U.S. Coast Guard Notice of Proposed Rulemaking

For

Standa rds fo r Liv i ng Organisms in Ships’ Ballast Water

Discha r ged i n U.S. Water s

C o mments B y Cruise Line s Interna t iona l Associa t io n, Inc.

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RIN 16 25-AA32

INTRODUCTION

The Cruise Line International Associati on (CLIA) offers these comm ents on the U.S. Coast Guard Notice of Proposed Rule m a king on Standards for Living Organism s in Ships’ Ballast W a ter published on August 28, 2009 (74 Fed. Reg. 44632). This proposed rule would require vessels with ballast tanks that operate in U.S. waters and are bound for ports or pla ces in the U.S. to install and operate a Coast Guard approved ballast water

m a nage m e nt system (BWMS) before discharg ing into U.S. waters. The rule w ould require vessel owners to rem ove e x isting sy stem s and install new system s when new technology becom e s available and require d. Possibly every three years.

CLIA repre s ents 25 1 mem b er cruis e lines that operate approxim a tely 175 passenger vessels prim arily in the registration of various international adm i nistrations or flags and som e vessels of U.S. flag. Mem b er lines operate sm aller cruise passenger ships

on coastal a nd river itin erar ies as well as la rge traditiona l cr uise vesse ls on interna t ional

and worldwide itinera r ies. Vessels range from approxim a tely 50 passengers and a like

num b er of c r ew up to ships carrying as m a ny as 6,400 passengers and 2,200 crew. Most, if not all, CLIA m e m b e r vessels have ballast tanks and carry ballast water. However, for

m a ny cruise ships, the need to discharge ball ast in U.S. wate rs is elim inated through the ability to transfer fuel, water and other liqui d loads in orde r to m a intain trim and m e et stability req u irem ents.

1 AMA Waterways

, Am eri c an Cruise Lines, Avalon Wa terways, Az am ara Cruises, Carnival Cruise Lines, Cele brity Cruises,

Costa Cruise Line s N.V .,Crystal Cru i ses, Cunard Line Lim ited, Disne y C r uise Line

, Holland, America Line, Hurtigruten, MSC

Cruises, Norwegian Cruise Li ne, Oc eania Cr uises, Pa ul Gauguin Cruis e s, Pearl S e as Cruises, Princ e ss Crui ses, Regent Se ven

Seas Cruises, Royal Caribbean Inter n ational, Seabour n Cruise L i ne, SeaDream Yacht Club, Silversea Cruis e s, Uniworld

Boutique River Cr uise Collection, a n d Windstar Cruises

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2 COMMENTS

1. CLIA recognizes and acknowledges that the movement of noninvasive species from

one area of the world to another is a serious environmental issue attributed to shipping. In this regard, we note that th e maritime industry as a whole has long advocated that the U.S. Government adopt an environmentally pr otective, nationally consistent ballast water treatment standard to address this important issue. Until recently, ballast water exchange was the only viable option available to shipping. However, the International Maritime Organi zation has now set pe rformance standards

for ballast water treatment which has a llowed the development and approval of commercially available systems that will meet the standards proposed in Phase I of this Notice of Proposed Rule Making (NPRM).

2. The proposed two phase approach would re quire a vessel owner to remove vessels from service for the purpose of instal ling new systems and equipment costing

hundreds of thousands if not millions of dollars to meet the next phase. While it is understandable that a two phase d approach may appear desi rable, this approach in reality would be problematic for actual vessel operations a nd is financially irresponsible. Accordingly, CL IA recommends that any ap proved system installed to meet the ballast water management system requirements at the time of that ship’s construction and delivery, be grandfathered for the life of the system.

3. The regulations propose to c onduct a practical ity review to estab lish the measure of feasibility and biological effectiveness of systems potentially meeting the Phase II standards. If such systems are not sufficien tly developed to meet Phase II in the time frame envisioned, the USCG is proposing that owners and ope rators could be required to install new equipment that meets some interim standard while still pursuing the Phase II standard. Indeed, th e proposal indicates th at even after the Phase II standard is able to be met, that further practicality revi ews be conducted with regard to achieving even highe r standards and that ship ow ners would be required to remove old equipment and install new e quipment each and every time some higher level of achievement is technically possible – possibly every three to five years. Such an approach is economically unsustaina ble and continues to be financially irresponsible not only to the owners but also to investors, shippers and the end users of products shipped as these escalating co sts will, of necessity, be passed on.

4. CLIA suggests that a much better and more reasonable approach, if the Coast Guard believes that the Phase I standard is inadequate, would be to first conduct a practicability review in order to measure the feasibility and biological effectiveness of systems meeting a higher standard that has been reasonably shown to effectively protect the marine environment, possibly the Phase II standard. If that higher standard can be met with commercially approved and available equipment proven to be practicable for that vessel’s configurati on such as ballast tank capacity, flow rate and size, then another rule should be esta blished and implemented for new ships and newly installed equipment. That equipmen t should then be grandfathered for the lifeDocket USCG-2001-10486

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3 of the system. The process could be repeat ed for any step increases in the standard which can be shown to enhance environmental protection.

5. The main point is, that it is costly and difficult for ships to install equipment, such as ballast water treatment systems and then remove such systems only a short time later (three to five years) simply because a requirement changes. CLIA suggests that a national standard be clearly established and equipment meeting that standard be grandfathered for the life of the systems a nd that any subsequent changes to that standard be handled as a separate rule making with subsequent equipment also grandfathered for the life of the ship. We know of no othe r rule, standard or marine engineering system that is not handled in this manner.

6. There is wide recognition of a critical need for a uniform national standard for ballast water as well as for other vessel discharges . Currently, ballast wa ter is regulated by

both the Coast Guard under the Nationa l Invasive Species Act and by the Environmental Protection Agency under the Clean Water Act as well as by individual State agencies such as the California Stat e Lands Commission. This has created an uncoordinated patchwork of regulations by both federal agencies and augmented by regulations of dozens of st ate governments resulting in confusion and an unnecessary burden of compliance for the vessel owners while facing citizen law suits and the threat of criminal prosecution for the slightest offense. The Coast Guard, the Environmental Protection Agency and th e Administration should support federal legislation that creates a single regulato ry framework for ALL vessel discharges. These agencies should then rely on internal agreements, such as Memorandums of Understanding or Agreement to spell out th e role of each agency in regulatory enforcement, the treatment of system approva l and the certificati on of equipment.

7. The issue of a national standard with some level of preemption now has another potential effluent that needs to be included. With the prospect of a North American Emissions Control Area (ECA) many operators will be exploring the use of exhaust gas scrubbers to meet these important emissi on standards. Theref ore, in addition to

the need for national standards for ballast water and the discharges regulated by the National Pollution Discharge Elimination System (NPDES) Vessel General Permit (VGP), it will be imperative that there be one national standard for exhaust gas

scrubber washwater. While IMO has now approved washwater criteria from scrubbers, global shipping operation necessitates one national standard. The EPA and U.S. Coast Guard need to recogni ze and resolve the practice allowed under section 401 of the Clean Water Act that give s states the right to increase water quality discharge standards above the federal standa rd. In California, for example, their water quality standard is set at such a hi gh level for ballast water discharge that no

Phase I ballast water treatment device can meet it. Further, if a ballast water

treatment device is ever created that does meet the current California ballast water discharge criteria, there is nothing stopping the State of California from further increasing the water quality st andard in the future. The question then becomes, why would anyone purchase a ballast water treatme nt system that canno t be used in theDocket USCG-2001-10486

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4 states that a ship may operate within? Furt her, there is little incentive for commercial equipment manufacturers to invest in t echnology that may soon become obsolete.

8. Accordingly, CLIA recommends that sectio n 312 of the Clean Water Act be amended to regulate all ship discharges to the exclusion of st ate regulations.

9. CLIA notes that the proposed rule is appl icable to all vessels with ballast tanks, regardless of flag, which call in U.S. ports. CLIA suggests that exemptions should be

included for vessels that:

a. Never take on or discharge ballast water in U.S. waters, regardless of whether

or not the vessel has tanks that can be used for ballast water. Many ships, especially cruise ships, are capable of balancing their liquid loads while in

U.S. waters in such a manner that doe s not require the di scharge of ballast water. To mandate the installation of ballast water treatment systems on ships that choose not to discharge ballast water in U.S. waters furthers no environmental purpose.

b. Use potable, municipal, commercial or t echnical water for ballast or use any other kind of clean water from shoreside sources. Again, a requirement for treatment systems to be applied to this type of water furthers no environmental

purpose.

10. Currently, the NPRM requires manufacturers whose treatment systems have been approved by other IMO flag states as meeti ng the IMO standard to seek approval of their system from the Coast Guard as we ll. The Coast Guard should accept systems approved by other flag states without add itional Coast Guard review unless the Coast Guard has strong evidence that such an approval was improperly granted.

11. CLIA notes that the proposed regulations ut ilize the standard of “operating solely” within one Captain of the Port (COTP) z one as a discriminator for NOT requiring an approved ballast water treatment device or sy stem. It is clear that the Coast Guard

COTP zones were not and are not delineated on the basis of environmental characteristics, similarities or differences. For example; a ship that operates within

Sector Jacksonville’s southern zone and Sector Mi ami’s northern zone would be required to install an approved ballast wate r treatment device simply because the ship operates in two COTP zones, regardless th at the eco-systems within both areas are similar. CLIA recommends using more scientific-based criteria that considers the eco-systems variances within the area in which ships operate. Such a system has been successfully developed by the Aust ralian Quarantine and Inspection Service (AQIS).

12. The proposed regulation states that vessels wi ll continue to be subject to the Vessel General Permit (VGP) as well as the requ irements of the proposed regulation. However, nowhere in the proposed regulati on is it stated how conflicts between the proposed regulation and the VGP , and there are several, ar e to be addressed. WeDocket USCG-2001-10486

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5 recommend guiding language be added to th e proposed regulation that discusses how

to resolve conflicts between the proposed regulation and the VGP.

13. Sections entitled “Discharge of Ballast water in Extraordinary Circumstances” and “Safety Exception,” are contained in 151.2040 and 151.2045, respectively. Read together, these two sections create a great deal of confusion as to when unmanaged ballast water can be discharged. It is a pparent that the rules recognize the Master’s authority to not conduct ballast water mana gement practices of any kind where the safety of the vessel/crew/ passengers w ould be compromised; however, it does not relieve the vessel of the responsibility to meet the ballast water management requirements found elsewhere in the rule. Presumably, invoking the safety exception would not relieve the lega l requirement to meet ballast water management requirements but may mitigate fines/penalt ies when non-compliance was determined by USCG. These sections should be clarified.

14. CLIA notes that the economic impact as sessment addresses only the impact on U.S. flag vessels. While this is a U.S. rulema king, the fact is that the regulations will apply to any ship calling at a U.S. port th at has ballast tanks onboard. Accordingly,

CLIA is of the view that the economic im pact assessment is entirely too narrow in that is does not consider the capacity for manufacture and installation of the required systems on the thousands of non-U.S. flag ships calling at U.S. ports, nor does it assess the overall impact to the American public including shippers and end users of the shipped goods and products. CLIA r ecommends that a more detailed and thorough economic impact assessm ent be prepared so that the full measure of these proposed regulations can be fully understood and considered.

CONCLUSION

CLIA supports the U.S. Coast Guard fo r taking steps to establish a national
standard for ballast water discharges from sh ips calling at U.S. ports. CLIA also supports
the objective of the NPRM to establish an environmentally protective federal ballast

water treatment standard at the earliest da te possible consistent with technological,

commercial, and economic constraints. While we recognize that numerous factors must
be considered when proposing and implementing a ballast water treatment standard,

CLIA is of the view that movi ng directly to an achievable standard that offers a proven
biologically protective solution would be the pr udent course of action. Grandfathering of
approved systems is imperative to prevent vessels from having to install treatment
systems more than once if and when meeti ng higher standards beco mes possible through
improvements in technology. Finally, CLIA recognizes that standards differing between
the Federal agencies (USCG and EPA) an d the several states are unworkable and

underscore the need for a single national ballast water management standard.