‘Fuel non-availability isn’t at all the same thing as deliberate non-compliance, but Trident Alliance, amongst others, wants to make sure that there is no possibility for a FONAR (fuel oil non-availability report) – and the guidelines and the implementation of them – to allow any ‘ship-sized’ loopholes to be created,’ the organisation’s chair, Roger Strevens, tells Bunkerspot.
Trident Alliance was formed in 2014 to press for robust and effective enforcement of sulphur emissions regulations in the maritime sector. Its mission in the run-up to the introduction of the 0.10% sulphur regulation in 2015 was to advocate for effective enforcement to help ensure a level playing field was maintained in the shipping sector so . The Alliance’s unwavering message on compliance and enforcement is now being applied to the upcoming implementation of the 0.50% sulphur global cap in 2020.
While Roger Strevens suggests there is still some way to go to effectively implement the new regulation, he says that the International Maritime Organization’s (IMO) actions on 2020 deserve considerable credit. In particular, he points to amendments to the bunker delivery note template which will come into effect in February 2019 and which will require a signed declaration by the bunker supplier’s representative that they are satisfied that the fuel supplied can be used in a compliant manner.
He is, however, uncertain about how this new requirement will work in practice: ‘It may be difficult to measure how effective this measure is, not least because data on the enforcement of it may be hard to come by, but, nonetheless, it certainly raises the ante for those who might be tempted to cut corners.’
He is also optimistic about the introduction of the high sulphur fuel oil carriage ban. Amendments to MARPOL Annex VI to prohibit the carriage of bunker fuel above 0.50% sulphur content (unless to be supplied to/used by a scrubber equipped vessel) will go forward for adoption at MEPC 73 and, if agreed, will come into play in March 2020.
‘This is a spectacular step forward when you consider that the fuel that has been powering the industry for decades will not only be no longer compliant, but it will actually be an offence to have it on your vessel, unless you have a scrubber.’
Strevens also believes the carriage ban would do much to strengthen the position of the enforcement agencies. As he explains: ‘It can help alleviate the challenge of having to prove what fuel was used where; if non-compliant fuel is onboard, then that vessel would be non-compliant at that point.’
This is a helpful move but, he notes, ‘The big question from Trident Alliance’s perspective is, if it comes in will it be used? – that we don’t yet know.
‘However, at the very minimum it acts as a deterrent, and even just knowing that this is in the rule books should help focus minds that may be wavering on whether to comply in the right way.’
Expectations are that compliance with the 0.50% sulphur mandate will be high, but Strevens warns against complacency.
‘It is important to caution against saying, for example, that anything over 90% compliance is good enough,’ he says.
‘If you happen to be trading on a lane or against a competitor that is in the other 10%, then you have got a very serious problem.’
Turning to the issue of enforcement of the 2020 regulation, Strevens commends the efforts of those countries involved in enforcing the ECA rules that have invested time, money and effort in developing surveillance techniques – and are continuing to do so - but he acknowledges that observation may be more difficult to implement in the wide spaces of the world’s oceans than it is in the relatively confined spaces of the ECAs.
Of the 80+ signatories to MARPOL Annex VI, around 30 have had extensive experience of having to enforce sulphur regulations to date. As Strevens highlights, ‘This means that there are actually more countries who are MARPOL Annex VI signatories who have little or no experience at all on this question and this does lead you to wonder about what the level of enforcement readiness in such places may be.’
And while Strevens fully expects that information sharing is ongoing between ‘experienced’ and ‘novice’ stakeholders in terms of sulphur emission regulations, he says that ‘whether this actually will work through to the people at the coalface is a different question.’
Global and thorough transparency on the consequences of non-compliance is imperative, he says.
‘I think there is an opportunity being missed by not making public what enforcement measures are in place and the consequences for any party that violates the regulations.
‘Share this message far and wide and I think it could achieve a lot. There is an opportunity here for a lot of flag States to deter any actors who may be weighing the risks of non-compliance, and to do so at the minimum of cost. As enforcement measures go, there’s probably nothing else that offers as much value for money’
To support this argument, he points to a recent large-scale Trident Alliance review into the arrangements for sulphur regulation enforcement across different European and North American countries. Issues addressed included the transposition of legislation into national law, sanctions for non-compliances and the mechanisms for calculating penalties.
‘’We found a wide variety of different answers,’ says Strevens. ‘But one of the startling things that came out of this study was just how difficult it was to find this information.
‘The first rule of enforcement is to put people off the idea of taking short cuts. By and large, I don’t think that industry is going to be non-compliant, but for the few who might be sitting on the fence, watching how things develop, being very clear about the consequences of what non-compliance might be, will help them land on the right side of that fence,’ he emphasises.
‘I think that there is an opportunity being missed by not making public what the enforcement measures are and what the consequences of non-compliance will be.’
Work is still underway by the IMO’s PPR working group on creating a standard reporting format for fuel oil non-availability. This issue will be further discussed at PPR 6 in February 2019 and it is anticipated that a final draft will be sent to MEPC 74 next May for final approval.
Strevens outlines Trident Alliance’s stance on this issue: ‘Fuel non-availability isn’t remotely similar to deliberate non-compliance and therefore it is sensible to have a mechanism for vessels to cope should they find themselves in that situation. What Trident Alliance wants to ensure is that the regulatory text for FONARs (fuel oil non-availability report) does not create any ship-sized loopholes that would allow any unscrupulous operators to use FONARs as a way to run on high sulphur fuel for more time than is strictly necessary.
‘It is important that FONARs cannot be exploited for a vessel to sail with non-compliant fuel on an ongoing basis. Fortunately, I think we are very far from the only group that’s interested in this.’
However, Strevens does point to areas which still require clarification in the use of FONARs. For example, he says, ‘what happens if you get a FONAR for completely legitimate reasons and then you arrive at a port where there is compliant fuel available, but you haven’t used all the dirty fuel that you purchased with that FONAR – what happens regarding the fuel oil carriage ban?’
Strevens acknowledges that there has not, to date, been much discussion on proportionality of penalties for non-compliance with the IMO 2020 regulations, and how such penalties are to be applied. This, he notes, is because it is a sovereign question and an issue on which IMO does not take a position.
However, he points out that there is language in both the MARPOL legislation and the EU sulphur directive that says, respectively, that penalties should be ‘adequate to discourage violations’ and ‘proportionate, effective and dissuasive’.
‘This is good, but it is an issue which is subjective at the moment; different countries have a large degree of variation [in the scale of penalties] and there are some where the maximum fines are equal to a couple of days’ worth sailing on non-compliant fuel, and that is a really questionable deterrent.’
Above all, Trident Alliance is seeking to target those who would deliberately flout sulphur regulations.
As Strevens explains: ‘It is important to realise that there is world of difference between marginal, inadvertent compliance and gross, deliberate non-compliance.
‘Shipping is not an exact science,’ he says, ‘therefore is it is imperative to differentiate on a compliance enforcement basis between those who are one to two hundredths of a per cent over a limit and those who are one or two per cent over a limit because of the vast difference economic benefit to themselves as well as the fundamental difference in intent that leads to each situation.’