Article: Guidance on contingency measures for addressing non-compliant fuel oil
19 June 2019
With the anticipated increase in demand for compliant fuel (sulphur content not exceeding 0.50%), there have been concerns on its availability after 1 January 2020. The discussions surrounding this issue are not new, having been raised by shipowners since the announcement of the IMO Sulphur Cap.
Regulation 18.2 of MARPOL Annex VI provides for the situation where there is a local non-availability of the required fuel oil – and the only fuel oil available does not meet the required maximum sulphur limit as given in Regulation 14. It requires shipowners to provide evidence outlining the attempts made to obtain the compliant fuel oil. This should be notified to the ship’s flag state and competent authorities in the port of destination, who can then consider what action to take, or not to take, in the case of a ship using non-compliant fuel oil.
This notification is commonly referred to as Fuel Oil Non-Availability Report (FONAR), and is meant to be used under exceptional circumstances, when all reasonable steps have been taken to obtain compliant fuel.
The sixth session of IMO’s sub-committee on Pollution Prevention & Response (PPR 6), held from 18 to 22 February 2019, agreed on a standard format as an appendix to the draft guidelines on consistent implementation of the 0.50% sulphur limit, which also covers 0.10% fuel non-availability.
These guidelines were adopted during the recently concluded 74th session of the Marine Environment Protection Committee (MEPC-74), held from 13 to 17 May 2019.
According to Regulation 18.2.2 of MARPOL Annex VI, ships should not be required to deviate from their planned voyage or to unduly delay their voyage in order to obtain compliant fuel. Ships are, however, required to make every best effort to obtain compliant fuel.
To support a claim that all efforts were made to source compliant fuel or to source a local alternative fuel, the master/company must maintain documentary evidence of communications between the ship and bunker suppliers. If the charterer is responsible for providing the fuel, then copies of the communication between the charterer and fuel suppliers should be provided and retained on the ship.
The standard FONAR template (as adopted during the MEPC-74 meeting) requires exhaustive details to be filled in to demonstrate that a voyage plan was in place and there were valid reasons for being unable to source compliant fuel.
Section 5 of FONAR can be used to report any operational constraints that prevented the ship from using available compliant fuel. This could be in relation to the fuel system arrangements, flash point, viscosity, compatibility, or other fuel oil parameters, and should be used only if non-compliant fuel has been bunkered due to quality related concerns that the compliant fuel would cause operational or safety problems on board the ship – such concerns should also be thoroughly documented.
Any logistical constraint or cost related issues shall not be considered as a valid basis for claiming non-availability.
If, despite best efforts, it was not possible to procure compliant fuel oil or to locate alternative sources for such fuel oil, the master/company must immediately notify the ship’s Flag State and the relevant port of destination (regulation 18.2.4 of MARPOL Annex VI).
There could be circumstances (based on the trading pattern of the vessel) where a ship that is only calling at ports of countries that are not signatory to MARPOL Annex VI and where compliant fuel is not available; but due to unforeseen circumstances (eg - incident/accident, machinery breakdown, stowaway/refugee/survivors or sudden change of voyage orders) has to call at a port of a MARPOL state, where the local enforcement agencies will consider the ship to be in breach of Regulation 14. It is recommended that the consequences of carrying and burning non-compliant fuel are covered under the charter-party terms and/or other contractual agreements to address such scenarios.
A FONAR should be submitted to the ship’s Flag State and to the competent authorities in the relevant port of destination as soon as it is determined that the ship will not be able to procure and use compliant fuel, but in all cases before the ship departs the bunker port. A copy of the FONAR is required to be kept on board for inspection for at least 36 months.
It is important to understand that a FONAR is not an exemption. It is simply a mechanism for a ship to self-report non-compliance. It also requires the ship to provide detailed documentation to prove that it could not obtain compliant fuel despite its best efforts.
Ultimately, it will be up to each port authority how they deal with and enforce FONAR situations. It is certain, however, that the authorities will conduct a thorough investigation of the circumstances and strictly scrutinise the evidence presented to them to determine the appropriate action to take or not to take.
When reviewing a FONAR, Flag States and port authorities are expected to consider the number of FONARs a ship and/or shipowner/operator has submitted in the past 12 months; and whether other ships on similar voyages or calling similar ports have submitted a FONAR.
The authorities may investigate and look for evidence that would indicate whether (or not) the shipowner/operator has planned effectively and has taken all reasonable steps to ensure compliant bunkers were available.
The FONAR guidelines do not attempt to pre-judge what control actions a port state may take in such circumstances, and it cannot be ruled out that some port states may still penalise ships for arriving with non-compliant fuel onboard.
It is therefore vital that only the minimum possible quantity of non-compliant fuel should be bunkered if a FONAR was issued, as it is likely that the next port authority may require non-compliant fuel to be de-bunkered at the member’s expense. The non-compliant fuel certainly cannot be used on subsequent voyages.
Members are reminded that completion of a FONAR is ‘not a free pass’ (see article from the International Chamber of Shipping). Rather, it is a structured way to gather and submit evidence that compliant fuel oil was not available. It is still a non-compliance situation for a ship to arrive at its next port with fuel oil of more than 0.50% sulphur content.
IMO’s reporting area, GISIS (Global Integrated Shipping Information System), has a module for reporting non-availability of compliant fuel oil. This will help to ensure a consistent supply of compliant fuel by sharing information between Member States on reported compliant fuel oil supply issues.
The club recommends its members to include the contingency measures and FONAR procedures in the ship’s implementation plan (SIP)