With respect to the prevention of non-indigenous marine invasive species (“NIS”) introductions, the regulation of ballast water management has garnered the lion’s share of attention.  However, there is another front to the regulators’ war against NIS introductions: biofouling of the wetted surfaces of vessel hulls and niche areas such as sea chests, thrusters and propeller shafts.  For example, in March of this year, New Zealand authorities ordered a bulk carrier to leave its waters upon discovering dense fouling of barnacles and tube worms on the vessel’s hull.

Unsurprisingly, California (by and through the State Lands Commission (“SLC”)) regulates biofouling aboard all vessels of 300 gross registered tons or more arriving at California ports which carry, or are capable of carrying, ballast water.  The SLC has authority to regulate biofouling pursuant to California’s Marine Invasive Species Act, or “MISA.”  (California Public Resources Code §§ 71200 – 71271).  The SLC announced on August 15th that modifications to its biofouling regulations will soon take effect.  These “Biofouling Regulations” will be codified at 2 Cal. Code Reg. §§ 2298.1 – 2298.9.1 (the “Biofouling Regulations”).

The Biofouling Regulations’ new reporting, recordkeeping, and management requirements

Highlights of the Biofouling Regulations (available here), include:

  • Reporting requirements:  Beginning October 1, 2017, vessels should no longer use the SLC’s separate Hull Husbandry, Ballast Water Treatment (Annual), and “Ballast Water Treatment (Supplemental) reporting forms.  Vessels must now use the SLC’s “Marine Invasive Species Program Annual Vessel Reporting Form,” which essentially consolidates the foregoing forms into single report.  This form must be submitted at least 24 hours in advance of a vessel’s first arrival at any California port each calendar year.
  • Recordkeeping & Management requirements:  These requirements take effect on a vessel-by-vessel basis.  For existing vessels, the requirements apply after the first dry-docking on or after January 1, 2018.  The requirements also apply to vessels delivered on or after January 1, 2018.
    • Recordkeeping Requirements.  The following records must be made available to the SLC’s inspection and review upon request.  Vessels which do not maintain records consistent with the Biofouling Regulations’ requirements, will have 60-day “grace period” to develop compliant records.
      • Biofouling Management Plan.  The Biofouling Regulations incorporate by reference the IMO’s 2011 guidance on minimizing biofouling.  Vessels must have onboard a written biofouling management plan that is at least consistent with the IMO’s guidelines and which discuss certain information depending on the biofouling management practice employed by the vessel (e.g., anti-fouling coatings, anodes, injections systems, or electrolysis).
      • Biofouling Record Book.  Vessels must have onboard a biofouling record book that is at least consistent with the IMO’s guidelines for such records and which contains details of all inspections and biofouling management measures undertaken on the vessel since the vessel’s most recent dry docking, or since the beginning of a newly-delivered vessel’s service.
  • Mandatory biofouling management requirements.  Vessels employing anti-fouling coatings must ensure the coating shall not be aged beyond its effective lifespan. Vessels which do not employ anti-fouling coatings must demonstrate how they have adhered to their Biofouling Management Plan.  With respect to niche areas, the anti-fouling practices used by a vessel should be listed in its Biofouling Management Plan.  There are additional requirements for vessels remaining in any port for 45 days or more.  All instances of biofouling management must be recorded in a vessel’s Biofouling Record Book.  Furthermore, the Biofouling Regulations expressly permit propeller cleaning in California.

Enforcement & penalties

The Biofouling Regulations are silent on how SLC will enforce them and what penalties arise from their violation.  However, MISA requires the SLC to annually inspect 25% of all California arrivals.  In its “Final Statement of Reasons” for the Biofouling Regulations, the SLC advised:  “[SLC] inspectors will add biofouling management enforcement to their existing inspection regime …. the [SLC] recently adopted related enforcement regulations that include a framework for violations and penalties.” (emphasis added).  The referenced “enforcement regulations” are the ones which took on July 1, 2017.  The enforcement regulations primarily pertain to penalties for violations of the SLC’s ballast water exchange, reporting and recordkeeping requirements.  Our summary of the enforcement regulations is available here.

Under the enforcement regulations, violations of the Biofouling Regulations’ recordkeeping requirements are likely “Class 2” violations and violations of the reporting requirements are likely “Class 3” violations, which are penalized accordingly:

Whether the enforcement regulations provide penalties applicable to violations of the Biofouling Regulations’ management requirements is not so clear.  However, the enforcement regulations’ penalties for violations of the SLC’s ballast water exchange requirements establish that the agency takes violations of management requirements far more seriously than recordkeeping and reporting requirements.  Under the enforcement regulations, SLC may pursue penalties of up to $27,500/tank for violations of its ballast water exchange requirements.  $27,500 is the maximum per violation penalty the MISA authorizes the SLC to collect.

In its Final Statement of Reasons the SLC observed that “…the enforcement regulations may be amended to include penalties associated with [violations of the California Biofouling Regulations].”  Thus, perhaps the SLC is taking a “wait and see” approach to determining what it believes is an appropriate penalty dollar amount for violations of the Biofouling Regulations’ management requirements.

Keesal, Young & Logan Maritime Law Group

This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.