Action Item: Vessel owners and operators should re-evaluate their plans to comply with U.S. ballast water management (“BWM”) requirements in light of the U.S. Coast Guard’s type-approval of Optimarin AS’ UV-based treatment system. This type-approval is a game-changer in the regulation of ballast water in the United States and will change the process by which the U.S. Coast Guard grants extensions to its compliance requirements. Now that a type-approved system exists, extensions that were previously granted liberally may be more difficult to obtain. Vessel owners and operators should take these factors into account when determining their compliance plans.

On December 2, 2016, the U.S. Coast Guard reached a watershed moment in the implementation of its ballast water management regulations by announcing the issuance of the first U.S. Coast Guard Ballast Water Management System (“BWMS”) Type-Approval Certificate. After determining that it met the U.S. Coast Guard’s type-approval requirements contained in 46 C.F.R. § 162.060, the U.S. Coast Guard’s Marine Safety Center issued the certificate to Norwegian manufacturer Optimarin AS for its filtration/UV-based BWMS with treatment capacities ranging from 167m3/h to 3000m3/h, which had been tested by DNV GL to U.S. Coast Guard freshwater, brackishwater, and seawater standards by DNV GL at the Norwegian Institute for Water Research. Additionally, the U.S. Coast Guard stated that it will be announcing decisions on type-approving two additional systems in the near future.

Background

As discussed in our past advisories and articles (September 2016, March 2016, November 2015), this U.S. Coast Guard type-approval has been more than four years in the making since the U.S. Coast Guard’s Final Rule for Standards for Living Organisms in Ships’ Ballast Water Discharged in U.S. Waters went into effect on June 21, 2012. The stated aim is to mitigate the threat and prevent the spread of harmful aquatic organisms through established standards related to management and discharge of vessels’ ballast water. However, a significant hurdle to furthering this purpose in accordance with U.S. Coast Guard regulations has been the absence of a U.S. Coast Guard type-approved ballast water treatment system.

Implementation and Extension

The type-approval of Optimarin’s system represents a significant milestone that signals a step forward in meeting the shipping industry’s needs in countering the threat posed by invasive species and complying with U.S. law. Although the U.S. Coast Guard has signaled a change by issuing its first type-approval, owners and operators must still evaluate whether this type-approval meets their vessels’ operational needs. Other actions to consider include examining Optimarin’s availability, and review current options for compliance with the ballast water discharge standards, including those options related to the extension program, a vessel’s compliance dates, using fresh water, not discharging ballast water, using shore or ship-based treatment options (if any), and the use of IMO-approved and U.S. Coast Guard-authorized Alternate Management Systems (“AMS”).

To clarify these compliance issues and obligations, the U.S. Coast Guard released Marine Safety Information Bulletin (“MSIB”) 14-16 simultaneous with the type-approval announcement, which provides useful guidance and indicates a slight shift in U.S. Coast Guard BWMS policy. For example, the U.S. Coast Guard may still grant an extension to a vessel’s compliance date if the owner/operator documents that, despite all efforts, compliance with one of the approved ballast water management methods, including installation of a U.S. Coast Guard type-approved BWMS, is not possible. Now, since a type-approved BWMS is available, “any owner/operator requesting an extension must provide the Coast Guard with an explicit statement supported by documentary evidence (e.g., a delay in commercial availability) that installation of the type-approved system is not possible for purposes of compliance with the regulatory implementation schedule.” The MSIB 14-16 provides additional key provisions in its guidance on compliance following the new type-approval:

• Extension letters will remain valid until the extended compliance date specified in the extension letter;
• Supplemental extensions may be requested; however, if a type-approved BWMS is available, requests must provide the necessary evidence to show why compliance is not possible;
• The U.S. Coast Guard will continue to accept requests for extensions. But, if an extension is granted, the length of the extension will be for the minimum time needed;
• Now that a type-approved system is available, the status of applications for extension letters to vessels with compliance dates on or after January 1, 2019 will be changed from “received” to “held in abeyance” since the application’s original criteria are no longer valid. In order to receive approval for an extension, additional information must be submitted, including appropriate documentation as to why compliance with the requirements is not possible;
• Any vessel with an AMS will still be allowed to use that AMS for up to five years after the compliance date and the vessel’s compliance date will remain the same.

The importance of managing the risks of invasive species in ballast water was highlighted on December 5, 2016, when President Barack Obama issued an amended Executive Order (“EO”) 13112 on “Safeguarding the Nation from the Impacts of Invasive Species.” The EO tasks the Secretary of Homeland Security with membership on the National Invasive Species Council, the agency under which the U.S. Coast Guard falls, and calls on federal agencies to prevent the introduction, establishment, and spread of invasive species, and develop and apply technologies to prevent their introduction. The U.S. Coast Guard appears to have already been moving in that direction. Rear Admiral Paul Thomas, Assistant Commandant for Prevention Policy, has recently indicated that this is “the first of multiple system approvals that are needed to mitigate the threat of harmful aquatic invasive species,” and the U.S. Coast Guard Marine Safety Center “will continue to evaluate other systems submitted by multiple manufacturers” in an effort to further expand the type-approval options available to meet the various needs of the maritime industry.

Conclusions

With this recent type-approval, and U.S. Coast Guard efforts to expand type-approval systems, stakeholders should continue to monitor the commercial options that may become available, and look ahead toward ultimate compliance with U.S. Coast Guard ballast water regulations.

Additionally, and as outlined in the MSIB 14-16, persons and entities responsible for compliance should continue to ensure that accurate BWM records are maintained onboard their respective vessels, such as the BWM plan, current extension letter granted to the vessel, vessel certificates, contracts and/or records verifying the date the vessel entered its last dry dock, BWMS installation documents, and vessel log books. Overall, while this type-approval is an incremental step in the right direction, the type-approval is not the last piece of the conundrum puzzle, and stakeholders who fail to carefully comply with the shifting and complex ballast water regulations continue to risk civil or criminal penalties.