Explanatory Statement
Marine Orders Part 97 Amendment 2011 (No.1)
(Marine pollution prevention — air pollution)
Authority
- Section 267ZV of the Navigation Act 1912 (the Navigation Act) provides that the regulations may make provision for and in relation to giving effect to regulations 5, 6, 8, 9, 13 and 16 of Annex VI of the International Convention for the Prevention of Pollution from Ships (MARPOL).
- Subsection 33(1) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the Pollution Prevention Act) provides for regulations to be made prescribing matters for and in relation to giving effect to MARPOL, other than provisions of MARPOL to which effect is given by a provision of that Act, any other Act or any instrument made under any other Act.
- Subsection 425(1) of the Navigation Act authorises the Governor-General to make regulations necessary or convenient for carrying out or giving effect to the Navigation Act.
- Subsection 33(1) of the Pollution Prevention Act provides that the Governor-General may make regulations necessary or convenient for carrying out or giving effect to the Pollution Prevention Act.
- Subsection 425(1AA) of the Navigation Act and subsection 34(1) of the Pollution Prevention Act allow the Australian Maritime Safety Authority (AMSA) to make orders for any matter in those Acts for or in relation to which provision may be made by regulations.
- Marine Orders Part 97 (Marine Pollution Prevention — Air Pollution), issue 1 (MO 97) was made under subsection 425(1AA) of the Navigation Act and subsection 34(1) of the Pollution Prevention Act, as is Marine Orders Part 97 Amendment 2011 (No.1) (the amending Order).
Purpose
7. The purpose of MO 97 is to:
(a) give effect to, in whole or part, regulations 5, 6, 8, 9, 13, 14, 16 and 18 of Annex VI of MARPOL which deal with survey and certification, emission limits for nitrogen oxides (NOx) and sulphur oxides (SOx), shipboard incineration, fuel oil sampling and record keeping matters; and
(b) prescribe matters for Division 12D of Part IV of the Navigation Act and Division 2 of Part IIID of the Pollution Prevention Act.
8. The amending Order gives effect to amendments made to Annex VI of MARPOL by the Marine Environment Protection Committee (MEPC) of the International Maritime Organization (IMO). Resolutions MEPC.170(57), 176(58) and 177(58) adopted amendments to MARPOL. The amendments will result in a progressive reduction in sulphur oxide content of fuel used by ships over the next 10 years. Progressive reductions in nitrogen oxide emissions from marine engines are also included in these amendments.
9. The amendments arising from the resolutions were to enter into force on 1 July 2010. This could not occur in Australia because the Pollution Prevention Act did not at that time provide for AMSA to make Orders in relation to the matters in the resolutions. Following recent amendments to the Pollution Prevention Act, the amending Order gives effect to the MEPC resolutions.
Overview
10. Regulations for the Prevention of Air Pollution from Ships were adopted in the 1997 Protocol to MARPOL 73/78 and are included in Annex VI to that Convention. The regulations in Annex VI set limits on sulphur oxides and nitrogen oxides emissions from ship exhausts and prohibit deliberate emissions of ozone depleting substances.
11. The Protection of the Sea Legislation Amendment Act 2010 commenced on 10 November 2010. It amended the Pollution Prevention Act to implement the revised Annex VI of MARPOL to provide for the stepped reduction in the sulphur level in fuel oil used in ships in order to reduce the emissions of sulphur oxides.
12. The amendments in the Order also include an express reference to the North American emission control area and include progressive reductions in nitrogen oxide emissions from marine engines.
13. The Order inserts two expanded penal provisions (provisions 9.2.1 and 9.3.2) which prescribe specific limits for nitrogen oxides from marine diesel engines.
14. The amending Order gives effect to amendments to an international convention (MARPOL) to which Australia is a signatory. The impact of the Order is therefore machinery in nature. Based on the information available, no further regulatory analysis in the form of a Regulation Impact Statement is required (OBPR Reference number 11326).
15. The amendments in the amending Order also update some provisions to remove redundant provisions and to improve readability.
16. The amendments (other than those made by Schedule 3) will come into effect on 1 September 2011.
Consultation
17. A copy of the draft amendments in the amending Order was placed on the AMSA website for public comment. A copy of the draft amendments in the amending Order was circulated for comment to the following stakeholders:
- American Bureau of Shipping
- Australian Maritime College
- Australian Shipbuilders Association
- Australian Shipowners Association
- Bureau Veritas
- Challenger TAFE
- China Classification Society
- Department of Infrastructure and Transport
- Det Norske Veritas
- Germanischer Lloyd
- Hunter TAFE
- Korean Register of Shipping
- Lloyd’s Register
- National Marine Safety Committee
- Shipping Australia Limited.
18. The comments received were taken into account in preparing the Order.
Documents incorporated by reference
19. The International Convention for the Prevention of Pollution from Ships (MARPOL) is incorporated by reference. It may be purchased from:
International Maritime Organization (IMO)
4 Albert Embankment, London SE1 7SR
Telephone +44(0)20 7735 7611
Facsimile +44(0)20 7587 3210
IMO website: http://www.imo.org
20. A list of distributors who maintain permanent stock of all IMO publications is on the IMO website. Information on obtaining copies of IMO documents referred to in this Order is on AMSA’s website: www.amsa.gov.au or can be accessed by email: international.relations@amsa.gov.au
Contents of this instrument
Name of Order
21. Section 1 of the Order provides for the name of the Order.
Commencement
22. Section 2 of the Order provides that the amendments made by Schedules 1 and 2 commence on 1 September 2011, with Schedule 2 commencing immediately after Schedule 1. Those amendments have been separated into 2 Schedules to avoid any confusion when the next compilation of MO 97 is prepared about how the amendments work.
23. Schedule 3 makes some amendments consequential on a proposed future re-issue of Marine Order 1. The amendments of MO 97 commence at the same time as the re-issue of Marine Order 1.
Amendment of Marine Orders Part 97
24. Section 3 of the Order provides that Schedules 1 to 3 of the Order amend the current MO 97.
Schedule 1 — Amendments commencing first
25. Items [1] and [2] replace the definition of Navigation Act with a definition consistent with current drafting style.
26. Item [3] is an editorial amendment to renumber some provisions in the current Marine Orders Part 97 so that new provisions can be included in the appropriate order.
Schedule 2 — Amendments commencing immediately after Schedule 1
27. Item [1] is an editorial amendment to insert a provision about the name of Marine Orders — Part 97 (Marine Pollution Prevention — Air Pollution), issue 1.
28. Item [2] is an editorial amendment that ensures that paragraph 1.2.2 (c) is consistent with subsection 33(1) of the of the Pollution Prevention Act.
29. Item [3] defines the North American area which is a new emission control area.
30. Item [4] replaces the definition of Manager, Ship Inspections with a definition of Manager, Ship Inspection and Registration. This reflects a change in the designation of the position.
31. Items [5] and [6] insert notes at the foot of the definitions of MARPOL and survey authority.
32. Item [7] omits the provision that deals with the status of headings, appendices and footnotes in MO 97, as the Acts Interpretation Act 1901 already deals with these issues.
33. Item [8] clarifies that notice of a decision on internal review must be given to the applicant.
34. Item [9] replaces the existing provisions about nitrogen oxides to provide for a stepped reduction in the emission of nitrogen oxides from marine diesel engines on certain ships. The replacement provisions also stipulate the engines and ships to which the provisions do not apply. Item [9] includes 2 penal provisions (provisions 9.2.1 and 9.3.2) which prescribe specific limits for emission of nitrogen oxides from marine diesel engines.
35. Item [10] amends the existing provisions about sulphur oxides and particulates to provide for a stepped reduction in the sulphur content of fuel oil. The provision also specifies the sulphur content of fuel oil in emission control areas. The provision prescribes the Manager, Ship Inspection and Registration as the officer:
(a) to be notified if a person has been unable to obtain fuel oil with a sulphur content of not more than the prescribed limit; and
(b) to approve an exhaust cleaning system or other technological method for reducing sulphur oxides from a ship to or below the prescribed level while a ship is in an emission control area.
36. Items [11] and [12] amend references in provision 12.5.1 (as re-numbered by Schedule 1 of the amending Order) to reflect the renumbering.
37. Item [13] inserts provisions requiring a record book about ozone depleting substances and prescribing certain operations and occurrences for the Pollution Prevention Act. The provisions also prescribe the Manager, Ship Inspection and Registration as the officer to whom notices and records books may be given as provided for by the Pollution Prevention Act.
38. Item [14] is an editorial amendment to the forms set out in the Appendix to reflect the change in title of the person to which fuel oil supplier declarations are to be given.
39. Item [15] is an editorial amendment to rename the Appendix as Schedule 1.
40. Item [16] is a drafting change to replace footnotes by textual notes at the foot of provisions to which they relate. This change will enhance readability of MO 97. The item also omits footnotes that are not necessary or no longer applicable.
41. Item [17] makes formatting changes to existing definitions.
42. Item [18] replaces existing references to the Manager, Ship Inspections to reflect the new designation of the position as Manager, Ship Inspection and Registration.
Schedule 3 — Amendments commencing on the commencement of Marine Order 1, issue 2
43. Item [1] inserts a note about the meaning of some expressions that will be defined or explained in Marine Order 1, issue 2. Redundant definitions are removed from MO 97 by item [3].
44. Item [2] replaces the existing provision about equivalents to reflect the fact that the application process for approval of equivalents will be dealt with by Marine Order 1, issue 2 when that issue commences. Item [3] omits the existing provision about review of decisions because that matter will be dealt with by Marine Order 1, issue 2.
45. Item [4] omits redundant definitions. Those definitions will be included in Marine Order 1, issue 2.
Legislative instrument
46. This instrument is a legislative instrument for the Legislative Instruments Act 2003.
Making the Order
47. This Order has been made by the Chief Executive Officer of the Australian Maritime Safety Authority, in accordance with subsection 49 (4) of the Australian Maritime Safety Authority Act 1990.