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News: USCG revised guidance on the Implementation of MARPOL Annex VI

20 January 2020

On 13 January 2020, the US Coast Guard Office (USCG) of Commercial Vessel Compliance (CG-CVC) released the Mission Management Statement (MMS) Work Instruction (WI) which is an updated guidance on the Implementation of Compliance/Enforcement Policy for MARPOL Annex VI Regulation 14, including IMO 2020 Sulphur Cap.

The guidance outlines how the USCG will enforce MARPOL Annex VI requirements in respect of the sulphur content within the fuel oil that is used or carried for use for all ships within either of the two US Emission Control Areas (ECA). The WI also revises the guidance previously contained within CG-CVC Policy Letter 12-04 dated 25 July 2012.  

It is important to note the WI clarifies that, since the United States is a party to Annex VI and bound to enforce it, the USCG will take necessary steps to determine whether a ship is complying with the applicable 0.50% fuel sulphur limit even when operating beyond US waters. The same control procedures will apply to vessels in US waters but outside the ECA (eg Guam, American Samoa, Western Alaska).

The WI specifies three methods of enforcement, in accordance with the type and severity of each violation, as follows:

  1. USCG detection of violations that are not to be referred to the Environmental Protection Agency (EPA) for Enforcement Action: the captain of the port/officer in charge, marine inspection (COTP/OCMI) retains the ability to pursue USCG enforcement action including but not limited to a Letter of Warning, Notice of Violation and/or a Civil Penalty.
  2. USCG detection of violations referred to the EPA for enforcement action (non-criminal): decisions to offer to refer a case to the EPA will generally reside with the appropriate USCG COTP, which will usually be the COTP where the violation was discovered.
  3. USCG detection of violations, evidence of criminal liability: the USCG will be the lead agency to conduct the investigation under the authority of 14 USC 522 where evidence of criminal liability on the part of the mariner, owner, operator or other involved party is found (eg intentional use of non-compliant fuel oil, with falsified log books). In these cases the EPA will assist as needed and if required, the matter could be referred to the Department of Justice (DOJ).

The risk of a ship being detained remains high in the event of any violation being detected under any of the enforcement methods above.

It has been verified that for ships using scrubbers, any malfunction of the same will be acceptable if the duration has not exceeded one hour.

Vessels that are unable to obtain sufficient compliant fuel as per either ECA (0.10%) or IMO 2020 (0.50%) sulphur limits should submit a FONAR to the USCG captain of the port for the port of destination. The WI provides through Section E(6)(e) the necessary additional information that should accompany the FONAR intended to be submitted.  The USCG guidance can be found here and the CG-CVC Policy Letter 12-04 here

Members who operate US-flagged ships or ships that operate in US waters should familiarise themselves with the above guidance and consider the changes in USCG procedures to ensure compliance with the respective statutory and regulatory requirements.