MARPOL – Enforcement of North American Emission Control Area means close scrutiny of documentary compliance
Inaccuracy of documentation required to evidence compliance may have serious consequences.
The United States Coast Guard (USCG), together with the US Environmental Protection Agency (EPA), is now enforcing the requirements of MARPOL Annex VI within the North American Emission Control Area (ECA). MARPOL Annex VI, as enacted within the Marine Pollution Prevention Act of 2008, is intended to reduce air pollution by requiring use of low sulphur bunker fuel or equivalent controls within 200 miles of the East, West and Gulf Coasts of North America and Hawaii.1 In addition to sulphur oxides, the ECA also covers emission of nitrogen oxides (NOx) and particulate matter (PM). The details of technical requirements of compliance may be found in previous Gard publications.2
Sulphur content of bunker fuel must be limited to no more than one per cent for operations within the ECA. Foreign flag vessels over 400 GT operating in the ECA will be required to evidence compliance with the following documentation:
– Bunker delivery notes showing delivery of compliant bunkers;
– Representative bunker samples;
– Written fuel oil changeover procedures;
– A fuel oil changeover log book that records the volume of compliant fuel in each tank as well as the date, time and position of the ship when any fuel oil changeover operation is completed.
In general, the USCG is responsible for verifying compliance and the EPA is responsible for enforcement of violations. Non-compliance may result in civil fines of up to USD 25,000.
The USCG has published a policy letter, Guidelines for Compliance and Enforcement of the Emission Control Areas, making it clear that intentional falsification of the documentation may result in criminal fines. Further, with respect to criminal liability, it is the USCG and not the EPA that will be the lead agency for investigation and, if evidence of a criminal violation is substantiated, the USCG will refer the violation to the US Justice Department for prosecution.
As an example of criminal conduct, the guidelines make specific reference to “intentional use of non-compliant fuel oil with falsified log books”. It is therefore apparent that false entries in the fuel oil changeover log may result in criminal investigation and criminal prosecution in much the same manner as investigation and prosecutions for false entries in an oil record book. Falsified entries masking discharge of oily waste, the so called “magic pipe” cases, have resulted in millions of dollars of fines levied against vessel owners and operators and jail sentences for crewmen. Even innocent mistakes have resulted in investigation with delay to the ship, and detention of crew. Accuracy of the documentation required to evidence compliance with low sulphur fuel requirements within the ECA is therefore fundamental to avoiding delay, costly fines and even incarceration of individual crew members. While each case will be dealt with on its own merits, P&I cover is unlikely to be available in such matters, just as it is unavailable in so-called “magic pipe” cases.
1 The ECA also includes Canadian waters. Canada’s enforcement activity is not reported here. For more information see the Gard Alert dated 20th July 2012, “Canada delays implementation of the North American ECA requirements”.
2 See Gard Loss Prevention Circular No. 05-09, “US Guidelines on MARPOL Annex VI” April 2009, Gard Alert dated 4th July 2012, “North American ECA requirements after 1 August 2012” and articles “Annex VI of MARPOL 73/78 – Regulations for the Prevention of Air Pollution from Ships” in Gard News issue No. 176, “MARPOL Annex VI – Solving the low sulphur issue” in Gard News issue No. 184, “Marpol Annex VI – New risks and challenges for owners and charterers” in Gard News issue No. 187.
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