High sulphur bunker carriage ban: Concerns about clarity on exemptions discussed at PPR 5

The proposed change to MARPOL Annex VI to make it an offence to carry bunkers above 0.50% sulphur does not prevent the use of abatement technology such as scrubbers. Nor does it apply to bunkers carried as cargo. But there are concerns that the regulatory change does not make this crystal clear. Moreover, there are questions about how potential non-availability situations will be dealt with once it becomes an offence not just to use, but to carry non-compliant bunkers on vessels without valid exemptions.

All of this was discussed in detail at the 5th session of the IMO’s Sub-Committee on Pollution Prevention and Response (PPR 5), where the carriage ban proposal, while not universally welcomed, received majority support. PPR 5 worked on the relevant amendments to MARPOL Annex VI which will be forwarded to the 72nd session of the Marine Environment Protection Committee (MEPC 72) in April for approval.

There was long debate at PPR 5 about whether the amendment necessitates making it more explicit that high sulphur fuel bunkers can still be carried as cargo, and be carried by ships which have approved abatement technology or exemptions to trial such technology, and whether it will be necessary also to make an explicit reference to the non-availability clause in Regulation 18.2 of MARPOL Annex VI.

Regulation 14 of MARPOL Annex VI already prohibits the use of fuels with higher sulphur content than the applicable limit (e.g. 0.10% in emission control areas and 0.50% outside ECAs from 1 January 2020). The text will be changed to prohibit both use and carriage of non-compliant fuel.

However, Regulation 4 of MARPOL Annex VI allows for “equivalences”, meaning ships can use higher sulphur fuel with abatement technology such as scrubbers, while Regulation 3 allows for ships to be specifically exempted while trialling abatement technology.

The proposal from Norway and the Cook Islands to PPR 5 argued that there was no need to make specific reference to equivalent arrangements approved in accordance with Regulation 4.1 or exemptions issued under Regulation 3.2 in the amended text as they are currently not referred to in Regulation 14, even if they might be applicable.

There was not full agreement on this, as many felt this new carriage prohibition is materially different from the existing prohibition to use bunkers above 0.50% sulphur after 1 January 2020, and that it would be wise to make explicit references under the amended Regulation 14 to Regulation 3, 4 and also to Regulation 18 regarding non-availability situations.

While many supported adding explicit references to Regulation 3, 4 and 18, a majority at PPR 5 did not support it.

The proposal from Norway and Cook Islands also argued that the definition of fuel oil in regulation 2.9 of MARPOL Annex VI excludes MARPOL Annex I cargos (such as bunkers carried as cargo) as it refers specifically to “any fuel delivered to and intended for combustion purposes for propulsion or operation on board a ship”, so it is not necessary to specifically exclude Annex I cargos in the amended regulation.

It was generally felt that it was sufficiently clear that the carriage ban only applies to high sulphur bunkers carried for combustion purposes, and not to cargo.

PPR 5 agreed on the following amended text for Regulation 14, which is expected to take effect from 1 March 2020:

“The sulphur content of any fuel oil used or carried for use on board ships shall not exceed 0.50% m/m.”

While this looks fine, IBIA is co-sponsoring a submission to MEPC 72 asking for a small modification to this text to make sure it doesn’t unintentionally prevent bunker barges from carrying fuel oil exceeding 0.50% sulphur for delivery to ships with scrubbers. It was discovered too late to change the wording prepared by a working group (WG), but the point was made as PPR 5 went through the WG reports on the final day.

IBIA told the plenary that the reason for the request to amend the wording is that once a bunker barge has been loaded with fuel oil, there is no doubt this is carried “for use onboard ships“ as per the new text proposed for Regulation 14.

Hence a bunker barge, which is itself a ship, could be carrying a fuel oil exceeding 0.50% sulphur which is intended “for use onboard ships” – even if the intention is to deliver it for use on another ship – and not intended for propulsion on the bunker barge itself.

It is therefore necessary to specify that the carriage ban applies to any fuel oil carried for use on board the ship (not ships).

Likewise, an amendment will be needed to the proposed new text in the supplement to the International Air Pollution Prevention Certificate (IAPP Certificate) prepared by PPR 5 as follows (proposed modification shown in bold):
“For a ship without an equivalent arrangement approved in accordance with regulation 4.1 as listed in 2.6, the sulphur content of any fuel oil carried for use on board the ship shall not exceed 0.50% m/m as documented by bunker delivery notes.”