The Tugboat, Towboat and Barg e Industry Trade Association December 4, 2009

Docket Management Facility U.S. Department of Transportation West Building Ground Floor

Room W12-140 1200 New Jersey Avenue, S.E. Washington, D.C. 20590

Re.: Standards for Living Organisms in Ships’ Ballast Water Discharged in U.S. Waters (Docket ID No. USCG–2001–10486)

Dear Sir or Madam:

On behalf of the American Waterways Oper ators (AWO), thank you for the opportunity to comment on the notice of proposed rulemaking (NPRM) establishing standards for living organisms in ships’ ballast wate r discharged in U.S. waters.

AWO is the national trade asso ciation for the inland and coas tal tugboat, towboat and barge industry. AWO’s 300 member companies include the owners and operators of barges and towing vessels operating on the U.S. inland and intr acoastal waterways; the Atlantic, Pacific, and Gulf coasts; and, the Great Lakes. Our industry’s 4,000 towing vessels and 27,000 barges comprise the largest segment of the U.S.-flag domes tic fleet, both in number of vessels and on-board crew positions. Each year, the towing in dustry safely and efficiently moves more than 800 million tons of cargo critical to the U.S. ec onomy, such as coal, grain, petroleum products, chemicals, steel, aggregates and containers. Tugb oats also provide essential services including shipdocking, tanker escort and bunkering in our nation’s ports and harbors.

AWO members are proud to be part of an industry that is the safe st and most fuel-efficient, and has the smallest carbon footprint, of any surface transportation mode. We are deeply committed to building on the natural advantages of marine transportation and leading the development of higher standards of marine safety and environmental protection. In 1994, AWO became the first transportation trade association to adopt a code of safe practice and environmental stewardship for member companies. Today, compliance with the Responsible Carrier Program (RCP) is a condition of AWO membership, and members unde rgo independent third- party audits every three years to demonstrate their continued compliance.Docket ID No. USCG–2001–10486 December 4, 2009 Page 2

AWO is also a member of the Shipping Industry Ba llast Water Coalition, an alliance of maritime trade associations that, together, represent over 90 percent of all ve ssels calling at U.S. ports, in

both the domestic and international trades. The Coalition is committed to working with legislators, regulators and environmental groups to develop environmentally sound and economically practicable solutions to prevent the introduction and spread of invasive species in

U.S. waters.

This history and these organizati onal characteristics inform our view of the notice of proposed rulemaking. We seek to protect the marine envi ronment in which our vessels operate, to provide a practicable regulatory framework that allows fo r the continued safe and efficient movement of essential maritime commerce, and to ensure that impracticable or overly burdensome regulations do not result in the diversion of cargo to other transportation modes that pose increased risks to safety and the environment.

The Administration Should Support a Unifor m National Standard for Ballast Water and Other Vessel Discharges

We note, first, the critical need for a uniform na tional standard for ballast water and other vessel discharges. The issuance of this NPRM is a star k reminder of the untenable state of affairs that currently exists with respect to the regulation of vessel discharges: the Coast Guard regulates ballast water under the National Invasive Spec ies Act (NISA); the Environmental Protection Agency (EPA) regulates ballast water and othe r vessel discharges under the Clean Water Act’s National Pollutant Discharge Elimination Sy stem (NPDES) permit program; and, because

neither NISA nor section 402 of the Clean Water Act preempts state regulation of ballast water and other vessel discharges, dozens of states have established their own regimes governing vessel discharges. This patchwork of federal and state authorities poses enormous difficulties for vessels operating in interstate commerce. (A barge tow traveling from Pittsburgh to New Orleans down the Ohio and Mississippi River syst ems, for example, trav els through 11 states, each of which is free to establish its own unique re quirements for vessel discharges in its waters.) While it is sometimes suggested that better coor dination among federal and state authorities to avoid conflicting standards is the solution to th is problem, coordination al one is insufficient. Even if the various federal agen cies and state authorities were to agree on a common discharge standard, for example, vessel owners would s till be faced with the significant burden of complying with the multiplicity of administ rative requirements (reporting, recordkeeping, inspections, training, etc.) imposed by the different statutory or regulator y authorities governing vessel discharges.

The real solution is to establish a new, uniform statutory framework for th e regulation of ballast water and other vessel discharges – one that pr ovides for effective, environmentally protective

standards based on sound science and is tailored to address the operational realities of mobile sources in interstate commerce. We urge the Admi nistration to take a leadership role in working with Congress to bring a bout such a solution.Docket ID No. USCG–2001–10486 December 4, 2009 Page 3

The Rulemaking Record Does Not Support the Proposed Regulations

AWO is deeply disappointed that, even after the many years that this NPRM has been under development, the proposal is based on inaccurate assumptions and incomplete research that do not support the regulations as proposed. These de ficiencies have led to a one-size-fits-all proposal that has not and cannot be justified in its application to barges and towing vessels in the

U.S. domestic trade.

First, the rulemaking record simply does not s upport the propos al that was published in the Federal Register . Egregiously, neither the Preliminar y Regulatory Analysis nor the Draft Programmatic Environmental Impact Statement (DPEIS) even discusses the two-tiered standard approach proposed in the NPRM. Throughout these documents, the proposed Phase I standard is referred to as the “preferred alternative,” and analysis and justification for this standard is provided. Neither the Phase II stan dard nor the idea of a two-phase approach to standard setting is even discussed in the regulatory analysis or DPEIS, much less analyzed for environmental benefit and economic feasibility. This glar ing procedural defect suggests the troubling

conclusion that the inclusion of the Phase II stan dard was a last-minute political decision that was not subjected to the thorough an d dispassionate analysis that is 1) required by law and 2) the standard of care that the regulat ed public has a right to expect from government. We urge the

Administration not to short-circ uit the regulatory process and to ensure that all required procedural steps are undertaken as it proceed s toward the development of a final rule.

Moreover, the NPRM is also based on numerous inaccurate assumptions about the affected vessel population and its operating char acteristics. For example, th e regulatory analysis states

that vessels under 100 feet in length, vessels operating on rive rs and tugboats towing astern generally do not carry ballast wate r. In fact, inland towboats of all sizes routinely carry ballast

water to maintain trim as fuel is burned duri ng a voyage; coastal tugboats carry ballast for trim and stability; and many barges, both inland and coas tal, are ballasted for trim and stability, to ensure proper tow configurat ion, or to allow for better s eakeeping when empty. An AWO member survey, which generated responses from 52 member companies (or about 20 percent of AWO’s carrier membership), identified more than 1,300 inland and coastal towing vessels and barges that carry ballast water in this small samp le alone. The majority of these vessels have not

been accounted for in the Coast Guard’s estimate of 2,600 U.S. vessels that would be affected by the notice of proposed rulemaking.

The regulatory analysis also assumes that the proposed requirements would only affect vessels with the capacity to carry larg e volumes of ballast water (450,000 gallons and up) and flow rates of 1,100 gallons per minute or more. In fact, the proposed rule would affect vessels with much smaller capacity and much lower flow rates. A typical inland towboat has 20,000-40,000 gallons of ballast water capacity; a typical coasta l tug has 20,000-70,000 gallons. A small harbor tug might have a capacity of 2,000-3,000 gallons. While barges, especially oceangoing barges, have larger ballast capacities, the ball ast capacity of many barges is st ill a fraction of that assumed in the regulatory analysis. Flow rates for barges and towing vessels discha rging ballast water are also considerably less than t hose of other commercial vessels, ranging from 20 to 250 gallons per

minute.Docket ID No. USCG–2001–10486 December 4, 2009 Page 4

Ballast Water Treatment Should Not Be Required for Towing Vessels and Barges

in the U.S. Domestic Trade

Without an accurate understanding of the affected vessel population and its characteristics, the

Coast Guard cannot make a defensible assessment of the scientific basis for, cost and costbenefit of, and technical and opera tional feasibility of requiring ballast water treatment systems on a particular class of vessels. In fact, there is considerable evid ence, or in some cases lack of evidence, to argue against the application of ballast water treatment requirements to towing vessels and barges in the U.S. domestic trade.

First, the statutory authority that the Coast Guar d claims as the basis for extension of ballast water treatment requirements to all vessels equipped with ballast tanks operating in U.S. waters does not support the imposition of such requirements on vessel s that do not operate beyond the U.S. Exclusive Economic Zone (EEZ). NISA provides, in pertinent part (16 USC 4711(c)(2)(D)), that the Coast Gu ard may “direct a vessel that is carrying ballast water into

waters of the United States after operating beyond the exclusive economic zone ” (emphasis supplied) to conduct ballast wate r exchange or “use environmen tally sound alternative ballast water management methods . . . if the Secretary de termines that such alternative methods are at least as effective as ballast water exchange in preventing and controlling infestation of aquatic nuisance species.” While the Secretary is authoriz ed to establish ballast water management and reporting requirements for “all vessel s equipped with ballast water ta nks that operate in waters of the United States” (16 USC 4711(c)(2)(B)), with the exception of crude oil tankers in the coastwise trade (16 USC 4711(c)(2 )(L)), authority to require ballast water exchange or

alternatives is limited to vessels that have operated beyond the EEZ. Given Congress’s explicit

distinction between vessels that operate beyond the EEZ and vessels that do not, we believe the Coast Guard’s reliance on the general authorit y provided in 16 USC 4711( c)(1), (c)(2)(A), (e) and (f) to extend ballast water tr eatment requirements to vessels not required to conduct ballast water exchange is an impermissible overreach.

Second, the DPEIS provides no evid ence to suggest that ballast water discharged by towing vessels or barges operating exclusively on the in land river system, or within the same coastal ecosystem, has contributed to the introduction or spr ead of invasive species in U.S. waters. When

the Coast Guard instituted nationwide ballast water reporting requirements in 2004, the agency told AWO that one of the principal purposes of collecting this data was to map vessel

movements and ballast water discha rge patterns against invasive species flows. AWO was told

that the Coast Guard would use this information to determine where ballast water discharges had

contributed to the introduction or spread of invasive species and thus, where and on which classes of vessels ballast water treatment requir ements would be justified. While the National Ballast Water Information Clearinghouse (NBIC) c ontains a wealth of data submitted by vessel owners over the past five years, we are aware of no effort by the Coast Guard to analyze the data to see what it suggests about the role of vessels, and partic ularly domestic vessels, in the introduction and spread of invasive species. We also note, as mentioned above, that NISA exempts from ballast water management requireme nts crude oil tankers in the U.S. coastwise trade, presumably because they pose no risk of in troducing invasive species into U.S. waters. It would be patently unfair to subject domestic towing vessels and barges with much smaller volumes of ballast water capaci ty to a different standard.Docket ID No. USCG–2001–10486 December 4, 2009 Page 5

Third, AWO is not aware of any ba llast water treatment system that has been approved, installed or even tested on vessels with the operating ch aracteristics of many t ugboats, towboats and barges, such as the following:

• Vessels operating exclusively in freshwater: Well over half of U.S. towing vessels and barges never operate in saltwater, and while some ballast water treatment chemicals can work on organisms in freshwater environmen ts, AWO is not aware of any ballast water

treatment system that has been tested or can be us ed on freshwater vessels. Indeed, in AWO’s conversations with treatment system ma nufacturers, it has been suggested that treatment systems for freshwater vessels have not yet been developed because their risk of introducing invasive species is so small.

• Vessels of very limited size. Many towing ve ssels are less than 125 feet long, with small engine rooms averaging between 900 and 1300 square feet. While treatment systems range in size, one of the smallest ones would take up about one-tenth of this space. In a towing vessel engineroom, there is virtually no space not already dedicated to machinery or walkways. Keeping these areas clear and leaving enough room for engineers to maintain the existing equipment is critical to the safe operation of the vessel. Moreover, since ballast water treatment systems have not been tested on tugboats or towboats, it is

unclear whether or not their installation is ev en possible on vessels of such small size.

• Vessels with very low ballast water flow rates. The Preliminary Regulatory Analysis examined vessels with flow rates of 1,100 gallons per minute and above; however, the flow rates of some tugboats are as low as 20 gallons per minute, and average flow rates for typical towing vessels are approximatel y 250 gallons per minute. Since flow rates must be high enough to pump water through th e treatment system, vessels with low flow rates must install additional pumps in orde r to ensure that the system will work effectively. Not only was the cost of addi tional pumping equipment not assessed in the rulemaking record, it has not been demonstr ated whether treatment systems employing additional pumps are feasible for inst allation on barges or towing vessels.

• Vessels without installed ba llast water piping. The ballas t tanks of many barges and towing vessels are simply void spaces filled with water to keep the vessel stable. In many cases, these tanks do not have any piping; th ey are filled and emptied shoreside with hoses or portable pumps. In order to instal l a ballast water treatment system, piping would have to be installed, an extensiv e and expensive process that may require developing an approved vessel-sp ecific design, conducting stability studies and taking the

vessel out of serv ice for weeks.

• Tank barges. There are serious safety a nd possibly regulatory impediments to the installation of ballast water treatment systems that rely on electricity on tank barges. Coast Guard regulations for electric e quipment on vessels (46 CFR 111.105-31(l)) prohibit the placement of such equipment with in 10 feet of any cargo tank vent outlet, cargo tank ullage opening, cargo pipe flange, or cargo valve unless it is intrinsically safe, explosion proof, or purged and pressurized in order to prevent cargo vapors from exploding. It is unclear whether and how ba llast water treatment systems could beDocket ID No. USCG–2001–10486 December 4, 2009 Page 6

installed on inland tank barges so as not to c onflict with this regul ation and avoid posing serious personnel safety risks.

Fourth, requiring the installation of treatment systems costing a half-million dollars or more on thousands of towing vessels and barges with very limited ballast water capacity is most likely cost-prohibitive, and surely not cost-effectiv e. A 2009 survey by the California State Lands

Commission contained cost estimates for 14 ball ast water treatment systems, ranging in cost from $150,000 to $2.3 million per sy stem, with an average cost of $895,000. These estimates do not include the cost of removing the vessel from service in order to install the system, any modifications to the vessel (as would almost cer tainly be required for to wing vessels and barges, for the reasons discussed above), or operation and maintenance of the system once installed. These cost estimates are truly staggering when co mpared to the value of a barge or towing vessel on which such a system might be installed. An inland barge can cost $400,000, less than half the cost of the average treatment system examined in the California survey! An inland towing vessel can cost as little as $3 million and a coasta l tugboat as little as $5 million, meaning a vessel owner could be required to inst all a piece of equipment worth one -third to one-fifth of the

vessel’s value.

These costs (which were neither assessed nor justified in their a pplication to most towing vessels and barges, given the Coast Guard’ s erroneous assumptions about th e affected vessel population) are particularly egregious given the very high pe rcentage of barge and to wing companies that are small businesses. The Congressionally-aut horized Towing Safety Advisory Committee estimated in a 2008 analysis that some 90 per cent of barge and towi ng companies qualify as

small businesses under the Small Business Admi nistration definition. These costs must be considered not only in absolute terms, but agains t the backdrop of the l ack of evidence that domestic towing vessels or barges have contribu ted to the introduction or spread of invasive species, the smaller volumes of ballast water tr ansported by these vessels , and the technological and operational impediments to the installation of ballast water treatment systems on towing vessels and barges.

The Coast Guard Should Exempt Other Vessel Op erations That Do Not Pose a Risk of Introducing Invasive Species

In addition to not requiring balla st water treatment systems on towing vessels and barges in the U.S. domestic trade, the Coast Guard should ex empt any vessel with the following operational characteristics, which pose little or no risk of introducing or spread ing invasive species:

• Vessels that use only municipal or commerc ial water for ballast. Many towing vessels and barges fall into this category, using potab le water from shoreside sources for ballast

instead of river or sea water.

• Vessels that carry ballast water or have ba llast tanks but do not take on or discharge

ballast water in U.S. waters. These vessels do not pose a risk of transferring invasive species into or within U.S. wa ters and should not be required to install treatment systems.

• Vessels that operate in more than one Captai n of the Port (COTP) zone but only take on and discharge ballast water in a single zone . A towing vessel might, for example, operateDocket ID No. USCG–2001–10486 December 4, 2009 Page 7

throughout the inland river system but only take on ballast wa ter to ride lower in the water when passing under the low bridges near Chicago, discharging the ballast water in the same zone when the bridge transit is comp leted. Such vessels should be exempted for the same reasons as vessels that operate exclusively within a single COTP zone.

We also urge the Coast Guard to correct what ap pears to be a technical error in the regulatory text and ensure that the proposed exemption for vessels operating exclusiv ely in one COTP zone (33 CFR 151.2015) extends to the ballast wa ter management requirements (33 CFR 151.2025), consistent with the description of this provision in the preamble to the NPRM.

Eliminate the Two-Tier Approach or Provide Lifetime Grandfathering for Vessels with Installed Treatment Systems

AWO urges the Coast Guard to eliminate the pr oposed two-tier standard and adopt a single ballast water discharge standard th at is both effective in neutraliz ing invasive species in ballast water and practicable for installation on vessels. While we are sympathetic to the conceptual rationale for the two-tier approach – set an achievab le standard in the near term and ramp up to a higher standard if and when technology allows – it is simply impractical to expect a vessel owner to install a treatment system costing as much as $1 million and then replace that system before

the end of its useful life. We see two options to avoid this unaccep table situation: first, the Coast Guard could elect to conduct a pr acticability review now to asse ss whether the proposed Phase II standard is feasible and, if so, eliminate Phase I and estab lish an appropriate timeline for installation of Phase II systems. Alternativel y, the Coast Guard could implement the Phase I standard as proposed (and subjec t to the modifications discussed in these comments), with the proviso that any vessel that installs a system me eting the Phase I standard will not be required to replace that system before the end of the system’s, or the vessel’s, useful life. If a practicability review subsequently allows for adoption of th e Phase II standard, the Coast Guard could apply the Phase II requirement to new vessels (or vesse ls replacing systems that have reached the end of their useful life) only.

The Practicability Review Should Ensure That Systems Are Practicable for Any Class of Vessels on Which They Will Be Required

AWO urges the Coast Guard to ensure that th e proposed practicability review is robust and comprehensive. Specifically, we recommend that the practicability review examine the following factors and ensure that any proposed standard is:

• Effective in neutralizing invasive species. This requires ensuring that tools and protocols

exist to measure the effec tiveness of the standard;

• Technologically feasible for in stallation on the vessels that will be required to install treatment systems meeting the standard. Tr eatment systems should not be required on any class of vessels unless the system has b een tested and proven practicable given those vessels’ engineroom size and design, ballast water capacity, tank configuration, flow rate,

etc.;

• Commercially available. That is, systems meeting the standard are on the market and available in sufficient quanti ty to allow for purchase and installation by the population of affected vessels on the requi red regulatory schedule;Docket ID No. USCG–2001–10486 December 4, 2009 Page 8

• Safe for use with the characteristics of th e vessels to which it will be applied (i.e., proximity to flammable or combustible cargo, etc.); and,

• Cost-effective for use on the vessels that will be required to use it. A system whose cost

would drive vessel owners out of business or impose severe economic hardship is not cost-effective and should not be required.

While the Coast Guard has specifically solicited comments on the factors to be included in the practicability review that takes place before implementation of the Phase II standard, the same

considerations are no less relevant to the application of the Phase I standard. We urge the Coast Guard to ensure that a complete analysis of thes e factors is conducted in the process of finalizing the proposed regulations and before ballast wate r treatment system requirements are applied to any given vessel class.

Conclusion

AWO urges the Coast Guard to:

• Play a lead role in encouraging the Admini stration to support a uniform federal statutory framework for the regulation of ballas t water and other vessel discharges;

• Ensure that the rulemaking record is co mplete and accurate, following all required procedural steps and reflecting accurate assu mptions about the affected vessel population, before proceeding to finali ze the proposed regulations;

• Refrain from requiring treatment standards on towing vessels and barges in the U.S. domestic trade;

• Exempt from the proposed requirements vessels using municipal or commercial water for ballast, vessels that do not discharge ballast water in U.S. waters, and vessels that only take on and discharge ballast water in a singl e COTP zone, in addition to vessels that operate exclusively within a single COTP zone;

• Eliminate the two-tier standa rd or, alternatively, provide that a vessel installing a treatment system that complies with the Phase I standard will not be required to replace that system if and when a Phase II standard is implemented; and,

• Conduct a robust and comprehensiv e practicability review prior to requiring ballast water treatment systems on any class of vessels.

Thank you for the opportunity to comment. We w ould be pleased to answer any questions or provide further information as the Coast Guard sees fit.

Sincerely,

Jennifer A. Carpenter