(WASHINGTON) — The U.S. Coast Guard recently announced that it plans to develop and propose regulations to implement the provisions of MARPOL Annex VI, Chapter 4, including various shipboard energy efficiency measures aimed at reducing carbon emissions linked to climate change.
The Coast Guard states it is doing so in support of the Biden administration’s goals outlined in Executive Order 14008, titled “Tackling the Climate Crisis at Home and Abroad.” According to this filing, the regulations will apply to U.S.-flagged ships and foreign-flagged ships operating either in U.S. navigable waters or in the U.S. Exclusive Economic Zone.
In June 2021, the International Maritime Organization’s (IMO) Marine Environmental Protection Committee adopted new regulations in MARPOL Annex VI aimed at significantly reducing carbon intensity and greenhouse gas emissions from shipping over the next decade, and beyond. These measures include the Energy Efficiency Existing Ship Index (EEXI), the Carbon Intensity Indicator (CII) rating scheme, and provisions for an enhanced Ship Energy Efficiency Management Plan, all of which will apply to existing vessels covered under the IMO regulations. Some IMO member states, including the United States, as well as various maritime industry groups, are now advocating for a significant acceleration of these efforts.
As is typical, these changes were undertaken at IMO under the MARPOL Convention’s tacit amendment process. Under this procedure, absent some objection or reservation to the new regulations by the United States government, changes to MARPOL’s annexes generally become binding U.S. law without the need for additional legislation or regulation. At this point, most of the new MARPOL efficiency and carbon intensity regulations will therefore become binding when those regulations enter into force globally in 2023.
Regulations to address “gaps” and “discretionary aspects” of MARPOL Annex VI
In its announcement, the Coast Guard stated it intends to propose regulations to implement these new provisions of MARPOL Annex VI, and to “fill gaps in the existing framework” and “explain how the United States has chosen to carry out certain discretionary aspects of Annex VI.” After considering several options, the Coast Guard stated that it found it “necessary” to develop such regulations.
The underlying legal text of the recently adopted MARPOL regulations will not be changed through this rulemaking. However, this announcement is an indication that the Coast Guard feels that there is sufficient ambiguity and discretion in these new MARPOL regulations that requires further elaboration and clarification through a rulemaking.
It is unclear at this point exactly which “gaps” and “discretionary aspects” of the new IMO regulations the rulemaking will address. There are many possibilities. It might address potential ambiguities about which vessels are covered by the regulations and which are not, how various IMO guidelines will be interpreted and implemented for U.S.-flagged vessels, how EEXI and CII surveys and enforcement will be carried out, and potentially many other aspects of implementation and interpretation of MARPOL Annex VI that could impact U.S.-flagged vessels, as well as foreign-flagged vessels calling on U.S. ports.
In its timetable, the Coast Guard’s announcement indicates the proposed regulations may be released in May 2022. While the extent and scope of this particular rulemaking is unclear, IMO decarbonization regulations are likely to be transformative for the maritime industry in the years ahead. This rulemaking will provide a window of opportunity for the maritime industry and others in the regulated community to provide input into how the United States will exercise its discretion under MARPOL, and how it will implement and interpret these important provisions of the convention.
– Luke M. Reid, Jeffrey S. King and Brody Garland are members of the maritime policy and regulatory team at K&L Gates LLP.