The US Coast Guard has released an update to its “Guidelines for Compliance and Enforcement of the [U.S.] Emission Control Areas”.
However, Washington DC-based H Allen Black of legal firm Winston & Strawn the update, published on November 18th, included only one minor procedural change to the way the USCG would validate a vessel’s claim of an “equivalency” to fuel sulphur content standards. It left unchanged a reference to a now-revoked policy requiring vessels to submit “Fuel Oil Non-Availability Reports” (FONARs). The updated Guidance also failed to answer a number of urgent enforcement policy questions that have been raised by the imminent IMO 2020 start date of January 1st.
IMO 2020 will require vessels operating anywhere in the world must use marine fuel oil with a sulphur content of no more than 0.50%, down from 3.5%, while vessels operating within Emission Control Areas (ECAs) must use fuel oil with a sulphur content of not more than 0.10%.
Vessels can also use scrubbers that remove sulphur oxides (SOx) from the vessels’ emissions. The flag-state approval of a scrubber as providing an equivalent level of emissions control is referred to as an equivalency.
In the original version of the USCG Guidelines (July 2012), the USCG said that it would review proposals for equivalencies on foreign flag vessels to ensure compliance with US law. The updated version stated that the USCG would rely on flag-state submissions made to the IMO’s Global Integrated Shipping Information System to confirm the validity of a MARPOL emissions equivalency, i.e., that it would not verify the levels independently.
However, the new Policy Letter has failed to mention the June 2019 development affecting vessels arriving in the US that are unable to obtain compliant low-sulphur fuel.
Prior to that development, vessels were required to submit a FONAR to the US Environmental Protection Agency reporting the unavailability of compliant fuel. However, in June 2019, the EPA discontinued the FONAR system and in its place the USCG established a policy requiring vessels unable to procure compliant fuel to notify directly the relevant USCG Captain of the Port.
The Captain of the Port would then evaluate the efforts made by the vessel and its managers to find compliant fuel, whether they used a prudent voyage plan, the validity of the bunker delivery note certifying the qualities of the fuel oil used by the vessel, and whether the flag state was notified.
The USCG were likely to pay particular attention to the integrity of vessel records.
The legal from noted that earlier this year the government prosecuted the owner and the operator of the motor tanker Ocean Princess for, among other things, falsifying bunker delivery notes in connection with the use of non-compliant fuel in the Caribbean ECA.
In an earlier case, the government prosecuted the vessel manager for, among other things, falsifying a voyage plan document to obstruct the USCG’s investigation into an allision.