November 2017 Legal Update 1

LEGAL UPDATE

In 2011, the IMO adopted ResolutionMEPC.207(62) outlining the Guidelinesfor the Control and Management of Ships’Biofouling to Minimize theTransfer ofInvasive Aquatic Species.The Guidelinesare supplemented by the Guidance forminimizing the transfer of invasive aquaticspecies as biofouling (hull fouling) forrecreational craft circulated as MEPC.1/Circ.792. Local governments includingCalifornia, New Zealand and Australiahave developed or are developingunilateral mandatory regulations whichare more stringent than the IMOGuidelines.This article is to alertMembers to developments and toencourage Members to comply withthe IMO Guidelines as part of Members’biofouling management systems.

What is Biofouling?

• Undesirable accumulation of variousaquatic organisms (microorganisms,plants, algae and animals) onsubmerged structures like ships’ hulls

What impacts are caused bybiofouling?

• Introduction of invasive aquaticspecies (IAS)

• Marine species can not only becarried in ship’s ballast water into newenvironments but also throughbiofouling

• Marine species establish areproductive population in the hostenvironment, becoming invasive,out-competing native species andmultiplying into pest proportions

• In some parts of the world, evidencesuggests that 70-80% of IASintroductions have occurred throughbiofouling

•The problem of IAS has intensifiedover the last few decades due to anincrement of traffic volume

• New areas are being invaded

• Causes major threat to the world’s

oceans and to the conservation ofbiodiversity

•The spread of IAS is one of thegreatest threats to the ecological andthe economic well-being of the planet

• Enormous damage to biodiversity, anddamage to the environment is oftenirreversible

• Prevention of the introduction of IASis more efficient and more economicalthan effective combating of IAS

Measurements taken by IMOagainst IAS

• Cooperation and collaboration ofstates is required

• UNCLOS provides the globalframework. It stipulates that states shallwork together to prevent, reduce andcontrol human caused pollution of themarine environment, including theintentional or accidental introductionof harmful or alien species to aparticular part of the marineenvironment (Art. 196 UNCLOS)

•Adoption of the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (BWM Convention); the BWM Convention entered into force on 8 September2017

• Biofouling Guidelines were adoptedby MEPC in 2011 and furthersupplemented by the Guidance forminimising the transfer of invasiveaquatic species as biofouling (hullfouling) for recreational craftcirculated as MEPC.1/Circ.792

• Guidelines are not binding

• Intended to provide useful

Minimising the transfer of invasiveaquatic speciesThe introduction of invasive aquatic species (IAS) associated with global shippinghas been identified as a significant threat to the world’s oceans and coastalecosystems. Research suggests that 70-80% of IAS introductions occur throughbiofouling, and new areas are constantly being invaded.

LEGAL UPDATE

recommendations on generalmeasures to minimise the risksassociated with biofouling

• Intended to provide a globallyconsistent approach to themanagement of biofouling

• Port States, flag States, coastal Statesand other parties should exercise duediligence to implement the Guidelinesto the maximum extent possible, butare not forced to do so

• Guidelines assist by giving proposalsto implement practices to control andmanage biofouling to reduce the risksof the transfer of IAS

• Establishment of the GloFoulingPartnerships project: a collaborationbetween the Global EnvironmentFacility (GEF), the United NationsDevelopment Programme (UNDP)and the International MaritimeOrganization (IMO)

•The project will focus on theimplementation of the IMOGuidelines for the control andmanagement of ships’ biofouling

•Will build capacity in developingcountries to reduce the transboundaryintroduction of biofouling-mediatedinvasive aquatic species

• Is supposed to help tackle one of thekey remaining vectors for the transferof invasive aquatic species

•The previous project was theGloBallast Partnerships project, whichresulted with the successful adoptionof the BWM Convention

Implementation of aneffective biofoulingmanagement plan – contentof MEPC.207(62)

• Biofouling management plan:

- Biofouling management measures tobe undertaken on a ship should beoutlined (Example:Appendix 1 ofMEPC.207(62))

- Should be specific to each ship andincluded in the ship’s operationaldocumentation

• Biofouling record book:

- Should record details of allinspections and biofoulingmanagement measures undertakenon the ship

- It is recommended that it be retainedon the ship for the life of the ship

- Example:Appendix 2 ofMEPC.207(62)

• Possible anti-fouling systems:

- The anti-fouling system used shouldcomply with the AFS Convention

- Coating system

- Biofouling resistant materials usedfor piping and other unpaintedcomponents

- Marine growth prevention systems(MGPSs) for sea chests and internalseawater cooling systems

- Other innovative measures tocontrol biofouling

• Procedures for ship maintenance andrecycling facilities

- Such facilities should adopt measures(consistent with applicable nationaland local laws and regulations) toensure that viable biofoulingorganisms or chemical and physicalpollutants are not released into thelocal aquatic environment

• In-water inspection of ships

• In-water cleaning and maintenance

• Focus on design and construction fornew ship buildings

• States are encouraged to maintain andexchange information relevant tothese Guidelines

• State authorities should providerelevant information about theapplicable biofouling managementmeasures and treatment requirementsto shipowners and operators

•Training for ships’ masters and crews,in-water cleaning or maintenancefacility operators and those surveyingor inspecting ships as appropriateshould include instructions on theapplication of biofouling managementand treatment procedures

November 2017 Legal Update 2

Benefits from managingbiofouling

• Improve a ship’s hydrodynamicperformance

• Hull fouling leads to significantincreases in ship resistance

• Lower fuel costs and emissions of airpollutant and greenhouse gases, i.e.enhancing energy efficiency andreducing air emissions from ships

Regional biofoulingregulations

California, United States (US)

• Biofouling Management Regulationsto minimise theTransport of Non-indigenous Species fromVesselsArrivingat California Ports (Article 4.8)

• Effective since 1 October 2017

• Is applicable for Vessels of 300GRT or more that arrive at aCalifornia port and carrying, orcapable of carrying, ballast water

•The provisions apply to newlyconstructed vessels delivered intoservice on or after January 1, 2018,and to existing vessels beginning withcompletion of the first regularlyscheduled out-of-water maintenanceon or after January 1, 2018

•The master, owner, operator or personin charge of a vessel that arrives at aCalifornia port shall maintain aBiofouling Management Plan to beretained onboard and preparedspecifically for that vessel as well as aBiofouling Record Book

•The management plan shall provide adescription of the biofoulingmanagement strategy for the vesselthat is sufficiently detailed to allow amaster or other appropriate ship’sofficer or crew member serving onthat vessel to understand and followthe biofouling management strategy

• Record Book must contain details ofall inspections and biofoulingmanagement measures undertaken onthe vessel since the beginning of themost recent scheduled out-of-water

LEGAL UPDATE

maintenance or since delivery intoservice as a newly constructed vessel ifno out-of-water maintenance has yetoccurred

• For further information see Article4.8 § 2298.3. Biofouling ManagementPlan1 and § 2298.4. BiofoulingRecord Book2

•The regulations are similar to therequirements of the IMO BiofoulingGuidelines

•The master, owner, operator, agent orperson in charge of a vessel that arrivesat a California port shall submit the“Marine Invasive Species ProgramAnnualVessel Reporting Form” (SLC600.12, Revised 08/17)3 to theCommission in written or electronicform at least twenty-four hours inadvance of the first arrival of eachcalendar year at a California port of call

• Regulations for managing biofoulingon wetted surfaces:

- Must be managed in accordance withthe Biofouling Management Plan

- Use of anti-fouling coating

- Other measurements to preventbiofouling

- Documentation

• It is possible to submit a petition foralternatives to the requirements ofArticle 4.8

• Exemptions in case of emergency

• Assistance to understand how to fulfilthe requirements is given by theCalifornia State Lands Commission;therefore a Guidance Documenthas been released4 and an overviewof all requirements is available onSLC’s website5

US federal law

•Within the context of US CoastGuard regulations in 33 Code of

Federal Regulations (CFR) Part 151regarding discharging of ballast water,it is stated in §151.2050 CFR thatanchors and anchor chains shall berinsed when the anchor is retrieved toremove organisms and sediments attheir places of origin

• Furthermore, fouling organisms shallbe removed from the vessel’s hull,piping, and tanks on a regular basisand any removed substances shall bedeposed in accordance with local,State and Federal regulations

•The Environmental ProtectionAgency (EPA) issued its most recentVessel General Permit (VGP) in 2013

•The permit applies to largecommercial vessels (79 feet (24m) inlength or greater)

•Within the permit the EPAimplements regulations regardingbiofouling management (VGP 2.2.23)

•The regulations do not reach theextent of the IMO GuidelineMEPC.207(62), but are derived fromthe Guidelines

• It is stipulated that theVesselowners/operators must minimise thetransport of attached living organismswhen traveling into US waters fromoutside the US economic zone

•An appropriate biofouling managementsystem should be installed and thatsystem should be maintained

•Therefore, hull-cleaning activitiesshould take place whenever possiblewhile the vessel is in drydock

• In addition, cleaning activities whilethe vessel is waterborne must employmethods that minimise the dischargeof fouling organisms and antifoulinghull coatings

•To fulfil theVGP regulations it is notnecessary to provide a biofoulingmanagement plan and/or biofouling

November 2017 Legal Update 3

record book as it is proposed inMEPC.207(62)

New Zealand

•The government of New Zealandissued a Craft Risk ManagementStandard (CRMS) to addressbiofouling on vessels arriving at NewZealand ports

• Requirements are based on theInternational Maritime Organization’sGuidelines MEPC.207(62)

• CRMS applies to any vessel that willanchor, berth or be brought ashore inNew Zealand whose voyageoriginated outside New Zealand’sterritorial waters

• Vessels must arrive with a “clean hull”,i.e. only a limited amount ofbiofouling is permitted

• Allowable biofouling includes a slimelayer and goose barnacles on hullsurfaces

• If the vessel is staying for 20 days or lessand visiting only designated locationsadditional fouling (up to 5% cover) isallowed in niche and other areas

• Three categories of options areconsidered to be acceptable for meetingthe CRMS clean hull standard:

- All biofouling must be removedfrom all parts of the hull by anapproved facility 30 days or lessbefore visiting New Zealand, if sucha cleaning has not been performed,it can be performed within 24 hoursafter time of arrival

- Continual maintenance using bestpractice including: application ofappropriate anti-fouling coatings;operation of marine growthprevention systems on sea-chests;and in-water inspections withbiofouling removal as required;following the IMO Biofouling

1 https://govt.westlaw.com/calregs/Document/IC9FA65EBE3EC45289FC54C496DE5E009?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)2 https://govt.westlaw.com/calregs/Document/IC2A31BA4461548E286F726E37727DC9C?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)3 http://www.slc.ca.gov/Forms/MISP/Annual_Vessel_Reporting_Form.pdf4 http://www.slc.ca.gov/Programs/MISP/4_8_GuidanceDoc.pdf5 http://www.slc.ca.gov/Programs/MISP.html

LEGAL UPDATE

Guidelines is recognised as anexample of best practice

- Application of approved treatmentslisted on CMRS’website

• Providing evidence of compliance isnecessary before arriving at NewZealand’s ports via the AdvancedNotice of Arrival and associateddocuments

• It is possible to be asked to providephotographic (or video) evidence ofthe cleaned hull and niche areas

• Biofouling management plan andrecord book shall be provided

• A website to provide guidance forfulfilling the requirements isestablished by New Zealand’s Ministryof Primary Industries

Australia

• Australia’s biosecurity laws are thestrictest in the world

• Biosecurity Act 2015 commenced on16 June 2016

• Introduces new requirements thataffect how the department managesthe biosecurity risks associated withgoods, people and conveyances(vessels) entering Australia

• Biosecurity risks means the likelihoodof a disease or pest entering Australianterritory, or establishing itself orspreading in Australian territory andthe disease or pest could harm human,animal, plant health or the environment

•The regulations do not expresslymention biofouling,but biofouling maybe considered as a biosecurity risks

• All commercial vessels must use theMaritime Arrivals Reporting System(MARS) for all vessel pre-arrivalreporting

•The operator of the vessel/shippingagent is obligated to accurately reportinformation in accordance with Section193 of the Biosecurity Act 2015

•The provided information mustfacilitate the Director of Biosecurityto assess the level of biosecurity riskassociated with the entering vessel(Section 195 and seq. of theBiosecurity Act 2015)

• Inspections can be performed to assessthe risk if necessary

• Gathered information and the assessedbiosecurity risk may potentiallyprovide a basis for banning a vesselfrom making a port call

• To lower the level of biosecurity riskit is recommended to managebiofouling on the entering vessel

• The National BiofoulingManagement Guidelines are designedto help the maritime industry andvessel owners and operators tomanage and control vessel biofouling

•The guidelines are not binding

•They are recommended for use byresource managers, owners andoperators of vessels and movable

November 2017 Legal Update 4

structures, operators and customers ofmaintenance facilities, and contractorsproviding vessel maintenance services

• Practices described in these guidelineshave been aligned with internationalconventions, included, inter alia, the2011 IMO Biofouling Guidelines

• Structure of the guidelines:

Part 1: Best practice guidance for theapplication, maintenance, removal anddisposal of anti-fouling coatings atshore-based maintenance facilities tominimise environmental risk

Part 2: Best practice guidance for in-water cleaning and maintenance ofvessels and movable structures tominimise environmental risk

Appendices with supportinginformation (e.g. a template for aBiofouling Management Plan and aBiofouling Record Book)

Europe

• No European legal acts, i.e. noregulations or directives are in force �

The author,MadleneWangrau from Hamburg,Germany, is currently on a work placementwith the UK P&I Club.Madlene completedher major subject on“Maritime Law and Lawof the Sea” at the University of Hamburg.

If Members have any questions on thissubject, please do not hesitate to get in touchwith your usual contact at the Club.

Sources:http://www.imo.org/en/OurWork/Environment/Biofouling/Pages/default.aspxhttp://www.gard.no/web/updates/content/24305557/biofouling-moves-up-the-regulatory-agendahttp://www.imo.org/en/mediacentre/pressbriefings/pages/20-biofouling.aspxhttp://www.imo.org/en/OurWork/Environment/Biofouling/Documents/RESOLUTION%20MEPC.207%5b62%5d.pdfhttps://govt.westlaw.com/calregs/Browse/Home/California/CaliforniaCodeofRegulations?guid=I7B8BB9028E8D46DFB63FBC7410E45356&originationContext=documenttoc&transitionType=Default&contextData=(sc.Default)https://www3.epa.gov/npdes/pubs/vgp_permit2013.pdfhttp://www.eagle.org/eagleExternalPortalWEB/ShowProperty/BEA%20Repository/References/Booklets/2013/ABS_Trends_October2013http://www.maritime-enviro.org/Downloads/Reports/Other_Publications/Status_of_Vessel_Biofouling_Regs_2014_%20Nov_18_2014.pdfhttps://en.wikipedia.org/wiki/Regulation_of_ship_pollution_in_the_United_Stateshttp://www.mpi.govt.nz/importing/border-clearance/vessels/arrival-process-steps/biofouling/biofouling-management/http://www.agriculture.gov.au/biosecurity/avm/vessels/#biosecurity-concernshttp://www.agriculture.gov.au/biosecurity/avm/vessels/biofouling/anti-fouling-and-inwater-cleaning-guidelineshttp://www.agriculture.gov.au/biosecurity/avm/vessels/biofoulinghttp://www.agriculture.gov.au/biosecurity/legislation/new-biosecurity-legislation/how-changes-affect-you/shipping-industryhttps://www.legislation.gov.au/Details/C2015A00061http://www.agriculture.gov.au/SiteCollectionDocuments/animal-plant/pests-diseases/marine-pests/antifouling-consultation/antifouling-guidelines.pdf