The North American Emission Control Area (ECA) was established in 2009 pursuant to Annex VI of the International Convention for the Prevention of Pollution from Ships (MARPOL), which is implemented domestically through the Act to Prevent Pollution from Ships (APPS). The ECA encompasses most of the United States and Canada’s coastal waters out to 200 nautical miles from the coastline, though it does not include the Pacific U.S. territories, smaller Hawaiian Islands, Puerto Rico, the U.S. Virgin Islands, the Aleutian Islands and Western Alaska, and the U.S. and Canadian Arctic.

Enforcement of the ECA began on August 1, 2012 and vessels subject to MARPOL, with limited exceptions, will be required to use fuel with a sulfur content not exceeding 1.00% or install and use an equivalent compliance method approved by the flag state, such as exhaust gas scrubbers or a fuel averaging system like that just recently approved by the U.S. Coast Guard, Environmental Protection Agency (EPA), Transport Canada, and The Bahamas for Royal Caribbean Cruises Limited. Beginning in 2015, the ECA sulfur limit will be further reduced to 0.10%. Recent EPA and Coast Guard guidance provides insight on how to deal with ECA-compliant fuel availability and enforcement issues. The Coast Guard has also published a Question & Answer policy document that addresses ambiguities that have arisen since the August 1 enforcement date. Vessels operating in the ECA will be required to demonstrate compliance through bunker delivery notes, representative fuel oil samples, written fuel changeover procedures, and a fuel changeover logbook.

Just how ECA requirements will be enforced remains unclear even though the Coast Guard and EPA entered into a Memorandum of Understanding (MOU) setting forth the terms by which the agencies would cooperate in connection with MARPOL Annex VI. The MOU provides that EPA will verify compliance with fuel oil availability and maintain a register of local fuel oil suppliers. The Coast Guard will examine bunker delivery notes and records during its routine port state control inspections. In addition, EPA may, either on its own or at the Coast Guard’s request, attend or assist with flag state and port state control inspections. The agencies intend to share information about inspections, examinations, and investigations. When a violation is suspected, the agency with the relevant expertise will investigate and initiate enforcement action as appropriate, which may include civil and criminal penalties.

EPA expects ECA-compliant fuel to be widely available, but it recognizes there may be availability issues in some regions. If a vessel is unable to get ECA-compliant fuel, it should use the lowest sulfur fuel available and obtain compliant fuel at the first U.S. port at which it is available. Although EPA stated that it expects distillate fuels to be used as blending agents to produce ECA-compliant fuel, it will not require vessels to blend fuel onboard, purchase distillate fuel to meet the ECA requirements, or deviate from their intended voyage to obtain compliant fuel. However, EPA expects that when a vessel enters the North American ECA, the vessel owners and operators will have taken care in voyage planning to ensure that reasonable efforts are made to obtain ECA compliant fuel oil at every port along the intended voyage.

Vessels must notify the EPA and their flag state if they are unable to obtain ECA-compliant fuel prior to entering the ECA. EPA published “Interim Guidance on the Non-Availability of Compliant Fuel Oil for the North American Emission Control Area” in June describing how vessels should make notifications. EPA also recommends that Fuel Oil Non-Availability Reports be submitted once the vessel becomes aware that it will not be able to obtain compliant fuel and no later than 96 hours prior to entering the ECA. It is important to note that the filing of a Fuel Oil Non-Availability Report is not required, and the filing of one does not mean a vessel is in compliance with Annex VI. Rather, it simply means that the owner or operator wants EPA to consider its efforts to obtain ECA-compliant because EPA will review the information provided and determine whether “best efforts” were made to obtain compliant fuel when deciding what enforcement action, if any, to take in response to the violation. Thus, submission of these reports will help mitigate the non-compliance.

In addition to the factors mentioned previously, EPA will consider how many Fuel Oil Non-Availability Reports have been previously filed and whether owners or operators of other vessels on similar voyages submitted Fuel Oil Non-Availability Reports. EPA is in the process of creating an electronic system to receive Fuel Oil Non-Availability Reports.

The U.S. government takes MARPOL compliance seriously and has been aggressive in enforcing compliance with Annex I and Annex V over the years, commonly imposing criminal penalties for companies and imprisonment for engineers. Most of these prosecutions have related to inaccurate recordkeeping, not necessarily pollution, e.g., for maintaining an Oil Record Book and/or Garbage Record Book that have false entries or omit entries.

We expect the government will take compliance with MARPOL Annex VI just as seriously, and Annex VI compliance may thus present new challenges in terms of criminal enforcement for inaccurate records. As such, it is extremely important to keep accurate MARPOL Annex VI records—all required entries must be accurately and completely recorded, even if the entry may indicate that a violation may have occurred. The Coast Guard will be focusing on the Annex VI record keeping requirements as part of its port state control program and has provided guidance to field inspectors on how to handle such potential criminal violations.