S.I. No. 351/2022 - European Union (Port Reception Facilities for the Delivery of Waste From Ships) Regulations 2022

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 15th July, 2022.

CONTENTS

Part 1
Preliminary
1. Citation
2. Interpretation
3. Application
Part 2
Port reception facilities
4. Port reception facilities
5. Waste reception and handling plans
Part 3
Delivery of waste from ships
6. Advance waste notification
7. Delivery of waste from ships
8. Waste delivery receipt
9. Cost recovery systems
10. Exemptions
Part 4
Enforcement
11. Authorised officers
12. Requirement for ship to remain in port or not to enter port
13. Directions
14. Summary proceedings
15. Fixed payment notice
Part 5
Revocation
16. Revocation
Schedule 1
ADVANCE NOTIFICATION FORM FOR WASTE DELIVERY TO PORT RECEPTION FACILITIES
Schedule 2
WASTE DELIVERY RECEIPT
Schedule 3
EXEMPTION CERTIFICATE

I, EAMON RYAN, Minister for Transport, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), for the purpose of giving effect to Directive (EU) 2019/883 of the European Parliament and of the Council of 17 April 2019¹ , hereby make the following regulations:

Part 1 Preliminary

Citation

1.

Interpretation

2.

“authorised officer” means one or more of the following:

• (a) a person duly appointed under Regulation 11(1);

• (b) where a ship to which these Regulations apply is in the territorial waters, a member of the Permanent Defence Forces holding commissioned rank, while in uniform;

• (c) a member of the Garda Síochána, while in uniform;

“cargo residues” means the remnants of any cargo material on board which remain on the deck or in holds or tanks following loading and unloading, including loading and unloading excess or spillage, whether in wet or dry condition or entrained in wash-water, excluding cargo dust remaining on the deck after sweeping or dust of the external surfaces of the ship;

“Directive” means Directive (EU) 2019/883 of the European Parliament and of the Council of 17 April 2019¹ ;

“fishery harbour centre” means a fishery harbour centre (within the meaning of section 1 of the Fishery Harbour Centres Act 1968 (No. 18 of 1968));

“frequent port calls” means visits by a ship to the same port taking place at least once a fortnight;

“fishing vessel” means any ship equipped or used commercially for catching fish or other living resources from the sea;

“functions” includes powers and duties, and a reference to the performance of functions includes, with respect to powers and duties, a reference to the exercise of the powers and the carrying out of the duties;

“GISIS” means the Global Integrated Shipping Information System set up by the International Maritime Organization;

“indirect fee” means a fee paid for the provision of port reception facility services, irrespective of the actual delivery of waste from ships;

“local authority” has the same meaning as in the Local Government Act 2001 (No. 37 of 2001);

“MARPOL Convention” means the International Convention for the Prevention of Pollution from Ships 1973, done at London on 2 November 1973, as modified by the Protocol of 1978 relating thereto, done at London on 17 February 1978, in its most up-to-date version;

“master”, in relation to a ship, means the person (excluding, where appropriate, a pilot) having, for the time being, the command or charge of the ship;

“Minister” means Minister for Transport;

“MSO” means the Marine Survey Office of the Department of Transport;

“passively fished waste” means waste collected in nets during fishing operations;

“port” means a place or a geological area made up of such improvement works and equipment designed principally to permit the reception of ships, including the anchorage area within the jurisdiction of a harbour (within the meaning of section 2 of the Harbours Act 1946 (No. 9 of 1946) or section 2 of the Harbours Act 1996 (No. 11 of 1996) or transferred under section 88 (2) of the Harbours Act 1996 ), a fishery harbour centre or a port or harbour under the control or management of a local authority, Iarnród Éireann - Irish Rail or another person;

“port authority” means –

• (a) in the case of a harbour to which the Harbours Act 1946 (No. 9 of 1946) applies, a harbour authority within the meaning of that Act,

• (b) in the case of a harbour –

• (i) under the control of a company established pursuant to section 7 of the Harbours Act 1996 (No. 11 of 1996), the company concerned, or

• (ii) transferred under section 88 (2) of the Harbours Act 1996 or section 28 of the Harbours Act 2015 (No. 61 of 2015), the local authority to which the harbour has been transferred;

• (c) in the case of a port under the control of a local authority, the local authority concerned,

• (d) in the case of a fishery harbour centre, its management,

• (e) in the case of a port under the management of Iarnród Éireann –Irish Rail, that body, and

• (f) in the case of any other port, its owner;

“port reception facility” means a facility that is fixed, floating or mobile and capable of providing the service of receiving waste from ships;

“recreational craft” means a ship of any type, with a hull length of 2.5 metres or more, regardless of the means of propulsion, intended for sports or leisure purposes, and not engaged in trade;

“regular port calls” means repeated voyages of the same ship forming a constant pattern between identified ports or a series of voyages from and to the same port without immediate calls;

“SafeSeasIreland” has the meaning assigned to it in the European Communities (Vessel Traffic Monitoring and Information System) Regulations 2010 ( S.I. No. 573 of 2010 );

“scheduled traffic” means traffic based on a published or planned list of times of departures and arrivals between identified ports or recurrent crossings that constitute a recognised schedule;

“ship” means a seagoing vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles, and floating craft;

“specified ship” means a ship of 300 gross tonnage and upwards, other than fishing vessels, traditional ships and recreational craft with a length of less than 45 metres;

“sufficient storage capacity” means enough capacity to store the waste on board from the moment of departure until the next port of call, including the waste that is likely to be generated during the voyage;

“territorial waters” means –

• (a) the territorial sea of the State within the meaning of section 7 of the Maritime Jurisdiction Act 2021 (No. 28 of 2021), and

• (b) the internal waters of the State within the meaning of section 8 of that Act;

“treatment” means recovery or disposal operations, including preparation prior to recovery or disposal;

“waste” means any substance or object which the holder discards or intends or is required to discard;

“waste from ships” means all waste, including cargo residues, which is generated during the service of a ship or during loading, unloading, and cleaning operations and which falls within the scope of Annexes I, II, IV, V and VI to the MARPOL Convention, as well as passively fished waste;

“waste oils” means any mineral or synthetic lubricant or industrial oils which have become unfit for the use for which they were originally intended, such as used combustion engine oils and gearbox oils, lubricating oils, oils for turbines and hydraulic oils.

• (2) Waste oils are considered to be waste from ships.

• (3) A word or expression that is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in the Directive.

Application

3.

• (a) all ships, irrespective of their flag, calling at, or operating within, a port of the State, with the exception of –

• (i) ships engaged in port services within the meaning of Article 1(2) of Regulation (EU) 2017/352 of the European Parliament and of the Council of 15 February 2017² , and

• (ii) warships, naval auxiliary or other ships owned or operated by the State or another state and used, for the time being, only on government non-commercial basis, and

• (b) all ports of the State normally visited by ships falling within the scope of paragraph (a).

Part 2 Port reception facilities

Port reception facilities

4.

• (2) A port authority shall ensure in its waste reception and handling plan that waste delivery or reception operations are carried out with sufficient safety measures to avert risks to persons and the environment at its port.

• (3) A port authority and a port reception facility operator shall ensure that –

• (a) all personnel receive the necessary training to acquire the knowledge which is essential for their work on dealing with waste, with specific attention to health and safety aspects pertaining to dealing with hazardous materials, and

• (b) training requirements are regularly updated to meet the challenges of technological innovation and the introduction of new technology.

Waste reception and handling plans

5.

• (2) In drawing up its plan a port authority shall consult with the relevant parties, including in particular with port users or their representatives, and, where appropriate, port reception facility operators, organisations implementing extended producer responsibility obligations and representatives of the public. Those consultations should be held both during the initial drafting of the plan and after its adoption, in particular when significant changes have taken place, with regard to the requirements of Article 4 of the Directive and Regulations 6, 7 and 8. Detailed requirements for the development of such plans are set out in Annex 1 to the Directive.

• (3) A port authority shall ensure that the following information from the plan on the availability of adequate port reception facilities in its port and the structure of costs is clearly communicated to the ships operators, is made publicly available and is easily accessible, namely:

• (a) location of port facilities applicable to each berth, and, where relevant, their opening hours;

• (b) list of waste from ships normally managed by the port;

• (c) list of contact points, the port reception facility operators and the services offered;

• (d) description of the procedures for the delivery of waste;

• (e) description of the cost recovery system, including waste management schemes and funds as referred to in Annex 4 to the Directive, where applicable.

The information in paragraph (a) shall also be made available electronically through SafeSeasIreland and kept up-to-date.

• (4) A plan may, where required for reasons of efficiency, be developed jointly by two or more neighbouring ports in the State, with the appropriate involvement of each port, provided that the need for, and availability of, port reception facilities are specified for each port for which they are responsible.

• (5) The Minister shall evaluate each plan, and shall approve the plan with or without such modifications as the Minister specifies. An approval shall be in operation for the period of 5 years and shall, subject to paragraph (7), then be re-approved for a further period of 5 years.

• (6) The Minister shall monitor implementation of a plan as approved.

• (7) In the event that significant changes in the operation of a port have taken place, the port authority concerned shall submit a revised plan to the Minister to deal with the significant changes, irrespective of when the plan had been updated. These changes may include structural changes in traffic to the port, development of new infrastructure, changes in the demand and provision of port reception facilities, and new on-board treatment techniques.

• (8) A port authority shall furnish as may be requested by the Minister, in such form as the Minister shall determine, a status report on the waste reception facilities for each port for which the port authority is responsible.

• (9) Where a port authority furnishes a status report under paragraph (8) and no significant changes in the operation of the port have taken place, the Minister may re-approve the port authority’s plan by way of a validation of the existing plan.

• (10) The Minister shall ensure, through the approval of plans, that the formalities relating to the use of waste reception facilities are simple and expeditious in order to create an incentive for the master to use those facilities and to avoid undue delays to ships.

Part 3 Delivery of waste from ships

Advance waste notification

6.

• (a) at least 24 hours prior to arrival, if the port of call is known,

• (b) as soon as the port of call is known, if this information is available less than 24 hours prior to arrival, or

• (c) at the latest upon departure from the previous port if the duration of the voyage is less than 24 hours.

• (2) The information from the advance waste notification shall be reported electronically using SafeSeasIreland, or where for technical reasons SafeSeasIreland is unavailable using telephone, fax, email or other electronic means.

• (3) The information from an advance waste notification shall be available on board, preferably in electronic form, at least until the next port of call and shall upon request by the MSO, be made available for inspection.

• (4) Where there is a failure to comply with this Regulation, the master of the ship concerned commits an offence and is liable on summary conviction to a class B fine.

Delivery of waste from ships

7.

• (2) Without prejudice to paragraph (1), a ship may proceed to the next port of call without delivering the waste on board, if –

• (a) in the case of a specified ship, the information provided in accordance with Schedules 1 and 2 shows there is sufficient dedicated storage capacity, calculated by using the method set out in Annex I to Commission Implementing Regulation (EU) 2002/89 of 21 January 2022³ , for all waste that has been and will be accumulated during the intended voyage of the ship until the next port of call,

• (b) in the case of a ship which is not a specified ship, the information available on board shows there is sufficient dedicated storage capacity, calculated by using the method set out in the said Annex I, for all waste that has been and will be accumulated during the intended voyage of the ship until the next port of call, or

• (c) the ship only calls at anchorage for less than 24 hours or under adverse weather conditions.

• (3) A port authority or an authorised officer shall require a ship to deliver, before its departure from the port, all its waste if –

• (a) it cannot be established based on the available information, including information electronically available on SafeSeasIreland or in GISIS, that adequate port reception facilities are available in the next port of call, or

• (b) the next port of call is unknown.

• (4) A master of a ship who fails to deliver waste in accordance with paragraph (1) or who fails to comply with a requirement under paragraph (3) commits an offence and is liable on summary conviction to a class A fine.

Waste delivery receipt

8.

• (2) The requirements set out in paragraph (1) shall not apply in small ports with unmanned facilities or that are remotely located, provided that the MSO has notified the name and location of those ports electronically on SafeSeasIreland.

• (3) The operator, agent, or master of a ship which is a specified ship shall before departure, or as soon as the waste delivery receipt has been received, electronically report the information contained therein electronically on SafeSeasIreland.

• (4) The information from the waste delivery receipt shall be available on board for at least two years, where relevant with the appropriate Oil Record Book, Cargo Record Book, Garbage Record Book or the Garbage Management Plan, and shall be made available upon a request made by an authorised officer under this Regulation.

• (5) Where there is a failure to comply with paragraph (3) or (4), the master of the ship commits an offence and is liable on summary conviction to a class C fine.

Cost recovery systems

9.

• (2) The cost recovery systems shall provide no incentive for ships to discharge their waste at sea. To this end a port authority shall apply in the design and operation of its cost recovery system the principles set out in Article 8(2)(a) to (c) and (f) of the Directive.

• (3) The part of the costs of a cost recovery system which is not covered by the indirect fee, if any, shall be covered on the basis of the types and quantities of waste actually delivered by the ship.

• (4) The fees may be differentiated on the basis set out in Article 8(4) of the Directive.

• (5) The fees shall be reduced on the basis set out in Article 8(5) of the Directive.

• (6) For the purpose of Article 8(6) of the Directive, the amount of the fees and the basis on which they have been calculated shall be made available to the port users in the waste reception and handling plan.

Exemptions

10.

• (a) the ship is engaged in scheduled traffic with frequent and regular port calls,

• (b) there is an arrangement to ensure the delivery of the waste and payment of the fees in a port along the ship’s route which,

• (i) is evidenced by a signed contract with a port or waste contractor and by waste delivery receipts,

• (ii) has been notified to all ports on the ship’s route, and

• (iii) has been accepted by the port where the delivery and payment take place, which can be a European Union port or another port in which, as established on the basis of the information reported electronically into SafeSeasIreland and in GISIS, adequate facilities are available, and

• (c) the exemption does not pose a negative impact on maritime safety, health, shipboard living or working conditions or on the marine environment.

• (2) If the exemption is granted, the MSO shall issue an exemption certificate, based on the format set out in Schedule 3 (“exemption certificate”), confirming that the ship meets the necessary conditions and requirements for the application of the exemption and stating the duration of the exemption.

• (3) Notwithstanding the exemption granted, a ship shall not proceed to the next port of call if there is insufficient dedicated storage capacity for all waste that has been accumulated and that will be accumulated during the intended voyage of the ship until the next port of call.

• (4) Where there is non-compliance by a ship with paragraph (3), the master of the ship commits an offence and is liable on summary conviction to a class B fine.

Part 4 Enforcement

Authorised officers

11.

• (b) A port authority may appoint such and so many persons as it thinks fit to be authorised officers for the exercise of their functions under these Regulations.

• (c) A function conferred on a port authority under these Regulations may be performed by an authorised officer appointed by that port authority.

• (d) An authorised officer appointed under this Regulation shall be furnished with a warrant of his or her appointment or proof of identity as an authorised officer and shall, on request by any person affected during the exercise of any function under these Regulations, produce the warrant, a copy of it or proof of identity to that person for inspection.

• (e) A person appointed as an authorised officer under the Regulations revoked under Regulation 16 who holds office on the revocation is deemed appointed under this paragraph.

• (2) A ship to which these Regulations apply shall be subject to inspections, including random ones, in order to ensure compliance with these Regulations.

• (3) An authorised officer may, at any time for the purpose of verifying compliance with these Regulations by any ship to which these Regulations apply, do one or more of the following:

• (a) stop and board any ship in port or otherwise within the territorial waters and carry out such inspection and examination of the ship as he or she thinks fit;

• (b) take away samples of anything found on board which in the opinion of the authorised officer, is waste from the ship for the purpose of analysis;

• (c) require a person on the ship to provide information regarding waste from the ship;

• (d) take photographic or video evidence of anything found on board which, in the opinion of the authorised officer, is waste from the ship, or any part of or thing on the ship;

• (e) inspect and take away documents or copies of electronic information relating to non-compliance with these Regulations.

• (4) A person who –

• (a) without reasonable excuse, fails to comply with any request or requirement made by an authorised officer under this Regulation,

• (b) obstructs or interferes with an authorised officer in the exercise of his or her functions under this Regulation, or

• (c) gives an authorised officer false or misleading information,

commits an offence and is liable on summary conviction to a class A fine.

Requirement for ship to remain in port or not to enter port

12.

• (2) If the MSO is not satisfied with the results of an inspection and examination of a ship under Regulation 11, the MSO may –

• (a) require the ship to remain in port until it has delivered its waste to the port reception facility in accordance with Regulation 7(1), or

• (b) if the ship is at sea in the territorial waters, require the ship to proceed to the port reception facility designated by the MSO and deliver its waste to the port reception facility in accordance with Regulation 7(1).

• (3) If the MSO has reason to believe that a ship may have left its previous port without having duly and accurately reported to the port authority an advance waste notification or complied –

• (a) where its previous port is in the State, with Regulation 7(1) or

• (b) where its previous port was a port in another Member State, Article 7(1) of the Directive,

it may require that the ship, if its previous port was in the State, remain in or return to that port, or, if its previous port was outside the State, not to enter a port in the State, until an investigation has been carried out to determine compliance with, as the case may be, Regulation 7(1) or Article 7(1) of the Directive, including the accuracy of any information provided in the advance waste notification reported by the ship.

• (4) Where there is non-compliance with this Regulation by a ship, the master of the ship commits an offence and is liable on summary conviction to a class A fine.

• (5) A requirement under this section may be given to the master of the vessel concerned by –

• (a) in case the ship is in port, by delivering to the master on board the vessel or by means of SafeSeasIreland, or

• (b) in case the ship is at sea, by means of SafeSeasIreland.

• (6) A person aggrieved by a requirement under this Regulation may appeal against the requirement to a judge of the District Court in whose district the port where the ship is berthed or bound for is located. The bringing of an appeal shall not have the effect of suspending the operation of the requirement.

• (7) A notice of an appeal shall contain a statement of the grounds on which the appeal is made and be made by written notice, which shall be lodged with the appropriate office of the Court, by the appellant not later than 7 days from the date the requirement was made under this Regulation.

• (8) A copy of the notice by which a person makes an appeal under this Regulation shall be given by him or her to the MSO, not less than 48 hours before the hearing of the appeal, and the MSO shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal and at the hearing of any application.

• (9) On the hearing of an appeal, the Court may confirm, vary, or revoke the requirement.

Directions

13.

• (2) Where no representations are made within the period stated in a notice under paragraph (1) or, where they are so made, after considering them and deciding the non-compliance is not being or is not being adequately remedied, the Minister may serve on the port authority concerned a direction (in this Regulation referred to as a “direction”) directing compliance in accordance with the direction. A direction may only be served on a port authority with the approval of the Minister and shall inform the port authority of the right to appeal the direction under paragraph (3).

• (3) Where a direction is served on a port authority, it may make an appeal to set aside or modify the direction, within 14 days of the date of service of the direction, to the judge of the Circuit Court in whose Circuit the port is located. The direction stands suspended until the determination or withdrawal of the appeal. The court may confirm, set aside, or modify the direction. The decision of the Circuit Court is final, other than on a specified point of law, which lies to the High Court.

• (4) The Minister may, where he or she considers it appropriate to do so, by notice in writing to a port authority on whom a direction was served, withdraw the direction.

• (5) Where the Minister is of the opinion that a port authority is failing to comply with a direction, the Minister may make an application to the judge of the Circuit Court in whose Circuit the port concerned is located for an order to direct compliance in accordance with the terms of the order. The court may make such order as it sees fit. The decision of the judge is final, other than on a point of law which lies to the High Court.

• (6) A notice under paragraph (1) or (4) or a direction under paragraph (2) may be given to or served on the port authority concerned by delivering it, leaving it, or sending it by pre-paid registered post or electronic mail (where receipt of delivery of the e-mail is generated) to, the principal offices of the authority, or, in case an address for service has been given, at that address.

Summary proceedings

14.

Fixed payment notice

15.

• (a) the person is alleged to have committed the offence,

• (b) the person may, during the period of 28 days beginning on the date of service of the notice, pay to the Department of Transport, by the method and at the address specified in the notice, the amount of –

• (i) €1,000, in the case of an alleged offence under Regulation 7(4),

• (ii) €500, in the case of an alleged offence under Regulation 6(4) or 10(4), or

• (iii) €150, in the case of an alleged offence under Regulation 8(5),

accompanied, if required in the notice, by the notice or other form of reference, and

• (c) a prosecution in respect of the alleged offence will not be instituted during the period specified in the notice and, if the payment specified in the notice is made in accordance with the notice during that period, no prosecution in respect of the alleged offence will be instituted.

• (2) Where a notice is served under paragraph (1), a prosecution in respect of the alleged offence shall not be instituted during the period specified in the notice and, if the amount specified in the notice is paid in accordance with the notice, the person concerned shall not be prosecuted in respect of the alleged offence.

• (3) In a prosecution for an offence referred to in paragraph (1), the onus of showing that a payment in accordance with a notice under this Regulation has been made shall lie on the person against whom the proceedings are brought.

• (4) The Department of Transport may receive the payment under a notice under paragraph (1) and issue a receipt for it and retain the money for it to be paid into or disposed of for the benefit of the Exchequer. The payment shall not be recoverable by the person who made it.

• (5) A notice under paragraph (1) may be served on a person by –

• (a) delivering it to or leaving it for the person on board the ship concerned,

• (b) sending it by electronic mail (where receipt of delivery of the e- mail is generated) to the person on board the ship concerned, or

• (c) in case an address for service of notices has been given by the person, by post or electronic mail (where receipt of delivery of the e-mail is generated) to the person at that address.

Part 5 Revocation

Revocation

16.

SCHEDULE 1

Regulation 6(1)

ADVANCE NOTIFICATION FORM FOR WASTE DELIVERY TO PORT RECEPTION FACILITIES

Notification of the delivery of waste to: (enter name of port of call, as referred to in Regulation 6 of the European Union (Port Reception Facilities for the Delivery of Waste from Ships) Regulations 2022 (S. I. No. 351 of 2022)

This form should be retained on board the ship along with the appropriate Oil Record Book, Cargo Record Book, Garbage Record Book or Garbage Management Plan as required by the MARPOL Convention.

SCHEDULE 2 Regulation 8(1)

WASTE DELIVERY RECEIPT

The designated representative of the port reception facility provider shall provide the following form to the master of a ship that has delivered waste in accordance with Regulation 8 of the European Union (Port Reception Facilities for the Delivery of Waste from Ships) Regulations 2022 (S. I. No 351 of 2022)

This form shall be retained on board the ship along with the appropriate Oil Record Book, Cargo Record Book, Garbage Record Book or Garbage Management Plan as required by the MARPOL Convention.

SCHEDULE 3

Regulation 10

EXEMPTION CERTIFICATE

PURSUANT TO Regulation 10 in relation to the requirements under Regulations 6, 7(1) and 9 of the European Union (Port Reception Facilities for the Delivery of Waste from Ships) Regulations 2022 (S. I. No 351 of 2022) AT THE PORT[S] OF [INSERT PORT] IN THE STATE

Name of ship	Distinctive number of letters	Flag State
[insert name of the ship]	[insert IMO number]	[insert name of the Flag State]

is in scheduled traffic with frequent and regular port calls at the following port(s) located in the State according to a schedule or predetermined route:

[ ]

and calls at these ports at least once a fortnight:

[ ]

and has made an arrangement to ensure the payment of the fees and the delivery of waste to the port or a third party at the port of:

[ ]

and is thus exempted, in accordance with the European Union (Port Reception Facilities for Delivery of Waste from Ships) Regulations 2022 (S. I. No. 351 of 2022), from the requirements on:

□ mandatory delivery of waste from ships,

□ the advance waste notifications, and

□ the payment of the mandatory fee, at the following port(s):

This certification is valid until [insert date], unless the grounds for issuing the certificate are changed before that date.

Place and date

.............................................

Name

Title

GIVEN under my Official Seal,

12 July, 2022.

EAMON RYAN,

Minister for Transport.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

The purpose of these Regulations is to give effect to Directive (EU) 2019/883 of 17 April 2019 on port reception facilities for the delivery of waste from ships with the aim to protect the marine environment against the negative effects from discharge of waste from ships using ports located in the State, while ensuring the smooth operation of maritime traffic, by improving the availability and use of adequate port reception facilities and the delivery of waste to those facilities.

Footnotes