Merchant Shipping (Control of Harmful Anti-Fouling Systems on Ships) Regulation
(Cap. 413, sections 3 and 3A)
(Enacting provision omitted—E.R. 2 of 2015)
[1 January 2017] (L.N. 167 of 2016)
(Omitted as spent—E.R. 1 of 2017)
In this Regulation— (L.N. 156 of 2022)
Administration (主管機關), in relation to a ship, means the government of any place outside Hong Kong whose flag the ship is entitled to fly; anti-fouling system (防污底系統) means a coating, paint, surface or device that is used on a ship to control or prevent attachment of unwanted organisms; commencement date (生效日期) means the date on which this Regulation comes into operation; Convention (《公約》) means the International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001, as from time to time revised or amended by the revision or amendment to any provision of such Convention that applies to Hong Kong; Convention country (公約國) means a country that is a party to the Convention; Government surveyor (政府驗船師) means a person appointed under section 12 to be a Government surveyor; IAFS Certificate (IAFS證書) means a certificate issued by the Director under section 7; International Anti-Fouling System Certificate (國際防污底系統證書) means— (a)an IAFS Certificate; (b)a certificate entitled “International Anti-Fouling System Certificate” issued by a recognized organization in conformity with Annex 4 to the Convention; or (c)a certificate issued by or under the authority of an Administration in conformity with Annex 4 to the Convention; international voyage (國際航程) means a voyage between— (a)Hong Kong and a port outside the People’s Republic of China; or (b)a port in a Convention country and a port outside that country (whether in another Convention country or not); length (長度), in relation to a ship, means the length as defined in the International Convention on Load Lines, 1966, as modified by the Protocol of 1988 relating to it, or any successor convention, as amended from time to time and as applicable to Hong Kong; non-Hong Kong ship (非香港船舶) means a ship other than a Hong Kong ship; pre-amended form (修訂前格式) means the form of the International Anti-Fouling System Certificate specified in Appendix 1 to Annex 4 to the Convention as in force immediately before the Appendix was amended by International Maritime Organization Resolution MEPC.331(76); (L.N. 156 of 2022) recognized organization (認可機構) means an organization recognized by the Director under section 15; ship (船舶) means a vessel of any type operating in the marine environment and includes an air-cushion vehicle, a hydrofoil boat, a submersible, a floating craft, a fixed or floating platform, a floating storage unit and a floating production storage and off-loading unit; (L.N. 156 of 2022) specified pre-2023 ship (指明2023年前船舶) means a ship that bore an anti-fouling system containing cybutryne in the external coating layer of the hulls, external parts or surfaces of the ship immediately before 1 January 2023. (L.N. 156 of 2022)To avoid doubt, a certificate mentioned in paragraph (b) or (c) of the definition of International Anti-Fouling System Certificate in subsection (1) that was issued before 1 January 2023 is not to be regarded as not being issued in conformity with Annex 4 to the Convention only because the certificate is in the pre-amended form. (L.N. 156 of 2022)
This Regulation applies to—
a Hong Kong ship wherever it may be; and
a non-Hong Kong ship within the waters of Hong Kong.
This Regulation does not apply to—
a warship;
a naval auxiliary; or
any other ship owned or operated by a government and used only on government non-commercial service.
Subject to subsections (2) and (3), a ship must not, on or after the commencement date, bear any organotin compounds that act as biocides in the anti-fouling system of the ship.
Subject to subsection (3), if a ship bore any organotin compounds that act as biocides in its anti-fouling system before the commencement date, it must, as from that date, bear a coating that forms a barrier to the compounds.
Subsections (1) and (2) do not apply to the following platform or unit that was constructed before 1 January 2003 and has not been in dry-dock on or after that date—
a fixed or floating platform;
a floating storage unit; or
a floating production storage and off-loading unit.
An anti-fouling system containing cybutryne must not be applied or reapplied to any ship. (L.N. 156 of 2022)
Subject to subsection (3D), a specified pre-2023 ship that is engaged in an international voyage must not bear an anti-fouling system containing cybutryne unless it bears a coating that forms a barrier to cybutryne leaching from the ship’s anti-fouling system. (L.N. 156 of 2022)
Subsection (3B) applies to the specified pre-2023 ship as from—
unless paragraph (b) applies—the date of expiry of the 60 months after the last application to the ship of an anti-fouling system containing cybutryne before 1 January 2023; or
if—
the ship is dry-docked during a period ending on a date (end date) falling on or after 1 January 2023 but before the date specified in paragraph (a); and
while the ship is so dry-docked, it is reasonably practicable to change or replace the ship’s anti-fouling system to secure the ship’s compliance with subsection (3B)—
the day after the end date. (L.N. 156 of 2022)
Subsection (3B) does not apply to the following platform or unit that was constructed before 1 January 2023 and has not been in dry-dock on or after that date—
a fixed or floating platform;
a floating storage unit; or
a floating production storage and off-loading unit. (L.N. 156 of 2022)
If subsection (1), (2), (3A) or (3B) is contravened, the owner and the master of the ship concerned each commits an offence and is liable to a fine at level 6. (L.N. 156 of 2022)
If an offence under subsection (4) is committed by the owner or the master of a ship due to the act or omission of some other person, that other person also commits the offence and may be charged with and convicted of the offence whether or not proceedings are taken against the owner or the master.
This Part (except section 11) applies to a ship of 400 gross tonnage or above and engaged in an international voyage (excluding a fixed or floating platform, floating storage unit and floating production storage and off-loading unit).
A ship must have a valid International Anti-Fouling System Certificate in respect of the ship.
If subsection (1) is not complied with, the owner and the master of the ship concerned each commits an offence and is liable to a fine at level 6.
If an offence under subsection (2) is committed by the owner or the master of a ship due to the act or omission of some other person, that other person also commits the offence and may be charged with and convicted of the offence whether or not proceedings are taken against the owner or the master.
For subsection (1) and despite section 2(2), an International Anti-Fouling System Certificate issued in the pre-amended form before 1 January 2023 is to be regarded as invalid as from—
if it was issued in respect of a specified pre-2023 ship, the earlier of—
the date when the specified circumstances first arise in respect of the ship on or after 1 January 2023; or
1 January 2025; or
if it was issued in respect of any other ship—the date when the specified circumstances first arise in respect of the ship on or after 1 January 2023. (L.N. 156 of 2022)
For subsection (4)(a)(i) and (b), the specified circumstances arise in respect of the ship when 25% or more of the ship’s anti-fouling system has been changed or replaced or has been affected by a repair after the International Anti-Fouling System Certificate was issued. (L.N. 156 of 2022)
After an International Anti-Fouling System Certificate becomes regarded as invalid under subsection (4), even if the Certificate is endorsed as described in section 8(1), the endorsement does not render the Certificate valid. (L.N. 156 of 2022)
The owner of a Hong Kong ship may apply to the Director for an IAFS Certificate in respect of the ship.
The application must be accompanied by the prescribed fee for the issue of an IAFS Certificate.
Except as provided in subsection (4), the Director must not issue an IAFS Certificate in respect of a Hong Kong ship unless the Director is satisfied that—
an initial survey of the ship has been carried out by a Government surveyor on payment of the prescribed fee for the survey; and
on completion of the survey, the anti-fouling system of the ship complies with section 4.
The Director may issue an IAFS Certificate in respect of a ship if—
it is a ship that has been transferred to the registry in Hong Kong;
there is a valid International Anti-Fouling System Certificate issued in respect of the ship by or under the authority of an Administration; and
the record of the ship’s anti-fouling system in the form specified in Appendix 1 to Annex 4 to the Convention is up to date.
If, after an International Anti-Fouling System Certificate has been issued in respect of a ship, 25% or more of the ship’s anti-fouling system has been changed or replaced or has been affected by a repair, the Certificate is not to be regarded as valid for the purposes of this Regulation until—
the Certificate is endorsed under subsection (2); or
the Certificate is endorsed in conformity with Annex 4 to the Convention by the recognized organization who issued the Certificate or by an Administration.
The Director may endorse on an International Anti-Fouling System Certificate issued in respect of a Hong Kong ship if satisfied that—
an additional survey of the ship has been carried out by a Government surveyor on payment of the prescribed fee for the survey; and
on completion of the survey, the ship’s anti-fouling system so changed or replaced or affected by the repair complies with section 4.
The Director may, by notice in writing to the owner and the master of a Hong Kong ship, cancel an International Anti-Fouling System Certificate issued in respect of the ship if the Director has reasonable grounds to believe that the Certificate was issued or endorsed on the basis of false or erroneous information.
The Director must give reasons for cancelling the Certificate in the notice.
On receiving the notice, the owner and the master of the ship concerned must forthwith deliver the Certificate to the Director.
The owner and the master of a ship must ensure that an International Anti-Fouling System Certificate that is issued in respect of the ship and is for the time being in force—
is kept on board the ship; and
is made available for inspection by a Government surveyor at all reasonable times.
The owner and the master of a ship who contravene subsection (1) each commits an offence and is liable to a fine at level 6.
If an offence under subsection (2) is committed by the owner or the master of a ship due to the act or omission of some other person, that other person also commits the offence and may be charged with and convicted of the offence whether or not proceedings are taken against the owner or the master.
This section applies to a ship of 24 meters or more in length, less than 400 gross tonnage and engaged in an international voyage (excluding a fixed or floating platform, floating storage unit and floating production storage and off-loading unit).
The owner and the master of a ship must ensure that a declaration that is made in respect of the anti-fouling system of the ship and complies with the requirements in subsection (3)—
is kept on board the ship; and
is made available for inspection by a Government surveyor at all reasonable times.
The declaration must be—
in the form specified in Appendix 2 to Annex 4 to the Convention;
signed by the owner of the ship or an agent authorized by the owner; and
accompanied by appropriate documentation showing that the anti-fouling system complies with section 4.
The owner and the master of a ship who contravene subsection (2) each commits an offence and is liable to a fine at level 6.
The Director may appoint a person to be a Government surveyor for the purposes of this Regulation.
Any of the powers conferred by this section may be exercised for the purpose of ascertaining whether this Regulation has been or is being complied with.
A Government surveyor may, at any reasonable time—
board a ship that is within the waters of Hong Kong; and
take with the surveyor any other person and any equipment or materials required to assist the surveyor.
After boarding the ship, the Government surveyor may—
inspect the ship;
make any examination and investigation as the surveyor considers necessary;
take a brief sampling of the ship’s anti-fouling system in accordance with the Guidelines for Brief Sampling of Anti-Fouling Systems on Ships adopted by the International Maritime Organization;
take samples of any articles or substances found on the ship that the surveyor may reasonably require for the inspection, examination or investigation;
inspect, seize and remove from the ship any article or substance in respect of which the surveyor suspects on reasonable grounds that an offence under this Regulation has been committed;
detain the article or substance for so long as is necessary—
for the inspection, examination or investigation; and
to ensure that it is available for use as evidence in any proceedings for an offence under this Regulation;
take any measurements and photographs and make any recordings that the surveyor may reasonably require for the inspection, examination or investigation;
require that the ship or any part of it, or anything on the ship, is to be left undisturbed (whether generally or in particular respects) for so long as is necessary for the inspection, examination or investigation;
require any person who the surveyor reasonably believes is able to give any information relevant to the inspection, examination or investigation—
to attend at a place and time specified by the surveyor;
to answer the questions that the surveyor thinks fit to ask; and
to sign a declaration of the truth of the person’s answers;
require the production of, and inspect and take copies of or of any entry in—
any certificates, books or documents that are required to be kept under this Regulation; and
any other certificates, books or documents that the surveyor considers necessary for the inspection, examination or investigation; and
require any person to afford the surveyor such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as the surveyor considers necessary to enable the surveyor to exercise any power conferred by this section.
A person must not—
wilfully obstruct a Government surveyor in the exercise of any power conferred by section 13; or
make a statement or sign a declaration that the person knows is false, or recklessly make a statement or sign a declaration that is false, in purported compliance with a requirement under section 13(3)(i).
A person must comply with a requirement imposed on the person under section 13(3).
A person who contravenes subsection (1) commits an offence and is liable to a fine at level 6.
A person who without reasonable excuse fails to comply with subsection (2) commits an offence and is liable to a fine at level 6.
The Director may recognize an organization for—
carrying out surveys of anti-fouling systems of Hong Kong ships of 400 gross tonnage or above and engaged in international voyages in conformity with Annex 4 to the Convention;
issuing International Anti-Fouling System Certificates in respect of those ships in conformity with Annex 4 to the Convention;
making endorsements in conformity with Annex 4 to the Convention on International Anti-Fouling System Certificates issued by the organization;
altering any particulars contained in International Anti-Fouling System Certificates issued by the organization; and
issuing certified true copies of International Anti-Fouling System Certificates issued by the organization.
The Director may, at the request of any Convention country—
cause a non-Hong Kong ship that is within the waters of Hong Kong to be surveyed under section 7 or 8 as if the ship were a Hong Kong ship;
issue an IAFS Certificate in respect of the ship under section 7 as if the ship were a Hong Kong ship; and
endorse on an International Anti-Fouling System Certificate in conformity with Annex 4 to the Convention or under section 8(2) as if the Certificate were issued in respect of a Hong Kong ship.
The Director may request any Convention country—
to carry out a survey in respect of a Hong Kong ship of 400 gross tonnage or above and engaged in an international voyage on behalf of the Director in conformity with Annex 4 to the Convention;
to issue an International Anti-Fouling System Certificate in respect of the ship in conformity with Annex 4 to the Convention; and
to endorse on an International Anti-Fouling System Certificate in conformity with Annex 4 to the Convention.
The owner of a Hong Kong ship may apply to the Director for altering any particulars contained in an IAFS Certificate issued in respect of the ship by the Director.
The Director may, on payment of the prescribed fee, alter the particulars contained in the IAFS Certificate if the Director considers that the alteration is not a material one.
The owner of a Hong Kong ship may apply to the Director for the issue of a certified true copy of an IAFS Certificate issued in respect of the ship by the Director.
The application must be accompanied by the prescribed fee for the issue of a certified true copy.