Coastal and port environments: International legal and policy responses to reduce Ballast Water introductions of potentially invasive species

Ocean Development and International Law

Volumn 36, Issue 3, 2005, Pages 291-316

  Firestone, Jeremy ^a   Corbett, James J ^a  

^a UNIVERSITY OF DELAWARE   (United States)

Author keywords

Ballast Water Convention; IMO; Invasive species; Marine environment; UNCLOS

Indexed keywords

BALLAST WATER; BIOLOGICAL INVASION; ENVIRONMENTAL MANAGEMENT; INTERNATIONAL AGREEMENT; INVASIVE SPECIES; MARINE POLICY;

EID: 24344459094     PISSN: 00908320     EISSN: None     Source Type: Journal    
DOI: 10.1080/00908320591004469     Document Type: Review

References (215)

1. See, for example, Gregory M. Ruiz and James T. Carlton, "Invasion Vectors: A Conceptual Framework for Management," pp. 459-504, 468 in G.M. Ruiz and J.T. Carlton, eds., Ivasive Species: Vectors and Management Startegies (2003). The International Convention for the Control and Management of Ships' Ballast Water and Sediments, concluded 13 February 2004, not in force, IMO Doc. BWM/Conf/36, 16 February 2004 (see generally that the IMO website at ) defines "ballast water" in Article 1.2 as "water with its suspended matter taken on board a ship to control trim, list, draught, stability or stress of the ship" and "sediments" in Article 1.11 as "matter settled out of Ballast Water within a ship."
2. R. Slater and MTS Task Force, "An Assessment of the U.S. Marine Transportation System: A Report to Congress," Washington, DC, U.S. Department of Transportation (1999)
3. and MARAD, Maritime Transportation System Brochure, Maritime Administration, U.S. Department of Transportation (1999).
4. Z. Yang and A. N. Perakis, "Multiattribute decision analysis of mandatory ballast water treatment measures in the US Great Lakes," 9 Transportation Research Part D 81-86 (2004);
5. A.N. Cohen and J.T. Carlton, "Accelerating Invasion Rate in a Highly Invaded Estuary," 279 Science 555-558 (1998);
6. National Research Council, Committee on Ships' Ballast Operations, Stemming the Tide: Controlling Introductions of Nonindigenous Species by Ships' Ballast Water (1996).
7. Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP), "A Sea of Troubles," Rep. Stud. GESAMP No. 70. (2001).
8. David Pimentel, Rodolfo Zuniga, and Doug Morrison, "Update on the Environmental and Economic Costs Associated with Alien-Invasive Species in the United States," 52 Ecological Economics 273-288 (2005);
9. Jeremy Firestone and Robert Barber, "Fish as Pollutants: Limitations of and Crosscurrents in Law, Science, Management, and Policy," 78(3) Washington Law Review 693-756 (2003);
10. and O.E. Sala, F.S. Chapin, et al., "Global Biodiversity Scenarios for the Year 2100," 287 Science 1770-1774 (2000).
11. Convention on Biological Diversity, concluded June 5, 1992, 1760 United Nations Treaty Series 79, entered into force December 29, 1993.
12. E.A. Norse, "Unchartered Waters: Conserving Marine Biological Diversity," pp. 94-97, 95 in G.K. Meffe and C.R. Carroll (eds.), Principles of Conservation Biology (2nd Ed. 1997).
13. Jakarta Mandate on Marine and Coastal Biological Diversity, Decision II/ 10 adopted in 1995 by the Second Ordinary Meeting Conference of the Parties (COP) to the Convention on Biological Diversity (CBD), available at .
14. European Commission, Life III Programme, et al., "Alien Species and Nature Conservation in the EU: The role of the LIFE Program," Office for Official Publications of the European Communities (2004);
15. M. Doelle, "The Quiet Invasion: Legal and Policy Responses to Aquatic Invasive Species in North America," 18(2) International Journal of Marine and Coastal Law 261-294 (2003);
16. C. Perrings, M. Williamson, et al., eds., The Economics of Biological Invasions (2000);
17. and D. Pimentel, supra note 5.
18. See Intertanko, Ballast Water Requirements (2004);
19. Mark L. Miller and R. M. Fabian, eds., Harmful Invasive Species:Legal Responses (2004);
20. Moira McConnell, "Globallast Legislative Review, Final Report," Globallast Monograph Series No. 1 (2002), available at globallast.imo.org/monograph1%20legislative%20review.pdf;
21. and David McKie, "Ballast Water 'Minefield' Could Explode on Owners," Lloyd's List, 28 March 2001 available at http:// www.elbornes.com/articles/shipping/shi_0006.htm. For the most part these state laws implement the Guidelines adopted by the International Maritime Organization (IMO) that emphasized ballast water exchange outside of coastal waters. See infra text at notes 35-36.
22. Maritime Safety Authority of New Zealand, Guidance on New Zealand's Ballast Water Controls, Ship Notice 07/1999 September, available at .
23. I b i d.
24. Australian Quarantine and Inspection Service, Australia Ballast Water Management Requirements (2001), available at .
25. United States Coast Guard, Department of Homeland Security, Penalites for Non-Submission of Ballast Water Reports, 69 Fed. Reg. 32864-32871 (June 14, 2004).
26. See also United States Coast Guard, Department of Homeland Security, Mandatory Ballast Water Program for U.S. Waters, 69 Fed. Reg. 44592-44961 (July 28, 2004).
27. Lisa A. Brautigam, "Control of Aquatic Nuisance Species Introductions Via Ballast Water in the United States: Is the Exemption of Ballast Water Discharges from Clean Water Act Regulation a Valid Exercise of Authority by the Environmental Protection Agency?," 6 Ocean & Coastal Law Journal 33 (2001)
28. and Sandra B. Zellmer, "The Virtues of 'Command and Control' Regulation: Barring Exotic Species From Aquatic Ecosystems," University of Illinois Law Review 1233, 1285 (2000).
29. Environmental Protection Agency, Decision on Petition for Rulemaking to Repeal 40 C.F.R. § 122.3(a) (2003), available at .
30. In Northwest Environmental Advocates v. US EPA, 205 U.S. Dist. Lexis 5373 (March 31, 2005), found the EPA acted unlawfully in categorically excluding ballast water discharges from regulation.
31. See (December 22, 2003).
32. United States Coast Guard, ballast water discharge standard; preventing introductions and spread of nonindigenous species; environmental protection requirement, Washington, DC, United States Coast Guard, 68 Fed. Reg. 55559-55563 (2003).
33. BWC, supra note 1.
34. United Nations Convention on the Law of the Sea, U.N.Doc A/Conf 62/122, concluded 10 December 1982, 1833 United Nations Treaty Series 397, entered into force 16 November 1994, available at.
35. General Agreement on Tariffs and Trade 1994, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 United Nations Treaty Series 187.
36. FAO Code of Conduct for Responsible Fishing is available at .
37. See McConnell, supra note 10;
38. C. Shine and N. Williams, et al., "A Guide to Designing Legal and Institutional Frameworks on Alien Invasive Species," Environmental Policy and Law Paper No. 40, IUCN Environmental Law Centre (2000).
39. D.J. Bederman, "International Control of Marine 'Pollution' by Exotic Species," 18 Ecology Law Quarterly 677-717 (1991).
40. Convention Relative to the Preservation of Fauna and Flora in Their Natural State, 8 November 1933, 17 League of Nations Treaty Series 241, entry into force, 4 January 1936.
41. Agreed Measures for the Conservation of Antarctica Flora and Fauna, June 1964, 17 U.S.T. 991, T.I.A.S. 6058.
42. See also Article III4.c. of the 1979 Bonn Convention on the Conservation of Migratory Species, of Wild Animals, 19 International Legal Materials 15 (1980).
43. S. Rosenne and A. Yankov, United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. IV (1991). See also UNCLOS, Article 196(1)
44. Agenda 21 is available at .
45. Agenda 21, Section 17.30(a)(vi).
46. Johannesburg Plan of Implementation, paragraph 34(b), available at .
47. Supra note 8.
48. See decision IV/5 of the Fourth Ordinary Meeting of the CBD COP (1998), available on the CBD website at .
49. Decision VI/23 of the Sixth Ordinary Meeting of the CBD COP (2002), available on the CBD website at .
50. McConnell, supra note 10.
51. IMO, Guidelines for Preventing the Introduction of Unwanted Organisms and Pathogens from Ships' Ballast Water and Sediment Discharges, Resolution A.774(18) (1993).
52. IMO, Guidelines for the Control and Management of Ships' Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens, Resolution A.868(20) (1997), available at .
53. I b i d.
54. and see McConnell, supra note 10.
55. Oceanic waters are thought to contain fewer organisms than coastal waters and organisms that are less likely to survive in the donor port coastal environment when deballasted. Alan Taylor, et. al., "Preventative Treatment and Control Techniques for Ballast Water," 484-507, 487-88 in Erkki Leppakoski, Stephan Gollasch, and Sergej Olenin, (eds.), Invasive Aquatic Species of Europe, Distribution, Impacts and Management (2002).
56. IMO, 1997 Guidelines, supra note 36.
57. International Convention for the Prevention of Pollution from Ships, 2 November 1973, 12 International Legal Materials 1319 (1973)
58. and the 1978 Amendments, 17 International Legal Materials 246 (1978).
59. BWC, Article 1.8.
60. MARPOL, supra note 40, Article 15.1.
61. Lloyds Maritime Information System (LMIS), The Lloyds Maritime Database, Lloyd's Register (2002)
62. and C.S. Brookman, "IMO Environmental Regulations - Is There a Case for Change to the Standard Entry-into-Force Requirements?," 39(4) Marine Technology 232-238 (2002).
63. MARPOL, supra note 40, Article 16(2)(f)(ii-iii).
64. BWC, Article 18.1.
65. BWC, Article 19.
66. BWC, Article 2.2.
67. International Convention for the Regulation of Whaling, 161 United Nations Treaty Series 72
68. and 1956 amendments 338 United Nations Treaty Series 336, Article 1.1 detailing the relationship between the Convention and the Schedule.
69. IMO, "Final Act of the International Conference on Ballast Water Management for Ships" (2004). At its 51st Session, 29 March to 2 April 2004, IMO MEPC adopted a plan of action to promulgate guidelines while at its 52nd Session, 11-15 October 2004, progress was noted on guidelines for approval of ballast water management systems and for such systems that use active substances. See the IMO website, supra note 1.
70. Robin R. Churchill and Geir Ulfstein, "Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law," 94 American Journal International Law, 623-659 (1999).
71. BWC, Article 4.2.
72. BWC, Article 4.1.
73. BWC, Article 3.2.
74. BWC, Regulation A-5.
75. MARPOL, supra note 40, Article 5.4.
76. BWC, Article 3.3.
77. BWC, Articles 13-14.
78. IMO, Final Act, supra note 49.
79. BWC, Article 6.
80. BWC, Article 9.1.
81. BWC, Article 10.4
82. BWC, Article 9.1 and Regulation B-2.6.
83. Anti-Fouling Convention, IMO Doc.AFS/CONF/26, 18 October 2001, see generally the IMO website, supra note 1.
84. Compare BWC, Art 9.1(c) and the Anti-Fouling Convention, supra note 63, Article 11(1)(b) to MARPOL, supra note 40, Article V.2. In a nod toward flag state prerogatives, the BWC does, however, provide that "the time required to analyze the samples shall not be used as a basis for unduly delaying the operation, movement or departure of the ship." BWC, Article 9.1 (c).
85. BWC, Article 9.2.
86. BWC, Article 9.3.
87. BWC, Article 10.3.
88. BWC, Articles 1.1 and 11.1.
89. BWC, Article 8.
90. BWC, Article 8.1.
91. BWC, Article 8.2.
92. See, MARPOL, supra note 40, Article 4.2.
93. UNCLOS, Articles 218, 220, 226.
94. The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (in force as from 11 December 2001) ("Fish Stocks Agreement" or "FSA"), Articles 21-23, 34 International Legal Materials 1542 (1995).
95. Jeremy Firestone and James Corbett, "Maritime Transportation: A Third Way for Port and Environmental Security," 9 Widener Law Symposium Journal 419-437 (2003). In any event, port states may in practice have other enforcement tools at their disposal. For example, in 1999, the Royal Caribbean Cruises, Ltd. agreed to plead guilty to twenty-one felonies and pay an $18 million fine. See www.usdoj.gov/opa/pr/1999/July/ 316enr.htm.
96. IMO, Regional Cooperation in the Control of Ships and Discharges, Resolution A.682(17) (1991).
97. The 1982 Paris Memorandum of Understanding on Port State Control, reprinted in 21 International Legal Materials 1 (1982).
98. See Erik Jaap Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, pp. 121-129 (1998)
99. and see Z.O. Ozcayir, Port State Control, chapter (2001).
100. BWC, Article 8.1.
101. BWC, Article 8.1
102. BWC, Article 8.3.
103. Jeremy Firestone, "Enforcement of Pollution Laws and Regulations: An Analysis of Forum Choice," 27 Harvard Environmental Law Review 105-176, 128 (2003)
104. and Jeremy Firestone, "Agency Governance and Enforcement: The Influence of Mission on Environmental Decisionmaking," 21 Journal of Policy Analysis and Management 409-426, 412 (2002).
105. BWC, Article 10.2.
106. BWC, Article 11.2.
107. BWC, Article 11.3.
108. BWC, Article 1.12. Compare the BWC with the UNCLOS, where no definition is provided. See George K. Walker and John E. Noyes, "General Introduction: Definitions for the 1982 Law of the Sea Convention-Part II," 33 California Western International Law Journal 191, 217-18, 316-22 (2003).
109. BWC, Article 1.8.
110. M. Tomczak, Jr., "Defining Marine Pollution: A Comparison of Definitions used by International Conventions," 8 Marine Policy 311-322 (1984).
111. BWC, Preamble.
112. BWC, Preamble.
113. BWC, Regulation B-1.
114. BWC, Regulation B-2 and Appendix II.
115. BWC, Regulation E-1.1 and Article 7.
116. BWC, Regulation E-2.
117. BWC, Regulations E-2 and E-3 and Appendix I.
118. BWC, Regulations E-4 and E-5 and Article 9.2.
119. BWC, Regulation E-1.6.
120. BWC, Regulation D-1.
121. BWC, Regulation B-4.1.
122. BWC, Regulation B-4.1.
123. BWC, Regulation B-4.2.
124. James J. Corbett, J.J and P.S. Fischbeck, "Emissions from Ships" 278 Science 823-824 (1997);
125. K.O. Skjølsvik, A.B. Andersen, J.J. Corbett, and J.M. Skjelvik, "Study of Greenhouse Gas Emissions from Ships," MEPC 45/8 Report to International Maritime Organization on the outcome of the IMO Study on Greenhouse Gas Emissions from Ships, MARINTEK Sintef Group, Carnegie Mellon University, Center for Economic Analysis, and Det Norske Veritas, Trondheim, Norway (2000).
126. BWC, Article 5.
127. BWC, Regulation B-5.1.
128. BWC, Regulation B-51. See also BWC, Regulation A-1, 4-5.
129. BWC, Regulations A-5 and B-3.
130. BWC, Regulation D-4.
131. BWC, Regulation D-2.
132. BWC, Regulation B-3.7
133. BWC, Regulations A-1.7 and D-3.2.
134. BWC, Regulation D-2.1.
135. BWC, Regulation D-21.
136. Similarly for cysts and other "nonliving" spores, are these organisms considered viable in the dormant state even if later stages of life for these organisms may not survive in the environment where they are discharged? This also raises a stepping-stone problem for the definition, where an organism temporarily discharged into waters in which it cannot long survive may be re-ballasted into another vessel visiting the same port, but destined elsewhere.
137. BWC, Regulation D-2.2.
138. Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (GPA), see the GPA website at .
139. McConnell, supra note 10.
140. GESAMP (IMO/FAO/UNESCO-IOC/WMO/WHO/IAEA/UN/UNEP Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection) and Advisory Cominittee on Protection of the Sea, A Sea of Troubles, Rep. Stud. GESAMP No. 70, pp. 2-3 (2001).
141. BWC, Article 2.3.
142. 46 U.S.C. § 3703a.
143. See, e.g., 1996 Protocol to the London Dumping Convention of 1972, 36 International Legal Materials 1 (1997);
144. Article 3.4 and UNCLOS, Article 210(6).
145. BWC, Regulation C- 1.1-2.
146. BWC, Regulation C-1.3.
147. BWC, Regulation C-2.
148. BWC, Regulation A-3.
149. BWC, Regulation A-4.
150. BWC, Regulation A-4.1.
151. BWC, Regulation D-5.1.
152. IMO, Final Act, supra note 49.
153. BWC, Regulation D-5.1.
154. BWC, Regulation D-5.2.
155. BWC, Regulation D-5.3-4.
156. IMO, Final Act, supra note 49.
157. It is to be noted at the outset that the Ballast Water Convention is not intended to prejudice either a State's rights or obligations as they exist under customary international law as reflected in the UNCLOS. BWC, Article 16.
158. UNCLOS, Article 192.
159. The UNCLOS definition has its roots in a definition crafted by GESAMP. Tomczak, supra note 87.
160. Although not stated in the GESAMP definition, under the GESAMP rubric that existed at that time, GESAMP considered only eight narrowly drawn pollutant categories, none of which is broad enough to include aquatic organisms or pathogens. Lindy S. Johnson, Coastal State Regulate of International Shipping (2004), note 390, pp. 111-112.
161. Thus, a historical perspective suggests a narrow interpretation, excluding ballast water from coverage. This narrow interpretation is supported by the Ballast Water Convention regulations, wherein a distinction is drawn between the "uptake and discharge of Ballast Water and Sediments" and "pollution incidents from the ship" (Regulation A-33). On the other hand, the delegates may have been merely juxtaposing the BWC and MARPOL rather than making a statement on whether ballast water is "pollution." Indeed, it appears that the IMO delegates viewed ballast water as a form of pollution since they were considering appending the ballast water regime as an Annex to MARPOL. In that vein, at least one scholar has referred to deballasting as an "operational discharge." Molenaar, supra 77, at 20.
162. Further, and perhaps most persuasively, the plain meaning of the word "substance" can comfortably include ballast water and its constituents. As stated in Article 31(1) of the Vienna Convention on the Law of Treaties, a treaty "shall be interpreted in good faith in accordance with the ordinary meaning to be given to terms of the treaty in their context and in the light of its object and purpose." The word "substance" is defined to include "a being that subsists by itself; a separate or distinct thing; hence gen., a thing, being," Oxford English Dictionary (2nd Ed. 1989)
163. and "that which has mass and occupies space" America Heritage College Dictionary (1993).
164. Yet, under this broad formulation, almost anything that humans introduce into the marine environment would fall within the term "pollution" provided that it also is likely to generate the requisite deleterious effects. A similar argument has been made by one of the authors in regard to the escape of nonnative fish reared in aquaculture cages under the U.S. Clean Water Act (33 U.S.C. § 1362(6)), which defines pollutant to include "biological materials."
165. See Firestone and Barber, supra note 5, at 746-749. Given the stated provisio, however, perhaps such a formulation is not too broad. In addition, given that sewage is considered a pollutant in part because it is a conduit for pathogens, it can be argued that ballast water should be treated similarly, particularly in light of the fact that ballast water home pathogens may have originated in sewage disposed of in a donor port's marine environment.
166. UNCLOS, Article 194(5).
167. See, for example, Molenaar, supra note 77, at 151-157;
168. Bernard H. Oxman, "The Duty to Respect Generally Accepted International Standards," 24 New York University Journal of International Law and Politics 109-159 (1991);
169. American Law Institute (ALI), Restatement of the Law Third, The Foreign Relations Law of the United States, § 502, comment c (1987);
170. and Alan E. Boyle, "Marine Pollution under the Law of the Sea Convention," 79 American Journal of International Law 347-372 (1985).
171. Rosenne and Yankov, supra note 27, at 76.
172. Johnson, supra note 134, at 126.
173. Convention on the Law of Non-Navigational Uses of International Watercourses, 36 International Legal Materials 700 (1997).
174. Ibid., Article 22.
175. Ibid., Article 21.1.
176. A. Tanzi and M. Arcari, The United Nations Convention on the Law of International Watercourses (2001)
177. and International Law Commission (ILC), Report of the International Law Commission on the Work of its Forty-Sixth Session, U.S. GAOR 49th Sess., Suppl. No. 10 (1994).
178. UNCLOS, Articles 19(1) and 52.
179. UNCLOS, Article 19(2).
180. UNCLOS, Article 21(1-2). As part of the U.S. Senate's consideration of accession by the United States to UNCLOS during the 108th Congress, a number of "understandings" were formulated regarding certain UNCLOS provisions. The one regarding Article 21(2) is as follows: The United States understands, with respect to article 21(2), that measures applying to the "design, construction, equipment or manning" do not include, inter alia, measures such as traffic separation schemes, ship routing measures, speed limits, quantitative restrictions on discharge of substances, restrictions on the discharge and/or uptake of ballast water, reporting requirements, and record-keeping requirements. Senate Foreign Relations Committee Report on the United Nations Convention on the Law of the Sea, Senate Resolution of Advice and Consent to Ratification, § 3(14) (March 11, 2004) (hereinafter U.S. Understandings and Declarations), available at . See also U.S. Understandings and Declarations § 3(19) regarding contiguous zone authority: "The United States understands that, with respect to article 33, the term 'sanitary laws and regulations' includes laws and regulations to protect human health from, inter alia, pathogens being introduced into the territorial sea."
181. The ability of a state to engage in even this degree of regulation is further constrained in international straits and in archipelagic sea lanes. UNCLOS, Articles 42(1)(b) and 54.
182. Firestone and Corbett, supra note 75.
183. UNCLOS, Article 211 (5-6) and see Johnson, supra note 134, at 108-111.
184. One of the U.S. "understandings" states: "The United States understands that the Convention supports a coastal State's exercise of its domestic authority to regulate the introduction into the marine environment of alien or new species." U.S. Understandings and Declarations, supra note 145, at 3(16).
185. See supra note 118.
186. See also U.S. Understandings and Declarations, supra note 145, at 3(13). "The United States understands that the Convention recognizes and does not constrain the long-standing sovereign right of a State to impose and enforce conditions for the entry of foreign vessels into its ports, rivers, harbor, or offshore terminals, such as a requirement that ships exchange ballast water beyond 200 nautical miles from shore or a requirement that tank vessels carrying oil be constructed with double hulls."
187. Spector v. Norwegian Cruise Line Ltd., 545 U.S. (June 6, 2005) (plurality opinion by Justice Kennedy).
188. Support for the imposition of port entry conditions also can be found in customary international law. For example, as noted by R.R. Churchill and A.V. Lowe, The Law of the Sea (1999), at 63, the "existence of sovereignty over internal waters and the absence of any general right of innocent passage through them logically implies the absence of any right in customary international law for foreign ships to enter a State's ports or other internal waters." Indeed, by "virtue of its sovereignty," a coastal State may "regulate ... access to its ports."
189. Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. United States, [1986] I.C.J. Reports 14, 111. As explained by the U.S. Supreme Court a century ago, if the implied consent to enter a state's ports "may be wholly withdrawn, it may be extended upon such term and conditions as the government sees fit to impose."
190. Patterson v. Bark Eudora, 190 U.S. 169, 178 (1903).
191. Dictum in Saudi Arabia v. Arabian American Oil Co., 27 International Law Reports 117, at 212: "according to a great principle of public international law, the ports of every state must be open to foreign merchant vessels and can only be closed when the vital interests of the state so require," however, suggests otherwise.
192. UNCLOS, Article 255 likewise indicates that a state has the ability to condition the access of marine science research vessels to its ports based on its own laws and regulations.
193. Molenaar, supra note 77, at 103.
194. Johnson, supra note 134, at 41-43.
195. Ibid., at 42-43.
196. R.T. Clemen and T. Reilly, "Making Hard Decisions with Decision Tools" (2001).
197. This model is presently being tested by the authors at two U.S. ports. The model is elaborated in full in J. Firestone, J.J. Corbett, J.J. Winebrake, and N.D. Cass, "Evaluating alternative technology-policy scenarios to reduce ballast water species introductions in port ecosystems" (working paper 2005) (on file with authors).
198. James J. Winebrake, James J. Corbett, et al., "Optimizing Emissions Reductions for Passenger Ferries in the New York-New Jersey Harbor. A MINLP Approach," 1st National Transportation EMS Conference, New York, Transportation Research Board (2004).
199. C. Clarke and K. R. Hayes, et al., "Ballast Water Risk Assessment, Port of Khark Island, Islamic Republic of Iran, Final Report," GloBallast Monograph Series No. 8 (2003).
200. I b i d.;
201. International Council for the Exploration of the Sea (ICES) Advisory Committee on the Marine Environment (ACME), Report of the ICESAOCAMO Study Group on Ballast Water and Other Ship Vectors (SGBOSV) (2003);
202. Chad L. Hewitt and Keith R. Hayes, "Risk Assessment of Marine Biological Invasions," pp. 456-66 in E. Leppdkoski, supra note 38
203. and Australian Quarantine Inspection Service (AQIS), Australian Government Department of Agriculture, Fisheries and Forestry, Ballast Water Decision Support System (DSS) (2001).
204. Det Norske Veritas (DNV), The Concept of Environmental Management of Ballast Water Transfer using the Risk Based Approach of EMBLA (2001)
205. and see G.P Haugom, H. L. Behrens, et al., "Risk based methodology to assess invasive aquatic species in ballast water," pp. 467-76 in Leppdkoski, supra note 38.
206. Mike Taylor, D. Mountfort, et al., "Shipping Explorer: A New Tool for Managing Marine Biosecurity Risks, Cawthorn Institute: PowerPoint Presentation" (2002) (on file with authors).
207. IMO Globallast Programme, available at .
208. IMO, Final Act, supra note 49.
209. D. Oemcke, "The Treatment of Ship's Ballast Water," EcoPorts Monograph Series 18, Brisbane, Australia, Ports Corporation of Queensland: 102 (1999).
210. S.363, 109th Congress 10 February 2005).
211. Allegra Cangelosi, Ballast Water Management Hearing: Testimony of Allegra Cangelosi, Senior Policy Analyst, Northeast-Midwest Institute before the United States House of Representatives Committee on Transportation and Infrastructure Subcommittee on Coast Guard and Maritime Transportation Subcommittee on Water Resources and Environment (2004).
212. A more thorough and technical description of the model can be found in Firestone, supra note 157.
213. Stephen Gollasch, "Hazard Analysis of Aquatic Species Invasions," pp. 447-455 in Leppdkoski, supra note 38.
214. Anne M. Perrault and William Carroll Muffett, "Turning off the Tap: A Strategy to Address International Aspects of Invasive Alien Species," 11(2) Review of European Community & International Environmental Law 211-224 (2002).
215. The IMO recently took a different approach when it adopted security regulations post 9-11 at a December 2002 diplomatic conference on maritime security. See generally the IMO website, supra note 1. There it took advantage of the existing 1974 International Convention for the Safety of Life at Sea (SOLAS) to facilitate rapid implementation of the regulations through SOLAS's tacit amendment procedures.