MEPC 70 approves BDN amendments, disregarding IBIA proposal for improvements

The 70th session of the IMO’s Marine Environment Protection Committee has approved, with a view to adoption at MEPC 71, draft amendments to the MARPOL Annex VI bunker delivery note (BDN) containing the supplier’s declaration about the product not exceeding specific sulphur limits.

The new BDN will replace the current supplier’s declaration and introduce a ‘tick box’ system.

An IBIA member approached the secretariat in May this year, outlining concerns about the new BDN format.  IBIA agreed to put forward a proposal to MEPC 70 in a bid to address these concerns. The proposal was drafted in an IBIA working group during the summer and submitted to MEPC 70 in time for a September 2 deadline. In the following weeks, IBIA lobbied to get support for the proposal and those that we were able to discuss it with agreed that it made sense.

Introducing the proposal at MEPC 70, IBIA’s IMO representative Unni Einemo said: “Our paper, MEPC 70/9/4, highlights certain problems with the draft amendments to appendix V of MARPOL Annex VI, relating to the BDN provided to the Committee in annex 3 to PPR 3/22, and proposes changes to make the BDN more user-friendly, more accurate and better fit for purpose.

“We fully understand and support the purpose of the BDN amendments, which is to allow for the situation when a ship is entitled to use fuel that exceeds the sulphur limits in Annex VI because it can achieve compliance by equivalent means by using approved abatement technology, or because it has an exemption. Once the global sulphur limit falls to 0.50% this could become a common situation, so it is clear that we need a format that doesn’t limit the supplier’s declaration to saying the fuel oil supplied conforms with regulation 14.1 or 14.4 of Annex VI.

“But certain elements of the proposed tick box system and text on the new BDN format developed at PPR 3 are problematic.

“First of all, any tick box system on an official BDN declaration needs to be simple, clear and unambiguous. Our first suggestion, therefore, is to specify the applicable sulphur limits under the first two tick boxes to reduce room for misunderstanding. It is important to recognise that the fuel oil supplier’s representative, which will fill in this document, in most operational situations is likely to be a person either on a fuel oil barge, or a truck driver who may not be familiar with the meaning of regulation 14.1 and 14.4 with regards to which sulphur limit the respective numbers refer to, and may get them confused.

“Such unintentional clerical mistakes would render the ship’s legal MARPOL documentation incorrect and could at worst render the ship liable to non-compliance actions. This risk should be mitigated from the outset by specifying the relevant sulphur limits next to the first two tick boxes.  

“Our second concern relates to overly complex and potentially misleading language behind the third of the three tick boxes. The first part of the text calls for the supplier’s representative to declare that the sulphur content of the fuel oil supplied does not exceed the purchaser’s specified limit value, which has to be filled in. This is fine.

“After that we move into territory which goes beyond what the supplier’s representative can rightfully and safely vouch for or be held responsible for, as it calls on him or her to declare that the product has been supplied on the basis of purchaser’s notification that the fuel is intended to be used either in combination with equivalent means allowed under regulation 4 of Annex VI, or is subject to a relevant exemption while conducting trials as allowed by regulation 3.2 of Annex VI.

“Although it may not be the intention, this declaration could be interpreted as putting a responsibility on fuel oil suppliers or their representative to check or insist on receiving specified reasons for providing fuel to the customer that exceeds the global sulphur limit. The supplier has no control whatsoever over how the fuel will be used once it has been delivered to a ship and hence should not be asked to sign a declaration detailing a ships’ compliance mechanisms.

“This is why we have proposed deleting most of the text behind the third tick box because it falls outside the remit of what a fuel oil supplier has any control over.

“As an alternative to this text, we have proposed that the ship should append a copy of its certificate for equivalent means under regulation 4 or exemption(s) under regulation 3.2 to the BDN.”

When introducing the document, Einemo stressed that the proposal for the alternative text was open for discussion, having received some feedback prior to MEPC 70 that it would pose an administrative burden for ships.

She told MEPC 70: “Our intention here was not, as some seem to have interpreted our paper, that this should occur in the presence of the fuel oil supplier’s representative [appending a copy of the certificate or exemption], but rather that the ship could do so after the delivery to ensure it has all the relevant documentation in place for any subsequent port state control inspector. In fact, it may not be necessary to have this alternative text either, because a ship must, in any case be able to provide such evidence to relevant authorities.”

She concluded: “IBIA agrees that the supplier’s BDN declaration needs to be amended to allow ships with relevant exemptions to use fuels that exceed the sulphur limit in regulation 14.1 when this falls to 0.5%. The format of this statutory document should be as clear and concise as possible to prevent mistakes and misinterpretation, and it is important to ensure that we get it right.”

When the MEPC chair opened the floor for comment, three major shipping organisations spoke against IBIA’s proposal, stating they could not support the alternative text because it would shift responsibility from the fuel oil supplier to the ship and increase the administrative burden on the ship. Following the statements from the three shipping organisations, three member States said they could not support IBIA’s proposal because they thought the draft amendments developed by PPR 3 were adequate, and because they felt the subject had already been discussed for too long and needed to be moved to its conclusion without any further debate.

Clearly, the shipping organisations did not listen to the introduction of the paper where Einemo specified that text that they were concerned about may in fact be superfluous. IBIA was not given the chance to respond after their statements to clarify this point, and the chair concluded that the format sent to MEPC 70 from PPR 3 was approved.

IBIA is of course disappointed at this outcome, having worked hard within the working group to prepare a well formulated alternative proposal, and having sought feedback from many member states.

Einemo observed: “It appeared as though the decision was a ‘done deal’ with nobody wanting to take time to understand or accept our proposed improvements to elements in the new BDN document. As a result, we are now stuck with a rather unsatisfying format of the supplier’s declaration that lends itself to mistakes and misunderstandings. I’m disappointed all our hard work failed to have the desired impact.”

If you have comments on this item, please contact unni@ibia.net