-compliant fuel on the high seas on the way to its next port of call. India had submitted a similar proposal, MEPC 74/10/1.
Both documents proposed this as a contingency measure with a clear expiry date, recognising that non-availability situations may occur quite frequently in the first 6-12 months after the global 0.50% sulphur limit takes effect; and that debunkering is a complex operation which also requires the ability to provide appropriate ship or shore-based facilities for receiving such fuels.
If a ship arrives at a port that cannot support a debunkering operation within a reasonable time-frame, it would be unfair to prevent the ship from continuing on its journey because the MARPOL signatory state failed to facilitate safe discharge of the non-compliant fuel oil. Debunkering is not widely practiced today, hence our concern is that ships could be stuck with a portion of non-compliant fuel for a long time, which is a big problem for ships with limited segregated fuel tank capacity.
During discussion of these documents at the 74th session of the IMO’s Marine Environment Protection Committee, both received significant support, but the majority of member states that spoke would not approve a proposal that could allow, even if only in very specific circumstances, for non-compliant fuel remaining on board after a FONAR has been submitted to be consumed at sea, despite this option having an expiry date. Many countries insist that debunkering is the only acceptable option.
Instead of allowing for some flexibility for a short period, as proposed in the two documents, MEPC will be issuing a general circular on how to deal with all non-compliant fuel regardless of how they came to be on the ship. It could be due to a non-availability situation where the ship has issued a FONAR, but it could also arise from a ship having fuel exceeding 0.50% sulphur because its compliant fuel has been contaminated by high sulphur fuel oil residues due to insufficient tank cleaning, or due to an ‘off-spec’ where the actual sulphur content is not in line with that stated on the bunker delivery note.
This circular will contain the IMO’s “Guidance for port State control on contingency measures for addressing non-compliant fuel oil” – which describes certain steps starting with debunkering “if practicable and available” and after that “managing the non-compliant fuel oil in accordance with a method acceptable to the Port state” and, finally, cleaning and/or flushing through tanks to get rid of any remaining residues after all the non-compliant fuel oil has been completely used or discharged.
The standardised Fuel Oil Non-Availability Report (FONAR) form can be found as Appendix 1 in the “2019 Guidelines on consistent implementation of 0.50% sulphur limit under MARPOL Annex VI” adopted by resolution MEPC.320(74) available here.
In addition, the “2019 Guidelines for port State control under the revised MARPOL Annex VI” (updating the 2009 version) adopted at MEPC 74 contain instructions for PSC on how to investigate FONARs. The point of is that FONARs won’t be taken at face value if something doesn’t look right and the ship could/should have done better.
It’s important to note that FONARs are not exemptions. The FONAR is a mechanism for a ship to self-report non-compliance and requires the ship to provide detailed documentation to prove that it could not obtain compliant fuel despite its best efforts. PSC is expected to take it into account as a mitigating circumstance and could decide that the ship won’t be penalised, but it will nevertheless be reported as a deficiency.
Ultimately, it’ll be up to each country how they actually deal with and enforce FONAR situations and we can only hope that authorities strike the right balance between deterring ships from trying to exploit non-availability to use cheaper non-compliant fuels, while also recognising that there will be times when it could not get hold of compliant product despite its best efforts.