United States: U.S. Coast Guard Revises Policy On Extensions For The Installation Of Ballast Water Treatment Systems

Action Item:  The U.S. Coast Guard issued a new policy letter that streamlines the process for vessel owners and operators to apply for an extension to their compliance date for installing ballast water treatment systems. Vessel owners and operators may realize a cost savings by a delayed compliance date, which would allow time for the approval of U.S. Coast Guard type-approved ballast water treatment systems before other systems are installed. Owners/operators should therefore review the compliance dates for their vessels and consider applying for an extension if they will face a hardship coming into compliance with the Coast Guard’s Ballast Water Management rule in light of the fact that there are no type-approved systems as yet or any practical alternatives.

New Developments

On September 10, 2015, the U.S. Coast Guard issued a revised Policy Letter 13-01 (the “Policy Letter”) to provide updated guidance to vessel owners and operators regarding Ballast Water Management (“BWM”) methods. The Policy Letter streamlines the application process for vessel owners and operators to obtain extended compliance dates for implementing BWM methods, principally the installation of treatment systems. Notable updates include removing the five-year limit on cumulative extensions, clarifying “batch” and supplemental applications, deleting the requirement to submit vessel Ballast Water Management Plans (“BWMP”) with extension requests, and allowing extensions to vessels that choose to install Alternate Management Systems (“AMS”) accepted by the Coast Guard. The Coast Guard has also provided template application forms and recommendations regarding applying for extensions. The Policy Letter, application form, and “tips” regarding the policy are available here.

Background

The Coast Guard’s Standards for Living Organisms in Ships’ Ballast Water Discharged in U.S. Waters Final Rule (the “Final Rule”), located at 33 CFR Part 151, went into effect on June 21, 2012, and created new compliance requirements for all vessels equipped with ballast tanks operating in U.S. waters. In order to discharge ballast water into U.S. waters (i.e., generally within 12 miles of the U.S. coast for these purposes), vessels are required to use an approved ballast water management method in accordance with a phased-in schedule based on their ballast water capacity. Under the Final Rule, vessels have five options to achieve compliance:  (1) installing a Coast Guard type-approved ballast water management system (“BWMS”); (2) installing an AMS; (3) using water from the U.S. public water system; (4) using shoreside reception facilities; or (5) not discharging ballast water in U.S. waters. At present, none of these options are practical for most vessels, save for the installation of an AMS, but this comes with financial risks that the particular AMS will never obtain Coast Guard type-approval.

Numerous industry commentators have noted the practical difficulty of complying with these requirements, which we addressed in our March 2014 article, “The Evolving Ballast Water Conundrum,” available here. In response to the difficulties faced by industry, the Coast Guard has been challenged to design a compliance policy that is both feasible and conforms to the Final Rule, and has worked closely with the industry to come up with practical solutions.

As a reminder, existing vessels with a ballast water capacity less than 1,500 cubic meters or greater than 5,000 cubic meters must comply by the first scheduled drydocking after January 1, 2016. Vessels between 1,500-5,000 m3 of ballast water capacity had to comply with the Final Rule to be compliant by their first scheduled drydock after January 1, 2014. All new vessels constructed on or after December 1, 2013, regardless of ballast water capacity, must comply on delivery.

In terms of status, as of the date of this advisory, there are no Coast Guard type-approved ballast water treatment systems. Although three manufacturers have submitted formal applications for approval, and we understand that more than 20 manufacturers have systems in the testing pipeline, it is not expected that any type-approvals will be issued by the Coast Guard this year.  With regard to extensions, more than 1,600 have been granted, with many more pending Coast Guard approval.

Policy Letter Effect

The Policy Letter provides revised guidance to vessel owners and operators seeking to extend the applicable compliance dates for vessels under the Final Rule. The standard for approval of extensions is unchanged and requires that vessel owners and operators show that despite all efforts, compliance as outlined in the implementation schedule referenced above is not possible for the subject vessel. The Policy Letter notes “limited availability (or no availability) of Coast Guard type-approved BWMS (including constrained shipyard capability and capacity to install the system prior to the deadline) and lack of availability of, or ability to use exclusively, water from a U.S. public water system” as examples of grounds that may merit an extension. Further, “every realistic option should be exhausted before an extension request is submitted.”

It is key to determine when the vessel in question must be in compliance, as the Coast Guard must receive the extension request within 12 months of a vessel’s original compliance date, absent detailed justification as to why the request was submitted late. To facilitate the process, batch requests may be made for all vessels between 12 and 24 monthsfrom their applicable compliance date, provided that the reasons for the inability of each vessel to comply is the same.  The Policy Letter further states that extensions are available to vessels currently in compliance through the AMS program. BWMPs no longer need to be submitted with extension requests. Rather, a statement must be made that the vessel has a BWMP that it will follow for discharges in U.S. waters. All other information required for the request remains the same.

The Policy Letter removes the five-year cumulative limit on extensions. Currently, the Coast Guard issues extensions for up to two years at a time. It is important to note that the expiration date of an extension is a hard compliance date. Unlike a vessel’s initial compliance date, a vessel issued an extension does not have until the first shipyard after the expiration of the extension to come into compliance.

If needed, supplemental extension requests must be made at least 90 days prior to the expiration date of the current extension. Supplemental requests must state why the vessel needs additional time to comply with the BWM requirements, including situation-specific documentation. However, the Policy Letter streamlines the process when all reasons explained in the initial request are the same, requiring only a declarative statement to that effect. Similar to the initial requests, batch requests for supplemental extensions may be made for all vessels with the same expiration date. 

Extension requests may no longer be submitted by mail. All requests should be submitted via e-mail to environmental_standards@uscg.mil, along with an application spreadsheet outlining all required vessel information. The recommended format for the spreadsheet is available here. The Coast Guard recommends that supplemental extensions be marked “Supplemental” in the subject line for ease of processing. All scanned documents should be in a format that provides optical character recognition (“OCR”) or attached in a form that allows the copying of the text, such as MS Word.          

Conclusion and Recommendations

In issuing the Policy Letter, the Coast Guard recognized what many industry leaders have pointed out: that complying with the Final Rule continues to impose a burden on the maritime industry, and that the process for extensions used over the past two years needed to be streamlined. As such, with the January 1, 2016, compliance date fast approaching and no type-approvals expected in the near future, vessel owners and operators should determine if extensions are necessary and, if so, submit applications as soon as practicable to the Coast Guard to ensure that they may have an opportunity for an extension with the requested lead time. As always, the costs of non-compliance are significantly higher than the costs of compliance, particularly here where the Coast Guard has established a system to further ease the transition to the Final Rule’s regulatory regime.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Jeanne M. Grasso
Dana S. Merkel
Stefanos N. Roulakis
 
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