Verifying compliance with ballast water discharge regulations

Ocean Development and International Law

Volumn 41, Issue 2, 2010, Pages 152-165

  King, Dennis M ^a   Tamburri, Mario N ^a  

^a UNIVERSITY OF MARYLAND   (United States)

Author keywords

Ballast water regulations; Enforcement; Invasive species

Indexed keywords

AQUATIC ORGANISM; BALLAST WATER; COMPLIANCE; DISCHARGE; INTERNATIONAL LAW; INVASIVE SPECIES; LAW ENFORCEMENT; MARINE POLICY; REGULATORY FRAMEWORK; SENSOR; STANDARD (REGULATION);

UNITED STATES;

EID: 77952472961     PISSN: 00908320     EISSN: 15210642     Source Type: Journal    
DOI: 10.1080/00908321003733139     Document Type: Article

References (51)

1. See United Nations Conference on Trade and Development, Review of Maritime Transport 2008, available at www.unctad.org/Templates/Page.asp?intItemiD=4658&lang=1;
2. Equasis, The World Merchant Fleet in 2007, available at extranet.emsa.europa.eu/index.php?option=com.
3. National Research Council, Stemming the Tide: Controlling Introductions of Nonindigenous Species by Ship's Ballast Water (Washington, DC: National Academy Press, 1996).
4. Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, 16 U.S.C. 4701.
5. National Invasive Species Act of 1996, Public Law 104-332.
6. U.S. Coast Guard Regulation, Ballast Water Management, 33 CFR Part 151.
7. See U.S. Department of Homeland Security, Coast Guard, Proposed Rule and Notice, 28 August 2009, Standards for Living Organisms in Ships' Ballast Water Discharged in U.S. Waters, 33 CFR Part 151, 46 CFR Part 162, Federal Register 74: 44632-44672.
8. International Convention for the Control and Management of Ships' Ballast Water and Sediments, Doc. IMO/BWM/CONF36, 16 February 2004.
9. Standards for Living Organisms in Ships' Ballast Water Discharged in U.S. Waters, Proposed Rule and Notice, supra note 6.
10. N. Dobroski, C. Scianni, L. Takata, and M. Falkner, Update: Ballast Water Treatment Technologies for Use in California Waters, California State Lands Commission, Marine Invasive Species Program, October 2009.
11. For a review of proposed national and international regulatory and legal frameworks, see J. Firestone and J. J. Corbett, Coastal and Port Environments: International Legal and Policy Responses to Reduce Ballast Water Introductions of Potentially Invasive Species, Ocean Development and International Law 36 (2005): 291-316.
12. C. L. Hewitt, R. A. Everett, and N. Parker, Examples of Current International, Regional, and National Regulatory Frameworks for Preventing and Managing Marine Bioinvasions, in G. Rilov and J. A. Crooks Biological Invasions in Marine Ecosystems (Berlin: Springer, 2009), 335-352.
13. The development of risk-based models to effectively target ballast water enforcement is described in S. C. Barry, K. R. Hayes, C. L. Hewitt, H. L. Behrens, E. Dragsund, and S. M. Bakke, Ballast Water Risk Assessment: Principles, Processes, and Methods, ICES Journal of Marine Science 65 (2008): 121-131
14. A review of models that have been proposed or used is contained in Firestone and Corbett, supra note 10.
15. This article also describes what the authors called a Ballast Water Discharge Compliance and Policy Support Model (BWDCPSM), which builds on previous models and focuses on five objectives: (1) minimize the number of viable organisms, (2) reduce the time to achieve reductions, (3) minimize the costs, (4) protect particularly sensitive ecosystems, and (5) maximize technology adoptions by vessels according to their risks.
16. Decision support systems that improve cost-effectiveness of enforcement by targeting enforcement effort on vessel arrivals that pose the highest risk, including the GEF/UNDP/IMO-funded Global Ballast Water Management Program, available at www.globallast.imo.org;
17. A decision support system (DSS) developed and used by the Australian Quarantine and Inspections Service, available at www.aph.gov.au/house/committee/jpaa/aqis/em394.pdf;
18. The EMBLA program under development in Norway, available at research.dnv.com/marmil/ballast/info1.3.htm.
19. IMO Ballast Water Convention, supra note 7.
20. Standards for Living Organisms in Ships' Ballast Water Discharged in U.S. Waters, Proposed Rule and Notice, supra note 6.
21. According to the U.S. Coast Guard proposed rule making, the practicability review could entail more than determining whether there exists one system that is capable of meeting phase-two standard. and could also include. parameters such as the capability of the vendor(s) to make the system(s) available, and the ship building and repair industry to install, systems in a timely and practicable manner given the large number of vessels. and the cost impacts of the system(s) on the regulated industry.
22. A few drivers significantly exceeding the speed limit pose much greater highway accident risks than many drivers slightly exceeding the speed limit. Similarly, a few people violating environmental regulations can pose environmental risks that cannot be offset by widespread compliance. For example, a recent survey indicated that, although fishermen believe the percentage of their peers who violate fishing regulations is small, they also believe that their illegal harvests are adversely affecting fish stocks and will cause fish stocks to continue to decline.
23. D. M. King and J.G. Sutinen, Rational Noncompliance and the Liquidation of New England Groundfish Resources, Marine Policy 34 (2010): 7-21.
24. Standards for Living Organisms in Ships' Ballast Water Discharged in U.S. Waters, Proposed Rule and Notice, supra note 6.
25. Phase Two of the U.S. standards involves discharge standards 1,000 times stricter than Phase One, and also includes other restrictions such as limits on the ballast water discharge of virus and virus-like particles. However, Phase Two will come into force only after a practicability review of the availability of both methods to measure the stricter standards and ballast water treatments to meet the stricter standards. Based on this phased approach, ship operators will not be expected to comply with standards that cannot be measured or achieved using available technology. However, unresolved questions remain regarding how regulators will provide the necessary incentives for ship operators to comply with standards that are achievable and how regulators will verify when ships are meeting those standards.
26. Economic factors affecting compliance are associated with the potential illegal gain and the cost of getting caught. See G. Becker, Crime and Punishment: An Economic Approach, Journal of Political Economy 76 (1968): 169-217.
27. Normative factors affecting compliance are associated with an individual's moral obligation to comply, which stem from an individual's standard of personal morality and perceptions about whether rules and regulations are just and moral and are being applied fairly and equitably.
28. See T. Tyler, Why People Obey the Law (New Haven: Yale University Press, 1990). Models of enforcement or compliance that incorporate both economic and normative factors are based on what has become known as the enriched theory of compliance. See the following for a detailed discussion of this theory and related models:
29. K. Kuperan and J. G. Sutinen, Blue Water Crime: Legitimacy, Deterrence and Compliance in Fisheries, Law and Society Review 32 (1998): 309-338.
30. J. G. Sutinen and K. Kuperan, A Socioeconomic Theory of Regulatory Compliance in Fisheries, International Journal of Social Economics 26 (1999): 174-193.
31. The original economic model of enforcement and compliance by Becker, supra note 19, became the basis for a series of subsequent studies on the economics of crime. See J. M. Heineke (ed.), Economic Models of Criminal Behavior (New York: North-Holland, 1978)
32. D. J. Pyle, The Economics of Crime and Law Enforcement (New York: St. Martin's Press, 1983). It is generally understood that economic factors, not normative factors, determine rates of corporate crime.
33. The results of a recent study of the costs of installing and operating certified ballast water treatment systems (BWTSs) indicated that the cost of purchasing and installing a certified BWTS is in the range of $600,000 to $1.2 million, and annual operating and maintenance costs are in the range of $15,000 to $125,000.
34. Cost ranges reflect differences in ship type and size as well as differences in BWT systems.
35. D. King, P. Hagan, and M. Riggio, The Emerging Market for Ballast Water Treatment Technologies, 2009 unpublished draft.
36. This implies that enforcement strategies that rely on inspections of BWTS rather than direct or indirect measures of the effectiveness of BWTS may provide perverse incentives for limiting the use of BWTS that may result in more violations of ballast water discharge standards at the same time that fewer violations are detected.
37. This approach to estimating the deterrence effect of enforcement was introduced by Becker, supra note 19.
38. A recent application of the approach that involved developing estimates of all parameters is described in King and Sutinen, supra note 15.
39. The parameter (e) in Equation 1 is included because experience with other at-sea enforcement systems (e.g., in commercial fisheries) indicates that violators who are prosecuted often negotiate a settlement penalty amount that involves them paying less than the official scheduled penalty amount.
40. Cost-effectiveness analysis, which is sometimes referred to as incremental cost analysis, is normally used to compare alternatives when the difficulty of measuring benefits prevents the use of conventional cost-benefit analysis.
41. See United States Army Corps of Engineers, Evaluation of Environmental Investments Procedures Manual-Interim: Cost Effectiveness and Incremental Cost Analysis, IWR Report 95-R-1 (1995).
42. H. M. Levin, and P. J. McEwan, Cost-Effectiveness Analysis: Methods and Applications (Thousand Oaks, CA: Sage, 2000).
43. Cost-effectiveness curves are usually used to distinguish alternatives that are possible and cost-effective from those that are impossible or have higher costs than alternatives that achieve the same results.
44. See M. Lothgren and N. Zethraeus, On the Interpretation of Cost-Effectiveness Acceptability Curves, Working Paper Series in Economics and Finance 323 (Stockholm: Stockholm School of Economics, 1999).
45. Using basic information about the resources required to implement each alternative (cost) and the likelihood that it will detect an illegal ballast water discharge (performance), it is possible to make some preliminary cost-effectiveness comparisons using a planning level version of a standard cost-effectiveness curve.
46. This description of potentially responsible parties is taken from Standards for Living Organisms in Ships' Ballast Water Discharged in U.S. Waters, Proposed Rule and Notice, supra note 6, for example, § 151.1512.
47. Alliance for Coastal Technologies (ACT) is a U.S. National Oceanic and Atmospheric Administration (NOAA) funded program fostering the development and adoption of effective and reliable sensors and platforms for studying and monitoring aquatic environments. Since 2003, ACT has conducted a series of independent, third-party sensor performance demonstrations and verifications. See Technology Evaluation Reports, available at www.act-us.info.
48. A related problem is whether a carefully maintained and properly operated BWTS is meeting performance standards. Issues related to how a ship operator who may have acted responsibly but failed to meet ballast water discharge standards will be treated, and how liability for BWTS not meeting performance standards will be shared between vendors, shipowners, insurance companies, and clubs is beyond the scope of this article.
49. See: King, Hagan, and Riggio, supra note 21; and Lloyd's Register, Ballast Water Treatment Technology: Current Status (2009).
50. Using ship or route profiling to target inspections and testing increases the value of (a) regardless of which validation method is used, but does not affect the relative size of (a) for various validation methods. This is determined by differences in the likelihood of a suspected violation being detected.
51. A recent survey of enforcement and compliance in U.S. fisheries, for example, indicated that permit sanctions (e.g., loss of fishing privileges) deterred violations far more effectively than financial penalties. King and Sutinen, supra note 15.