Note and questionnaire on new Port ReceptionFacilities (PRF)proposal

  1. Introduction

The aim of this note is to further analyse the new proposal on Port Reception Facilities (PRF) Directive recently published by the Commission; moreover, to raise questions and ask for feedback from members as regards their views and concerns on the new elements introduced by the proposal in order to prepare a new position paper of ESPO. Thus, the first part of the note consists of an analysis of the new articles and the second part of questions as regards members’ position on specific provisions.

The Commission has acknowledged that the current Directive has delivered in limiting quantities of waste discharged at sea. However, after 17 years enforcement and incentives have to be enhanced to further limit the waste gap. The Impact Assessment accompanying the new proposal found that the waste delivery gap for garbage ranges from 7% to 34%, for oily waste is at 2.5% and for sewage at 10%.

The proposal aligns some parts of the Directive with MARPOL and aims to further standardize the process of waste delivery. The proposal aligns the EU regime with MARPOL as regards the scope, definitions and forms. At the same time, the proposal goes further by regulating the legal and operational responsibilities as well as the cost recovery systems. In addition, the proposal, like the current Directive, has a wider scope by covering all sea-going vessels and all EU ports visited by these vessels.

The main areas where the Directive and MARPOL will continue to differ are the following:

· the adoption of waste reception and handling plans;

· the development and operation of the cost recovery systems;

· the mandatory reporting of information from the advance waste notification and the waste receipt;

· the inspection regime;

· the regime of exemptions for ships in scheduled traffic.

2. Analysis of the new Articles

Article 2 replaces the definition of ship-generated waste with the more generic definition of waste from ships, defined in relation to the relevant MARPOL Annexes. This includes now cargo residues, as well as waste falling under MARPOL Annex VI, i.e. the residues from exhaust gas cleaning systems, which comprise of sludge and bleed-off water. While ozone depleting substances are not explicitly mentioned in the proposal, they fall under the scope of MARPOL Annex VI and are included in the Advance Waste Notification format of Annex 2 of the proposal. Passively fished waste, i.e. waste collected in nets during fishing operations, is included in the definition of waste from ships. Moreover, there are definitions of catering waste, sufficient storage capacity, schedule traffic, regular port calls and frequent port calls. The definition of catering waste is likely to give us a good argument to define also international shipping with regard to the requirements imposed by Regulation 1069/2009 for the management of catering waste from international transport. However, some definitions seem to lack clarity. For instance, it is not clear what vessels are included in the scope of recreational craft not engaged in trade.

With regard to the adequacy of port reception facilities, the notion of adequate port reception facilitiesis now described in a more detailed way. However, adequacy is still assessed on the basis of the availability to facilitate ships normally using the port without undue delay. PRF will have to receive the types and quantities of waste from ships normally using the port, while the size, the geographical location of the port and the type of the ships received will have to be taken into account. The requirement for separate collection of waste set out in the Waste Framework Directive is expressly mentioned to be applied in ports. This will relate especially to cases where the waste is previously segregated on board in line with international standards.

An explicit reference is also made to the requirements imposed by Regulation 1069/2009 for the management of catering waste from international transport. The Regulation requires catering wastefrom international shipping to be incinerated or disposed of by burial in an authorised landfill. However, the potential contamination of clean plastics such as packaging waste from animal by-products is not addressed in the proposal.

All information on PRF adequacies will be kept on the newly introduced information, monitoring and enforcement system of Article 14 under SafeSeaNet. Moreover, a new right is introduced for shipowners/operators that will be able to claim compensation for damage caused by undue delay. This new right is based on a concept that seems to be unclear, i.e. undue delay, and there is a risk it might end up in lawsuits filed against ports.

With regard to the waste reception and handling plans, there is an obligation to carry out ongoing consultations with port users, even after the adoption of the plans. Furthermore, there are new transparency requirements introduced. The elements of the plans which have to be communicated to the port users under Annex 1 of the current Directive, have been moved to Article 5 of the proposal and will have to become publicly available. Moreover, this information will be kept on the newly introduced information, monitoring and enforcement system of Article 14. The plans will have to be re-approved at least every three years or after significant changes.

Clarifications are also provided for the notion of the significant changes to such a plan and the regional context in which it can be developed. With regard to the regional context, it is added now that this can be carried out by two or more neighbouring ports in the same region. However, it seems to be unclear how the same region is defined.

With regard to the advance waste notification form, it has been fully aligned with IMO Circular MEPC/834 and is provided in a new Annex 2 of the proposal. The delivery obligation for all waste has been fully aligned with MARPOL, so that the proposal is in line with the MARPOL discharge regime. Where discharge of waste at sea is allowed under MARPOL, it will also be lawfully discharged under the proposal. The new provision concerns especially the discharge of sewage.

Furthermore, the issuing of a new waste receipt to the ship upon delivery of the waste is introduced under Article 7 of the proposal. The waste receipt will be issued either by the waste operator or the port authority, while the information included in the receipt will have to be electronically reported by the ship into the new information, monitoring and enforcement system of Article 14 before departure.

Article 7 introduces an exception forships at anchorage for less than 24 hours and reiterates the exception for ships that have sufficient storage capacity onboard. However, this exception is limited now to situations where the next port of call is located in the EU. Furthermore, the Commission will be empowered to make a decision at later stage through comitology on the specific methods to calculate sufficient on-board storage capacity.

With regard to the cost recovery systems, there are four different regimes depending on the waste type. With regard to the cargo residues, they are not subject to the cost recovery systems of Article 8 altogether but to contractual agreements between the parties involved. On the other hand, scrubber waste will be subject only to a direct fee on the basis of the types and quantities delivered. However, the proposal does not put under the same cost regime all waste of MARPOL Annex VI, as ozone depleting substances will be under the general regime (direct and indirect fee). It seems also unclear the difference between the regime for cargo residues, which are completely exempt from the cost recovery systems, and the regime for the scrubber waste, which is exempt only from the indirect fee.

Furthermore, waste of MARPOL Annex V (garbage) and passively fished waste will be subject to the indirect fee without any additional direct charges. This means in practice, the introduction of the100% indirect fee without any charges on the basis of the types and quantities delivered. However, it seems unclear if this indirect fee covers also the profit the waste operator makes. This ambiguity arises from the wording used in the new article, which does not seem to regulate the charging in general but the costs. To the extent that profits are not included in costs, then the question is whether the profit will be added to the indirect fee. Moreover, the proposal does not take into account the concerns of ports especially as regards the delivery of unreasonable quantities of waste, the 24/7 operation and the inclusion of dangerous waste. The tariff of the indirect fee could be differentiated if services are provided outside normal operating hours. However, this will probably result in more administrative burden as another indirect fee will have to be introduced for these hours.

With regard to the other waste types, the indirect fee will be calculated in a more harmonised way. The new indirect fee will have to cover all administrative costs of new Annex 4 and at least 30% of the total yearly operational costs of new Annex 4. It is positive though that the elements included in the lists of operational and administrative costs of Annex 4, will have to be taken into account but are not exhaustive. More costs could be added in the calculation of the indirect fee. However, the difference with the current Directive is that the significant contribution (no less than one third) is calculated on the basis of all costs.

With regard to green charging, Article 8 par. 5 introduces an obligation for ports to offer green rebates if a ship complies with specific requirements (‘Green Ship’ concept). These requirement will be defined later by the Commission through comitology. This provision contradicts one of the main positions of ports that green charging must be left to ports to decide on the basis of their priorities and the assessment carried out by bottom-up initiatives.

With regard to the exemption regime for ships in scheduled and regular traffic, the proposal further harmonises the exemption criteria, in particular what constitutes a ship in scheduled traffic with frequent and regular port calls, as well as what constitutes sufficient evidence of an arrangement for delivery and payment of the fee. A standard exemption certificate is introduced in Annex 5 of the proposal, which is issued in case the exemption is granted.

With regard to the inspections and the enforcement of the mandatory delivery requirement,Article 10 specifies that the PRF inspections must be fully integrated into the Port State Control regime set up under Directive 2009/16/EC and follow a risk-based approach, when the ship falls within the scope of that directive. At the same time, a separate inspection regime is provided for vessels that are not covered by the Port State Control Directive.

With regard to fishing vessels and recreational craft, under the current Directive they are exempted from some of the key obligations. These exemptions have been redefined under the proposal, so that they will be subject to the principles of the cost recovery systems and will be treated in the same way as all vessels falling under the scope of the Directive. However, reporting of the information from the waste notification and waste receipt will only be required for fishing vessels and recreational craft of 45 metres and above.On enforcement, the proposal lays down that inspections must be carried out for at least 20% of all fishing vessels and recreational craft over 100 gross tonnage calling in the ports of a relevant Member State annually.

  1. Questionnaire

Please find below a list of questions with regard to the impact and the implications of the new proposal’s provisions. Your feedback will be used to develop a new position paper of ESPO on the new proposal. Please let us also know if you have any other comments or concerns which are not covered by the questions below.

  1. Do you have any comments or concerns about missing elements or lack of clarity with regard to the new definitions?
  1. What would be your position on the introduction of a new definition on international shipping with regard to the requirements imposed by Regulation 1069/2009 for the management of catering waste from international transport?
  1. Do you have any comments with regard to the inclusion of scrubber waste (sludge and bleed-off water) in the scope of the directive, in particular with the inclusion of the bleed-off water? Is it clear, in your opinion, that bleed-off water does not cover wash water from open loop scrubbers?
  1. What is your position on the requirement for separate collection of waste set out in the Waste Framework Directive which is explicitly mentioned in the proposal?
  1. What would be your position on the introduction of a new obligation for ships to segregate separately clean plastics from contaminated plastics?
  1. What is your position on the new right to claim compensation for damage caused by undue delay and what are the implications you identify?
  1. Do you have any comments or concerns with regard to the new article on waste reception and handling plans?
  1. Do you have any comments on the new paragraph on regional plans?
  1. Do you have any comments or concerns with regard to the new article on the waste receipt and the exceptions?
  1. Has your port already implemented the 100% indirect fee for MARPOL Annex V waste?
  1. If yes, has your port set any limits to avoid ‘PRF shopping’ and delivery of unreasonable quantities of waste? If yes, does your port receive all Annex V waste, including dangerous waste under the 100% indirect fee?
  1. If yes, what is the methodology used to set these limits?
  1. What are implications of the introduction of the 100% indirect fee without limits and with dangerous waste included? Do you see any implications as regards competition among different waste operators?
  1. Has your port introduced any incentives to increase the delivery of plastics and/or fishing gears?
  1. Do you identify any implications with regard to the new system for the calculation of the significant contribution?
  1. With regard to green charging, some ports expressed concerns about the administrative burden the verification of the requirements set by the Commission at later stage will bring. Do you also expect that the administrative costs of implementing a fully harmonised system will possibly exceed the green discount offered to ships?
  1. Do you have any comments or concerns with regard to the exemption on ships engaged in scheduled traffic with frequent and regular port call, in particular as regards the new definitions?
  1. Do you have any comments or concerns with regard to the new inspection and enforcement regime?
  1. Do you identify any implications with regard to the integration of the PRF inspection regime into the Port State Control regime?
  1. Has your port undertaken any Port State control competences?
  1. Do you have any comments or concerns with regard to the new regime for fishing vessels and recreational craft?

Sotiris Raptis 15/02/2018