HEADQUARTERS - Trico Marine Services, Inc.

10001 Woodloch Forest Dr. Suite 6 10, The Woodlands, TX 77380

T | (+1) 713 780 9926 F | (+1) 281 203 5701 www.tricomarine.com A MEMBER OF TRICO MARINE GROUP 3 December 2009

For Submittal Online

http://www.regulations.gov

COAST GUARD DOCKET NO. USCG

‐ 2001

‐ 10486

Dear Coast Guard Officials:

Trico Marine Services, Inc., through its subsidiaries, provides subsea and marine support vessels to the offshore oil and gas industry. It

operates in three segments: Subsea Services, Subsea Trenching and Protection, and Towing and Supply, primarily in international markets,

including Australia, Brazil, Mexico, Norway, Southeast Asia, United Kingdom, United States, and West Africa.

Thank you for the opportunity to comment on this major proposed rulemaking. Our letter documents and amplifies on our spokesperson’s

oral presentation at your public meeting in New Orleans. It is our understanding that the record of this meeting and others held elsewhere

around the country will be considered as part of the docket in this proposed rulemaking.

We recommend several changes to the rules as proposed. Our proposals are grounded in applicable law, in relevant Coast Guard policy, in

the pending International BWM convention and associated guidelines, and in consideration of ballast water realities about the vessel

‐ based

offshore support industry serving oil and mineral resources development off the coasts of the United States, in particular the Gulf of

Mexico.

You discuss the IMO International Conference on Ballast Water Management for Ships that adopted an International Convention for the

Control and Management of Ships’ Ballast Water and Sediments (BWM/CONF 36 of 16 February 2004). You refer to the Coast Guard’s

leadership role in participation of the U.S. delegation. You also refer in positive terms to several guidelines published by the IMO in

connection with adoption of the BWM Convention. You further note that it is not yet in force. (74 FR 44634) These facts demonstrate the

United States intends to accept and follow the provisions of the BWM Convention at such time as it comes into force. It is reasonable and

we urge that these proposed rules be made as consistent as possible with provisions of the BWM Convention. We recognize you have

already done so on a limited basis with respect to proposed Phase I ballast water discharge standards (BWDS); you point out they are the

same as the standard in the BWM Convention. (74 FR 44634) However there are other provisions of the Convention that are not reflected

in this proposed rulemaking; provisions that we recommend be included. 1

PROPOSED

Ballast water definition—33 CFR § 151.1504

Consistent with policy in NVIC 07

‐ 04, CH 1 Encl. (1) A.1.b, add the following to the definition of Ballast Water at 33 CFR 151.1504:

1 In making these recommendations we do not suggest that your timetable for these rules be suspended awaiting the coming into force of the BWM

Convention.

### December 3, 2009 Page 2 of 6

HEADQUARTERS - Trico Marine Services, Inc.

10001 Woodloch Forest Dr. Suite 6 10, The Woodlands, TX 77380

T | (+1) 713 780 9926 F | (+1) 281 203 5701 www.tricomarine.com A MEMBER OF TRICO MARINE GROUP Water sealed in ballast tanks, and water in permanently ballasted tanks changed only in connection with dry docking is not considered

ballast water for the purpose of these rules. Water taken into ballast tanks from commercial or municipal fresh water sources is also not

considered ballast water for the purpose of these rules. U.S. documented vessels limited to operation not beyond the U.S. EEZ and which

operate exclusively with permanent ballast water and/or water from commercial or municipal sources in ballast tanks are not subject to the

requirements of 33 CFR 151 parts C and D.

Exemptions –§ 151.2015(c)

To this exemption we ask that you add the following consistent with the policy in NVIC 07

‐ 04, CH 1 Encl. (1) A.1.c. (4 th subparagraph):

Because of the unique configuration of the boundary between the zones of COTP Morgan City and COTP New Orleans, vessels which operate

exclusively within these zones are not required to report or maintain records under 33 CFR 151.2060 and 151.2070. Vessels equipped with

ballast tanks anchoring or mooring at a port or place in one of these zones, after operating solely in the other, are not required to submit a

report.

Exemptions—Proposed new § 151.2015(d)

—

We do not have specific wording to recommend at this time, but consistent with the impending BWM Convention, we ask that you add a

section reflecting the provisions of BWM/CONF/36 (2004) ANNEX, SECTION A, Regulation A

‐ 4. This provision could be tonnage and/or

ballast capacity limited. We have in mind particular application to those vessels of nearby flag states not required by those administrations

to be equipped with approved ballast water treatment systems. This would allow them to make voyages, falling within the scope of A

‐ 4, to

the United States from time

‐ to

‐ time. By nearby countries we have in mind Mexico and Canada, as NAFTA countries, as well as the states

signatory, or having acceptable unilateral equivalents, to the Caribbean Cargo Ship Safety Code (CCSS) or to the Code of Safety for Small

Commercial Vessels Operating in the Caribbean Region (SCV). Specifically the exemption would be from the otherwise applicable

requirement in 33 CFR § 151.2025 for a BWMS, including one approved under 46 CFR Part 162. We do not contemplate the exemption

extending to include proposed § 151.2025(a)(3). Implementing policies including ports, countries, risk assessments, etc., could be worked

out with input from interested parties and published in a NVIC.

Exceptions—Proposed new § 151.2017

Further consistent with the impending BWM Convention we recommend adding a new “§ 151.2017 Exceptions” as follows:

“The requirements of 33 CFR 151 parts C and D do not apply inter alia to:

1 the uptake or discharge of Ballast Water and Sediments necessary for the purpose of ensuring the safety of a ship in emergency

situations or saving life at sea; or

2 the accidental discharge or ingress of Ballast Water and Sediments resulting from damage to a ship or its equipment:

.1 provided that all reasonable precautions have been taken before and after the occurrence of the damage or discovery of

the damage or discharge for the purpose of preventing or minimizing the discharge; and

.2 unless the owner, Company or officer in charge willfully or recklessly caused damage; or

### December 3, 2009 Page 3 of 6

HEADQUARTERS - Trico Marine Services, Inc.

10001 Woodloch Forest Dr. Suite 6 10, The Woodlands, TX 77380

T | (+1) 713 780 9926 F | (+1) 281 203 5701 www.tricomarine.com A MEMBER OF TRICO MARINE GROUP 3 the uptake and discharge of Ballast Water and Sediments when being used for the purpose of avoiding or minimizing pollution

incidents from the ship; or

4 the uptake and subsequent discharge on the high seas of the same ballast water and sediments; or

5 the discharge of ballast water and sediments from a ship at the same location where the whole of that ballast water and those

sediments originated and provided that no mixing with unmanaged ballast water and sediment from other areas has occurred or;

6 ships that discharge ballast water to a reception facility designed taking into account the Guidelines developed by the IMO for

such facilities

OSV “Ballast Water” Realities

A review of the video recording of your New Orleans public meeting will remind you that a number of OSV industry spokespersons in

addition to Trico’s, emphasized the same point to you; OSVs in the U.S. Gulf of Mexico carry fresh water from municipal or commercial

sources loading into their ballast tanks at shore bases, then transport the water offshore and unload it to facilities and MODUs. There it is

consumed in the preparation of water

‐ based drilling fluids that are circulated into well bores as they are drilled. This is the common,

ordinary, regular day

‐ in and day

‐ out industry

‐ wide practice and use of OSV ballast tanks in the U.S. GOM. Although these tanks must

remain connected to a ballast sea chest to be “ballast” tanks, absent an unusual circumstance, damage or other emergency, sea water

ballast, whatever a vessel’s location, is not introduced into these tanks. This is because to do so would make necessary thorough cleaning

before the contaminated tanks could again be used to carry treated (potable) freshwater.

In your New Orleans meeting one of your spokespersons emphasized that positions advocated in comments to this rulemaking docket

should reflect quantitative data 2

. In the brief time available we have been able to gather one piece of quantitative data about the amount

of commercial or municipal freshwater carried offshore as described. Although it stands alone it provides a compelling baseline indicative

of the amount of freshwater carried in the collective ballast tanks of GOM OSVs.

Fourchon, Louisiana is the largest offshore mineral and oil exploration and production support port on the U.S. GOM. Numerous companies

have waterfront facilities and dock space in the port. Three of the biggest are gathered in one area under football stadium sized covered

areas under which some of the biggest OSVs supporting the most distant offshore exploration are able to dock. In a year’s time these three

terminals have out

‐ loaded freshwater from commercial or municipal sources in a reported aggregate amount of 90 million gallons.

Practically all of this water was transported offshore in the ballast tanks of OSVs and offloaded to MODUs or deepwater facilities for use in

drilling fluids. 3 Without further research and study it is not possible to extrapolate an estimate of the total amount of municipal or

commercial source freshwater that is actually transported offshore. We can only say it is 90 MG (million gallons) +N.

2 This is rather ironic. In your tabulated OMB A

‐ 4 Accounting Statement you report “Annualized quantified, but un

‐ monetized benefits” as “Unspecified” and

for “Unquantifiable Benefits,” you allow that you have no idea what reduction in the risk of invasions might flow from this rulemaking. Preliminary Regulatory

Analysis and Initial Regulatory Flexibility Analysis

. USCG 2001

‐ 10486. p

‐ 21. June 2008. While you followed a leisurely timetable (your proposed rulemaking

did not hit the streets until August 28, 2009, almost 14 months after the date of the regulatory analyses) you allowed the impacted entities little more than

90 days after publication to research, analyze, draft and present any sort of well considered quantifiable data and that only after pleas from the public not to

close the docket after a mere 60 days.

s We are not free to identify the source of this information except to say that it is from a highly reliable and knowledgeable source in a very large international

company; a major presence in U.S. GOM exploration and production of oil and natural gas. The quantities aggregated are knowable because shipments are

measured. The offshore end users, like everybody else, have to pay for public or privately held potable freshwater supplies.

### December 3, 2009 Page 4 of 6

HEADQUARTERS - Trico Marine Services, Inc.

10001 Woodloch Forest Dr. Suite 6 10, The Woodlands, TX 77380

T | (+1) 713 780 9926 F | (+1) 281 203 5701 www.tricomarine.com A MEMBER OF TRICO MARINE GROUP By anyone’s measure 90 million gallons is a great deal of water. In contrast one study (1996) estimated that foreign flag shipping, primarily

bulkers, discharged some 5.8 billion gallons of seawater ballast water per year in the Lower Mississippi River. 4 It may be stated with

confidence that for all GOM OSVs 90MG+N would be well under 2 percent of 5.8 billion (and commercial/municipal source freshwater not

seawater).

The point to this is that offshore support vessels are not the source of the invasive species problem to the extent that it exists;

particularly on the U.S. Gulf Coast. Rather their contribution to the problem, if any, is statistically insignificant.

Comment on the UK IMO MEPC Committee Note “Use of Potable Water” Submission to IMO MEPC (MEPC 59/2/17 of 9 April 2009)—We

have urged adoption of several provisions of the impending BWM Convention. We understand that the issue of use of potable water as

ballast has recently been discussed at the IMO (presented by United Kingdom). Lest there be any misunderstanding the “potable” water in

the UK submission is clearly distinguishable from the freshwater carried in U.S. GOM OSVs that is discussed in our proposed changes to this

rulemaking. The UK proposal had to do with potable freshwater that is generated on board. In addition the report of MEPC 59/24 implies

discharge of that water to the sea. (MEPC.59/24 of 27 July 2009 at paragraph 2.48) The proposals we make are about municipal or

commercial source potable freshwater loaded at shore terminals. In addition we have explained that this water is not ultimately destined

to be discharged to the sea but rather to be delivered offshore for use in preparation of water

‐ based down

‐ hole drilling fluids.

Regulatory Flexibility

On its surface your Initial Regulatory Flexibility Analysis (IRFA) gives the appearance of compliance with the Regulatory Flexibility Act (RFA)

and the Small Business Regulatory Fairness Act (SBRFA). But the failure to recognize that one size does not fit all, as we explained above,

means that your analysis is skewed in the direction of large international cargo and tank ships. It should have already been clear from the

meeting in New Orleans that your analysis failed to take into account (1) the many small or inland vessels that would be impacted by the

broad application proposed, (2) the unique ballasting practices of segments of the marine transportation industry, (3) the statistically

insignificant contribution of small vessels to the invasive species problems of the United States in comparison with bulk cargo ships and

tankers.

Had these realities been well understood and had you seriously made the intent of the RFA and the SBRFA part of your regulatory analysis

you would have (1) incorporated policies previously published in NVIC 07

‐ 04 CH1 and (2) written exceptions or exemptions on your own

initiative consistent with that which you have agreed to in the IMO BWM Convention and the sort that we recommend earlier in this letter.

These actions would have been and are consistent with the intent of the RFA and SBRFA and the SBA Office of Advocacy agency guidelines. 5

It is well documented by the SBA and others who have studied the issue that small firms are burdened by a disproportionate share of the

costs of regulatory compliance. 6 None of the limited information and data that you have relied on give any assurance that this proposed

rule, as it now stands, will prove an exception.

4 An Initial Survey of Aquatic Invasive Species Issues in the Gulf of Mexico Region

. EPA 855

‐ R

‐ 00

‐ 003. Table 13 and section 6.2. p. 56

‐ 57. Version 4.0.

September 2000. (A publicly available document.) We note this document is not among those cited in your IRFA.

5 A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act: Implementing the President’s Small Business Agenda and Executive

Order 13272. SBA Office of Advocacy. May 2003.

6 Holman, Keith W. The Regulatory Flexibility Act at 25: is the law achieving its goal? Fordham Urban Law Journal, May 2006. The author concludes that the

RFA and E.O. 13,272 “are succeeding in spurring most federal regulatory agencies to improve their treatment of small entities.” But this rule and its IRFA are

written with a tip of the hat to the RFA as it speeds past on the road to the authors’ agenda.

### December 3, 2009 Page 5 of 6

HEADQUARTERS - Trico Marine Services, Inc.

10001 Woodloch Forest Dr. Suite 6 10, The Woodlands, TX 77380

T | (+1) 713 780 9926 F | (+1) 281 203 5701 www.tricomarine.com A MEMBER OF TRICO MARINE GROUP So much of your regulatory analysis is speculative that it is replete with hedge words and phrases. Here are 15 examples of the use of the

word “uncertain” or variant forms of it (and we are not sure these are all the instances of usage).

1. Cost estimates contain a degree of uncertainty because these emerging technologies are in their formative stages.

2. there is considerable uncertainty as to how effective the measures will be in preventing invasions

3. There is also uncertainty as to the availability and effectiveness of ballast water management technologies

4. In addition, the methods, scope, and magnitude used throughout the literature to estimate a dollar value of the damages caused

by invasions introduces a considerable amount of uncertainty into the estimates.

5. Chapter 3 presents the discussion on the installation and operational costs of the BWMS and uncertainties involved.

6. While the use of heat as a means to sterilize water is well documented and utilized extensively onshore, there is uncertainty

7. Evaluating technologies capable of meeting Alternative 4 (BWD

‐ 4) standards remains an uncertain endeavor

8. Cost Uncertainty

Several issues regarding the certainty of the estimations made for this RA merit discussion.

9. Another area of uncertainty is the possibility that there may be a shortage of equipment to implement BWTS

10. the costs should decrease over time, but the extent is unknown and, therefore, only considered in the uncertainty analysis

presented at the end of this chapter.

11. Projecting growth trends out 10 years is an uncertain process.

12. Finally, we discuss potential transfers and uncertainties inherent in our estimates.

13. This reduces the chance of invasion, but the effects are extremely uncertain

.

14. there is considerable uncertainty due to the relatively large number of invasions that could not be definitively classified.

15. 5.9 Sources of Uncertainties and Alternative Use of Risk

‐ Based Decision

‐ Making in Addressing Benefits

Beyond “uncertain,” there are also about 75 uses of “potential.” Other similar terms found repeated in your RA are “possible,” “estimated,”

and “forecasted.” This sort of equivocal qualification does not inspire confidence in your justification for the broad scope of the proposed

rule. Despite the uncertainty there is nothing equivocal about the goal of the rule, i.e., nothing less than a virtually absolute elimination of

aquatic invasive species. To achieve this zealous goal the proposal reflects its authors’ willingness to impose huge costs, crippling for some

and ruinous for still other businesses, in order to include an insignificant fraction of vessels that will yield little or no benefit in reduction or

elimination of invasive aquatic organisms in U.S. waters.

Cost Cap

At the New Orleans hearing we informed you of a cost cap put in place by EPA for small businesses in connection with marine diesel engine

air emissions (40 CFR 1042.815 and 1042.850). (We offer these rules to illustrate the conceptual precedent, responsive to the RFA, not to

suggest that they are a model workable in this proposed rule.) We suggested that you consider putting a per

‐ vessel cost cap on compliance

### December 3, 2009 Page 6 of 6

HEADQUARTERS - Trico Marine Services, Inc.

10001 Woodloch Forest Dr. Suite 6 10, The Woodlands, TX 77380

T | (+1) 713 780 9926 F | (+1) 281 203 5701 www.tricomarine.com A MEMBER OF TRICO MARINE GROUP for small businesses impacted by this rule. This recommendation is in the alternative should you not see fit to add the language we

recommend to the definition of ballast water at proposed § 33 CFR 151.1504.

We ask that you give your utmost serious consideration to our recommended changes and that you revise the proposed rules to focus the

burden on that part of the international marine transportation industry that is the major vector of the aquatic invasive species problem. In

future (e.g., in connection with an RFA ten year review) when you have had an opportunity to empirically determine the effectiveness of

such an approach you will be positioned to make a well

‐ founded decision about the need to capture the marginal fraction of remaining

vessels, using data rather than supposition and speculation.

FOR TRICO MARINE SERVICES, INC.

ANNA D. MASZTALEREK, LLM, BEng

Global Manager of Regulatory Compliance

Trico Marine Services, Inc.