EPA Interim Guidance on the Non-Availability of North American ECA Compliant Fuel Oil
Further to the Club’s recent news article concerning the introduction of the North American Emission Control Area on 1 August 2012, the United States Environmental Protection Agency (EPA) has published “Interim Guidance on the Non-Availability of Compliant Fuel Oil for the North American Emission Control Area”.
The EPA expects that residual fuel oil with a sulphur content below the prescribed limit of 1.00% m/m will be available from suppliers covering the North American Emission Control Area (ECA). However, if a vessel is unable to obtain compliant fuel oil prior to entering the North American ECA despite its “best efforts” and cannot fulfil the requirements by using a permissible equivalent method (for example, exhaust gas cleaning), it must submit a Fuel Oil Non-Availability Report to the US government and, as required by MARPOL Annex VI/18.2.4, to the vessel’s Flag State Administration. The US government will then consider the steps that were taken in an effort to obtain compliant fuel oil and determine what further action, if any, will be required. Fuel Oil Non-Availability Reports are to be submitted at the earliest opportunity, but no later than 96 hours prior to the vessel entering the North American ECA. Such reports are to be submitted electronically, but the on-line reporting system is not yet operational. Information concerning the on-line reporting system including its launch date will be published on the EPA and USCG websites (under Domestic Vessels/Domestic Vessels General/MARPOL ANNEX VI) in due course. In the meantime the EPA will accept emailed reports at email@example.com.
The term “best efforts” is defined by the EPA as including “but not limited to, investigating alternate sources of fuel oil prior to commencing your voyage or in route prior to entering the North American ECA.” A vessel would not be expected to deviate from its planned voyage in order to stem compliant fuel oil. However, if compliant fuel oil is available at a previous port, the vessel will be expected to bunker the required low sulphur fuel oil even if this involves shifting the vessel within harbour limits.
Fuel Oil Non-Availability Report Content
In keeping with MARPOL Annex VI/18.2, the EPA states that the following information should be included in the Fuel Oil Non-Availability Report:
- “The vessel’s name, flag, and IMO identification number or other relevant registration number;
- A copy (or description) of the ship’s voyage plan in place at the time of entry into the North American ECA, including the vessel’s port of origin and port of destination, and the name of the first U.S. port of arrival;
- When the vessel first received notice it would be conducting a voyage involving transit in the North American ECA, and the vessel’s location when it first received such notice;
- The date and time the ship operator expects to enter and exit the North American ECA, as well as the projected days on which the ship’s main propulsion engines will be in operation;
- The sulphur content of the fuel oil that will be used when entering and operating in the North American ECA;
- A description of the actions taken to attempt to achieve compliance prior to entering the North American ECA, including a description of all attempts that were made to locate alternative sources of compliant fuel oil, and a description of the reason why compliant fuel oil was not available (e.g., compliant fuel oil was not available at ports on “intended voyage;” fuel oil supply disruptions at port; etc. As mentioned above, the United States government does not consider the cost of compliant fuel oil to be a valid basis for claiming the non-availability of compliant fuel oil). Include names and addresses of the fuel oil suppliers contacted and the dates on which the contact was made;
- In cases of fuel oil supply disruption, the name of the port at which the vessel was scheduled to receive compliant fuel oil and the name of the fuel oil supplier that is now reporting the non-availability of compliant fuel oil;
- If applicable, identify and describe any operational constraints that prevented you from using available compliant fuel oil, for example with respect to viscosity or other fuel oil parameters. Specify steps you have taken, or are taking, to resolve these operational constraints that will allow you to use all commercially available residual fuel oil blends;
- The availability of compliant fuel oil at the first port of call in the United States, and your plans to obtain that fuel oil;
- If compliant fuel oil is not available at the first port of call in the United States, the lowest sulphur content of available fuel oil, or the lowest sulphur content of available fuel oil at the next port of call in the United States;
- If the vessel has operated in the North American ECA in the prior 12 months, provide the names of all U.S. ports visited, the dates of the port calls, and whether the vessel used compliant fuel oil;
- If the vessel or owner/operator has submitted a Fuel Oil Non-Availability Report to the United States government in the previous 12 months, identify the number of Fuel Oil Non-Availability Reports previously submitted, and provide details on the dates and ports previously visited while using non-compliant fuel oil; and
- All relevant contact information, including the ship master, ship operator, legal agent in the United States, ship owner, and any related parent companies. Also include a designated corporate official who is authorised to answer additional questions relating to claims of fuel oil unavailability and his or her full contact information.”
The EPA further advises that:
“The United States government will consider the information submitted in a Fuel Oil Non-Availability Report to be reliable only if the report is signed by an authorised representative of your company and contains the following affirmation:
I certify under penalty of law that the statements and information made herein are, to the best of my knowledge and belief, true and complete. I am aware that there are significant penalties for knowingly submitting false statements and information, including the possibility of fines and imprisonment pursuant to 18 U.S.C. § 1001.”
Vessels that have Submitted a Fuel Oil Non-Availability Report
Vessels that have entered the North American ECA without compliant fuel oil on board are expected to obtain low sulphur fuel oil at the first available opportunity at a US port of call prior to onward passage. Sufficient low sulphur fuel oil is to be stemmed to allow the vessel to use compliant fuel oil for the remainder of its voyage within the North American ECA, and for any subsequent voyage where the vessel is due to transit the North American ECA and compliant fuel oil is not expected to be available at intervening ports.
If a vessel has been unable to obtain compliant fuel oil prior to entering the North American ECA, the EPA does not expect it to use distillate fuel oil in order to comply with the 1.00% m/m fuel oil sulphur limit.
Not supplying a vessel with compliant low sulphur fuel oil prior to entering the North American ECA simply on the grounds of cost will not be considered as justification for failing to meet the regulatory requirements.
If a vessel or owner/operator submits repeated or multiple Fuel Oil Non-Availability Reports, the US authorities may require additional supporting documentation and may consider conducting enhanced inspections of the vessels concerned when calling at US ports.
Evidence of Compliance with the Regulatory Requirements
In addition to the foregoing, the EPA guidance also includes information on how a vessel may demonstrate compliance with the fuel oil requirements whilst operating in the North American ECA. Vessels are required to maintain the following documentary evidence, and if necessary, make it available to authorised government personnel on demand:
- Bunker delivery notes (as required by MARPOL Annex VI/18.5)
- Representative fuel oil samples taken at the time of delivery (as required by MARPOL Annex VI/18.8.1)
- Fuel oil changeover procedures (as required by MARPOL Annex VI/14.6)
- Fuel oil changeover logbook (as required by MARPOL Annex VI/14.6)
US government personnel may also verify compliance by other available means, such as taking samples of fuel oil from tanks and lines for analysis, and sampling and analysing exhaust gases.
For detailed information please refer to the full text of the EPA’s “Interim Guidance on the Non-Availability of Compliant Fuel Oil for the North American Emission Control Area”. Members requiring further guidance are advised to contact the Loss Prevention department.