[Senate Hearing 109-1092]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 109-1092
 
  BALLAST WATER INVASIVE SPECIES MANAGEMENT AND THREATS TO CORAL REEFS

=======================================================================

                                HEARING

                               before the

              SUBCOMMITTEE ON NATIONAL OCEAN POLICY STUDY

                                 OF THE

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 15, 2005

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation




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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                     TED STEVENS, Alaska, Chairman
JOHN McCAIN, Arizona                 DANIEL K. INOUYE, Hawaii, Co-
CONRAD BURNS, Montana                    Chairman
TRENT LOTT, Mississippi              JOHN D. ROCKEFELLER IV, West 
KAY BAILEY HUTCHISON, Texas              Virginia
OLYMPIA J. SNOWE, Maine              JOHN F. KERRY, Massachusetts
GORDON H. SMITH, Oregon              BYRON L. DORGAN, North Dakota
JOHN ENSIGN, Nevada                  BARBARA BOXER, California
GEORGE ALLEN, Virginia               BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire        MARIA CANTWELL, Washington
JIM DeMINT, South Carolina           FRANK R. LAUTENBERG, New Jersey
DAVID VITTER, Louisiana              E. BENJAMIN NELSON, Nebraska
                                     MARK PRYOR, Arkansas
             Lisa J. Sutherland, Republican Staff Director
        Christine Drager Kurth, Republican Deputy Staff Director
                David Russell, Republican Chief Counsel
   Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
   Samuel E. Whitehorn, Democratic Deputy Staff Director and General 
                                Counsel
             Lila Harper Helms, Democratic Policy Director
                                 ------                                

              SUBCOMMITTEE ON NATIONAL OCEAN POLICY STUDY

                JOHN E. SUNUNU, New Hampshire, Chairman
TED STEVENS, Alaska                  BARBARA BOXER, California, Ranking
TRENT LOTT, Mississippi              DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas          JOHN F. KERRY, Massachusetts
OLYMPIA J. SNOWE, Maine              MARIA CANTWELL, Washington
GORDON H. SMITH, Oregon              FRANK R. LAUTENBERG, New Jersey
JIM DeMINT, South Carolina
DAVID VITTER, Louisiana


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on June 15, 2005....................................     1
Statement of Senator Boxer.......................................     2
    Prepared statement...........................................     3
Statement of Senator Inouye......................................     4
    Prepared statement...........................................     4
Statement of Senator Sununu......................................     1
    Prepared statement...........................................     1

                               Witnesses

Falkner, Maurya B., Program Manager, Marine Invasive Species 
  Program, California State Lands Commission (CSLC)..............    32
    Prepared statement...........................................    34
Gilmour, Rear Admiral Thomas H., Assistant Commandant for Marine 
  Safety, Security and Environmental Protection, U.S. Coast Guard    16
    Prepared statement...........................................    18
Hum, Kim, Director, Coastal Marine Program, The Nature 
  Conservancy of Hawaii..........................................    27
    Prepared statement...........................................    29
Keeney, Timothy R.E., Deputy Assistant Secretary of Commerce for 
  Oceans and Atmosphere, National Oceanic and Atmospheric 
  Administration, U.S. Department of Commerce....................    20
    Prepared statement...........................................    22
Mandelman, Joel C., Vice President/General Counsel, Nutech O3, 
  Inc............................................................     5
    Prepared statement...........................................     7
Metcalf, Kathy J., Director, Maritime Affairs, Chamber of 
  Shipping of America; on Behalf of the Shipping Industry Ballast 
  Water Coalition................................................    12
    Prepared statement...........................................    14

                                Appendix

Allen, Hon. George, U.S. Senator from Virginia, prepared 
  statement......................................................    55
American Waterways Operators (AWO), prepared statement...........    61
Collins, Hon. Susan M., U.S. Senator from Maine, prepared 
  statement......................................................    57
Ham, Michael L., Secretariat, United States All Islands Coral 
  Reef Initiative Coordinating Committee (USAICRICC), prepared 
  statement......................................................    63
Levin, Hon. Carl, U.S. Senator from Michigan, prepared statement.    56
Response to written questions submitted by Hon. Barbara Boxer to:
    Maurya B. Falkner............................................    78
    Rear Admiral Thomas H. Gilmour...............................    72
    Timothy R.E. Keeney..........................................    69
    Kathy J. Metcalf.............................................    74
Response to written questions submitted by Hon. Daniel K. Inouye 
  to:
    Rear Admiral Thomas H. Gilmour...............................    70
    Kim Hum......................................................    76
    Timothy R.E. Keeney..........................................    65
Response to written questions submitted by Hon. Frank R. 
  Lautenberg to:
    Maurya B. Falkner............................................    81
    Kim Hum......................................................    78
    Timothy R.E. Keeney..........................................    70
    Joel C. Mandelman............................................    73
    Kathy J. Metcalf.............................................    75
Smith, Dr. Celia M., Professor of Botany, University of Hawai'i, 
  prepared statement.............................................    60


                     BALLAST WATER INVASIVE SPECIES
                         MANAGEMENT AND THREATS
                             TO CORAL REEFS

                              ----------                              


                        WEDNESDAY, JUNE 15, 2005

                               U.S. Senate,
       Subcommittee on National Ocean Policy Study,
        Committee on Commerce, Science, and Transportation,
                                                     Washington DC.
    The Subcommittee met, pursuant to notice, at 9:32 a.m. in 
room SR-253, Russell Senate Office Building, Hon. John E. 
Sununu, Chairman of the Subcommittee, presiding.

           OPENING STATEMENT OF HON. JOHN E. SUNUNU, 
                U.S. SENATOR FROM NEW HAMPSHIRE

    The Chairman. Good morning. I want to welcome everyone to 
the first meeting of the National Ocean Policy Study in 
approximately 10 years. This is a group that was created in 
1974 that has had fairly limited activity since 1994 but it's, 
obviously, a very important mission. The National Ocean Policy 
Study is designed to investigate the very diverse and 
incredibly complicated world that covers 70 percent of the 
Earth's surface. I'm pleased to be joined by Senator Boxer who 
is the Ranking Member of the Policy Study, and I see Senator 
Inouye is here as well. I will submit my opening statement for 
the record because we do have the vote scheduled at 10 o'clock. 
I hope to move things along. That will give us ample time to 
take all of the witnesses' testimony, and at least begin a 
question period. I want to, before I turn it over to Senator 
Boxer, ask unanimous consent that Senator Allen be allowed to 
submit a statement regarding Nutech of Arlington, Virginia. I 
know that Dr. Celia Smith of the University of Hawaii was also 
unable to be here and has asked that a statement of hers be 
submitted for the record. And without objection these 
statements and the full written testimony * of all of our 
witnesses will be added to the record, and at this time, I will 
turn it over for opening remarks to Senator Boxer.
---------------------------------------------------------------------------
    * The information referred to has been printed in the Appendix.
---------------------------------------------------------------------------
    [The prepared statement of Senator Sununu follows:]

              Prepared Statement of Hon. John E. Sununu, 
                    U.S. Senator from New Hampshire

    Good morning, and welcome to the first meeting of the National 
Ocean Policy Study in over a decade. Created in 1974, but dormant since 
1994, the National Ocean Policy Study is designed to investigate the 
rich, diverse, and incredibly complicated world that covers 70 percent 
of the Earth's surface.
    The ocean is our most plentiful and important natural resource. 
According to the U.S. Commission on Ocean Policy, ocean-related 
activities directly contribute over $117 billion a year to the U.S. 
economy each year and supports over 2 million jobs. Our Nation's ports 
handle $700 billion a year in merchandise, the offshore oil and gas 
industry is valued at nearly $40 billion, and the fisheries industry is 
valued at close to $50 billion.
    We need to be good stewards of our oceans, protecting them for 
future generations as we enjoy the benefits they offer today. It is my 
hope that the National Ocean Policy Study can explore some of the many 
challenges we face in maintaining that balance.
    Today's hearing covers two very different topics, ballast water 
invasive species management and threats to coral reefs.
    Along with the $700 billion in merchandise they move, cargo ships 
going to and from American ports also carry small stowaways. These 
uninvited plants and animals hitch a ride around the globe, only to be 
dumped in a new home when a ship empties its ballast tanks. Many of 
these species are quickly killed in their new environment, never to be 
heard from again. But some find their new home a virtual paradise, with 
plenty of food, few competitors, and no natural predators. These non-
native species do what any creature would do in a similar setting; they 
thrive, creating a potentially harmful impact on their new ecosystem. 
Today, we'll look at policies designed to prevent these invasive 
species from making their long journey to a new home, or at least from 
surviving it.
    The Coral Reef Conservation Act of 2000 is set to expire this year. 
Senator Inouye plans to introduce legislation shortly to reauthorize 
this program, taking into account what we've learned about these 
complex and fragile systems in the past five years. It is my 
understanding that Senator Inouye will also incorporate some of what we 
learn today.
    I would now like to recognize the Ranking Member of the National 
Ocean Policy Study, the Senator from California.

               STATEMENT OF HON. BARBARA BOXER, 
                  U.S. SENATOR FROM CALIFORNIA

    Senator Boxer. Thank you, Mr. Chairman, very much. I will 
also submit my statement for the record if there's no 
objection. But I would like say just one or two things in 
summary of it.
    First of all, I am so delighted that we have this 
subcommittee and that you are chairing it, and I, you know, I 
had a choice of which subcommittees I would work on and this 
was the one I selected because of my love of the oceans and 
also I feel very strongly that you and I can work well 
together. I also want to say how proud I am of Senator Inouye 
and that at this first hearing we're going to be discussing one 
of his priorities, this very important bill that I strongly 
support. And my last point is as I've detailed in the statement 
that we'll not go through I have written a bill, a 
comprehensive bill, on ocean protection that was inspired by 
the two commissions, the Pew Commission and the U.S. Commission 
on the Oceans. And in that bill, basically, is almost detail 
for detail this particular bill by Senator Inouye, so I 
couldn't be more pleased about this and I hope that we can move 
forward because I understand that my comprehensive bill, which 
we have shared with your staff at length, and with the staff of 
Senator Stevens and Senator Inouye, is very broad and has some 
controversy, I'm not unmindful of that, but if we could look at 
bit by bit, piece by piece, look at the things you want to do, 
look at the things I want to do and all the members of the 
Committee, I think we can have a great year for oceans because 
as Jacques Cousteau's grandson said at this press conference I 
had, the oceans need our help, they're in crisis right now. And 
so there's not a lot of time, we should act soon. So thank you 
very much. I, again, look forward to working with you.
    [The prepared statement of Senator Boxer follows:]

 Prepared Statement of Hon. Barbara Boxer, U.S. Senator from California

    Thank you, Mr. Chairman, and may I begin by saying how pleased I am 
to be serving as your Ranking Member and that we are holding our first 
hearing.
    By reestablishing this Subcommittee, Congress is again 
acknowledging the importance of the oceans to our Nation's and the 
world's health, and to the economy, and how important it is to 
understand and act to lesson the threats to our oceans.
    That was underscored twice in the last two years with the release 
of two separate reports by two distinguished Commissions--the U.S. 
Commission on Ocean Policy, headed by Admiral Watkins, and the Pew 
Ocean Commission, headed by Leon Panetta.
    Last week, I introduced comprehensive legislation, the National 
Oceans Protection Act, to implement the recommendations of these two 
Commissions.
    Mr. Chairman, I look forward to a good working relationship with 
you and the other members of this subcommittee, and I hope we can 
approve good oceans legislation in this Congress.
    It is appropriate that the first two issues on deck are combating 
aquatic invasive species and protecting coral reefs.
    Harvard's E.O. Wilson, one of the world's greatest living 
biologists, says that invasive species are second only to loss of 
habitat as the causes most destructive to biodiversity.
    Invasive species destroy habitat, attack native species, and upset 
the ecological balance that has been in place for thousands and 
thousands of years.
    In San Francisco Bay alone, more than 175 invasive species threaten 
to overwhelm native fish and other wildlife--and, nationally, the total 
economic damage of invasive species is estimated to be $137 billion 
each year.
    One of the most common causes of invasive species is ballast water 
from ships, which brings water from around the world--including a host 
of creatures--into America's waters.
    My comprehensive oceans bill includes new regulations on ballast 
water, including prohibiting nearly all discharges into U.S. waters. My 
bill also addresses the need for early detection and rapid response, 
including assisting states in combating invasive species.
    I commend Senator Inouye for introducing the Ballast Water 
Management Act. I appreciate his leadership on this issue, and I look 
forward to working with him.
    The other subject of this hearing is coral reefs. Coral reefs are 
critical habitat for ocean creatures and are home to potential cures 
for human ailments. They have been called the rainforests of the seas.
    But warming seas and warming climate, water pollution, and harmful 
fishing practices threaten the world's coral reefs.
    We must reauthorize the Coral Reef Conservation Act of 2000, which 
was an important start in promoting scientific research and sound 
management of our coral reefs. But we must go further.
    My oceans legislation contains important provisions to preserve 
critical coral habitat, including creating Coral Management Areas to 
provide a higher level of protection.
    I look forward to working with my friend, Senator Lautenberg, one 
of the Senate's true champions for our coral reefs, and other members 
of the Committee to advance protections for coral reefs this Congress.
    Again, Mr. Chairman, I am very pleased to be your Ranking Member, 
and I look forward to the testimony of the witnesses.

    The Chairman. Thank you, Senator Boxer, and I appreciate 
the work that you've done on the legislation you've introduced. 
It is a very comprehensive bill, no question about that, but I 
think there are a number of elements that we can and will 
address through the Policy Study, and very much look forward to 
working with you to identify those pieces. But I think we're 
starting with a good one, the issue of invasive species and the 
role that ballast water plays in spreading those invasive 
species to places they, obviously, are not desired and can be 
very harmful. And with that, I'd like to turn it over to 
Senator Inouye for any opening remarks he might have.

              STATEMENT OF HON. DANIEL K. INOUYE, 
                    U.S. SENATOR FROM HAWAII

    Senator Inouye. Mr. Chairman, I thank you for calling this 
hearing. It's very important. When one considers that 70 
percent of this planet is water and we spend less than 5 
percent of the funds studying the ocean and 95 percent studying 
space, something's wrong. At the same time, when one considers 
that about 85 percent of all the coral reefs within the 
jurisdiction of the United States are found in the Hawaiian 
chain, that's a major concern to us. In addition, billions of 
gallons of ballast water are literally being dumped in our 
ports annually. If it was just the water, that's one thing, but 
these ballast waters contain invasive species, and so they're 
all over the world now. We have experienced species going 
extinct in our area and we want to do something to stop that. I 
ask that my statement be made part of the record. Thank you 
very much, Senator.
    [The prepared statement of Senator Inouye follows:]

 Prepared Statement of Hon. Daniel K. Inouye, U.S. Senator from Hawaii

    I would like to join our Chairman in welcoming our distinguished 
panel of witnesses today, and to thank him for holding this important 
hearing. I would like to particularly welcome Ms. Kim Hum, of The 
Nature Conservancy of Hawaii, to the hearing and to thank her for her 
work on coral reef conservation in the Pacific.
    Unfortunately, I am all too familiar with the problems of invasive 
species and threats to coral reefs. In my home State of Hawaii, the two 
often go together. The impacts of such alien species on our native 
species have been among the most significant in the country.
    The United States Ocean Commission recognized the problem of 
invasive species as one of the greatest threats to coastal 
environments. Invasive aquatic species have been found in all regions 
of the United States, including most of the states represented on this 
Committee. Invasive species are thought to have been involved in most 
of the extinctions of native aquatic species.
    The Commission also called for expanded national and international 
action to address increasing threats to coral reefs, including those 
posed by invasive species.
    Ballast water from ships is one of the largest pathways for the 
introduction and spread of aquatic invasive species. It has been 
estimated that some 10,000 non-indigenous aquatic organisms travel 
around the globe each day in the ballast water of cargo ships, and 
billions of gallons of ballast water are discharged in U.S. waters each 
year. The problem is not only from ballast water, but also invasive 
species that travel on the hulls and other parts of ships.
    The direct and indirect costs of aquatic invasive species to the 
economy of the United States are also staggering, and have been 
estimated to amount to billions of dollars per year. We need to find a 
solution to this problem, while at the same time ensuring that our 
maritime industry can continue to operate in a cost-effective manner.
    Existing law does not provide the legal authority needed to 
effectively address this problem. That is why I introduced the Ballast 
Water Management Act of 2005. The bill establishes standards for 
ballast water treatment that will be effective, but on a schedule that 
our maritime fleet can realistically achieve. It recognizes safety as a 
paramount concern, and allows flexibility in ballast exchange practices 
to safeguard vessels and their passengers and crew.
    Looking to the future, the bill will also encourage the development 
and adoption of new ballast water treatment technologies, as well as 
innovative technologies to address other vessel sources of invasive 
species such as hull fouling, through a grant program.
    Coral reef resources are, of course, central to life in Hawaii, 
where we rely on them to sustain our fisheries, attract and retain 
tourism, and protect our coastal communities during extreme weather 
events. Reef-related tourism and fishing activities directly generate 
$360 million each year for Hawaii's economy, and coral reefs are the 
lynchpin for Hawaii's entire tourism industry, valued at over $10 
billion. Hawaii and other areas of the Pacific boast some of the most 
beautiful and exotic reefs on the planet, but they are threatened by a 
variety of impacts, from global warming and vessel groundings, to 
invasives, pollution, and overharvesting. These impacts are even more 
apparent in the Western Pacific, where communities may rely almost 
exclusively on coral reefs and associated resources for economic 
survival.
    We are particularly fortunate to have the Northwestern Hawaiian 
Islands as a laboratory for the study and protection of coral reefs. 
This remote and uninhabited area, 1,200 nautical miles long by 100 
nautical miles wide, contains unparalleled resources for scientists and 
others concerned with coral ecosystem protection.
    Congressional support for designation of this area as the largest 
National Marine Sanctuary in the world has given us the opportunity to 
map, monitor, assess, and explore these vast regions and habitats. The 
Sanctuary will help us build our base of knowledge to improve 
restoration and conservation of coral reefs around the world.
    The Coral Reef Conservation Act of 2000, which Senator Snowe and I 
developed 5 years ago, helped us begin to identify our national coral 
reef resources, assess their condition and current threats, develop a 
national action strategy, and mobilize states, territories and the 
Federal Government to address the problem. Today, we see how far we 
have come, and how far we still need to go.
    In our reauthorization of the Act, we must increase and focus 
funding on coral protection and conservation, and provide new 
authorities to prevent and respond to coral reef damage. We need to 
bring private and public resources together at the local level to 
ensure full community participation in protecting and conserving these 
sensitive areas. I look forward to working with my colleagues to pass 
this much needed reauthorization.
    I am very pleased that we have assembled this group of experts 
today to discuss these very important issues. I look forward to your 
testimony.

    The Chairman. Thank you, Senator. I have a list of our 
witnesses and I will go, for the sake of organization, from my 
left to right as we take your testimony. We'll have each 
witness summarize their remarks as they would desire and go 
through all of the testimony before opening it up to questions.
    Our first witness is Joel Mandelman, Vice President and 
General Counsel of Nutech. I know that Senator Allen has 
presented some information already for the record, but we 
welcome you here and ask you to provide your testimony.

STATEMENT OF JOEL C. MANDELMAN, VICE PRESIDENT/GENERAL COUNSEL, 
                        NUTECH O3, INC.

    Mr. Mandelman. Thank you. First, we do want to thank 
Senator Inouye and Senator Stevens, for introducing the 
legislation. It's desperately needed, and we thank you for 
scheduling the hearing because this is, obviously, the first 
step in getting the bill passed. We hope this bill does pass, 
preferably with several amendments, which I'll discuss in a 
couple of minutes.
    It's been our impression over the years that one reason 
Congress has been somewhat reluctant to move legislation of 
this type is the belief that there was no technology available 
that would solve the problem. The first thing I want to discuss 
with the Committee today is the fact that a solution is 
available, it would be here very shortly. So I'd like to spend 
a couple of minutes discussing how Nutech's ozone injection 
technology works so that the members of the Senate, and 
hopefully the House, will feel confident that a solution is 
available and that it meets the bill's requirements.
    We've been working with British Petroleum for 8 years to 
develop ozone injection technology. What it involves is 
injecting ozone into the ship's ballast water as the ballast 
water is taken onboard the ship. The ozone kills invasive 
species in two ways. First, directly on contact; it will kill 
about half of the invasive species within 5 seconds of it being 
injected into the sea water. Then the ozone begins to 
disintegrate, it reverts to oxygen so it's not creating a 
safety problem either on the ship or to the sea water.
    Second, ozone interacts with bromide ions. Bromide ions 
naturally occur in sea water all over the world. The ozone 
oxidizes those ions and turns them into hypobromous acid. What 
the ozone did not kill, the hypobromous acid will kill. Then 
the hypobromous acid breaks down, probably breaking down faster 
in sunlight as it's spread over the surface of the water, but 
testing that we will be conducting later this year will develop 
definitive data that we can submit to the Committee on that 
point.
    But the bottom line is, the treated ballast water will not 
harm the quality of the water into which it is discharged. 
Also, previous testing proved that ozone will not harm the hull 
of a ship, it does not increase the corrosion rate of a ship 
and, in fact, may in some instances decrease it because as the 
ozone kills bacteria that form in and around wells. It's the 
bacteria that secretes acid that cause a lot of corrosion. As 
those bacteria are destroyed the corrosion rate decreases. 
We've been working on this for really 5 years now. We have had 
one set of our equipment on a BP tanker that regularly 
transports Trans-Alaska Pipeline oil from Valdez to refineries 
in California and Washington. We will be putting a refined, and 
far less expensive, version of that technology on a second BP 
oil tanker in September. If the weather holds, we'll have at 
least some definitive final test results for Congress in 
December, and then everybody can feel absolutely confident that 
this has been proven under real world operating conditions on a 
real ship that carries 12 million or more gallons of ballast 
water. So if it works there, it will work anywhere.
    That having been said, and we do support the bill, we would 
urge that the Committee adopt several amendments to it. The 
most important of these is an early start date. The bill as it 
now stands wouldn't require anybody to comply with it before 
2009, and in some cases not till 2016. We feel this is 
extremely unwise. The pollution problem caused by invasive 
species is growing day by day. If technology is available, ours 
will be, we believe some of our competitors will have 
technology on the market, ships should be required to install 
it a great deal sooner. What we're recommending is 18 months 
after the Coast Guard certifies the first technology, that's 
when ships should be required to install it.
    Third, we see absolutely no logical reason, and certainly 
not in terms of protecting the environment, to exclude from the 
statute ships that are already in service. As S. 363 and the 
IMO Treaty are now drafted, only new ships would be required to 
install ballast water treatment equipment. This is a serious 
mistake. All ships that have any reasonable useful life in them 
should be required to install the equipment.
    Fourth, we suggest that the Coast Guard's STEP Program, 
which was an incentive to get people to install equipment prior 
to the start date or the implementation date, be expanded. As 
the program now stands only five or six ships a year at most 
could participate. We think every ship owner should be allowed 
to have 15, 20, maybe 25 ships in the program using either the 
same technology or different technologies because you want to 
encourage the ship owners to do something they will not 
otherwise do until they are legislatively forced to do it.
    Fifth, the method of determining compliance. The bill 
contemplates doing bacteria counts. We think, and from 
scientists we have talked to, there are some significant 
problems in getting representative samples, let's say out of 12 
million gallons of ballast water, which is probably an amount 
of water several times larger than required to fill this room. 
If you're just taking four or five samples that is not 
scientifically representative of anything.
    At a minimum, we urge that you adopt an additional testing 
standard. For example, total residual oxidants, that is finding 
in the treated ballast water a residual of the treatment 
chemical. With most of these chemicals, if there is any 
chemical left, that means you've killed all of the critters 
that you want to get rid of because if they were still alive 
they would have consumed the chemical.
    This kind of testing can be done with automated equipment, 
it can be done with tamper-proof equipment that just relays the 
data to the Port Authority, to EPA, to the Coast Guard.
    As an alternative to that, we would strongly suggest that 
once Coast Guard-certified equipment is installed on the ship, 
the captain of the ship signs a certification, under oath, 
under penalty of perjury, that the treatment equipment 
operated, that it was operating as certified for the amount of 
time that the manufacturer said was needed to treat the ballast 
water, and that certification should be sufficient. Then allow 
the Coast Guard, EPA, the Port Authority to conduct look-behind 
microbe counts on a periodic basis, once every 6 months, once 
every year.
    The Committee needs to understand that doing microbe 
counts, aside from the problems I just discussed, is a time-
consuming, very expensive operation. You can't do it onboard 
the ship, you must take water samples from the ship, transport 
them to a laboratory, and then do the count, and that must be 
done by hand. There's no computer technology that would enable 
somebody to do a microbe count. You literally sit there, 
counting critters on a little piece of microscopic-size graph 
paper. This can take weeks. Obviously, that is not a very 
effective means on a trip-by-trip basis of proving that a ship 
complied with the treatment requirements. You need an 
alternative.
    The Chairman. Mr. Mandelman, I'm going to ask you to submit 
any further testimony for the record. We are working under a 5-
minute clock and I would like to make sure as much time is 
available before the vote for all of the witnesses to provide 
testimony. I very much appreciate your remarks and 
understanding of the problem. I think the lights are self-
explanatory and there are a full 5 minutes available and I 
won't shortchange anyone. You can rest assured.
    [The prepared statement of Mr. Mandelman follows:]

    Prepared Statement of Joel C. Mandelman, Vice President/General 
                        Counsel, Nutech O3, Inc.

I. The Need for Ballast Water Treatment Legislation
    A. We commend Senator Stevens and Senator Inouye for taking the 
lead in sponsoring the Ballast Water Management Act and in moving the 
legislation closer to passage. The invasive species problem requires a 
prompt solution. Invasive aquatic nuisance species threaten water 
quality, power plants, municipal water treatment systems, and ships 
throughout the United States. Prompt Congressional action is required 
to solve what is an acknowledged, and worsening, worldwide 
environmental and public health problem.
    One of the major barriers to the development of treatment 
technologies has been the absence of definitive invasive species 
legislation and regulations. Without those clear guideposts, many 
prospective investors have been reluctant to commit venture capital to 
the small businesses that are the principal developers of the 
technological solutions for this problem. Ironically, passage of 
effective invasive species legislation has been delayed, in major part, 
by concerns that treatment technology was unavailable and that ship 
owners, therefore, could not meet the proposed law's ballast water 
treatment requirements.
    That concern is no longer valid.
    Nutech O3 has worked closely with British Petroleum, since 1998, to 
develop an effective means of killing dangerous aquatic nuisance 
species found in all ships' ballast water operating on the high seas; 
we anticipate having comparable data, and results, for vessels 
operating on the Great Lakes next Spring. Testing of our ozone 
injection technology began in 2000, with the installation of a 
prototype system on the 125,000 Dead Weight Ton (DWT) BP oil tanker, T/
V Tonsina. This ship regularly transports Trans-Alaska pipeline oil 
from Valdez, Alaska, to refineries in Washington and California. 
Testing has continued, both onboard ship and by the University of 
Washington at its Merrowstone Test Facility.
    All of the on-board ship and laboratory testing was conducted by an 
independent team of scientists and engineers from the University of 
North Carolina--Wilmington, the University of Washington, the 
University of Western Washington, the Department of the Interior--Fish 
and Wildlife Service, the Smithsonian Institution's Environmental 
Research Center in Edgewater, Maryland, ENSR, Inc. of Greeley, 
Colorado, Parametrix Inc. of Corvallis, Oregon, and Northeast Technical 
Services of Olmsted Falls, Ohio.
    The Research Team's report was released in June 2002. Their report 
demonstrated that the injection of ozone into a ship's ballast water is 
an effective means of killing unwanted invasive species without 
damaging the quality of the receiving water into which the treated 
water is discharged. The report's primary conclusion was that ozone 
could serve as an effective biocide in the removal of invasive species 
from sea water, but (inferentially) that the technology required 
refinement before it would be commercially viable.
    The Ballast Water Research Team's report also proved that ozone, 
when it is injected into sea water, forms various bromine compounds. 
This Total Residual Oxidant (TRO) typically decays over a 24 to 48 hour 
period after injection.
    An earlier report, prepared by the La Que Institute for Corrosion 
Technology, of Wrightsville Beach, North Carolina, demonstrated that 
ozonated water will not increase the rate of corrosion of a ship's hull 
or impact the ship's sacrificial zinc anode. It should also be noted 
that the introduction of ozone and bromine compounds to the ballast 
water inhibits oxygen thriving colonies of bacteria that exist in weld 
areas. Those bacterial colonies are a major cause of corrosion.

    B. Last year, Congress earmarked $1.7 million for the development 
of an advanced, more technologically efficient and affordable version 
of our technology. With the assistance of the National Oceanic and 
Atmospheric Administration, Nutech will install an advanced version of 
this ozone injection technology on a second BP oil tanker, the 140,000 
DWT, T/V Prince William Sound, in September 2005. This improved version 
of this technology will cost approximately 65 percent less to build and 
install than the original version, the installation time will be 
sharply reduced and it may be possible to perform most (if not all) of 
the installation work without taking the ship out of service. All of 
this testing will be completed no later than the Spring of 2006 and, if 
favorable weather conditions exist, it may be completed before that 
time.
    NOAA has established an Advisory Panel, to work with Nutech and the 
Ballast Water Research Team, to assist in the development of the 
Testing Protocol that will be used during the Prince William Sound test 
series. This Advisory Panel includes representatives from the U.S. 
Coast Guard, the U.S. Navy, the Fish & Wildlife Service, the 
Environmental Protection Agency, the California State Lands Commission, 
the Washington State Department of Fish & Wildlife, the Chamber of 
Shipping of America and British Maritime Technologies, a major ship 
design and engineering firm.
    Nutech is confident that it has developed an effective and 
affordable solution to the invasive species problem. Therefore, we 
strongly urge that the Commerce Committee, and the Senate, promptly 
enact the Inouye-Stevens Ballast Water Management Act, with the changes 
that we recommend.

    C. Nutech's Ballast Water Treatment System will pay for itself, in 
operational cost savings, within 12 to 18 months of its installation. 
Our cost savings estimate is based on data published by the Coast 
Guard, in its March 2003 ANPRM. This data showed that a deep ocean 
ballast water exchange costs a ship owner between $16,000 and $80,000, 
per exchange. This is a shipping industry trade association estimate. 
Since the typical tanker or freighter has a useful life exceeding 30 
years and, typically, conducts at least one ballast water exchange a 
month, the savings will run into the millions of dollars over the 
ship's life.

II. Suggested Changes to the Ballast Water Management Act

Amendment #1--Speeding Up the Compliance Timetable
    Premised on the availability of effective treatment technology, we, 
therefore, think that it would be reasonable to move up the 
implementation date from the distant schedule contained in the IMO 
Treaty and carried over into S. 363. Under our recommendation, all 
affected ship owners would have 18 months after the date on which the 
Coast Guard certifies the availability of an effective treatment 
technology to install it on their ships.
    Since we believe that our technology, and those of some of our 
competitors, can be installed without taking the ship out of service 
or, at most taking it out of service for only a few days, the prompt 
installation of many treatment technologies will not impose a financial 
burden on ship owners while rapidly improving the quality of local 
water supplies.

Amendment #2--Encouraging the Installation of Ballast Water Treatment 
        Technology Before the Bill's Initial 2009 Compliance Date
    Invasive species pose an increasing threat to water quality. 
Therefore, Congress should take all available steps necessary to 
encourage ship owners to install ballast water treatment equipment at 
the earliest practicable date, prior to the bill's initial planned 
implementation date of 2009.
    Therefore, the technology incentive provisions of the Ballast Water 
Management Act, carried over from the IMO Treaty, need to be 
significantly modified. The application process was too cumbersome and 
it is limited to only 5 or 6 ships a year. As currently drafted, those 
provisions will discourage ship owners from participating in a program 
in which the maximum number of ships, and ship owners, should be 
encouraged to participate.
    We recommend that the Commerce Committee take the Coast Guard's 
STEP Program, issued in January 2004, and expand its more generous 
scope (more generous in comparison to the IMO Treaty's parallel 
provisions) to allow a far larger number of ships, operated by the same 
ship owner, to participate in the experimental technology program.
    More importantly, in terms of encouraging ship owners to 
participate in the STEP Program, we recommend that anyone installing 
approved technology prior to the bill's mandatory implementation date 
be permanently grandfathered, i.e., permanently deemed to be in 
compliance with statutory or regulatory treatment standards even if the 
standards become more stringent in later years. For both reasons, we 
believe that this proposal will offer ship owners the necessary 
economic incentives to install treatment technology well ahead of the 
bill's stretched out compliance deadlines.
    Without this proposal, the invasive species problem will 
unnecessarily worsen before the shipping industry starts to use the 
technological solutions now available to it. With them, it will be far 
more likely that ship owners will take the lead in installing treatment 
technology before the contemplated compliance dates, instead of waiting 
until the last possible minute to do so. With it, technology vendors 
will be encouraged to bring new treatment technologies to the market 
more quickly. And investors, who have mostly remained on the sidelines, 
waiting for regulatory agencies, and the Congress, to establish the 
rules of the game, will be encouraged to bring venture capital to the 
market which, until now, they have been very reluctant to do.

Amendment #3--Additional Means of Verifying Compliance With Ballast 
        Water Treatment Requirements
    In terms of enforcing the bill's treatment requirements, it is 
essential that a ship captain's ability to prove to the Coast Guard 
that the ship has complied with those requirements be temporally and 
economically feasible. This is especially critical if proof of 
treatment must be presented each time a ship enters a port and 
discharges ballast water or has done so inside the Exclusive Economic 
Zone.
    Conducting microbe counts is not a practical or economical means of 
proving that compliance, especially on a multiple trip, or multiple 
port entry basis. Such counts are very expensive. They require trained, 
scientific personnel. Expensive laboratory equipment is required. 
Moreover, it can take several days to transport ballast water samples 
from a ship to a laboratory. The microbe count could rapidly increase 
(or decrease) during shipping, thus providing inaccurate results to an 
enforcement agency. For all of these reasons, such counts cannot 
routinely be conducted onboard a ship.
    Moreover, it is very doubtful that taking a few ballast water 
samples, even from widely dispersed areas of a ballast tank, is a 
statistically accurate method for proving that the ballast water has 
been treated to a specific microbe per-cubic-meter of water standard. A 
typical oil tanker carries 12 to 18 million gallons of ballast water in 
a ship that has ballast water compartments running the entire length, 
width and height of a ship that may be 900 or more feet long, 100 or 
more feet wide, and 100 or more feet high. It is highly improbable that 
a few gallons of water taken randomly from those ballast tanks will be 
representative of the content of the ship's ballast water. This is 
especially so since it is practically impossible to take samples from 
tanks immediately above the bottom of the ship's hull.
    While it may be desirable to perform such sampling annually, or on 
some other periodic basis, to establish another reference point for 
gauging the effectiveness of a treatment system, it is not practical to 
do so during every port entry. Our testing has proven that the presence 
of a Total Residual Oxidant (TRO) is an effective and scientifically 
accepted methodology for proving that ballast water has been properly 
treated. This identical methodology has been in use, for decades, to 
prove that drinking water has been properly chlorinated (or, these 
days, ozonated) pursuant to the Safe Drinking Water Act's Surface Water 
Treatment Regulations.
    It has also been suggested that after the Coast Guard certified 
that a given technology meets the established treatment standard, that 
the ship's captain certifying that the approves equipment was in 
operation for the required time period be accepted as proof of 
compliance.
    Testing for the required level of a TRO is easily performed. 
Nutech, for example, can provide customers with off-the-shelf, 
automated, equipment that will measure TRO levels as the system is in 
use. This is less difficult, and less time consuming, than testing a 
swimming pool's water for the proper level of chlorine. Use of this 
testing procedure is not limited to ozone injection treatment 
technology. This technique should work as well with other biocides 
producing bio-chemical residuals. Thus, requiring that the Coast Guard 
(and EPA) accept TRO levels as proof of compliance would not give 
Nutech a competitive advantage over other biocide-based technologies.
    In any event, nothing in draft amendment #3 would preclude the 
Coast Guard (or EPA) from conducting microbe counts on an annual basis 
as a back up means of certifying or recertifying the effectiveness of 
any given ballast water treatment technology, assuming that accurate 
sampling methodology can be established. Finally, this amendment 
requires that state regulatory agencies also accept, as conclusive, 
whatever test data are acceptable to the Coast Guard as proof of 
compliance with parallel state regulations.

Amendment #4--Ballast Water Management Act Should Be the Exclusive 
        Legislative 
        Authority for Regulating Ballast Water Discharges
    We understand the Chamber of Shipping of America has urged the 
adoption of an amendment that would make it explicitly clear that the 
Ballast Water Management Act provides the sole legislative authority 
for mandating the treatment, and regulating the discharge, of ballast 
water. This proposal would prevent conflicting regulation of such 
discharges under the Clean Water Act. We strongly support adoption of 
that proposal.
    We also support the Chamber's proposal that Congress preempt this 
area of environmental regulation and bar the enforcement of any 
conflicting, or more stringent, State ballast water treatment 
regulations such as those enacted by Michigan and California.
                                 ______
                                 
Amendment #1--S. 363
    Delete the Implementation Schedule, page 21 line 3 through page 22, 
line 4 and insert, in lieu thereof, the following:

    (3) Implementation Schedule--Paragraph (1) applies to vessels in 
accordance with the following schedule and procedures.

        (D) Effective Date--The effective date of this Act shall be 
        January 1, 2007.

        (E) Vessels Required to Treat Ballast Water--All covered 
        vessels in operation on, or after, the effective date of this 
        Act shall be required to install ballast water treatment 
        equipment no later than 18 months after the Coast Guard 
        certifies that at least one technology or process meets the 
        treatment standards set forth contained in section (f).

        (F) Excluded Vessels--The following vessels shall not be 
        required to install ballast water treatment equipment:

           (i) Any vessel that initially entered service 25 years, or 
        more, prior to the effective date of this Act.

           (ii) Any vessel of less than 1,000 Gross Registered Tons.

           (iii) Any vessel that, in the ordinary course of its 
        operations, does not carry ballast water.

           (iv) Combat vessels of the Navy and the Coast Guard unless 
        they are required to treat ballast water pursuant to 
        regulations subsequently adopted by the Navy or the Coast 
        Guard. Vessels that primarily carry cargo for military use 
        shall be required to treat their ballast water in accordance 
        with section (f).

           (v) Comparable vessels of foreign Navies.
                                 ______
                                 
Amendment #2--S. 363
    Strike from Page 23, line 3 though page 24, line 7 all of the 
section entitled ``Delay of Application for Vessel Participating in 
Promising Technology Evaluations,'' and insert, in lieu thereof, the 
following:

    (5) Experimental Testing and Approval of Ballast Water Treatment 
Equipment--Permanent Use Testing and Certification of treatment 
Equipment.

        (A) In General--The Coast Guard shall continue in effect the 
        Shipboard Evaluation & Testing Program (STEP Program) 
        established in the Coast Guard's Navigation and Vehicle 
        Inspection Circular, NVIC 01-04, of January 2004, subject only 
        to the revisions set forth in subsection (B). The STEP Program 
        shall not be discontinued or otherwise modified, except as 
        provided herein, without the express authorization of the 
        Congress.

        (B) Modifications to NVIC 01-04--The Coast Guard's NVIC 01-04 
        is modified, as follows:

           (1) Any ship entering the Exclusive Economic Zone of the 
        United States including the waters of Alaska, and also 
        including the Great Lakes, the Hudson River, the Mississippi 
        River or any tributary thereof, shall be eligible to 
        participate in this program irrespective of the country in 
        which it is registered or in which its owner is incorporated or 
        organized.

           (2) Each vessel owner or operator wishing to participate in 
        the STEP Program shall file with the Coast Guard a single 
        application for each technology it wishes to use. That 
        application shall apply to as many as fifteen (15) ships of the 
        same or similar design, irrespective of the ship's ballast 
        water capacity provided the vessel regularly operates carrying 
        not less than 500,000 gallons of ballast water.

           (3) A ship owner or operator may have in the STEP Program no 
        more than twenty-five (25) vessels of all designs and sizes, 
        using differing technologies, at any one time.

        (C) Authorization--There is authorized $100,000,000 for Fiscal 
        Years 2006 and 2007, to pay for the establishment and operation 
        of such test facilities, and the hiring of personnel, as the 
        Coast Guard determines may be required to fully operate the 
        STEP Program.

        (D) Use of Independent Testing Laboratories Required--The Coast 
        Guard is directed to employ independent, non-governmental 
        laboratories and personnel for the purpose of evaluating and 
        certifying ballast water treatment technologies and equipment 
        at least until such time as the Coast Guard has established, 
        equipped, and staffed a sufficient number of government 
        operated test facilities so that any technology or equipment 
        vendor submitting equipment for testing and certification has 
        that process completed within sixty (60) calendar days of its 
        submission to the Coast Guard.

        (E) Standing to Sue--Any equipment vendor whose equipment or 
        technology is rejected for use in the STEP Program, or which 
        the Coast Guard or the Environmental Protection Agency, refuses 
        to certify, or decertifies, for permanent use onboard a vessel, 
        shall have standing to file suit, pursuant to the provisions of 
        the Administrative Procedures Act, for injunctive relief or 
        such other relief as is authorized by Federal law. Such suit 
        may be filed in the district court in which the aggrieved party 
        maintains its principal place of business or in the United 
        States District Court for the District of Columbia.

        (F) Applicability--The foregoing provisions supersede any 
        conflicting provisions of NVIC 01-04, or any subsequent 
        modifications thereto, and supersede any regulations heretofore 
        issued by the Coast Guard, or by any other agency of the United 
        States, pertaining to the testing of any type of ballast water 
        treatment equipment or process in any pilot or experimental 
        testing program or for permanent installation on any vessel 
        subject to this Act.

                                 ______
                                 
Amendment #3--S. 363
    On page 20, after line 13 insert a new subsection (2) and renumber 
the existing subsections accordingly:

    (2) Verification of Compliance Methodologies--

        (a) The Coast Guard shall conduct, not more than once in any 12 
        month period, an actual microbe count after the operation of a 
        vessel's ballast water treatment technology, during the 
        vessel's regular operation, to determine if the ballast water 
        treatment equipment is treating the ballast water to the 
        standard set forth in section (1).

        (b) For purposes of determining compliance at all other times 
        during a vessel's actual operation the Coast Guard, the 
        Environmental Protection Agency, and all state regulatory 
        agencies, shall accept as conclusive proof of the required 
        treatment of the vessel's ballast water:

           (i) An actual microbe count demonstrating compliance with 
        the standards set forth in section (1) that is conducted in 
        accordance with generally accepted scientific testing 
        methodologies; or,

           (ii) The presence of Total Residual Oxidant (TRO), or other 
        residual chemical in the treated ballast water, at a level 
        consistent with the killing of the organisms required to be 
        removed from that ballast water, that is conducted in 
        accordance with generally accepted scientific testing 
        methodologies;

           (iii) Any other verification standard or methodology that is 
        scientifically acceptable to the Coast Guard that is conducted 
        in accordance with generally accepted scientific testing 
        methodologies; or,

           (iv) In lieu of any of the foregoing, the Coast Guard, the 
        Environmental Protection Agency and any State regulatory agency 
        may accept as proof of operational compliance with the 
        treatment requirements of section (1) that: (I) the treatment 
        equipment was certified by the Coast Guard as meeting the 
        treatment standards of section (1); and (II) that the vessel's 
        captain affidavit and supporting written documentation showing 
        that the vessel's ballast water treatment system was in 
        operation for the period of time required pursuant to its 
        certification by the Coast Guard, to treat the ballast water to 
        the standards required by section (1).

    Senator Sununu. Our next witness is Kathy Metcalf, Director 
of Maritime Affairs for the Chamber of Shipping of America. 
Welcome.

       STATEMENT OF KATHY J. METCALF, DIRECTOR, MARITIME 
   AFFAIRS, CHAMBER OF SHIPPING OF AMERICA; ON BEHALF OF THE 
           SHIPPING INDUSTRY BALLAST WATER COALITION

    Ms. Metcalf. Thank you, Mr. Chairman, Senator Boxer, 
Senator Inouye. I'm here today on behalf of the Shipping 
Industry Ballast Water Coalition. And we are pleased to be able 
to testify in support, with a few exceptions, of Senator 
Inouye's Senate Bill 363, and finally downloaded just last 
night off the GPO website, Senator Boxer, your S. 1224 bill, 
while we have not had a chance to go through the entire bill, 
but certainly we've looked at the ballast water section.
    Our coalition is an informal organization of maritime trade 
associations and companies that own, operate, and charter all 
types of vessels engaged in domestic and international trade 
and represent, essentially, over 90 percent of large commercial 
vessels that are trading in U.S. waters. And by virtue of the 
membership of the American Association of Port Authorities, the 
Coalition also represents the ports to which these vessels 
trade.
    Due to the time limitations I will make one comment that 
while the testimony we provide today highlights the agreement 
by a vast majority of our coalition, our members would 
respectfully request the opportunity to provide written 
comments to the record for additional information or points 
they may wish to make.
    General comments. We congratulate Senator Inouye and 
Senator Boxer for taking the lead on this issue in a way that 
the Coalition is very supportive of. Senators, your two bills 
are the only bills that we have seen thus far, and I've been 
working on this issue for over 8 years, which most closely 
resemble the recently agreed to IMO Convention. The Coalition 
always has and will continue to support prompt enactment--let's 
don't slow the process down--but prompt enactment of a national 
ballast water management program that reflects, to the maximum 
extent possible, the substantive provisions of this 
international agreement. While we note that, Senator Inouye, 
your bill and, Senator Boxer, yours as well, reflects a number 
of these similarities, there are five issues that we would like 
to point out that the industry has some concern with.
    First, the Coalition would support altering the performance 
standard as currently contained in the bills to reflect the IMO 
standard. In the current proposals your performance standards, 
Senator, are a hundred times more stringent than what the 
international community has agreed is reasonably achievable in 
the near and medium term. And, in fact, with no disrespect of 
Mr. Mandelman because the ships that he is speaking about are 
also operated by our members, we still have not yet seen any 
peer-reviewed scientific data that suggests we can even reach 
the IMO standard. So we respectfully request your consideration 
of that change, noting that in the pre-review process, the 
ability to change the standard to reflect the realistic 
capabilities of technology at a given point in time will exist.
    We also support the inclusion in your bill of a 
quantitative performance standard and not leaving this issue in 
the development through a regulatory process. I can 
unequivocally state to you that it was only when the fixed 
quantitative standard was established by IMO that ship owners 
and technology developers finally began to be able to 
justifiably commit financial and human resources to solving 
this problem. For now we had a hard target at which to aim, so 
it is critical that your bill contains the quantitative 
standard. Now, other bills include standards that would be 
based on best available technology, and while conceptually we 
have no problem with best available technology, we do not 
believe it has a place in establishing the initial standard. It 
will, appropriately by default, become the general criteria for 
later adjustments of the standard to reflect developing 
technology.
    Very quickly, both of your bills contain provisions for a 
pre-review process and a feasibility analysis. We would suggest 
that the provisions as drafted are fine, but we would also 
suggest the addition of five specific criteria that are 
currently listed in the IMO Convention to provide better 
direction to the regulatory agencies which will conduct these 
reviews. These five criteria are considerations of safety, 
environmental acceptability, practicability, cost-
effectiveness, and biological effectiveness.
    The next issue is relative to preemption. We believe strong 
Federal preemption is necessary in an enacted legislation. 
Senator Inouye, your bill does contain a preemption clause, but 
it's one that we think could be made stronger by a little bit 
stronger language, and in my review late last night of S. 1224, 
regrettably, we did not see that preemption clause so we would 
recommend that clause be included in your bill, Senator Boxer. 
We also believe that due to a recent District Court decision 
for the Northern District of California relative to the control 
of ballast water through the Clean Water Act NPDES Program, 
which we disagree with, but nonetheless, it is still a court 
decision, so that we would strongly recommend the inclusion of 
language in your bill that establishes your bill as the 
exclusive Federal law governing ballast water exchange. In 
other words, your bill would create the permitting system for 
ballast water rather than trying to shove a square peg into a 
round hole. We all can remember with great concern when EPA 
tried to accommodate the storm water discharges into their 
system and how long that took. Too long, we cannot afford to 
wait that long.
    And, finally, wrapping up, we believe there's a need, a 
vast majority of the Coalition believes there's a need for a 
specific exemption for tug barge operations. Briefly, to 
describe this in 15 seconds, as currently drafted without an 
exemption, without a safety exemption for these operations, we 
will be asking human beings to disconnect a tug and a barge in 
the middle of the ocean, and even on a calm day we're talking 
five- to seven-foot seas, and move a human being 20 to 30 feet 
up a steel vertical wall so they can climb on that barge to do 
ballast water exchange. Please note the exemption is only 
relative to exchange and not to treatment. Please also note 
that this exemption is not without precedent because the States 
of Oregon and Washington already contain such an exemption in 
their state law.
    We thank you for the opportunity to testify. We would be 
pleased to answer any questions you may have.
    [The prepared statement of Ms. Metcalf follows:]

  Prepared Statement of Kathy J. Metcalf, Director, Maritime Affairs, 
  Chamber of Shipping of America; on Behalf of the Shipping Industry 
                        Ballast Water Coalition

    Mr. Chairman, we appreciate the opportunity to testify before you 
today on the subject of invasive species management, and specifically, 
the provisions of Senate Bill 363, the Ballast Water Management Act of 
2005 as introduced by Senator Inouye on behalf of himself and Senators 
Akaka, Cantwell, Lautenberg, Sarbanes and Stevens.
    The Shipping Industry Ballast Water Coalition (the Coalition) is an 
informal organization of maritime trade associations and companies that 
own, operate, or charter commercial vessels of all types engaged in 
both domestic and international trade, and represents over 90 percent 
of the vessels calling in U.S. ports. The types of vessels owned and 
operated by Coalition members include oceangoing and coastwise 
containerships, tankers, roll-on/roll-off vessels, bulk carriers, and 
passenger vessels as well as tug/barge units which operate in 
oceangoing, coastwise, and inland waters. While the testimony we 
provide today highlights points of agreement by the vast majority of 
the Coalition, individual members of the Coalition would respectfully 
reserve their right to provide written comments to this record to 
provide additional information as they deem necessary.
    The Coalition was formed over 4 years ago by a number of entities 
that believed resolution of this complex issue required the coordinated 
efforts of all stakeholders. Since that time, the Coalition has 
provided testimony or comments to both legislative and regulatory 
initiatives regarding ballast water management both at the 
international and domestic level.

General Comments
    The Coalition congratulates Senator Inouye and his colleagues for 
drafting the proposed legislation as it is, to date, the legislation 
which most closely mirrors the management structure as contained in the 
recently agreed upon International Convention for the Control and 
Management of Ships' Ballast Water and Sediments, 2004 (the IMO 
Convention) by the member states of the International Maritime 
Organization. The Coalition has always and continues to support the 
prompt enactment of domestic legislation which will establish a 
national ballast water management program and that reflects, to the 
maximum extent possible, the substantive provisions and regulatory 
framework of the IMO Convention. In this regard, the Coalition supports 
the provisions of S. 363 with a few specific changes as noted below.

The Ballast Water Management Performance Standard
    The Coalition supports changing the performance standard as 
currently included in S. 363 to reflect the standard contained in the 
IMO Convention. As currently drafted, S. 363 contains a performance 
standard that is one hundred times more stringent than that contained 
in the IMO Convention. It is important to note that at this point in 
time, there is no published peer-reviewed data that suggests the 
existence of technology which can achieve the IMO standard, although we 
are hopeful that this technology will emerge from testing programs 
which are underway around the world and on a variety of ships. It is 
this data, once published and peer-reviewed, that will become part of 
the pre-review process conducted at IMO, and under the pre-review 
process as contained in S. 363 as introduced. What is critical here is 
that the first standard be achievable, recognizing future adjustment of 
the standard during the periodic review process which will reflect the 
capabilities of emerging technology to provide even more efficient 
treatment results.
    The Coalition also strongly supports including a quantitative 
performance standard in the legislation itself and not leaving the 
establishment of the performance standard to the regulatory process. 
For a number of years, members of our Coalition have had discussions 
with technology developers and reviewed various ballast water treatment 
technologies. I can unequivocally state that it was only when the fixed 
quantitative standard was established by IMO, that shipowners and 
technology developers alike were in a position to commit vast sums of 
financial and human resources to finding a solution to this perplexing 
problem. Once this quantitative standard was established, shipowners 
and technology developers alike had a ``hard target'' at which to aim. 
While the concept of ``best available technology'' is a viable one, it 
has no place in establishing initial performance standards for ballast 
water treatment systems. It will more appropriately, by default, become 
the general criteria for later adjustments of the standard to reflect 
developing technology.

Review of Standards and Feasibility Review
    Section 3(f) of S. 363, entitled Ballast Water Treatment 
Requirements, contains provisions for a periodic review of standards 
(3(f)(4)) and an initial feasibility review (3(f)(6)). These are key 
provisions in ensuring that appropriate technologies are available to 
achieve the initial standard and provide for periodic reviews of the 
established standard in light of new technologies that provide even 
more effective treatment results. While the Coalition strongly supports 
inclusion of both of these provisions, we believe that more detail is 
necessary in the legislation to guide the regulatory program which will 
implement these provisions. Specifically, the Coalition believes that 
the legislation should explicitly include five specific criteria on 
which these reviews will be based. The five criteria are considerations 
of safety, environmental acceptability, practicability, cost 
effectiveness, and biological effectiveness. By including these 
specific criteria, Congress will more clearly outline the charge to the 
agencies which will be responsible for implementing these review 
programs.

Urgent Need for a Coordinated Federal Program Which May Be Implemented 
        by the States
    Shipping is international and the regulation of shipping should be, 
too. While this is not always possible, the Coalition believes that 
regulation of shipping through international requirements, as 
established by IMO, is the correct way to comprehensively regulate the 
industry in a clear manner. However, there are cases where domestic 
legislation has been enacted which varies with international 
requirements. Not without some pain, the industry has adjusted to these 
U.S. requirements. However, in the case of ballast water management, 
the industry has, over the past several years, been exposed to state 
requirements that, in some cases, have varied from the Federal 
requirements. We fear this trend will continue without the inclusion of 
appropriate language in S. 363. Continuing this patchwork-quilt 
approach would be catastrophic for the environment and the industry, 
and undermine the progress that we can make on this issue by the 
establishment of a strong, uniform Federal program. Therefore, the 
Coalition strongly advocates the modification of the current preemption 
language found at Section 3(q) to reflect the recognition that the 
program, as established under this legislation is the sole program 
established in the United States for the management and control of 
ballast water discharges. With the implementation of this strong 
Federal program, there should be no need for state, regional or local 
implementation of additional or conflicting ballast water management 
requirements, and thus, the inclusion of strong preemption language is 
appropriate.

S. 363 as the Exclusive Federal Program Which Regulates Ballast Water 
        Management and Discharges in U.S. Waters
    The Coalition strongly believes that enacted ballast water 
legislation should be the exclusive Federal program which regulates 
ballast water management and discharges in U.S. waters. As a result of 
a recent U.S. district court decision, there is some question as to 
whether Congress intended to include ballast water discharges under 
provisions of the Clean Water Act, and specifically the National 
Pollutant Discharge Elimination System permitting program. The 
Coalition strongly supports Congressional action to clear up this 
confusion and recommends the inclusion of appropriate text to clearly 
manifest Congress's intent to regulate ballast water management under 
the provisions of ballast water-specific legislation such as S. 363.

Need for a Specific Exemption From Ballast Water Exchange Requirements 
        for Tug/Barge Operations
    A vast majority of the Coalition believes that an express provision 
should be included in S. 363 which exempts tug and barge operations 
from the ballast water exchange requirements. The basis for this 
specific exemption relates to the inherently unsafe nature of 
maneuvering a tug alongside a barge and then place a human life at risk 
by requiring a crew member to scale what is essentially a 20 to 30 foot 
vertical steel wall, in order to allow exchange to be conducted on the 
barge at sea. While the existing safety exemption would arguably cover 
such an operation, it would be more appropriate to clearly manifest the 
intent of Congress that such an operation would not be condoned by 
including specific language exempting tug/barge operations from the 
ballast water exchange requirements. In fact, Washington and Oregon 
have exempted tug and barge operations from state requirements to 
conduct ballast water exchange. These states have acknowledged the 
inherent risks in requiring barges to conduct ballast water exchange. 
It is important to note that this exemption would not apply to the 
integration of ballast water treatment systems as they become 
available, provided that the system would enable treatment of ballast 
while the vessel was berthed, and thus, obviate the need to conduct an 
unsafe operation at sea.
    We appreciate the opportunity to provide testimony to your 
subcommittee and would be pleased to answer any questions you may have.

    The Chairman. Thank you, Ms. Metcalf. Our next witness is 
Rear Admiral Thomas Gilmour, Assistant Commandant for Marine 
Safety and Environmental Protection at the Coast Guard. 
Welcome, Admiral.

         STATEMENT OF REAR ADMIRAL THOMAS H. GILMOUR, 
     ASSISTANT COMMANDANT FOR MARINE SAFETY, SECURITY AND 
           ENVIRONMENTAL PROTECTION, U.S. COAST GUARD

    Admiral Gilmour. Good morning, Mr. Chairman and 
distinguished members of the Subcommittee. It's certainly my 
pleasure to appear before you today to provide our views on 
ballast water management and Ballast Water Management Act of 
2005, S. 363, and I'll also touch briefly on coral reef 
protection.
    The Administration certainly shares this committee's 
concern with the significant environmental and economic damage 
that has been caused by aquatic invasive species and recognizes 
that ballast water discharge is one of the important pathways 
for such invasions. We are committed to working with Congress 
to enact effective legislation that will address ballast water, 
the ballast water issue, and substantially reduce the threat of 
damaging invasions through this pathway. In early 2001, through 
a series of international workshops, the Coast Guard began 
working with scientists, marine engineers, experts from water 
treatment industry, and our Federal agency partners to develop 
criteria for a ballast water discharge standard. These 
workshops concluded that this standard should address all 
organisms at all life stages and it be concentration-based, set 
at values that are scientifically sound, environmentally 
protective, and enforceable. We are currently completing an 
environmental impact statement analyzing the impacts of several 
alternative standards as well as a cost benefit analysis 
associated with this rulemaking.
    In February of 2004, the Coast Guard led an inter-agency 
United States delegation to the International Maritime 
Organization's diplomatic conference on ballast water 
management of ships. The conference adopted the International 
Convention for the control and Management of Ships' Ballast 
Water and Sediments, 2004, which is a significant step forward 
in the international effort to combat invasive species 
introduced through ships' ballast. One significant provision of 
the convention calls for ships to meet a ballast water 
discharge standard according to a schedule of fixed dates 
beginning with certain ships constructed in 2009. These fixed 
dates serve as a signal to the shipping industry, as well as to 
emerging ballast water treatment industry of the need for the 
investment, plans, and inventory to meet Ballast Water 
Management requirements. Another key feature of the 
implementation schedule is the phasing out of the practice of 
ballast water exchange, which means most ballast water 
discharges will eventually have to meet a maximum concentration 
standard. The ballast water discharge standard in the 
Convention would allow less than 10 organisms of a given size 
range, per-cubic-meter of discharge ballast water. The Coast 
Guard believes that this level of stringency may not be 
sufficient to adequately reduce invasions and that technologies 
currently under development may be able to do better.
    However, substantial uncertainty remains in both of these 
areas. Significantly, the standard adopted by IMO is 
concentration-based, and we think that's important. This is 
desired by the United States because the concentration approach 
provides for more effective monitoring of compliance in a more 
uniform and protective level of risk reduction across all 
vessels.
    The Ballast Water Management Act of 2005 contains many 
provisions similar to the IMO Convention adopted in 2004. The 
legislation provides for the eventual sunset of practice of 
ballast water exchange in favor of an environmentally 
protective ballast water treatment standard. The ballast water 
discharge standard in S. 363 is the same format of the 
concentration-based standard found in the IMO Convention which 
deals with all organisms and their life states. The Ballast 
Water Management Act of 2005 also addresses the movement of 
non-indigenous species by ballast water between ports within 
the United States which is a critical step in controlling the 
spread of invasive species.
    The continued ability to evaluate and the performance of 
prototype technologies under the Ballast Water Management Act 
of 2005, is also important. The Coast Guard has launched the 
Shipboard Technology Evaluation Program in 2004 as an incentive 
to assist vessel owners in the installation of prototype 
ballast water treatment systems under our current regulations.
    In addition, we've been working closely with the 
Environmental Protection Agency's Environmental Technology 
Verification Program toward the development of a rigorous 
technical protocol for land based testing systems and the 
evaluation of ballast water treatment technologies.
    The Coast Guard also works closely with the National 
Oceanographic and Atmospheric Administration to help preserve 
and protect coral reefs. In 2004, the Coast Guard dedicated 
over 2,000 aircraft and over 1,700 hours at a cost of over $13 
million in coral reef enforcement efforts.
    Thank you for the opportunity to provide these comments on 
the Ballast Water Management Act, and we look forward to 
working with Congress as we continue our ongoing efforts to 
implement an effective ballast water management regime. Thank 
you.
    [The prepared statement of Admiral Gilmour follows:]

    Prepared Statement of Rear Admiral Thomas H. Gilmour, Assistant 
 Commandant for Marine Safety, Security, and Environmental Protection, 
                            U.S. Coast Guard

    Good Morning, Mr. Chairman and distinguished members of the 
Subcommittee. I am Rear Admiral Thomas Gilmour, Assistant Commandant 
for Marine Safety, Security and Environmental Protection. It is my 
pleasure to appear before you today to provide the Coast Guard's views 
on ballast water management and the Ballast Water Management Act of 
2005, S. 363, and to touch briefly upon coral reef protection.
    The Administration shares this committee's concern with the 
significant environmental and economic damage that has been caused by 
aquatic invasive species and recognizes that ballast water discharge is 
one of the important pathways for such invasions. Over the past several 
years, the U.S. has been a leader in international efforts to address 
this problem. While we have made significant progress domestically 
under the current legislative framework, there is no question that this 
framework needs to be upgraded to move us to a higher level of 
protection. We are committed to working with the Congress to enact 
effective legislation that will address the ballast water issue and 
substantially reduce the threat of damaging invasions through this 
pathway.
    The Coast Guard is a leader in ensuring America's maritime 
environment is protected. We take great pride in providing valuable 
services that preserve and protect our Nation's waters, making them 
cleaner, safer, and more secure for legitimate use. The Coast Guard 
remains committed to providing a leadership role on ballast water 
management both domestically and internationally, and working 
diligently with all stakeholders to protect U.S. waters from the 
introduction of aquatic nuisance species.
    In early 2001, through a series of international workshops, the 
Coast Guard began working with scientists, marine engineers, experts 
from the water treatment industry, and our Federal agency partners to 
develop the criteria for a ballast water discharge standard. These 
workshops concluded that the standard should address all organisms at 
all life stages, that it be concentration-based and set at values that 
are scientifically sound, environmentally protective, and enforceable. 
These criteria informed our approach for international negotiations at 
IMO as well as to our rulemaking to develop a ballast water discharge 
standard, currently in process. The ballast water discharge standard 
will be used to approve ballast water management equipment installed on 
ships as an alternative to ballast water exchange, under our current 
authority. The standard will also be used to evaluate compliance on 
vessels performing treatment. We are currently completing a 
Programmatic Environmental Impact Statement analyzing the environmental 
impacts of several alternative standards as well as the cost-benefit 
analysis associated with this rulemaking.
    In February of 2004, the Coast Guard led the interagency United 
States delegation to the International Maritime Organization's (IMO) 
Diplomatic Conference on Ballast Water Management for Ships. The 
Conference adopted the International Convention for the Control and 
Management of Ships' Ballast Water and Sediments, 2004, which is a 
significant step forward in the international effort to combat invasive 
species introduced by ships' ballast water. The U.S. delegation played 
a major role in development of the Convention's basic structure and in 
ensuring that a number of key objectives were included in this new 
treaty.
    One significant provision of the Convention calls for ships to meet 
a ballast water discharge standard according to a schedule of fixed 
dates, beginning with certain ships constructed in 2009. These fixed 
dates serve as a signal to the shipping industry as well as to the 
emerging ballast water treatment industry of the need for investment, 
plans, and inventory to meet ballast water management requirements. 
Another key feature of the implementation schedule is the phasing-out 
of the practice of ballast water exchange, which means most ballast 
water discharges will eventually have to meet a maximum concentration 
standard. The Convention contains provisions for the experimental 
testing of prototype ballast water treatment systems on operating 
vessels. In addition, the Convention contains a U.S. backed provision 
that allows the sampling of ballast water from ships as a port state 
control activity for the purposes of evaluating compliance with the 
Convention.
    While there were many important and positive provisions adopted by 
the Conference, one significant element is the stringency of the 
ballast water discharge standard. For example, the standard in the 
Convention would allow less than 10 organisms of a given size range 
per-cubic-meter of discharged ballast water. The Coast Guard believes 
that the Convention's level of stringency may not be sufficient to 
adequately reduce invasions, and that technologies currently under 
development may be able to do better. However substantial uncertainty 
remains in both of these areas. Significantly, the standard adopted by 
IMO is concentration-based rather than expressed as a percent removal. 
This was desired by the U.S. because the concentration approach 
provides for more effective monitoring of compliance and a more uniform 
and protective level of risk reduction across all vessels. Further, the 
standard, as adopted, when met by all vessels, will likely 
significantly reduce the discharges of potentially invasive species via 
ballast water. Since the adoption of the Convention, the Coast Guard 
has led an interagency delegation in the development of supporting 
guidelines for the implementation of the Convention, the first set of 
which will likely be adopted by IMO resolution in July.
    The Ballast Water Management Act of 2005, contains many provisions 
similar to the IMO Convention adopted in 2004, and is consistent with 
the basic structure of the Convention. In addition to authorizing an 
amendment to the Non-indigenous Aquatic Nuisance Prevention and Control 
Act/National Invasive Species Act, the legislation provides for the 
eventual sunset of the practice of ballast water exchange, in favor of 
an environmentally protective ballast water treatment standard. The 
ballast water discharge standard in S. 363 is the same format of a 
concentration-based standard found in the IMO Convention, which deals 
with all organisms and their life states. This concentration-based 
standard is important in that it provides a threshold for the maximum 
number of organisms in a volume of discharged ballast water regardless 
of the source of the ballast water or type of vessel. This is essential 
for both the approval of ballast water treatment systems and 
enforcement of the discharge standard on ships. However, the standards 
in S. 363 are 100 times more stringent than the standards found in the 
IMO Convention. There has been no evaluation to date of currently-
available technologies to show whether extant and prototype ballast 
water treatment systems would be able to achieve the standards set in 
the bill. The Administration believes it may be premature to fix these 
standards in legislation, given the substantial uncertainties in the 
future capabilities of emerging technologies.
    The Ballast Water Management Act of 2005, also addresses the 
movement of non-indigenous species by ballast water between ports 
within the U.S., which is a critical step in controlling the spread of 
invasive species. To date, there has been no significant analysis of 
the risks presented by these ballast water discharges against the 
feasibility of various ballast water management options.
    The continued ability to evaluate the performance of prototype 
technologies under the Ballast Water Management Act of 2005, is also 
important, as the Coast Guard launched the Shipboard Technology 
Evaluation Program in 2004, as an incentive to assist vessel owners in 
the installation of prototype ballast water treatment systems under our 
current regulations. In addition, we have been working closely with the 
U.S. Environmental Protection Agency's Environmental Technology 
Verification Program in the development of rigorous technical protocols 
for land-based testing and evaluation of ballast water treatment 
technologies. This provision will allow the Coast Guard to continue 
facilitating the development of improved ballast water treatment 
technology, even after the application of a ballast water discharge 
standard to all vessels.
    The Coast Guard also works closely with the National Oceanic and 
Atmospheric Administration (NOAA) to help preserve and protect coral 
reefs. In 2004, the Coast Guard dedicated 2,032 aircraft, 323 boat, and 
1,708 cutter hours at a cost of over $13 million, in such enforcement 
efforts. The Coast Guard has also worked with NOAA, the State of 
Hawaii, the Department of the Interior, and local organizations to help 
remove marine debris from coral reefs surrounding the Northwestern 
Hawaiian Islands.
    Thank you for the opportunity to provide comments on the Ballast 
Water Management Act of 2005. The Coast Guard looks forward to working 
with Congress as we continue our ongoing efforts to implement an 
effective ballast water management regime. I will be happy to answer 
any questions you may have.

    The Chairman. Thank you, Admiral. Tim Keeney is the Deputy 
Assistant Secretary of Commerce for Oceans and Atmosphere.

STATEMENT OF TIMOTHY R.E. KEENEY, DEPUTY ASSISTANT SECRETARY OF 
                    COMMERCE FOR OCEANS AND 
         ATMOSPHERE, NATIONAL OCEANIC AND ATMOSPHERIC 
          ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE

    Mr. Keeney. Good morning, Mr. Chairman, and members of the 
Subcommittee. I also co-chair both the Aquatic Nuisance Species 
Task Force and the Coral Reef Task Force. I'm pleased to be 
here today to discuss both of these important issues. The U.S. 
Ocean Action Plan outlines the importance of each of these 
topics with specific goals of promoting coral reef conservation 
as well as preventing the spread of invasive species. Today 
I'll discuss both our coral and ballast water programs.
    The Coral Reef Conservation Act of 2000 called for the 
creation of a national strategy and program to address the 
threats to coral reef communities. This led to the creation of 
NOAA's Coral Reef Conservation Program or the CRCP, which draws 
experts together from across NOAA and engages external parties 
to develop integrated strategies to address coral reef decline 
on the local, national, and international scales. The authority 
provided to NOAA under the Act has yielded many benefits to 
coral reef management and protection. Reauthorization of the 
Act is an important step in continuing this work. 
Reauthorization will allow continuation of important NOAA-
sponsored mapping, monitoring, research management efforts 
throughout the CRCP national and grants programs and the Coral 
Reef Conservation Fund partnered with the National Fish and 
Wildlife Foundation.
    In addition to carrying out the requirements of the Act, 
NOAA continues to play an important and active role in the U.S. 
Coral Reef Task Force which brings together Federal and non-
Federal members to exchange information and collaboration on 
new actions. Many of NOAA's coral reef conservation efforts 
have been developed in partnership with task force members. 
While the Act has allowed NOAA to develop an effective coral 
program, there are some limitations to the current act that if 
addressed could significantly advance efforts to conserve our 
valuable coral reef resources. For example, although the 
Federal Government has authority to address coral reef damage 
from groundings in designated protected areas such as national 
marine sanctuaries, no similar authority exists to respond to 
any groundings that occur outside of these areas. Appropriate 
authority in the act would enable NOAA to respond to events and 
recover from the responsible party the cost for both the 
response and where warranted, comprehensive damage assessment 
in restoration activities. The Administration and Congress have 
recognized the value of this program. It would be appropriate 
to recognize the support by authorizing the Act at the 
President's Fiscal Year 2006 request level of $27.2 million and 
ensure that an adequate portion of this funding is available 
for effective program administration.
    I'd now like to address the critical issue of invasive 
species in ballast water. Non-indigenous species are affecting 
habitats and species in all of our lakes and streams. 
Introduction of new species can alter both the physical habitat 
as well as impact native species in ecosystem productivity. For 
example, last year Ohio shut down its Great Lakes smallmouth 
bass fishery for two of the most popular months for this 
recreational fishery. The closure surprised the public because 
the cause was a fish much smaller than the smallmouth bass--the 
round goby, a ballast water introduction that eats bass eggs. 
Because NOAA is a trustee for living marine resources we are 
particularly concerned with introductions of non-indigenous 
aquatic species that may affect Federally-managed fisheries. In 
the Summer of 2000, there was a massive jellyfish bloom in the 
coastal areas of Alabama and Mississippi. Because of clogged 
nets, shrimping operations had to be suspended and it has been 
estimated it cost shrimpers over $10 million.
    I would like to update the Subcommittee on our progress in 
addressing ballast water issues. NOAA and Fish and Wildlife 
Service are charged with sponsoring research to develop new 
technologies for ballast water management. Since 1998, 54 
research projects have been sponsored under the Ballast Water 
Demonstration Program and 16 additional ballast water-related 
projects have been sponsored through the National Sea Grant 
Program. We have tested filtration, ultraviolet radiation, 
ozone injection, sonic bombardment, heat treatment, and 
oxidizing and non-oxidizing biocides. We are well beyond proof 
of concept with many of these technologies and there are some 
promising results.
    As you know, the Coast Guard had made a formal finding and 
the voluntary guidelines included in the 1996 Invasive Species 
Act were not effective and issued regulations requiring ballast 
water management for vessels entering U.S. ports beyond the 
EEZ. All stakeholders recognize that exchange is an interim 
solution until methods for treating ballast water are 
developed.
    NOAA supports the goal of S. 363 which is to reduce the 
risk of introducing new invasive species by ballast water. The 
2006 President's budget request requests $7.9 million to 
continue NOAA's valuable work to prevent invasive species 
through programs such as the Aquatic Invasive Species Program, 
Sea Grant, the Great Lakes Environmental Research Laboratory, 
and the National Center for Coastal Ocean Science. Considerable 
progress has been made in addressing the ballast water program 
since the 1996 reauthorization, but much work remains. With a 
strong commitment, I think that we'll be able to significantly 
reduce the risks associated with ballast water as a vector for 
the introduction of new species.
    NOAA looks forward to working with the Subcommittee in 
ballast water legislation and the reauthorization of the Coral 
Reef Conservation Act. Thank you for inviting me here today. 
I'd be happy to respond to any questions the Subcommittee may 
have.
    [The prepared statement of Mr. Keeney follows:]

 Prepared Statement of Timothy R.E. Keeney, Deputy Assistant Secretary 
      for Oceans and Atmosphere, National Oceanic and Atmospheric 
              Administration , U.S. Department of Commerce

    Good morning, Mr. Chairman, and members of the Subcommittee. I am 
Timothy Keeney, Deputy Assistant Secretary for Oceans and Atmosphere at 
the National Oceanic and Atmospheric Administration (NOAA). I am Co-
Chair of both the Aquatic Nuisance Species Task Force and U.S. Coral 
Reef Task Force and am pleased to be here today to discuss both of 
these important issues. The U.S. Ocean Action Plan outlines the 
importance of both of these topics with specific goals of promoting 
coral reef conservation as well as preventing the spread of invasive 
species. Today, I will discuss the Coral Reef Conservation Act of 2000 
(the Act), and the importance of its reauthorization as well as present 
NOAA's views on S. 363, which would amend the Nonindigenous Aquatic 
Nuisance Prevention and Control Act of 1990 (NANPCA), to establish 
vessel ballast water management requirements.

Reauthorization of the Coral Reef Conservation Act
    Coral reefs, often called the ``rainforests of the sea,'' are among 
the oldest and most diverse ecosystems on the planet. Coral reefs 
provide resources and services worth over $375 billion each year to the 
United States economy and economies worldwide, a surprising amount 
considering these ecosystems cover less than 1 percent of the Earth's 
surface. Coral reef resources provide economic and environmental 
benefits in the form of food, jobs, natural products, pharmaceuticals, 
and shoreline protection. Ten-and-a-half million people in the United 
States live in coastal communities adjacent to coral reefs (U.S. Census 
2002). Consequently, coral reefs have become an integral part of the 
culture, heritage, and economies of these regions. Unfortunately, a 
combination of stressors has caused a rapid decline in the health of 
many coral reefs globally.
    Congress recognized the need to preserve, sustain, and restore the 
condition of coral reef ecosystems by passing the Coral Reef 
Conservation Act of 2000, calling for the creation of a national 
strategy and program to address the threats to coral reef communities. 
The Act calls for NOAA to carry out a number of activities to promote 
the management and sustainable use of coral reef ecosystems, to develop 
sound scientific information on the condition of coral reef ecosystems, 
and to assist in the preservation of coral reefs by supporting external 
conservation programs.
    The authority and guidance provided in the Act has allowed NOAA to 
undertake a number of activities important to understanding and 
conserving coral reef ecosystems. The Act authorized the establishment 
of a national program to fund and conduct activities to conserve coral 
reefs, which led to the creation of NOAA's Coral Reef Conservation 
Program (CRCP). The CRCP draws experts together from across NOAA and 
engages external partners to develop integrated strategies to address 
coral reef decline. In addition, the CRCP works with scientific, 
private, government, and non-government partners to address coral reef 
conservation on local, national, and international scales. One of the 
first tasks of the CRCP was to develop the National Coral Reef Action 
Strategy (National Action Strategy), as called for in the Act. The 
National Action Strategy established 13 goals, 4 to improve our 
understanding of reef ecosystems and 9 to reduce impacts of human 
activities. The National Action Strategy builds on the U.S. National 
Action Plan to Conserve Coral Reefs adopted by the U.S. Coral Reef Task 
Force (USCRTF) in 2000, and provides the roadmap for sustaining coral 
reef ecosystems, and the communities and economies that depend on them.
    One of the mandates of the Act, and goals of the National Action 
Strategy, is to map and characterize U.S. shallow water coral reefs. 
The goal is to map all shallow reefs by 2009, and to date, NOAA has 
mapped approximately 66 percent; only Florida reefs remain to be 
mapped. These habitat maps provide scientists and managers basic 
information about coral reef ecosystems, assisting them in designing 
research and management plans, assessing damaged corals, monitoring 
reef health, and evaluating the results of their work.
    The Act and the National Action Strategy also call for NOAA to 
partner with other Federal agencies, and state and territorial 
governments to build an integrated coral reef observing system to 
monitor, track and report on the condition of the ecosystem over time. 
This information is used to assess and adapt management actions. In 
2002, NOAA worked with Federal, state, territorial, and commonwealth 
partners to produce the first State of Coral Reef Ecosystems of the 
United States and Pacific Freely Associated States report. This report 
assessed the condition of U.S. coral reefs, ranked threats, detailed 
ongoing conservation actions taken by Federal agencies, and contained 
recommendations from coral reef managers. The second report, scheduled 
for publication this summer, will reflect more quantitative data 
obtained through collaborative monitoring programs.
    The CRCP has developed the first NOAA-wide coral ecosystem research 
plan to set priorities and guide NOAA-funded coral reef ecosystem 
research for the next 5 years (FY 2005-2010), including the research 
conducted through grants and contracts. The Research Plan covers all 
coral reef ecosystems under the jurisdiction of the United States and 
the Pacific Freely Associated States, and incorporates direct input and 
review from partner agencies, state and territorial governments, coral 
reef managers, scientists, and other key stakeholders. The plan is 
intended to provide scientific information and tools for management of 
coral ecosystems, and is scheduled for completion in 2005.
    CRCP efforts authorized by the Act have also addressed the threat 
to reefs from marine debris and abandoned vessels. Debris and vessels 
can cause physical harm to coral reefs through entanglement and 
collision, and thus are serious concerns in some regions of the United 
States. NOAA leads a partnership with the State of Hawaii, Department 
of the Interior (DOI), U.S. Coast Guard (USCG), nongovernmental, and 
many local organizations to remove and dispose of derelict fishing gear 
from the Northwestern Hawaiian Islands (NWHI). Since 2000, this effort 
has removed over 400 metric tons of marine debris from the NWHI. The 
removal of all major, existing accumulations of derelict fishing gear 
and other marine debris from the NWHI will be completed this year. 
Because derelict fishing gear continues to accumulate in this area, 
NOAA and our partners have been coordinating an international 
discussion on how to detect and remove derelict fishing gear from the 
open ocean. NOAA has also created an Abandoned Vessels Program to 
identify candidate wrecks for further attention and to initiate removal 
of the highest priority cases.
    As required in the Act, outreach and education activities to build 
public awareness and local capacity are another way the CRCP promotes 
sustainable management of coral reef ecosystems. The CRCP has reached 
out to stakeholders by creating and distributing educational materials 
and by conducting workshops and training sessions. For example, NOAA 
has supported a series of coral reef fisheries management workshops. 
NOAA has also assisted state and territorial governments in enhancing 
their human resource capacity for marine resource management by 
providing technical training for managers, by creating internship/
fellowship programs, and by providing direct funding to support 
management staff.
    The U.S. states, territories, and commonwealths, through the 
USCRTF, developed three-year Local Action Strategies (LAS) to promote 
collaborative on-the-ground management of threats to coral reefs. These 
LAS are locally-driven roadmaps for collaboration and cooperation among 
Federal, state, territory, and nongovernmental partners that identify 
and implement priority actions needed to reduce key threats to valuable 
coral reef resources. Florida, Hawaii, Guam, the U.S. Virgin Islands, 
American Samoa, Puerto Rico, and the Commonwealth of the Northern 
Mariana Islands each created specific LAS for select, locally-relevant, 
threats using six priority focus areas: overfishing, land-based sources 
of pollution, recreational overuse and misuse, lack of public 
awareness, climate change and coral bleaching, and disease. Additional 
focus areas were identified in some jurisdictions including: invasive 
species in Hawaii, population pressure in American Samoa, and maritime 
industry and coastal construction impacts in Florida. With assistance 
from NOAA and other Federal agencies, these jurisdictions completed LAS 
for selected priorities in 2004, and will be implementing the various 
projects through 2007. The Administration strongly supports the local 
jurisdictions' efforts. As part of the U.S. Ocean Action Plan, the 
Administration has requested funding in the Fiscal Year 2006 NOAA and 
DOI budgets to support implementation of the LAS.
    The CRCP supports local reef management and conservation efforts 
through grant programs authorized by the Act. The comprehensive grants 
program supports a wide range of coral reef conservation projects both 
nationally and internationally. NOAA's CRCP grants are awarded in six 
categories: State and Territory Coral Reef Management; State and 
Territory Coral Reef Ecosystem Monitoring; General Coral Reef 
Conservation; Projects to Improve or Amend Coral Reef Fishery 
Management Plans; International Coral Reef Conservation; and Coral Reef 
Ecosystem Research. These projects have advanced important conservation 
activities, such as the LAS, local capacity building, publication of 
educational materials, implementation of school marine science 
programs, identification and mapping of essential fish habitats, and 
the promotion of sociological assessments of marine protected areas. 
Between 2002 and 2004, NOAA awarded 133 grants to external partners in 
the public, private, and nonprofit sectors providing $15,650,145, and 
leveraged an additional $5,821,553 through matching funds. The awarded 
funds represent over thirty percent of the CRCP budget for Fiscal Year 
2004. NOAA plans to award an additional $4,550,000 in Fiscal Year 2005 
through the CRCP grant program.
    As authorized by the Act, NOAA has partnered with the National Fish 
and Wildlife Foundation (NFWF) to administer the Coral Reef 
Conservation Fund. Over the past 4 years, this partnership has 
leveraged $2 million in CRCP funds into more than $9 million awarded in 
Federal and non-Federal matching funds for 116 coral conservation 
projects in 20 countries, five U.S. trusts or territories, and four 
U.S. states. The Coral Reef Conservation Fund is designed to foster 
public-private partnerships and to promote site-based conservation 
efforts. These grants foster integrated resource management and have 
advanced the development of tools to address threats to coral reefs 
throughout U.S. and international waters.
    NOAA, as directed by the Act and the National Action Strategy, also 
supports and participates in international coral reef conservation. 
NOAA promotes improved human and institutional capacity to manage and 
conserve coral reefs internationally through technical assistance and 
its international coral small grants program. NOAA participates in 
multiple international efforts such as the International Coral Reef 
Initiative (ICRI), which supports international coral reef research and 
management efforts, including the Global Coral Reef Monitoring Network 
that produces biennial Status of Coral Reefs of the World reports. Last 
year, NOAA worked in partnership with the scientific community and its 
partner agencies to put forward the U.S.'s successful bid to host the 
2008 International Coral Reef Symposium, the largest international 
gathering of coral reef scientists and managers.
    NOAA continues to play an active role in the U.S. Coral Reef Task 
Force (USCRTF). The USCRTF was established by Executive Order 13089, 
and is composed of twelve Federal agencies, seven states and 
territories, and the three Freely Associated States. Biannual meetings 
bring members together to discuss key issues, propose new actions, 
present progress reports, and update the coral community on past 
accomplishments and future plans. These USCRTF meetings provide a 
valuable venue for the exchange of information in which members can 
voice concerns about their coral reef conservation efforts and 
collaborate to find more effective alternatives. Many of NOAA's coral 
reef conservation efforts, such as the coral ecosystem research plan, 
are developed in partnership with the various Federal agencies, and 
state and territory governments on the USCRTF.
    As I have outlined, the authority provided to NOAA under the Act 
has yielded many benefits to coral reef management and protection. The 
Administration recognized the importance of conserving corals in the 
U.S. Ocean Action Plan released on December 17, 2004. The President's 
Fiscal Year 2006 budget request includes $27.2 million for the Coral 
Reef Conservation Program, including the $1.5 million in new funding to 
further implement LAS mentioned earlier. NOAA's continuing coral reef 
conservation efforts will include forming new international 
partnerships and fostering coral protection by recreational interests. 
NOAA is coordinating with partner agencies on the recently re-
established marine debris committee to address this critical issue. In 
addition, NOAA is continuing the process to designate the Northwestern 
Hawaiian Islands Coral Reef Ecosystem Reserve as the fourteenth 
National Marine Sanctuary.
    Recent accomplishments represent only intermediate steps toward 
achieving the goals of the National Coral Reef Action Strategy. Much 
remains to be done to halt the degradation of coral reefs and to 
sustain these valuable marine ecosystems and the economies that depend 
on them. Reauthorization of the Coral Reef Conservation Act is an 
important step in continuing this work to protect and restore coral 
reefs in the United States and abroad. Reauthorization would allow 
continuation of important NOAA-sponsored mapping, monitoring, research, 
and management efforts through the CRCP national and grants programs, 
and the Coral Reef Conservation Fund partnership with NFWF.
    While the Act has allowed NOAA to develop an effective coral 
program, there are some limitations to the current Act that if 
addressed could significantly advance efforts to reduce threats and 
conserve our valuable coral reef resources. Some limitations and 
hurdles posed by the current Act language are described below.
    Every year many boats run aground on coral reefs causing 
significant damage to these fragile ecosystems. These vessel groundings 
are not well documented in all regions, but where recorded the numbers 
are astounding. For example, over seventy boat groundings occur 
annually in the Florida Keys National Marine Sanctuary alone, of which 
approximately four cause significant damage to the reefs and 
consequently require major damage assessments and restoration 
activities. Although the Federal Government has authority to address 
coral reef damage from groundings in designated protected areas, such 
as national parks and national marine sanctuaries, no similar authority 
exists to respond to any grounding that occurs outside of designated 
protected areas. Appropriate authority in the Act would enable NOAA, or 
other appropriate agencies, to respond to events, and recover from the 
responsible party, the costs for both this response and, where 
warranted, comprehensive damage assessment and restoration activities.
    The Administration and Congress have recognized the value of the 
CRCP. It would be appropriate to recognize this support by authorizing 
the Act at the President's Fiscal Year 2006 request level of $27.2 
million, and ensure that an adequate portion of this funding is 
available for effective program administration. Further, the current 
language allocating the appropriations between the grant and the 
national programs is confusing and contradictory. This language 
requires clarification, which could be accomplished by either outlining 
how funding should be allocated across all sections of the Act, or by 
providing NOAA the discretion to make allocation decisions.
    NOAA would like to work with the Committee to find an appropriate 
way to provide Congress updates and information on the coral programs, 
without diverting too many resources from accomplishing the core 
missions of these programs. Also, although the Act provides the 
authority for NOAA to give emergency grants for addressing unforeseen 
or disaster-related circumstances, we have never implemented this 
provision and are potentially restricted from doing so. Due to the 
amount of time that it takes to process a grant, this is not an 
appropriate vehicle for responding to an emergency situation.
S. 363, Ballast Water Management Act of 2005
    Nonindigenous species are affecting habitats and species on all of 
our coasts, and introductions of new species can alter both physical 
habitat and impact native species and ecosystem productivity. For 
example, last year, the State of Ohio shut down its Great Lakes 
smallmouth bass fishery for the months of May and June--two of the 
largest months for their recreational fishery. The closure surprised 
the public because the cause was a fish much smaller than the 
smallmouth bass--the round goby, a ballast water introduction. The male 
smallmouth bass protect the smallmouth bass nests from predators. When 
the males are removed, large numbers of round gobies move in and prey 
on the eggs--jeopardizing the smallmouth bass fishery.
    Another example of direct predation is the introduction of the 
green crab. When the green crab moved into the Gulf of Maine in the 
1940s and 1950s, it contributed to the collapse of the soft-shell clam 
fishery. It was recently introduced to the West Coast, where it might 
affect Dungeness crab populations and shellfish aquaculture. Initial 
studies have already shown declines in abundance of native crab and 
bivalve populations in areas where the green crab has been established.
    Introduction of an invasive species can cause disruption of a food 
chain and have cascading impacts. In the northern portion of San 
Francisco Bay, a very small clam species--Potamocorbula amurensis--has 
become so abundant and is such an efficient filter feeder that 
phytoplankton are no longer abundant. The next step up the food chain 
is the zooplankton that feed on the phytoplankton. Significant declines 
in the abundance of zooplankton and mysid shrimp have now been 
documented. In turn, these organisms are prey for juvenile fish 
species.
    NOAA's Great Lakes Environmental Research Laboratory has documented 
a similar food chain disruption in the Great Lakes. In some areas, up 
to 75 percent of the benthic biomass is made up of Diporeia species, 
small amphipod crustaceans that are a primary prey-source for fish 
species such as the whitefish. In areas where zebra mussels are 
present, Diporeia have virtually disappeared and whitefish are showing 
signs of nutritional distress.
    I would like to update the Subcommittee on our progress in 
addressing the ballast water issue. During the 1996 reauthorization, 
NOAA and the U.S. Fish and Wildlife Service (FWS) were charged with 
sponsoring research to develop new technologies for ballast water 
management. Although primary responsibility for this program lies with 
FWS and NOAA, a number of different Federal agencies have been 
cooperating on ballast water issues. The U.S. Department of 
Transportation Maritime Administration (MARAD) deserves particular 
recognition. Despite not being mentioned in the existing statute, MARAD 
has volunteered testing platforms for research projects. Each year 
NOAA, FWS, and MARAD put out a joint request for proposals for ballast 
water technology development projects with a joint peer-review process 
for selection. In addition to this process, other Federal agencies 
involved in evaluating technologies and setting priorities include the 
USCG, the Environmental Protection Agency (EPA), the U.S. Geological 
Survey, and the Department of Defense.
    Since 1998, 54 research projects have been sponsored under the 
Ballast Water Demonstration Program. Sixteen additional ballast water-
related projects have been sponsored through the National Sea Grant 
College Program aquatic nuisance species competition. Among the 
technologies that have been tested are filtration, ultraviolet 
radiation, ozone injection, sonic bombardment, heat treatment, and 
oxidizing and non-oxidizing biocides. We are well beyond proof of 
concept with many of these technologies, and there are some promising 
results.
    Even as we have begun to address the development of new 
technologies, new issues have arisen concerning ballast water. In the 
Great Lakes region, there is considerable concern over vessels with no 
ballast onboard (NOBOB). While fully loaded vessels may declare no 
ballast onboard, organisms may still be present in residual water and 
sediments at the bottom of the tank. These organisms may be resuspended 
as cargo is unloaded and ballast water is added to compensate. In 2001, 
NOAA's Great Lakes Environmental Research Laboratory identified NOBOB 
ships as a high priority research need. They organized a large multi-
institutional research project with multiple sponsors to directly 
characterize and assess the invasion risk from ballast water discharges 
associated with NOBOB vessels operating in the Great Lakes. In addition 
to looking at the NOBOB issue, the program also looked at the efficacy 
of ballast water exchange.
    The final report of the NOBOB Assessment program found that ballast 
water exchange can be highly effective for reducing concentrations of 
organisms entrained with coastal ballast water, and although it remains 
imperfect, it is generally a beneficial management practice in the 
absence of more effective management tools. The assumption that 
``salinity shock'' is an additional advantage for protecting the Great 
Lakes ecosystem from invasive species must be viewed with some caution 
and requires further examination. The effectiveness of ``salinity 
shock'' in eliminating freshwater-tolerant organisms varied widely 
depending on the types and forms of organisms that are present in 
ballast tanks, including whether the organism is in a resting, larval, 
or adult stage. While ``salinity shock'' may be a useful tool, like 
ballast water exchange, it is imperfect.
    As you can see, the introduction of non-indigenous species is an 
issue of great importance. The 1990 NANPCA initially focused on ballast 
water and the Great Lakes. The 1996 National Invasive Species Act 
provided voluntary guidelines for the rest of the country with 
provision for regulatory action if the voluntary guidelines were not 
effective. As you know, the USCG made a formal finding that the 
voluntary guidelines were not effective and issued regulations 
requiring ballast water management for vessels entering U.S. ports from 
beyond the Exclusive Economic Zone (EEZ). Currently, the only practical 
method of management is ballast water exchange, but all stakeholders 
recognize that this is an interim solution until methods for treating 
ballast water are developed.
    NOAA supports the goal of S. 363, which is to reduce the risk of 
introducing new invasive species by ballast water. While S. 363 
addresses the issues associated with ballast water, NOAA is concerned 
that it only amends section 1101 of NANPCA. While NOAA notes that the 
entire NANPCA is due for reauthorization, we acknowledge that ballast 
water is a highly time-sensitive issue, and therefore, understand the 
need for narrowing the focus of legislation such as S. 363.
    I would like to focus on a few of the sections of S. 363 that we 
feel warrant special attention. S. 363 includes two separate 
administrative procedures for determining acceptable exchange zones. 
The bill provides for ballast water exchange in water that is at least 
50 nautical miles from land and 200 meters in depth. The USCG--in 
consultation with NOAA and EPA--is responsible for issuing limitations 
on ballast water exchange in these areas. However, the designation of 
alternate exchange zones within 50 nautical miles from land and 200 
meters in depth is the responsibility of NOAA, in consultation with 
USCG and EPA. Because the USCG is the primary regulatory authority for 
ballast water exchange and will be responsible for enforcement, NOAA 
recommends the USCG be the lead for both procedures after consultation 
with NOAA and EPA.
    NOAA also would like to express concern over one of the definitions 
in Section 3(b)(5). This section proposes a new paragraph 13 for 
Section 1003 of the NANPCA defining ``harmful aquatic organisms and 
pathogens.'' Under the proposed definition, these are organisms 
determined by the Secretary to cause an adverse impact if introduced. 
Such determinations and creation of a list of organisms would not be 
useful in the context of ballast water management and could require 
significant resources. In the case of ballast water, literally 
thousands of species could be introduced, and the biological 
information for many is insufficient to assess whether they will become 
invasive or cause adverse impacts. To put this in context, James 
Carlton, one of the leading theorists on invasion biology, once said 
that zebra mussels would not have been an obvious choice for a list of 
potential invaders. He pointed out that prior to the late 1980s they 
probably had been carried in ballast water. However, only when a 
combination of ecological conditions and concentration of organisms was 
present did they become established. Because of the difficulties of 
distinguishing harmful organisms from benign ones, virtually all 
treatment and management options are designed to remove or inactivate 
all aquatic organisms, and we therefore recommend revision of the 
definition to reflect this reality.
    Considerable progress has been made in addressing the ballast water 
problem since the 1996 reauthorization, but much work remains. The 
Fiscal Year 2006 President's budget requests $7.9M to continue NOAA's 
valuable work to prevent invasive species through programs such as the 
Aquatic Invasive Species Program, Sea Grant, the Great Lakes 
Environmental Research Lab, and National Center for Coastal Ocean 
Science. This includes augmenting research to significantly advance the 
techniques available to stop invasive species transfer through ship 
ballast water. I urge you to support this request. As we learn more, 
new issues will arise. The emerging issue of coastwise traffic, which 
involves ships that never move out of the 200-mile EEZ and are not 
required to exchange ballast water, magnifies the importance of new 
treatment technologies. However, with a strong commitment, I think that 
we will be able to significantly reduce the risks associated with 
ballast water as a vector for the introduction of new species.

Conclusion
    That concludes my testimony, Mr. Chairman. I would be happy to 
respond to any questions that the Subcommittee may have.

    The Chairman. Thank you, Mr. Keeney. Our next witness is 
Kim Hum, the Coastal Marine Program Director at The Nature 
Conservancy of Hawaii. Welcome.

  STATEMENT OF KIM HUM, DIRECTOR, COASTAL MARINE PROGRAM, THE 
                  NATURE CONSERVANCY OF HAWAII

    Ms. Hum. Thank you. Chairman Sununu, Senator Boxer, Senator 
Inouye. Aloha. My name is Kim Hum. I'm the Coastal Marine 
Program Director for The Nature Conservancy of Hawaii's 
Program. If any of you have ever read a self-improvement book, 
you know that they tell you to take risks and get out of your 
comfort zone, so I'd like to thank you for this opportunity to 
get out of my comfort zone and testify before you today on 
reauthorization of Coral Reef Conservation Act of 2000. I'm not 
here as a scientific expert but as a practitioner; as someone 
who's responsible for implementing coral reef conservation in 
the field in Hawaii. And I'm honored to have this opportunity 
to talk with you about the work we've been doing in Hawaii and 
what more needs to be done with support from NOAA under the 
Coral Reef Conservation Act.
    The Hawaiian archipelago and associated reefs stretch more 
than 1,500 miles from the island of Hawaii in the southeast, to 
Kure Atoll in the Northwest Hawaiian Islands. Hawaii is the 
most isolated landmass on earth, 2,500 frequent flyer miles 
away from the mainland U.S. This geographic isolation has 
resulted in one of the highest levels of endemism in the world. 
Twenty-five percent of the marine species found in Hawaii are 
found nowhere else on earth. This means that if we lose them in 
Hawaii, they are gone from the world forever. And yet Hawaii's 
reefs face many of the threats faced by reef systems around the 
world; over-harvesting, coastal development, polluted runoff, 
invasive species, bleaching, and disease. Combining these 
threats have led to a 75 percent reduction in near-shore 
fisheries in the Hawaiian islands over the past 100 years.
    Our job in Hawaii, across the Nation, and around the globe, 
is to work with our partners to reverse this trend and ensure 
that our coral reefs and associated near-shore fisheries are 
sustainable for generations to come. So while I am going to 
speak today about our work in Hawaii, I hope you will be 
thinking about how this work can serve as a model in your 
states and other coastal states around the country.
    With the support of NOAA's coral reef program, The Nature 
Conservancy launched a marine program in 2002, to begin to 
address the most urgent threats to Hawaii's coral reefs. Over 
the past 3 years we've initiated a marine GAP program to 
collect and manage information about the location and status of 
Hawaii's marine resources, identify the top three coral reef 
priority sites for protection on each of the main Hawaiian 
islands, brought together more than 80 community members from 
15 local communities to share strategies for coral reef 
conservation in annual workshops, developed a Makai Watch 
program focused on training local community members to provide 
education and outreach to marine resource users, surveillance 
and enforcement of marine resource protection laws, and 
monitoring of coral reef resources. We've established reef 
funds on two islands with local dive and snorkel operators who 
solicit voluntary donations from their clients for private 
coral reef conservation efforts. And we supported more than 15 
other local community efforts to understand and manage reef 
resources, including the reestablishment of traditional 
Hawaiian opelu fishing in a traditional coastal fishing village 
on the Big Island of Hawaii, and interviews with kupuna, 
Hawaiian elders, around the state about the status and decline 
of near-shore fisheries. And we've been able to accomplish all 
of this with $125,000 in annual funding from NOAA which has 
leveraged more than $350,000 annually in private sources and 
hundreds of hours of community volunteer time for coral reef 
conservation in the islands.
    While we're proud of these accomplishments and the 
partnerships we have built over the past 3 years and grateful 
for the support from NOAA and our Congressional delegation, 
it's clear there's a great deal more to be done. Over the next 
5 years we will expand on our past work with NOAA, with state, 
and our community partners in three main areas: moving from 
three priority sites on each island to developing a resilient 
network of marine managed areas encompassing at least 20 
percent of near-shore waters, building on the success of our 
Makai Watch program to engage coastal communities throughout 
the network in coral reef conservation, and expanding the reef 
funds to include a larger sector of the tourism industry on 
each of the main islands with the goal of raising $1 million 
annually in private funding for coral reef conservation on the 
islands.
    In our written testimony, we have provided recommended 
additions to the Coral Reef Conservation Act to support these 
efforts and efforts like them around the country. While all of 
the recommendations are important, I would like to highlight 
the need for increased funding authorization. NOAA has done a 
tremendous job implementing the Coral Reef Conservation Act 
with the funding they have had over the past 5 years. They have 
exponentially advanced our understanding of the extent and 
health of U.S. coral reefs and built unprecedented interagency 
cooperation through the Coral Reef Task Force.
    However, additional funding is needed for them to continue 
their good work and build state and NGO capacity for local reef 
conservation efforts, including a new $10 million grant program 
to engage local community members in reef management in a 
meaningful way. Increased funding should also support state 
efforts to develop resilient networks of scientifically-
designed marine-managed areas which have been shown to increase 
the health of coral reefs and near-shore fisheries in about 80 
places around the world. We believe that these and the other 
changes recommended in our written testimony will enable NOAA 
and their partners to make tremendous strides toward protecting 
our Nation's coral reefs. Mahalo for the opportunity to 
testify.
    [The prepared statement of Ms. Hum follows:]

   Prepared Statement of Kim Hum, Director, Coastal Marine Program, 
                    The Nature Conservancy of Hawaii

    Mr. Chairman and members of the Committee, aloha and mahalo for the 
opportunity to testify on the reauthorization of the Coral Reef 
Conservation Act of 2000. My name is Kim Hum, and I am the Director of 
the Coastal Marine Program for The Nature Conservancy of Hawaii. I am 
honored to have this opportunity to inform you of the work we've been 
doing with our partners in Hawaii to conserve coral reefs, what more 
needs to be done, and what it's going to take to ensure that our reef 
resources are sustainably managed for generations to come.
    The mission of The Nature Conservancy is to preserve the plants, 
animals, and natural communities that represent the diversity of life 
on Earth by protecting the lands and waters they need to survive. With 
the support of more than 1 million members, The Nature Conservancy has 
protected more than 120 million acres and 5,000 river miles around the 
world. We currently have more than 100 marine conservation projects in 
21 countries and 22 U.S. states. Through its work with both freshwater 
and marine species and habitats, the Conservancy helps to connect 
terrestrial, freshwater, and marine conservation efforts by building on 
the Conservancy's network of partners and innovative approaches 
developed at sites around the world to pursue integrated coastal 
conservation.
    I would like to start by commending NOAA for the incredible 
progress they have made identifying, mapping, and protecting coral 
reefs throughout the U.S. over the past 5 years. They have 
exponentially advanced our understanding of the extent and health of 
U.S. coral reefs, and built unprecedented interagency cooperation 
through the Coral Reef Task Force in our efforts to protect and restore 
coral reefs. They deserve our respect and continued support for their 
work.

Coral Reef Conservation Efforts in Hawaii
    NOAA has a big job in Hawaii. The Hawaiian archipelago and 
associated reefs stretch more than 2,500 kilometers (1,500 miles) from 
the island of Hawaii in the southeast, to Kure Atoll in the northwest. 
Hawaii's geographic isolation has resulted in one of the highest levels 
of marine endemism in the world--25 percent of the marine species found 
in Hawaii are found nowhere else on Earth--so if we lose them in 
Hawaii, they are gone from the world forever. This isolation also means 
that the Hawaiian reefs are almost exclusively self-dependent for 
replenishment. They are not repopulated from other reefs following 
depletion of their fish stocks or damage from storms and other large 
scale catastrophes. This raises the stakes on the need to fortify the 
resilience of our reefs and to manage them exceptionally well through a 
series of integrated conservation and management actions.
    Hawaii's coral reefs are essential for our islands' physical and 
economic survival--they protect us from storm waves, create our world 
famous surf and beaches, provide food and recreation for our residents, 
and are the basis for the state's $11 billion \1\ tourism industry, 
including $800 million annually in marine tourism alone. And yet, 
Hawaii's reefs face many of the threats faced by reef systems around 
the world--over harvesting, coastal development, polluted runoff, 
invasive species, bleaching, and disease. NOAA, indeed, has a big job 
in the islands.
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    \1\ Department of Business, Economic Development & Tourism--
Research and Economic Analysis Division.
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    With the support of NOAA's Coral Reef Program, The Nature 
Conservancy launched a Marine Program in 2002, to begin to address the 
most urgent threats to Hawaii's coral reefs. We began by commissioning 
a study of the status of private conservation efforts in Hawaii, and 
learned that the three biggest needs are to:

        1. Identify the most important coral reef systems in Hawaii,

        2. Build community capacity to protect and manage reef 
        resources, and

        3. Develop sustainable private funding mechanisms to ensure the 
        long term viability of community-based coral reef conservation 
        programs.

    These three strategies have guided our program development over the 
past 3 years, and with support from NOAA's Coral Reef Conservation 
Program, we have:

   Worked with NOAA and the State to initiate a marine GAP 
        program to collect and manage information about the location 
        and status of Hawaii's marine resources.

   Identified the top three action sites on each island through 
        a rapid strategic planning process that included a 
        comprehensive literature review, information gathered from the 
        marine GAP database, and extensive expert interviews.

   Brought together more than 80 community members from 15 
        local communities who are actively engaged in marine 
        conservation projects into a learning network with annual 
        workshops focused on sharing strategies for marine 
        conservation.

   Developed and piloted a Makai Watch Program focused on 
        training local community members to provide (1) education and 
        outreach to marine resource users, (2) surveillance and 
        enforcement of marine resource protection laws, and (3) 
        monitoring of coral reef resources. Makai Watch is now a 
        priority of the state Department of Land and Natural Resources 
        (DLNR) because they recognize the power of an engaged community 
        committed to natural resource protection.

   Established ``Reef Funds'' on two islands with local dive 
        and snorkel operators who solicit voluntary donations from 
        their clients to support private coral reef conservation 
        efforts. To date, these funds have supported the repair and 
        installation of mooring buoys on the islands of Lanai and Maui, 
        staffing for the Big Island Reef Fund, and development of an 
        educational website designed to inform ocean users of laws and 
        best practices governing their use of coral reefs and other 
        marine resources.

   Supported more than 15 local community efforts to understand 
        and manage reef resources, including human-use surveys on Kauai 
        and the Big Island to determine human-based threats to the 
        resources, surveys of the offshore islets surrounding the main 
        Hawaiian Islands, reestablishment of traditional opelu fishing 
        methods at a local community on the Big Island, interviews with 
        kupuna (Hawaiian elders) around the state about the status and 
        decline of near-shore fisheries, and many other community-based 
        projects.

    We have been able to accomplish all of this with $125,000 each year 
from NOAA, which has leveraged more than $350,000 annually from private 
sources, and hundreds of hours of community volunteer time for coral 
reef conservation in the islands.
    While we are proud of the record of accomplishment and the 
partnerships we have built over the past 3 years, and grateful for the 
support from NOAA and our delegation, it is clear that there is a great 
deal more to be done. Over the next 5 years, the Conservancy plans to 
expand on our past work with partners into three main areas:

   Complete an eco-regional assessment for marine areas in 
        Hawaii as a framework for expanding our conservation efforts;

   Building on the success of the Makai Watch, and the results 
        of our eco-regional plan to enhance community engagement in 
        resource conservation, and to broaden our partnership with the 
        state.

   Identify opportunities to increase resources for coral reef 
        conservation.

    Currently, the Conservancy has identified priority marine sites on 
each island where we will focus the majority of our efforts. However, 
we are currently developing a comprehensive eco-regional assessment 
that will more thoroughly review the status and threats to coral 
communities in Hawaii. While we have seen some success in coral 
conservation on a site by site basis--the survival of coral reefs 
relies upon their health, resilience, and ability to repopulate. This 
will only be achieved through a series of integrated conservation and 
management actions. Based on this we plan to work with NOAA and the 
state to expand our strategic plan from three sites on each island to 
develop a network of Marine Managed Areas in the main Hawaiian Islands. 
We will address unique threats at each network site as appropriate.
    The Conservancy sees its partnerships with the state and local 
communities as the most effective means to achieve our conservation 
objectives. We anticipate that the strategies to address threats 
identified through our science efforts will be successful only if 
implemented in partnership with communities. We will work to build upon 
the success of Makai Watch at developing community capacity to protect 
coral reefs by implementing it in high-priority coastal communities 
around the state in partnership with DLNR.
    Finally, while we are grateful for Federal support for these 
efforts, and have good success at raising funds from private sources--
the challenge of paying for these efforts is daunting. We will work to 
develop additional funding sources including expanding the Reef Funds 
to include a larger sector of the tourism industry on each of the main 
islands, with the goal of raising $1 million annually in private 
funding for coral reef conservation.

Coral Reefs Are a Priority for The Nature Conservancy
    Across the oceans, The Nature Conservancy is promoting a worldwide 
effort to conserve coral reefs and the rich diversity of life in 
tropical waters. By helping create networks of ecologically-connected 
protected areas that are resilient in the face of growing local and 
global stresses, we can ensure the survival and long-term viability of 
Earth's invaluable coral reefs.
    The Conservancy's marine program in Hawaii is part of a broader 
effort across the Conservancy to address threats to coral reefs. 
Drawing on input from the world's experts on coral reefs, The Nature 
Conservancy has created a vision for tropical marine conservation that 
enhances the prospect of survival for coral reefs. This vision will 
catalyze efforts to:

   Expand the area of coral reef and related habitats that is 
        protected;

   Improve the effectiveness and financial security of tropical 
        Marine Managed Areas; and

   Build the principles of resilience into design and 
        stewardship of managed areas.

    In the Pacific, together with local communities, non-governmental 
partners and local, regional, state and Federal governments, the 
Conservancy is currently working to identify and help to manage 
biologically-important marine areas, not only in Hawaii, but in the 
Freely Associated States--Federated States of Micronesia and Palau, the 
Republic of the Marshall Islands--as well as Papua New Guinea, 
Indonesia, and the Solomon Islands. Coral reefs in the Pacific are 
essential to the food security of the region's coastal population 
today, and their hope for a better future for tomorrow--a future in 
which reefs continue to provide the fish for protein, and a resource 
that can form the basis for the increasingly important tourism sector 
so important to many Pacific nations. The Conservancy and other 
international NGO's are developing partnership agreements with national 
governments to assist these countries in developing networks of managed 
areas, to help assure the health and resilience of their coral reef 
resources.
    These efforts have yielded not only conservation results, but have 
improved our understanding and provide insights to managers in other 
jurisdictions about the science of coral reef conservation. They have 
also taught important lessons about the need to work closely with 
communities to ensure conservation strategies support, and are informed 
by, socio-economic realities. The Conservancy has worked closely with 
the Coral Reef Task Force so that these experiences may inform their 
efforts, but also to lend our science, capacity, and resources to 
address shared priorities in the U.S. states and territories.

Recommendations
    The Conservancy supports a strong reauthorization of the Coral Reef 
Conservation Act. NOAA's work under this Act has been essential to the 
progress made to date. We look forward to working with the Committee on 
reauthorization and are pleased to offer some general recommendations 
today.
    Increased funding. Authorization for appropriations under the Act 
should be increased and the purposes expanded. Increased funding for 
grants to support mapping, planning, implementation, and monitoring is 
essential. Additionally, the Act should be expanded to include a 
specific authorization for the Department of the Interior--both through 
the Office of Insular Affairs, which supports work in the territories 
and Freely Associated States, and the U.S. Fish and Wildlife, which 
manages coral reefs under several of its maritime National Wildlife 
Refuges.

    Marine Managed Areas Network. Networks of scientifically-designed 
managed areas have been shown to increase the health of coral reefs and 
associated near-shore fisheries in more then 80 places around the 
world. Development of such a network throughout the United States 
should be a top priority for NOAA's coral program, and funding priority 
should be given to states and territories for development and 
implementation of a NOAA-approved Managed Areas plan, and management 
and enforcement of existing managed areas that are part of a NOAA-
approved Managed Areas plan.

    Interagency Cooperation. No one agency has the ability to abate all 
of the threats to coral reef ecosystems in all of the places where they 
happen. For example, the Fish and Wildlife Service (FWS) is responsible 
for managing more than 700,000 acres of coral reefs in 10 refuges 
throughout Hawaii and the Pacific, with minimal funding from the 
Department of the Interior. Therefore, interagency cooperation is 
essential to successful implementation of the strategies outlined in 
this Act, and the Coral Reef Action Strategy, and all of the agencies 
that are responsible for coral reef management should be eligible for 
funding under the Act. Mechanisms for interagency cooperation, like the 
Coral Reef Task Force, should be supported through the Act, and include 
national and international NGO's like The Nature Conservancy, which 
bring a unique perspective and global experience to coral reef 
conservation.

    Regional Coordination and Cooperation. In addition to the national 
planning and cooperation necessary for successful protection of our 
Nation's reef resources, NOAA should be given the authority to 
coordinate with states, territories, and NGO's for regional, ecosystem-
based planning that builds upon the national coral reef action 
strategy, and addresses multiple threats to coral reefs, such as over-
harvesting, coastal runoff, invasive species, and vessel impacts.
    With these changes, we believe the Coral Reef Conservation Act will 
enable us to make tremendous strides toward protecting our Nation's 
coral reefs.
    Thank you for the opportunity to provide input on the Coral Reef 
Conservation Act. I would be happy to answer any questions.

    The Chairman. Thank you very much. And our final witness is 
Maurya Falkner of the Marine Invasive Species Program within 
the California State Lands Commission. Welcome, and thank you 
for your testimony.

    STATEMENT OF MAURYA B. FALKNER, PROGRAM MANAGER, MARINE 
  INVASIVE SPECIES PROGRAM, CALIFORNIA STATE LANDS COMMISSION 
                             (CSLC)

    Ms. Falkner. Good morning and thank you, Mr. Chairman, and 
members of the Subcommittee. I am the Program Manager for the 
Marine Invasive Species Program in California State Lands 
Commission and have been asked to provide testimony this 
morning on our efforts to manage ballast water in the State of 
California, and based on those experiences, some 
recommendations for developing any national ballast water 
management program. California State Lands Commission has 
significant experience working to prevent and control the 
establishment of non-indigenous species via ballast water 
discharges. The 1999 Ballast Water Management for Control of 
Non-indigenous Species Act, Assembly bill 703, charged the 
commission with oversight of the state's first mandatory 
program to prevent non-indigenous species introductions through 
ballast water discharged by commercial vessels. Upon the sunset 
of the Act, the Marine Invasive Species Act, Assembly bill 433, 
was passed in 2003, revising and widening the scope of the 
Commission's program to more effectively address the non-
indigenous species threat. Due to our continued and expanded 
intensive outreach by staff and utilization of technical 
advisory groups, a monthly electronic notification system along 
with daily interactions with maritime industry and the 
potential for civil and criminal penalties, compliance with the 
California Act has continued to improve, exceeding 95 percent 
in all components. The program's success and relatively weak 
Federal program supports the continuation of the California 
Marine Invasive Species Program.
    My written testimony provides a great deal more detail on 
the California program and the successes that we've had, so now 
I'm going to turn my attention to some of the experiences that 
we've had in California and our recommendations for the Federal 
lawmakers.
    First, we believe that ballast water management 
requirements should apply to all voyages including those 
operating inside the U.S. EEZ. It's widely recognized that 
transport of non-indigenous species is not restricted to 
voyages arriving simply from outside the EEZ. For example, on 
the West Coast, a highly invaded area such as San Francisco 
Bay, can serve, and does serve, as a hub for non-indigenous 
species transport to other Pacific Coast region ports such as 
Los Angeles and Portland. So we recommend that the lawmakers 
consider all voyages and not just those from outside the EEZ.
    Ballast water exchange is also widely considered an interim 
management tool and as the Admiral mentioned it's going to be 
phased-out eventually with the IMO standards. We are mandated 
under our Act put forward performance standards recommendations 
for our legislature to consider, and we have developed a panel 
that spends a significant amount of time evaluating the 
standards adopted by the IMO Convention and discharge standards 
that have been proposed in U.S. legislation, specifically, the 
Ballast Water Management Act of 2005. We applaud IMO's steps 
forward on this issue by focusing on a concentration-based 
performance standard, however, the standard that's being 
proposed provides very little protection, if any, beyond 
unmanaged ballast. Work that's been done looking at unmanaged 
ballast water indicates that--suggests that the IMO standard is 
only at very best going to decrease zooplankton concentrations 
by one order of magnitude and will do nothing for phytoplankton 
concentrations, and this is for unmanaged ballast water, so it 
doesn't consider exchanged ballast water. We believe that the 
Ballast Water Management Act of 2005, is as we know a much 
stricter, concentration-based standard, and we believe that 
this should be adopted at least in the interim, or at least as 
an interim standard while other technologies are improving that 
performance.
    We also believe that national legislation should look at 
ship mediated non-ballast water vectors, for example, hull 
fouling. There are several recent papers out suggesting that 
hull fouling may be as important if not more so than ballast 
water in at least certain estuaries. And there's very little 
work that's been done on hull fouling and we need to develop a 
better understanding of the risks of hull fouling and 
housekeeping practices that can minimize introductions via that 
route.
    All of the things that I have been talking about under the 
additional items in my written testimony cost money, and so we 
believe that the legislation, whatever is put forward, needs to 
provide dedicated and secure funding for any kind of a national 
program. California chose to use a fee-based program. That 
works great in California. It may not be the answer nationally, 
but it does work and pays for all of our programs in 
California.
    Finally, I'd just like to say that as the regulations are 
developed, the legislature should strongly consider the 
continued success of programs like the California Marine 
Invasive Species Program. Our program not only exemplifies the 
potential of state programs, but will complement and reinforce 
any Federal regulations on ballast water management. So 
preemption provisions may be beneficial in specific areas such 
as performance standards for treatment of ballast water, 
however, broad preemption language for state programs would be 
detrimental to the overall goal of controlling NIS 
introductions via commercial shipping.
    Thank you for the opportunity to provide comments on this 
act and we look forward to working with the legislators in the 
future on this.
    [The prepared statement of Ms. Falkner follows:]

   Prepared Statement of Maurya B. Falkner, Program Manager, Marine 
   Invasive Species Program, California State Lands Commission (CSLC)

Introduction
    Good morning, my name is Maurya Falkner, and I am the Program 
Manager for the Marine Invasive Species Program at the California State 
Lands Commission. I have been asked to provide testimony today on state 
efforts to control the transfer of non-native species through ballast 
water management as well as on efforts to meet or exceed the standards 
and timetables agreed upon in the International Maritime Organization's 
recently adopted Convention on Ballast Water Management.
    California State Lands Commission (CSLC) has significant experience 
working to prevent and control the establishment of nonindigenous 
species via ballast water discharges. The 1999 Ballast Water Management 
for Control of Non-indigenous Species Act (Assembly Bill 703) charged 
the CSLC with oversight of the state's first mandatory program to 
prevent non-indigenous species (NIS) introductions through the ballast 
water of commercial vessels. Upon the sunset of the Act, the Marine 
Invasive Species Act (AB 433) was passed in 2003, revising and widening 
the scope of the CSLC program to more effectively address the NIS 
threat. Under the new Act, the expanded Marine Invasive Species Program 
(MISP) continues to monitor compliance with the requirement to manage 
ballast water of foreign origin. In addition, the program has initiated 
administration of the following efforts:

   Adopt reporting and ballast water management requirements 
        for all voyages in the Pacific Coast Region.

   Develop a program that supports the development of ballast 
        treatment and management technologies.

   Initiate discussions and develop policy recommendations for 
        ballast treatment system performance standards.

   Evaluate the risk of commercial vessel fouling as a means of 
        NIS introduction, and formulate recommendations to reduce this 
        risk.

   Coordinate and consult with sister agencies that administer 
        other components of the Act (esp. Department of Fish and Game 
        and Board of Equalization).

    The stated purpose of the Marine Invasive Species Act is to move 
the state expeditiously toward elimination of the discharge of 
nonindigenous species into the waters of the state, or into waters that 
may impact the waters of the state, based on the best available 
technology economically achievable.

Overview
    Non-indigenous species (NIS) are organisms that have been 
transported through human activities into regions where they did not 
occur in historical time, and successfully reproduce in the wild at 
their new location (Carlton 2001). Once established, such species can 
create negative economic, ecological, and human health impacts in their 
new environs. For marine and estuarine environments, the ballast water 
of ships is considered one of the major pathways through which foreign 
species are transported and spread (Stemming the Tide, 1996).
    In response to this threat, the California Legislature passed 
Assembly Bill (AB) 703, the Ballast Water Management for Control of 
Nonindigenous Species Act in 1999. The law required that vessels 
originating from outside the United States Exclusive Economic Zone 
(EEZ) carry out mid-ocean exchange or use an approved ballast water 
treatment method, before discharging in California State waters. The 
California State Lands Commission's (CSLC) Ballast Water Management 
Program was tasked with several specific responsibilities:

   Receive and process ballast management reports submitted by 
        all vessels arriving to California State waters from outside 
        the EEZ.

   Monitor ballast management and discharge activities of 
        vessels through submitted reports.

   Inspect and sample vessels for compliance with the law.

   Assess vessel reporting rates and compliance with the law.

    In recognition of the uncertainties surrounding the development of 
an effective ballast water management program for the State, AB 703, 
specified a sunset date of January 1, 2004. During the 2003 Legislative 
session, the act was revised and recast as AB 433, the Marine Invasive 
Species Act (Act). Several recommendations identified during the 
administration of AB 703 and detailed in the program's first biennial 
report (Falkner 2003) were incorporated into the 2003 law. In 
accordance with the Act, the State program was renamed the Marine 
Invasive Species Program (MISP), and charged with several expanded 
responsibilities. Key among these are:

   Authorization to pursue criminal and/or civil penalties for 
        violations to the law.

   Adopt ballast water management regulations for vessels 
        originating from within the Pacific Coast Region.

   Adopt regulations for the evaluation and approval of 
        experimental shipboard ballast treatment systems.

   Sponsor a pilot program that will evaluate the feasibility 
        of ballast water treatment technologies.

   Recommend performance standards for ballast treatment 
        systems, in consultation with an advisory panel.

   Evaluate the risk of non-ballast ship-based vectors for 
        spreading NIS and recommend actions to prevent associated 
        introductions, in consultation with a technical advisory group.

    Shipping Vectors--Also know as ``introduced,'' ``invasive,'' 
``exotic,'' ``alien,'' or ``aquatic nuisance species,'' non-indigenous 
species (NIS) in marine, estuarine, and freshwater environments may be 
transported to new regions through numerous human activities. 
Intentional and unintentional introductions of fish and shellfish, 
aquaculture, illegal releases from the aquarium and pet industries, 
floating marine debris, bait shipping, and accidental release through 
research institutions are some of the mechanisms, or ``vectors,'' by 
which organisms are transferred (U.S. Commission on Ocean Policy 2004). 
In coastal environments, commercial shipping is the most important 
vector for invasion, in one study accounting for one half to three-
quarters of introductions to North America (Fofonoff et al. 2003). 
Vessels transport organisms through two primary sub-mechanisms: ballast 
water and fouling.
    Ballast water is necessary for many functions related to the trim, 
stability, maneuverability, and propulsion of large seagoing vessels 
(Stemming the Tide 1996). Vessels may take on, discharge, or 
redistribute water during cargo loading and unloading, as they 
encounter rough seas, or as they transit through shallow coastal 
waterways. As ballast is transferred from ``source'' to ``destination'' 
ports, so are the many organisms taken into its tanks along with the 
port water. In this fashion, it is estimated that some 7,000 plus 
organisms are moved around the world on a daily basis (Carlton 1999).
    Fouling organisms are associated with hard surfaces that are 
exposed to water. These include organisms that physically attach to 
vessel surfaces, such as barnacles, algae, and mussels, and also 
includes mobile organisms that associate with fouling communities, such 
as worms, juvenile crabs, and amphipods (small shrimp-like animals). 
Vessels that spend long periods in port or move at slow speeds, such as 
barges and floating dry docks, appear to accumulate more extensive and 
diverse fouling communities (Godwin et al. 2004, Minchin and Gollasch 
2003, Godwin 2003). In some circumstances, fouling organisms have been 
observed to be in spawning condition at arrival ports (Coutts et al. 
2003, Apte et al. 2000).

    NIS Impacts--The rate, and thus the risk, of invasion has increased 
significantly during recent decades. The rate of reported invasions in 
North America increased exponentially over the last 200 years (Ruiz et 
al. 2000a). In the San Francisco Bay Estuary alone, a new species is 
believed to become established every 14 weeks (Cohen and Carlton 1998). 
One of the primary factors contributing to this increase is the 
expansion of global trade, and the technologies, which enable 
commodities to be transported swiftly and efficiently throughout the 
world. Along with goods, organisms are moved over land, air, and sea in 
larger numbers to more widespread locations, and are better able to 
survive the shortening excursions (Ruiz and Carlton 2003).
    Once established, NIS can have severe ecological, economic, and 
human health impacts to the receiving environment. The most infamous 
example is the zebra mussel (Dreissena polymorpha) introduced to the 
Great Lakes from the Black Sea. They attach to hard surfaces in dense 
populations that clog municipal water systems and electric generating 
plants, resulting in costs of approximately a billion dollars a year 
(Pimentel et al. 2004). The Asian clam (Potamocorbula amurensis) spread 
throughout the San Francisco Bay and its tributaries 2 years after its 
introduction, and accounts for up to 95 percent of living biomass in 
some shallow portions of the bay floor (Nichols et al., 1990). Like its 
Great Lakes counterpart, the Asian clam fouls power plant structures, 
costing approximately a billion dollars per year during the early 80s 
for control and losses (Lovell and Stone 2005). The Chinese mitten 
crab, (Eriocheir siensis) was first sighted in the San Francisco Bay in 
1992, and quickly spread through the system, clogging pumping stations 
and riddling levies with burrows (Rudnick et al. 2000). Costs for 
control and research were $1 million in 2000-2001 (Carlton 2001). The 
European green crab (Carcinus maenas), thought to have caused the crash 
of the Maine softshell clam fishery, arrived in California during the 
mid-1990s (Grosholz and Ruiz 1995). There are fears that it will 
compete for food with the valuable Dungeness crab (Cancer magister) 
threatening the West Coast fishery. The microorganisms that cause human 
Cholera (Ruiz et al. 2000b) and paralytic shellfish poisoning 
(Hallegraeff 1998) have also been found in the water and sediments in 
ballast tanks.

    Prevention Through Ballast Water Management--Attempts to eradicate 
NIS after they have become widely distributed are typically 
unsuccessful and costly (Carlton 2001). Control is likewise extremely 
expensive. For example, approximately $10 million is spent annually to 
control the sea lamprey (Petromyzon marinus) in the Great Lakes (Lovell 
and Stone 2005); $2.3 million was spent to control the Mediterranean 
green seaweed (Caulerpa taxifolia) in southern California during 2000-
2001, and $2 million was spent in Washington to control Atlantic 
cordgrass (Spartinia alterniflora) between 1999-2001 (Carlton 2001). 
Prevention is, therefore, considered the most desirable way to address 
the issue.
    For the vast majority of commercial vessels, open-ocean ballast 
exchange more than 200 nm offshore is the primary method of ballast 
water management. Currently, it is the best compromise of efficacy, 
environmental safety, and economic practicality. The vast majority of 
vessels are capable of conducting exchange, and the management practice 
does not require any special structural modification to most of the 
vessels in operation. Scientific research indicates that offshore 
ballast exchange typically eliminates 70-95 percent of the organisms 
originally taken into a tank while at or near port (Zhang and Dickman 
1999, Parsons 1998, Cohen 1998). Ballast water exchange, however, is 
widely considered an interim ballast water management tool because of 
its variable efficiency, and due to several operational limitations. In 
the future, a vessel would ideally utilize alternative ship- based or 
shore-based treatment systems that reduce organisms in ballast water as 
well as, or better than open-ocean exchange.

    Rules Governing Ballast Water Management--The ballast water 
regulations and guidelines of the nations and U.S. states that regulate 
ballast water share several similar components. All allow ballast water 
exchange as an acceptable method of ballast water management, and 
provide some type of exemption should a vessel or its crew become 
endangered by the exchange process. All accept approved alternative 
ballast water treatments in anticipation that an effective technology 
is developed. All but the International Maritime Organization, require 
the completion and submission of forms detailing ballast management and 
discharge practices.

    International Regulations--The International Maritime Organization 
(IMO) adopted the International Convention for the Control and 
Management of Ships' Ballast Water and Sediments in February of 2004, 
which becomes effective 1 year after ratification by 30 countries 
representing 35 percent of the world shipping tonnage (International 
Maritime Organization). Vessels must conduct exchange at least 50 nm 
from shore in waters at least 200 meters deep, though it is preferred 
exchange be conducted 200 nm offshore. Vessels can forgo these exchange 
requirements if compliance would result in undue delay or deviation 
from the vessels' intended voyage. In anticipation of the improvement 
and installation of ballast water treatment systems, the Convention 
also calls for a gradual phase-out of ballast water exchange. Depending 
on construction date and ballast water capacity, vessels will instead 
be expected to meet a ballast water discharge standard according to 
fixed dates. Finally, a significant provision of the Convention is the 
provision that recognizes the right of member states to take more 
stringent measures to prevent NIS introductions. As of spring 2005, the 
United States has not signed onto the convention.

    Canada, Australia, and New Zealand--Canada adopted voluntary 
guidelines in 2001, and vessels are requested to conduct exchange in 
waters 200 nm offshore and 2,000 meters or deeper. The ports of 
Vancouver, Nanaimo, and Fraser River make these voluntary guidelines 
mandatory, though vessels arriving from Alaska and U.S. West Coast 
ports north of Cape Mendocino are exempted (Transport Canada 2001). 
Australia requires ballast water exchange outside of the 12 nm 
Australian limit in waters greater than 200 m deep, and ballast water 
from ``high-risk'' areas are prohibited (Australian Quarantine and 
Inspection Service). In New Zealand, vessels must conduct mid-ocean 
exchange in waters at least 200 nm offshore, and must obtain permission 
before discharging, even if ballast water has been exchanged. 
Absolutely no discharge is allowed if vessels contain water from the 
``high-risk'' ports of Tazmania and Port Philip Bay, both in Australia 
(New Zealand Ministry of Fisheries).

    Federal Regulations--In September of 2004, the United States Coast 
Guard adopted mandatory ballast water management regulations for 
vessels entering from outside the EEZ. Exchange is required to be 
conducted more than 200 nm offshore, however, vessels that experience 
undue delay are exempted. There is no management requirement for 
vessels traveling ``coastally,'' or wholly within the 200 nm EEZ.
    Several pieces of Federal legislation that address NIS 
introductions are currently moving through Congress. One, S. 363, the 
``Ballast Water Management Act of 2005,'' addresses the National 
Invasive Species Act's ballast water management program (16 U.S.C. 
Section 4711), and would provide a national system for implementing 
ballast treatment control technologies over time.

    Mainland U.S. Pacific Coast--With the exception of Alaska, all U.S. 
mainland Pacific states have adopted ballast water management 
regulations that are more comprehensive than the Federal requirements. 
Oregon began requiring ballast water management in 2002. Vessels of 
foreign origination are required to conduct exchange at least 200 nm 
offshore. However, for vessels traveling within 200 nm and entering 
Oregon from areas north of 50+ N, or south of 40+ S, a ``coastal'' 
exchange of unspecified distance offshore is required (Flynn and Sytsma 
2004). Legislation requiring coastal exchange at 50 nm offshore was 
passed in the Oregon Legislature and goes into effect at the end of 
2005. Washington's year 2000-exchange requirement for foreign vessels 
is identical to Oregon's. Coastally transiting vessels are generally 
required to conduct exchange at least 50 nm offshore, with the 
exception that exchange is not required if the water is common to the 
state, and has not been mixed with waters outside of the Columbia River 
system (Washington Department of Fish and Wildlife 2003).

    California--California's initial legislation, Assembly Bill 703 (AB 
703), addressed the ballast water invasion threat at a time when 
national regulations were not mandatory. The Ballast Water Management 
for Control of Nonindigenous Species Act, passed in 1999, established a 
statewide multi-agency program to prevent and control NIS in state 
waters. In addition to the CSLC, the California Department of Fish and 
Game (CDFG), the State Water Resources Control Board (SWRCB) and the 
Board of Equalization (BOE) were charged to direct research, 
monitoring, policy development, and regulation, and to cooperatively 
consult with one another to address the problem (Falkner 2003). AB 703 
required that vessels entering California from outside the EEZ manage 
ballast before discharging into state waters. Vessels were required to 
exchange ballast water 200 nm offshore or treat ballast water with an 
approved shipboard or shore-based treatment system. There was, however, 
no management requirement for vessels transiting between ports wholly 
within the EEZ, despite evidence that ``intra-coastal'' transfer may 
facilitate the spread of NIS from a location where it is firmly 
established, San Francisco Bay for example, to an adjacent port where 
it is not (Lavoie et al. 1999, Cohen and Carlton 1995). The 
Legislature, sensitive to the uncertainties surrounding the development 
of an effective ballast water management program for the State, 
included a sunset date of January 1, 2004, in AB 703. In 2003, Assembly 
Bill 433 was passed, reauthorizing and enhancing the 1999 legislation 
to include many of the recommendations of the program's first biennial 
report (Falkner 2003).

California's Marine Invasive Species Program
    The California Legislature passed Assembly Bill 433 during the 2003 
regular session, and was signed by the Governor in October 2003. The 
bill reauthorized, enhanced, and renamed the State's ballast water 
management program, creating the Marine Invasive Species Act (Act). The 
Act applies to all U.S. and foreign vessels, over 300 gross registered 
tons that arrive at a California port, or place, after operating 
outside of California waters. All vessels arriving at a California 
port, or place, must have a ballast water management plan and ballast 
tank logbook specific to the vessel. Each vessel is required to pay a 
fee of $500 at its first port call in California. Additionally, each 
vessel is required to submit a ballast water reporting form upon 
departure from each port call in California waters detailing their 
ballast water management practices. However, only vessels arriving from 
outside the EEZ are required to manage their ballast water as 
prescribed in the Act. The Act does direct the CSLC to adopt 
regulations for vessels transiting within the Pacific Coast Region and 
the rulemaking process currently underway will require coastal exchange 
at 50 nm offshore for such voyages. The effective date of the 
regulation is anticipated in late 2005.
    In addition to regulatory directives, the Act included mandates to 
address gaps identified during the beginning years of the program that 
would improve the ability of the program to prevent NIS introductions. 
The Commission's Marine Invasive Species Program (MISP) has formed 
several Technical Advisory Groups (TAG) that discuss policy and 
regulatory matters related to general NIS management and the 
implementation of legislative mandates. In January 2000, a general TAG 
was convened to discuss regulatory matters and continues to meet 
periodically. In 2005, two specialized advisory group were assembled to 
formulate recommendations for ballast treatment performance standards 
and vessel hull fouling. TAGs include representatives from the maritime 
industry, ports, state agencies, environmental organizations, and 
research institutions, and serve several critical outreach functions. 
They serve as a forum through which information and ideas can be 
exchanged, and ensure that rulemaking decisions consider the best 
available science as well as the concerns of affected stakeholders. TAG 
members also relay information to their respective constituencies, 
keeping them abreast of CSLC actions and activities.
    The Marine Facilities Division of the CSLC administers the State's 
Marine Invasive Species Program (MISP). The MISP staff are active 
members in several ballast water related groups including: the Ballast 
Outreach Advisory Team, Sea Grant Extension; Oregon's Ballast Water 
Management Task Force; Aquatic Nuisance Species Task Force; and the 
Pacific Ballast Water Working Group. Wherever possible, staff works 
with the scientific community, other West Coast state representatives, 
Federal agencies, and the international maritime community to 
standardize ballast water management programs. This coordination has 
improved support and compliance by the maritime industry, and has 
enhanced understanding and the development of solutions to NIS 
introductions.
    The CSLC MISP Inspection Program consists of an extensive 
monitoring program to ensure compliance and facilitate communication, 
and is implemented by field offices located in Northern and Southern 
California. All vessels are required to submit to compliance 
inspections, which include sample collection of ballast water and 
sediments, examination of documents, and any additional appropriate 
inquiries. The Act specifies that inspections be conducted on at least 
25 percent of the arriving vessels, with enforcement administered 
through the imposition of administrative civil and criminal penalties. 
In addition to verifying compliance with the management requirements of 
the Act, the Inspection Program plays a key role in outreach and 
education for the maritime industry.
    Assembly Bill 703 created the Exotic Species Control Fund (the 
Fund) to support each agency's program (Section 71215). All vessels 
subject to the law are required to submit a fee at its first port call 
in California. The State's fee-based program has been cited as an 
important reason for the program's success (Vinograd & Sytsma 2002). 
Reauthorization of the State's Program under AB 433 included the 
reauthorization and renaming of the Fund to the Marine Invasive Species 
Control Fund. The amount of the fee is based on agency budgets approved 
by the State's Legislature and totals $16.1 million over 6 years. 
Budgets cover the CSLC's ballast water inspection and monitoring 
program, the development and implementation of regulatory packages, 
research on alternative treatment technologies, hull fouling vectors, 
and performance standards. The budget also covers the biological 
surveys conducted by the CDFG to track the extent of NIS introductions 
in State waters, costs for fee assessment by the BOE, and consultation 
by SWRCB. CSLC was given the authority to establish the fee amount, up 
to the maximum of $1,000 per voyage. In January 2000, a TAG was formed, 
made up of members of the maritime industry and state agencies. The TAG 
has proved beneficial for determining the appropriate fee amount and 
for addressing issues related specifically to the implementation of the 
California Act. The TAG meets regularly to assess the effectiveness of 
the Program and the status of the Fund. Currently the Fee is $500/
voyage, but will be decreased to $400/voyage in mid-2005.

Outreach and Education

    Coastal Exchange Stakeholder Workshops--Two stakeholder workshops 
were held in 2002 and 2003, to address and inform coastal ballast water 
management in the Western Pacific Coast Region. As a result of these 
meetings and a subsequent stakeholder meeting in July 2004, CSLC 
submitted a rulemaking package in April 2005, to the State's Office of 
Administrative Law, proposing to govern the ballast water management of 
vessels operating within the Pacific Coast Region.

    Outreach to Maritime Industry--One of the key components for the 
success of the program continues to be the close communication, 
coordination, and outreach that occurs between the CSLC, the maritime 
industry, and other state agencies. The CSLC facilitates this 
communication through several specific avenues including monthly late 
form notifications, vessel inspections, advisory groups, a website, and 
through participation in pubic and scientific workshops, and public 
speaking engagements.
    During the first year of the program, a dramatic increase in 
reporting compliance (submission of ballast water reporting forms) was 
observed following the initiation of a monthly notification system and 
issuance of warning letters (Falkner 2003). These activities have 
subsequently become an integral part of the program. Each month a list 
of ballast water reporting forms received by the CSLC is reconciled 
with a list of vessel arrivals reported by the Maritime Exchanges. 
Qualifying voyages that appear on the Marine Exchanges report, but have 
not submitted reporting forms to the CSLC are flagged. On or about the 
fifth of every month, individual agents are then sent a master list of 
vessels under their purview, indicating which have punctually sent 
forms and which have not. If a delinquent form is not received within 
60 days, a warning letter is sent to the agent. Subsequent enforcement 
action is taken as necessary.
    Though this notification process is time intensive, it assures 
direct, periodic communication with more than 60 shipping agents and 
has been well received by the maritime industry. Ship owners and agents 
also contact CSLC personnel directly with questions or concerns. 
Monthlies and warning notifications have resulted in reporting 
compliance rates that have increased from 60 percent in early 2000, to 
93 percent by June 2002, to over 98 percent in 2004.
    CSLC inspectors serve as an important direct conduit of information 
to vessel crews, particularly in an industry where vessels often change 
ownership, routes, and crew composition. During vessel visits, 
inspectors verbally explain paperwork, reporting, ballast management 
obligations, and point out where a vessel may be falling short of 
compliance. For vessels that call at a California port for the first 
time, inspectors distribute informational packets that include a 
summary of the California law, instructions on completing the ballast 
water form, and contacts for more information on West Coast ballast 
regulations.
    CSLC staff actively continues to facilitate communication among 
stakeholder groups through several additional vehicles. A website 
contains programmatic background information, downloadable forms and 
reports, and rulemaking and public hearing announcements. Attended 
events have ranged from those sponsored by industry, and by Federal and 
state organizations. CSLC has also initiated or collaborated on 
numerous workshops, conferences, and speaking engagements to further 
enhance outreach efforts.

    Compliance--Vessel compliance with the requirement to report 
ballast management and discharge practices is very high, and has risen 
dramatically since the inception of the program. In 2003, 97 percent of 
vessels submitted reports, up from approximately 60 percent observed 
during the first 6 months of the program in 2000. In 2004, even with 
the new requirement that voyages between Pacific Coast ports, or 
places, were required to submit reports, compliance exceeded 98 
percent, with 82 percent submitting reporting forms on time (Figure 1).



    During 2004, all vessels were required to submit a reporting form 
for each port call in California. The change in QV to include domestic 
voyages is readily observed in the data. The percentage of arrivals 
originating from Asian ports dropped from over 50 percent in 2003, to 
less than 30 percent in 2004 (Figure 2). It also becomes apparent that 
a large proportion of vessels arrive to California ports from other 
California ports.



    Of the 10,074 reporting forms received for Year 2004, 83 percent 
retained all ballast water onboard, while 17 percent reported 
discharges in State waters. Over 95 percent of all ballast water 
discharged in State waters complied with the law. Of the unexchanged 
ballast water that was discharged during 2004, the majority originated 
from coastal Mexican waters (Figure 3). This pattern highlights the 
need for intense targeted compliance monitoring and enforcement action 
as necessary by CSLC. Additionally, it reinforces the need for the 
development of environmentally safe shipboard treatment systems, as 
well as the identification of alternative exchange zones within coastal 
waters.


    Likewise, vessel-reported compliance with the requirement to manage 
ballast originating from waters outside the U.S. EEZ continues to 
exceed 90 percent. In 2004, 7.8 million metric tons of ballast water 
was reported to have been discharged in state waters, only 4 percent 
did not comply with the mid-ocean exchange requirements (Table1).

   Table 1.--Year 2004 Volume (MT) of Ballast Water Discharged by Port
------------------------------------------------------------------------
                          Not                                    Non-
  Port    Compliant    Compliant      Total      Compliance   Compliance
             (MT)         (MT)      Discharged   (percent)    (percent)
------------------------------------------------------------------------
Avalon        24,123            0       24,123          100            0
Carquin      469,037       20,893      489,930           96            4
 ez
El            66,212            0       66,212          100            0
 Segund
 o
Hueneme        7,045        2,587        9,632           73           27
Humbold       48,699        1,484       50,183           97            3
 t
LA-LB      3,643,580      215,129    3,858,709           94            6
Montere            6            0            6          100            0
 y
Oakland      424,965         3518      428,483           99            1
Redwood       59,998       20,702       80,700           74           26
Richmon    1,129,114       12,222    1,141,336           99            1
 d
Sacrame    1,028,443       15,804    1,044,247           98            2
 nto
San           38,982        3,015       41,997           93            7
 Diego
San          317,584       30,489      348,073           91            9
 Franci
 sco
Santa         23,219            0       23,219          100            0
 Barbar
 a
Stockto      149,398       23,763      173,161           86           14
 n
        ----------------------------------------------------------------
    Sta    7,430,405      349,606    7,780,011           96            4
     te
     wi
     de
     To
     ta
     ls
------------------------------------------------------------------------

    Vessel inspections conducted by CSLC staff revealed similarly high 
compliance rates. During the 2003-2004 period, 2,318 inspections were 
completed. Less than 5 percent of the noted violations were associated 
with operational aspects of the law, which includes improper ballast 
water management (Table 2). In late 2003, CSLC initiated a procedure to 
ensure that any violations identified during inspections were corrected 
in advance of the vessel's next visit to California waters. A letter 
detailing any violations noted during inspections and appropriate 
corrective action is sent to the registered ship owner. The response 
from vessel owners has been overwhelmingly positive.



    The high compliance rates observed in the California Program are 
attributable to the multi-pronged outreach and communication activities 
undertaken by the CSLC. Inspectors distribute information verbally and 
in print to crews on regulations. Agents are notified monthly of their 
vessels' reporting compliance or non-compliance. Multi-agency, multi-
interest advisory groups are continually convened and consulted 
regarding evolving policy considerations. These efforts serve to 
maintain well-informed stakeholders, build working relationships with 
affected parties, and ensure that regulations are wisely developed.
    Fee Submission--While the CSLC has authority to establish the fee 
amount; assessment of the fee is the responsibility of BOE. The BOE 
receives daily reports from the Los Angeles/Long Beach Marine Exchange 
listing actual arrivals from the following ports: Los Angeles/Long 
Beach, Port Hueneme, San Diego, and El Segundo. In addition, the Board 
receives two daily reports from the San Francisco Marine Exchange. An 
electronic and paper record of this information is maintained for 
reference and use by the BOE staff. The reports are reviewed to 
determine which arrivals are qualifying voyages and thus subject to the 
fee. In 2001, a return (self-reporting) process was initiated by BOE to 
reduce the overall number of billings, though not the amount of revenue 
collected. With the assistance of industry representatives, a return 
form was developed allowing the larger owner/operator/agents to self-
report their vessel voyages.
    There are currently 2,508 ballast accounts representing 6,449 
vessels registered with the BOE. On average, 120 new Ballast 
Registrations are added per month. In addition, an average of 115 
account maintenance items (address changes, adding vessels to existing 
accounts, etc.) are processed per month. An average of 25 ballast 
accounts are closed out each month, and an average of 470 ballast water 
billings are mailed per month. Compliance rate for fee submission 
exceeds 98 percent.

Collaborative Projects/Research/Technology Development
    Treatment Technologies--Though ballast water exchange is by far the 
most widely used ballast water management tool, the eventual goal is to 
manage ballast water through ship-based or shore-based treatment 
systems. Ballast exchange can expose vessels to some risk and may delay 
voyages. As described above, exchange can expose vessels to some risk 
and may delay voyages. The efficiency of exchange is also quite 
variable, and can depend on a vessel's configuration or age. Though no 
alternative treatment technologies are available for widespread 
installation, several promising enterprises are under development.
    The Ballast Water Management Act of 1999, directed CSLC to evaluate 
and approve alternative treatment technologies designed to remove and/
or inactivate organisms in ballast water. The Marine Invasive Species 
Act of 2003, authorized the CSLC to sponsor a pilot program for the 
purpose of evaluating alternatives for treating and otherwise managing 
ballast water, and also authorizes the CSLC to sponsor other research 
related to the transport and release of non-indigenous species into 
California waters.
    CSLC staff collaborates with other agencies and organizations to 
identify alternative methods for ballast water management. In the past 
18 months, the CSLC has reviewed and considered for funding two 
alternative treatment technologies. The Venturi Oxygen Stripping System 
and the Ecochlor Ballast Water Treatment System have each shown, 
through initial studies that shipboard applications may be effective. 
Further research is needed, and CSLC will be funding at least one, 
possibly both of these proposed projects.
    West Coast Ballast Water Demonstration Project--In August 2000, the 
California State Lands Commission was awarded a $150,000 grant from the 
U.S. Fish and Wildlife Service (USFWS) to implement the West Coast 
Regional Applied Ballast Management Research and Demonstration Project 
(West Coast Demonstration Project). The West Coast Demonstration 
Project was an inter-agency pilot project to acquire and distribute 
information regarding applied alternatives for ballast water 
management. In December 2000, the Port of Oakland agreed to match the 
USFWS funds, doubling the funds available for this project, making it 
possible to evaluate the efficacy of treatment systems onboard at least 
two vessels. The SWRCB received $150,000 from the Exotic Species 
Control Fund to evaluate alternatives for treating and managing ballast 
water. Total funding provided by the USFWS, SWRCB and the Port of 
Oakland for the West Coast Demonstration Project combined to a total of 
$450,000.
    Ballast Water Exchange Verification--In October 2003, the 
Commission, acting as Trustee for the Kapiloff Land Bank Fund (the 
Fund), accepted funds in the amount of $200,000 from Carnival Cruise 
Lines, a division of Carnival Corporation, and deposited in the Fund as 
settlement for certain questions regarding compliance with ballast 
water management requirements under Public Resources Code Sections 
71200 et seq. These funds were designated for projects relating to 
ballast water management under Public Resources Code Section 71200 
through 71271 and successor statutes.
    Utilizing the aforementioned Kapiloff Land Bank Funds, CSLC has 
entered into an agreement with the Smithsonian Environmental Research 
Center (SERC) to test explicitly the application of Ballast Water 
Exchange verification (BWEv) methodology on vessel traffic arriving to 
ports along western North America. In previous experiments, the BWEv 
methodology showed strong potential for discriminating between near 
coastal or port water. A refined methodology could therefore be used to 
develop a rigorous test for discerning exchanged ballast water from 
unexchanged ballast water on a vessel. The proposed research is 
intended to ``demonstrate'' the application of the BWEv methodology to 
a specific region, as well as expand the overall scope of our ongoing 
analyses and possible application on a global basis. This work builds 
upon significant national and international efforts to implement a 
reliable, affordable, and easy-to-use method for BWEv. The CSLC-SERC 
project will begin June 2005 and June 2007. Sampling events will be 
scheduled to occur on a quarterly basis, beginning in June 2005.
    Hull Fouling--With funding from the MISP, the Aquatic Bioinvasion 
Research and Policy Institute (ABRPI), which combine the SERC's marine 
expertise and Portland State University's freshwater expertise, will 
conduct a study to examine the potential for invasions to California 
through the fouling vector. Using data on vessel dimensions and 
arrivals, SERC will estimate the total vessel surface area on a variety 
of vessel types that: (1) Arrive to port systems in California, Oregon, 
and Washington, and (2) Have the potential to be colonized by fouling 
organisms. The study will also include a pilot project that will 
utilize Remotely Operated Vehicle (ROV) collected videos, still images, 
and diver collected samples to estimate the amount and types of 
organisms attached to exposed surfaces. These complimentary analyses 
will move toward creating a broad understanding of the overall risk 
fouling poses for NIS introductions to California. The CSLC-ABRPI 
project will begin June 2005 and conclude July 2007.

Summary of Other Research
    In addition to research fully or partially funded by CSLC, two 
studies highly relevant to the prevention and management of NIS in 
California have been funded or directed by CSLC collaborators. Both 
were extensive, multi-agency, multi-institution enterprises, for which 
the MISP provided some assistance with logistics or document review. 
The first was a three part study on local container vessels, funded by 
the Port of Oakland, evaluating the effectiveness of ballast exchange 
for removing planktonic organisms, and examining the biota that arrive 
to the port in ballast tanks and in fouling communities. The second, 
directed by the California Department of Fish and Game, sought to 
characterize the distribution of estuarine and coastal invasives in 
California.
    CDFG Invasive Species Survey--Under the 1999 legislation, the 
California Department of Fish and Game (CDFG) was the primary agency 
required to conduct a study to determine the location and geographic 
range of non-indigenous species in California estuaries and coastal 
areas. The study focused on areas where introduced species from ballast 
were most likely to occur. Biological sampling took place for infaunal 
and epifaunal areas, as well as for fish and plankton. Biological data 
collected during this study will provide the basis for a more 
comprehensive analysis of impacts from non-indigenous species and will 
serve as a baseline to determine effectiveness of future management 
efforts to control species introductions.

Moving Forward
    Improving Compliance--Although California's Program continues to be 
very successful, resulting in high compliance with all requirements of 
the Act; data indicate a persistent yet small percent of vessels 
violating the ballast water management mandates. Specifically, those 
vessels arriving from Mexican, Central and South American ports account 
for 85 percent of the volume of ballast water discharged that does not 
comply with the law. Further analysis shows that many of these vessels 
are conducting some form of an exchange, but not to the prescribed 
legal standards set in the Act (i.e., exchange at >200 nm from land). 
Because of this analysis, CSLC has refocused the intensive compliance 
monitoring of reporting forms, the education and outreach to vessels 
owner/operators and as necessary pursue enforcement actions on 
offending vessels. Additionally, CSLC continues to aggressively explore 
and support research addressing shipboard treatment technologies and 
alternative exchange zones within coastal waters.
    Regulations Governing Coastal Voyages--Current California law 
requires that vessels originating from places outside of the EEZ manage 
ballast water, however, there is no ballast management requirement for 
vessels that arrive to California ports from places within the EEZ. The 
transfer of NIS from an invaded port to an adjacent port poses a 
significant risk for introducing and spreading species throughout a 
region (Lavoie et al. 1999, Cohen and Carlton 1995). On the West Coast 
in particular, a highly invaded area, such as the San Francisco Bay, 
can serve as a hub for NIS to spread to other Pacific Coast Region 
ports, such as Los Angeles or Portland. In recognition of this 
vulnerability, the Marine Invasive Species Act of 2004, directs the 
CSLC to adopt ballast management regulations for transits between ports 
within the Pacific Coast Region, defined as the region 200 nm offshore, 
from 154 degrees W longitude and north of 25 degrees N latitude, 
exclusive of the Gulf of California.
    Based on recommendations from the two Coastal Exchange workshops, 
the CSLC Technical Advisory Group came to the consensus for ballast 
water exchange at least 50 nm offshore for voyages within the Pacific 
Coast Region. The 50 nm limit incorporated several key issues of 
concern. Although ballast water exchange at distances more than 200 nm 
offshore is considered the most biologically prudent, vessels traveling 
within the Pacific Coast Region could be diverted more than 100 nm 
offshore from their normal route. For most voyages, the 50 nm distance 
would require no course deviation for some vessels and a minor 
deviation for many. Exchange at 50 nm avoids ballast discharge in 
coastal ``retention zones'' and at the mouths of estuaries, where 
currents and tides can carry organisms to shore or sweep them into bays 
and estuaries. The limit also lies beyond the boundaries of sensitive 
protected areas, such as National Marine Sanctuaries. Further, the 
maritime industry requested that California's regulation be consistent 
with other U.S. state, Federal and international regulations, in order 
to avoid confusion that would occur should vessels encounter a 
patchwork of varying regulations as they traveled across jurisdictions. 
The 50 nautical mile limit addressed this request, as Washington and 
the International Maritime Organization have similar requirements, and 
Oregon has adopted legislation that mandates the same.
    An exemption was included for voyages between ports within the San 
Francisco Bay/Delta region, and for voyages within the Los Angeles/Long 
Beach/El Segundo Port Complex. In the absence of such a designation, 
the 50 nm requirement would pose an operational and economic burden for 
vessels transiting between ports contained within a single port region. 
Scientific experts consulted agreed that, biologically, the designation 
was reasonable given the current knowledge of NIS dispersal within an 
estuary, and given the logistical realities of vessel voyage patterns 
(Cohen pers com., Crooks pers com., Kimmerer pers com., Weisberg pers 
com.)
    Rulemaking documents for the regulation were submitted to the 
Office of Administrative Law in April 2005, and the Notice of Proposed 
Rulemaking was published April 15, 2005. Following public hearings and 
consideration of public comments, the final regulation is anticipated 
to be approved in June 2005, with an implementation date in late 2005.
    The Commission staff held two public hearings. The first on June 2, 
2005, in southern California, and the second on June 8, 2005, in 
Northern California. For the vast majority of commercial vessels that 
fall under this regulation, near-coastal ballast exchange will be the 
primary method of ballast water management. Currently, it is the best 
compromise of efficacy, environmental safety, and economically 
practicality. According to industry representatives, the vast majority 
of vessels are capable of conducting exchange, and the management 
practice does not require any special structural modification to most 
of the vessels in operation.
    The shipping industry has expressed concern that a small minority 
of vessels and/or commercial shipping routes may be significantly 
impacted by the proposed regulations. Commission staff recognizes this 
possibility. These vessels and/or commercial shipping routes can be 
categorized in two ways. The first are vessels that, due to special 
safety circumstances, are unable to perform ballast water management as 
described in the proposed regulation. For example, ballast water 
exchange as outlined in the regulations may pose a serious personnel 
safety concern for tugs and barges. Safely moving a crew from a small 
boat to a barge could pose a serious safety risk. To address this 
issue, a provision is included in the regulation, ensuring that the 
safety of the vessel, its crew, or its passengers is not compromised by 
the management requirements specified in the regulation.
    The second general concern relates to a minority of vessels, for 
which compliance with the proposed ballast water management 
requirements may present some hardship not related to safety. To 
address this issue, a petition process has been included in the 
rulemaking package that would allow impacted entities to present 
individual hardship cases and associated alternative ballast management 
proposals to the Commission. This section is necessary to provide 
flexibility for the Commission to consider special hardship cases from 
the maritime industry, and associated alternative management proposals, 
on a case-by-case basis, while providing a formal public notification 
and/or review process.
    A broader concern, related to the ``shared water'' designation, was 
expressed by the industry. It has been suggested that the proposed 
regulations should include geographically-extensive, shared-water 
designations similar to those used in Oregon and Washington. For 
example, for transits between Los Angeles and San Diego, and for 
voyages between the San Francisco Bay-Delta to Eureka, the industry has 
requested various relaxations to the requirement for exchanging ballast 
at locations 50 nm offshore and 200 m depth.
    In consideration of these concerns, staff subsequently contacted 
several scientific experts, reviewed relevant scientific literature, 
and completed preliminary analyses to address the issue. In summary, 
the best available information strongly indicates that estuarine (bay/
port) ballast water should not be transported between California ports, 
and this includes voyages between the specifically mentioned short-haul 
voyages.

   Natural transport of organisms between estuaries appears to 
        be very low, in the absence of human activity.

   Short coastal voyages are more likely to transport organisms 
        in good physical condition, maximizing chance for establishment 
        in a new area.

   The San Francisco Bay estuary is one of the most highly 
        invaded areas of the world, and is likely to act as a ``hub'' 
        from which non-indigenous species can spread to other areas of 
        California.

   Many non-indigenous organisms found in one of the 
        aforementioned ports are not yet found in the other. The 
        potential for their continued spread should be minimized.

   Some non-indigenous species in San Francisco Bay are clearly 
        problematic or are found in very high numbers, and have not yet 
        been found in Humboldt Bay (Table 3). Examples include the 
        Chinese mitten crab and the Asian clam.

   The region between San Diego and Point Conception is an 
        oceanographic ``retention zone'' where water re-circulates for 
        extended periods. These zones have the capacity to retain 
        organisms released in them, and oceanographers have explicitly 
        recommended avoiding ballast exchange in them.

    Finally, several commenters suggested the inclusion of language 
stating that a vessel should not be required to deviate from its 
intended voyage or unduly delay its voyage to comply with ballast water 
management requirements. Without further contingencies and definition, 
a small deviation or minor delay in an intended voyage could easily be 
claimed, exempting those voyages and significantly weakening the 
ability of this regulation to effectively prevent or minimize the 
introduction and spread of NIS. Furthermore, the inclusion of this 
language puts the decision to comply in the hands of the regulated 
community, not the regulatory agency. Additionally, it is believed that 
without sufficient definition, this language would not meet the 
``Clarity Standard'' required in the California Administrative 
Procedures Act. As an alternative, staff has included a petition 
process that would allow impacted entities to present individual 
hardship cases and associated alternative ballast management proposals 
to the Commission.
    Performance Standards Advisory Panel Description--The CSLC is 
required, in consultation with SWRCB, and in consideration of the 
advisory panel (Panel), to submit to the legislature a report that 
recommends specific performance standards for the discharge of ballast 
water into the waters of the state. The performance standards will be 
based on best available technology economically achievable, and be 
designed to protect the beneficial uses of state waters.
    In late 2004, the CSLC invited participation from the stakeholder 
community to develop recommendations for performance standards. The 
Panel was first convened early in 2005, with meeting dates scheduled 
through June 2005. The Panel includes participants from the SWRCB, the 
Regional Water Quality Control Board, the CDFG, and the U.S. Fish and 
Wildlife Service, as well as representation from University experts, 
research groups, shipping agencies, ports, and environmental 
organizations.
    Issues identified thus far include appropriate regulatory 
monitoring methods and impacts to coastal voyages versus oceanic 
voyages. Documents for review include, but are not limited to, 
publications on biological criteria, engineering feasibility, physical/
biological/chemical characteristics of fresh and saline water, efficacy 
of reducing viable organisms under vessel operating conditions, 
economic costs of installation and operation of equipment, appropriate 
parameters for measuring treatment efficacy, and/or appropriate 
experimental designs for efficacy tests.
    The Panel has spent significant time evaluating the discharge 
standards adopted by the IMO Convention to assess it potential 
effectiveness at preventing or reducing NIS introductions from ships' 
ballast water and the discharge standard proposed in U.S. legislation 
(e.g., S. 363--The Ballast Water Management Act of 2005).
    The IMO Convention calls for ships to meet a ballast water 
discharge standard according to a schedule of fixed dates. While the 
IMO Convention is an important step forward in the effort to combat NIS 
introduced by ships' ballast water, the standard adopted represented 
only a slight decrease in the concentration of zooplankton and no 
reduction of phytoplankton from the observed median value for unmanaged 
ballast water, allowing 1,000 organisms of the same size in 100 cubic 
meters. An analysis by the International Council for Exploration of the 
Seas of known concentrations of organisms in ballast tanks observed the 
median concentration for zooplankton was 400/m \3\ and the observed 
mean concentration for phytoplankton was 13.3/ml. This same group 
recommended a three orders of magnitude reduction below the observed 
median concentration for zooplankton, and an equivalent or higher level 
of reduction for phytoplankton. The IMO Convention standard represents 
only a 1-order magnitude reduction in concentration of zooplankton from 
the median observed values for unmanaged ballast and no reduction of 
phytoplankton from the observed median value for unmanaged ballast. 
Fortunately, the IMO Convention explicitly recognizes the right of a 
party to take more stringent measures to prevent NIS introductions. The 
Ballast Water Management Act of 2005 (S. 363), contains many of the 
provisions of the IMO Convention, however the concentration-based 
standard is 100 times more stringent than that found in the IMO 
Convention.
    Panel recommendations will be provided to CSLC staff on or before 
July 1, 2005. CSLC is required to submit to the legislature, a final 
report including recommendations for performance standards by January 
31, 2006.
    Non-Ballast, Ship-Mediated Invasion Vectors--The Act directs the 
CSLC, in consultation with a technical advisory group, to analyze the 
risk of invasion though fouling on commercial vessels, and present 
management recommendations to prevent such introductions. The 
legislation further specifies that the advisory group will include (but 
may not be limited to) representatives from the shipping and port 
communities, the USCG, state resource agencies, Federal resource 
agencies, and the scientific research community.
    A jointly administered workshop with California Sea Grant Extension 
on vessel hull fouling was held in May 2005. The workshop examined 
management perspectives and experiences from other states and countries 
(Hawaii, New Zealand), the risks and impacts from hull-born invasives 
to the West Coast, and options for prevention and management. Attendees 
represented the commercial shipping and recreational boating 
communities, ports, vessel cleaning technology groups, state and 
Federal resource agencies, environmental organizations, and scientific 
experts. CSLC staff is currently summarizing the results from that 
workshop.
    The CSLC will hold two additional advisory meetings with a subset 
of the workshop attendees. These meetings are planned for September and 
December 2005, and will serve to solidify findings and recommendations 
with regard to commercial vessels. The final report will be completed 
for the state legislature and public by March 1, 2006. As mentioned 
previously, CSLC will be funding the Aquatic Bioinvasion Research and 
Policy Institute (ABRPI) to conduct a study examining the potential for 
invasions to California through the fouling vector. The CSLC-ABRPI 
project will begin June 15, 2005 and concludes July 31, 2007.

Needed Research
    Ballast Water Treatment Technology Development--Efforts to identify 
effective treatment technologies continue to progress slowly. The 
effort to develop effective technologies should be one of integrated 
phases, including R&D on basic and innovative technologies, prototype 
development, shipboard applications, and certification and 
implementation. CSLC continues its relationship with the USCG, National 
Oceanic and Atmospheric Administration (NOAA), and SERC to ensure 
continuity at the state, national, and international level.
    Standardized Analysis of Shipboard Treatment Technologies--
Evaluating the performance of ballast water treatment technologies 
onboard ships, under realistic operational conditions, is a requirement 
of most ballast water management programs. The evaluation of treatment 
systems is difficult and costly.
    Various approaches have been proposed making comparisons across 
technologies and even within the same technology difficult. The lack of 
standardization creates significant confusion about the criteria needed 
for evaluation and approaches to be used to determine compliance, 
allowing official approval for particular treatment systems. The USCG, 
Aquatic Bioinvasion Research and Policy Institute, and Pacific States 
Marine Fisheries Commission, and CSLC are involved in the formative 
stages of this issue. CSLC continues its relationship with these 
entities to ensure continuity at the state, national, and international 
level.

Conclusions
    Due to continued and expanded intensive outreach by CSLC staff, the 
utilization of technical advisory groups and a monthly electronic 
notification system, along with daily interactions with maritime 
industry, and the potential for civil and criminal penalty action, 
compliance with the California Act has continued to improve (>95 
percent). The Program's success and the relatively weak Federal 
program, supports the continuation of the California Marine Invasive 
Species Program.
    CSLC has worked to coordinate with other states and the Federal 
Government on ballast water and hull fouling management issues. 
Wherever possible, California works with the scientific community, 
other West Coast states, the Federal Government, and the international 
community to standardize ballast water and hull fouling management 
programs. This coordination has resulted in improved support and 
compliance by the maritime industry and has enhanced the understanding 
and development of solutions to NIS introductions.
    As discussed above, there is a significant amount of momentum in 
the Pacific Coast Region to prevent the introduction NIS. The existing 
framework in California has taken many years of stakeholder 
collaboration. The continued and increasing level of compliance within 
California's Marine Invasive Species Program reinforces stakeholder 
approval.
    As Federal regulations are developed, the legislature should 
strongly consider the continued success of California's Marine Invasive 
Species Program. California not only exemplifies the potential of state 
programs, but will compliment and reinforce Federal regulations for 
ballast water management. Preemption provisions may be beneficial in 
specific areas such as performance standards for the treatment of 
ballast water; however, broad preemption language for state programs 
would be detrimental to the overall goal of controlling NIS 
introductions via commercial shipping in the United States.
    The control of NIS via commercial shipping is a highly complex 
process requiring not only outreach and education in the maritime 
community, but most of all, regulatory consistency. Among other state 
programs, California has worked hard to establish a framework for the 
proper management of ballast water. The existing regulatory framework 
in California can be modified in conjunction with Federal regulations, 
which could provide an excellent foundation for the implementation of 
Federal rules.
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    The Chairman. Thank you very much, Ms. Falkner. We'll begin 
the questioning with Senator Boxer.
    Senator Boxer. Thank you so much, Mr. Chairman. I have a 
number of questions, but due to the time constraints I would 
like to submit them to our panel for the record. I do have one 
or two that I'd like to do now--if that is all right with you?
    The Chairman. You have a full 5 minutes. We gave all of 
these witnesses at least 5 minutes.
    Senator Boxer. That is very kind of you.
    The Chairman. I wouldn't be doing my job if I didn't give 
you at least the same time.
    Senator Boxer. I appreciate that. And I hope this banter 
does not take time off of my----
    [Laughter.]
    Senator Boxer. Mr. Chairman, I want to thank you. This has 
been a terrific panel in terms of learning about the new 
technologies, where the Commerce people have their red flags up 
and scientists are going, our Coast Guard and, of course, our 
state people who are, I wouldn't say on the ground, but really 
on the water here. So here's the thing, I was telling the 
Chairman, I didn't get a chance to read this in my statement, 
but, you know, I want to ask Ms. Falkner, if this is her 
understanding, my staff tells me that more than 175 invasive 
species threaten to overwhelm native fish and other wildlife in 
the San Francisco Bay alone. Is that your understanding?
    Ms. Falkner. Based on the data that has been collected by 
the Department of Fish and Game as well as others, there are 
over 175 non-indigenous species that are pretty much unique to 
the bay that have not been found in other embayments in 
California or the West Coast.
    Senator Boxer. And my understanding is that nationally, Mr. 
Chairman, the damage, the economic damage of invasive species 
throughout the whole country is $137 billion a year. I mean, 
this is extraordinary, if this is true, and that's why, Senator 
Inouye, I'm so grateful to you for your bill on this particular 
matter. We cannot turn away from this. This doesn't make any 
sense. We need to do something. So just for the record, Ms. 
Falkner and Ms. Hum, maybe, because in your states you see 
this, what's the type of damage that we're already seeing here 
and what can we expect if we do nothing about this problem?
    Ms. Falkner. The type of damage in the bay area has 
included, for example, the Chinese mitten crab shut down the 
water municipalities for several days in September 1998. That 
impacted the coho salmon run occurring at that time, it 
impacted the agricultural and municipal water users. I also 
found out that these organisms burrow into the levy, so they 
are substantially potentially weakening the levy system 
throughout the Bay delta. It's very hard to estimate or to 
calculate, determine which organisms are going to be 
problematic and which are not, but there is a long laundry list 
of organisms and the cost involved in controlling them. 
Basically, once they're established, they're our ``friends.''
    Senator Boxer. Ms. Hum?
    Ms. Hum. In Hawaii, our work has been focused on alien 
algae, an invasive species, and the primary troubles caused by 
alien algae are habitat destruction, and that's been part of 
what has led to the decline in our near-shore fisheries. So, 
again, 75 percent decline in near-shore fisheries, in part 
because of habitat destruction caused by invasive species.
    Senator Boxer. Seventy-five percent species decline. That's 
incredible.
    Ms. Hum. Decline in near-shore fisheries.
    Senator Boxer. I'm going to just submit the rest of my 
questions for record. But, again, I want to thank you all and 
we are hopeful we can see some action.
    The Chairman. Thank you very much, Senator Boxer. Senator 
Inouye.
    Senator Inouye. Thank you very much. Mr. Mandelman, your 
technology seems very simple and up-front. What's the cost 
estimate?
    Mr. Mandelman. The cost estimate, and I want to emphasize 
at this point we're still dealing with prototypes, the 
equipment that will be installed this September on the Prince 
William Sound, which is a 140,000-ton oil tanker, is 
approximately three-quarters of a million dollars. Now, this is 
a prototype system. It has been custom designed. We strongly 
expect that once this goes into full scale production that the 
cost of building it will drop significantly once it's coming 
off a production line. Ultimately, this will be production-line 
technology. So we could see another 20 percent decrease.
    The second part, to answer your question fully, unlike the 
original equipment that we installed on the Tonsina, this work 
on the Prince William Sound will be done with a riding crew. 
The ship will not have to go into dry dock. Much of the work--
not all of it, but much of it can be done while the ship is in 
actual operation except for the time when they're doing some 
welding. So, a ship doesn't have to be taken out of service for 
more than a couple of days at most so the financial cost to the 
ship owner of having to take the ship out of service is reduced 
to almost nothing. It's not zero, but it would be very low. We 
expect that most ships could be outfitted for under half a 
million dollars.
    Senator Inouye. The standards of the IMO, as set forth by 
Ms. Metcalf have five criteria. Will your device meet those 
needs?
    Mr. Mandelman. We think it meets all of them without any 
problem.
    Senator Inouye. You think it will?
    Mr. Mandelman. I think it will meet all of the IMO 
criteria. It's safe, it's affordable, it's easily installed--it 
will meet the standards, I think there won't be any difficulty 
with that at all.
    Senator Inouye. What are your thoughts, Ms. Metcalf?
    Ms. Metcalf. I'm an optimist, Senator, so I'd like to jump 
up and agree with Mr. Mandelman and from what we have been told 
through the tests on the Tonsina and the Prince William Sound, 
studies that will be coming up, I see very little problem with 
four of the five, but I've not yet seen--and what I might add, 
I have not yet seen from any of the other technologies that 
have been tested, is peer-reviewed data which shows the 
achievement of the 10 organisms per-unit-volume above and below 
50 microns. The biological effectiveness is still a question, 
and if I might add, next month at the International Maritime 
Organization, the Marine Environment Protection Committee will 
be conducting their pre-review process, which is their reality 
check, that's required 3 years prior to the first 
implementation date in 2009. So far the papers that I have seen 
submitted are woefully inadequate in proving that technology is 
now available. That is not to say that it won't be available in 
2009, but the data we've seen thus far is not one that let's me 
go to sleep easily in the evening.
    Senator Inouye. Admiral, the principal agency to monitor 
these bills if they become law is the Coast Guard. Do you have 
sufficient personnel and equipment?
    Admiral Gilmour. Sir, we certainly have sufficient 
personnel to successfully carry out the ballast water 
management program we have now. I think in the area of where we 
go with it, with a discharge standard which we do think is 
important, we're also going to have to develop the technology 
to measure the effectiveness which is one of the things I 
talked about in my statement. And I think some of what was said 
that we'll come up with different means to measure that 
technology, whether it be chemical, ozone, or other types of 
systems. So I hope that when we come up with a way to verify 
the effectiveness it will not have a significant additional 
workload on our personnel. We're looking for technology 
solution in that area. Right now we're going to have people 
looking at all ballast water management that comes into the 
U.S., so we can do that through our port state control program, 
yes, sir.
    Senator Inouye. What about NOAA? Do you have enough 
personnel and equipment?
    Mr. Keeney. Senator, we did not request specific funding in 
the budget for 2006 for ballast water, however, we do have 
several programs that I mentioned in my testimony, including 
Great Lakes Environmental Research Laboratory and Sea Grant 
that do work on ballast water on discretionary basis, so we 
believe we do have sufficient funds.
    Senator Inouye. I'm very happy with the work that Ms. Hum 
is doing in Hawaii. It is a program that I think should be 
looked into by all communities. So, congratulations.
    Ms. Hum. Thank you, Senator, very much.
    Senator Inouye. But I'm concerned about costs. In the last 
5 years we have spent $121 billion for space exploration, and 
for all ocean programs we have spent $34 billion. Of that $34 
billion, $30 million were spent on ocean exploration. That's 
the difference. $121 billion for space exploration, but only 
$30 million for ocean exploration, even though the ocean covers 
70 percent of the planet's surface. Somewhere we have missed 
priorities. I hope that the measures that we have submitted 
will do something, but without adequate funding I don't know 
how far we'll get. But I'm concerned about the cost of 
equipment because only 4 percent of American bottoms carry 
international trade goods, 96 percent are foreign bottoms, and 
if we add costs for construction and equipment it might be 
less, and I'm concerned about that. So you think you'll come 
down from the prototype's half a million?
    Mr. Mandelman. Yes. Yes, we do, and something that Ms. 
Metcalf mentioned, we expect to have peer-reviewed studies on 
the original installation on the Tonsina within, oh, I hope the 
middle of July, and because we will be more in control of the 
scientists when the Prince William Sound work is done, we hope 
to have peer-reviewed articles published early next year on the 
final set of tests. We have a report that we issued--it was 
issued 3 years ago but it wasn't peer-reviewed. That process 
has now been completed and we hope to have more peer-reviewed 
studies sooner this time around.
    Senator Inouye. I've spent more time than allocated. Thank 
you very much.
    The Chairman. Thank you very much, Senator. Admiral 
Gilmour, the Coast Guard led the delegation to the IMO 
Conference on Ballast Water Management. There's obviously a 
discrepancy on the treatment standard, difference of opinion on 
the treatment standard. Are there any other areas where the IMO 
Convention fell short of what your expectations or the 
delegation's expectations were?
    Admiral Gilmour. Well, sir, as you know when we go to IMO 
it's the ultimate in negotiations on not only this front, but 
any other front. In some places we negotiate positions that we 
know are not going to be met and end up in the middle. I think 
the important parts of the IMO Convention that I talked about 
in my statement are the fact that ballast water management is 
sunsetted, which I think is very important. Also, that we do 
have a ballast water discharge standard to work from, which I 
also think is important. And whatever discharge standard we do 
eventually come up with, I think it would be important to have 
some sort of relief valve, if you will, from that system that 
we can later go back to if we set a standard that is too high. 
And I think as time, as we develop systems from prototype to 
actual installation, our Shipboard Technology Evaluation 
Program will help, but certainly the Environmental Technology 
Verification Program that we were starting to verify protocols 
to have consistent measurements, not only of the equipment, but 
of ways to measure the effectiveness of the equipment, are all 
things that will help us come up with solutions.
    The Chairman. Ms. Metcalf, it's my understanding that 
Canadian officials have announced an approach to ballast water 
regulation that relies on exchange. If we go forward with a 
program that focuses on treatment, how will U.S. shippers be 
able to adapt to different regimes and does it create an 
insurmountable conflict?
    Ms. Metcalf. Well, I would add, I didn't specifically 
mention when I said the waters of the U.S., the Lake Carriers 
Association is also a member of our Coalition, so we have 
brought their positions in on the positions of the Coalition. 
What the Canadians are feeling compelled to do right now is the 
very reason we need a global system to implement a ballast 
water management program. Now, we can argue about whether IMO 
is the floor from which we need to rise above, but for the 
initial control strategy we need a global program just for that 
reason. So that a vessel that calls in Canada or the Great 
Lakes where you've got two sets of waters, the U.S. and Canada, 
or going to four other countries, it is not struggling with the 
prospect of dealing with four different programs. That also, 
likewise, is the very reason we need a strong Federal program 
that convinces the states that that Federal program is good 
enough for their state waters. And, in fact, with other state 
folks that I've spoken to they are--I can't speak for them 
officially--but they are begging for a strong Federal program 
that will allow shipping the knowledge and the consistency of 
knowing that if they meet that program they've met the program 
wherever they may call.
    The Chairman. Ms. Falkner, you talked about hull fouling. 
What has California done to address that particular problem, 
and what's your estimate as to how significant a problem it is 
in contributing to invasive species relative to ballast water?
    Ms. Falkner. In California, where the law requires us to 
put forward a report to the legislature next year. So we had a 
workshop with Sea Grant in San Francisco in April, brought 
together commercial and recreational vessel interests as well 
as academicians, ship owners, and builders, to discuss what the 
current status is, what we know. We're going to be holding a 
series of meetings with stakeholders beginning next month and 
kind of get a better idea of what the risks are. Much of the 
work that's been done recently on hull fouling has been done 
by, there's a very small group of people, gentlemen out of 
Hawaii, Dr. Gregory Ruiz from Smithsonian. We are contracting 
with Smithsonian and Dr. Ruiz to do some hull fouling work for 
us. We're not sure where that's going to take us. The industry 
at the commercial side is, I think, interested in having a 
standard best management practices guidelines developed. It's 
going to be a difficult issue to address. Some think it's more 
difficult than ballast water, but we have a hard time imagining 
that at this point. In California ballast water is probably a 
bigger risk than hull fouling but it may be too early to say. 
There are some systems like Hawaii where hull fouling appears 
to be a more significant problem than maybe ballast water is.
    The Chairman. Well, thank you, and thank you again to all 
the witnesses for a great deal of information and focus on an 
important issue that I think is very appropriate for us to 
begin with, on the Policy Study on both the coral reef 
reauthorization and ballast water issue. I imagine that we will 
continue to deal with these issues, but specifically, I look 
forward to dealing with both pieces of legislation, hopefully, 
before the end of the year. So I thank you for your testimony 
and your patience. The Committee is adjourned.
    [Whereupon, at 10:37 a.m., the hearing adjourned.]

                            A P P E N D I X

  Prepared Statement of Hon. George Allen, U.S. Senator from Virginia

    Thank you, Mr. Chairman.
    I want to thank you for your leadership in scheduling this hearing 
regarding the impact of Ballast Water Invasive Species Management and 
Threats to Coral Reefs. This is an important environmental issue and 
one that can be remedied through innovative technology as we will be 
learning about today. Our role in this process, as members of this 
Committee, is to craft a regulatory environment that effectively deals 
with problems without hampering the innovation of the private sector. 
One of my constituents from Virginia, Mr. Joel Mandelman, will be 
speaking before this Committee later today. I want to take this 
opportunity to thank him for his appearance and for the innovative work 
that his company Nutech is doing in its efforts to treat ballast water 
so the impact of invasive species on the environment can be controlled. 
Invasive species cause significant economic impact and are a major 
threat to public health and the environment. It is estimated that 
damage from these organisms causes over $6 billion in damages to the 
United States annually. The industries most affected include power 
plants, municipal water treatment systems, ships and fishing. In 
particular, the vitality of the shellfish industry is greatly impacted.
    It is my understanding that Nutech has developed a treatment system 
for ballast water that both reduces the spread of invasive species and 
reduces operating costs for ship owners. This process involves treating 
ballast water with ozone gas to decontaminate the water. Ozone gas has 
been shown to be very effective in disinfecting drinking water, 
swimming pools and aquariums. Testing of ozone gas treatment aboard 
ships in Alaska in 2000, showed that this form of water treatment 
greatly reduced the number of unwanted organisms found in ballast 
water. I am told that this innovative technology works in both fresh 
and salt water because ozone gas quickly degrades and reverts back to 
oxygen. Therefore, ozone has the potential to fulfill the requirements 
that the National Aquatic Invasive Species Act (S. 363) places on the 
discharge of ballast water in the Great Lakes. This technology also 
speeds up the timeline for when ships can comply with the requirements 
set forth in the International Maritime Organization (IMO) Treaty.
    However, to encourage new technology that will improve our 
environment, any legislative approaches must be mindful of the needs of 
companies like Nutech to ensure they have the tools they need to 
successfully test and implement their technology. In September of this 
year, another test will be conducted where Nutech will install an 
advanced version of its technology on an oil tanker. Because of 
improvements in the technology, this version will cost 65 percent less 
than the equipment for the first test and will be able to be installed 
without taking the ship out-of-service.
    According to the shipping industry, deep ocean ballast water 
exchanges cost a ship owner between $16,000 and $80,000 per exchange 
(which must occur every month). For this technology to be implemented, 
several changes must be made to induce ship owners to participate. 
Therefore, Nutech suggests that the implementation period in S. 363 be 
shortened so ships currently in service will have to treat their 
ballast water once the Coast Guard approves a treatment technology. 
Nutech believes this change ensures that ballast water treatment 
continues to evolve along with technology. Second, to speed up the 
implementation date of the legislation the Committee should expand the 
scope of the Coast Guard's Shipboard Evaluation and Testing Program 
(STEP) to allow more ships of the same owner to participate in 
experimental technology program. In addition, we should consider 
grandfathering in owners who install approved technology prior to the 
mandatory implementation date to current standards. Third, in terms of 
complying with Coast Guard regulations, ship captains must be able to 
prove that they have been treating their ballast water. For more 
effective testing, it is suggested that conducting microbe counts at 
every port is not an effect way to measure the quality of the ballast 
water. Total Residual Oxidant testing should be the main test of 
ballast water with microbe testing done on a periodic basis. Finally, 
any Congressional action should be the exclusive legislative authority 
for mandating methods of treatment and discharge of ballast water. This 
provision will prevent conflicting regulation of discharges under the 
Clean Water Act.
    It is vital that we on this committee work with companies such as 
Nutech to create an efficient regulatory environment that fosters 
innovation. By developing incentives that allow ship owners to invest 
in new technology, we will be able to better protect the environment 
with a lower cost to business owners. I hope that during this hearing 
we will consider the best way to remedy this significant problem 
impacting our oceans and lakes. I again would like to thank the 
Chairman for his leadership on this issue and look forward to working 
with the Committee as we figure out the best legislative approach for 
dealing with this problem. Thank you.
                                 ______
                                 
   Prepared Statement of Hon. Carl Levin, U.S. Senator from Michigan

    I want to thank Chairman Sununu and Ranking Member Boxer for 
holding today's hearing on the important issue of ballast water and 
aquatic invasive species. I also want to thank the full Committee 
Chairman, Chairman Stevens and Ranking Member Inouye, who have been 
strong advocates in this area and who have introduced S. 363, the 
Ballast Water Management Act of 2005.
    The problem of aquatic invasive species is very real to coastal and 
inland waterways. Invasive species-microorganisms, pathogens, plants, 
fish, and animals--were introduced into the United States and have 
become established and self-sustaining, since the days of colonization. 
Yet modern transportation technology and the fast pace of global trade 
have greatly increased the rate and severity of these invasions. The 
results are often ecologically and economically disastrous.
    As a Senator from Michigan, a Great Lakes State, I have seen the 
consequences of allowing aquatic invasive species to enter our waters. 
Some of my colleagues may remember that back in the late eighties and 
nineties, the zebra mussel was released into the Great Lakes through 
ballast water. At that time, people considered the zebra mussel to be 
just a problem for the Great Lakes. The Great Lakes still suffer from 
zebra mussels, but now, over 20 states--as far west as California and 
as far north as New Hampshire--are fighting to control and prevent 
them. I'm sure Chairman Sununu and Ranking Member Boxer can appreciate 
why a national ballast regulatory program is needed now. Zebra mussels 
have fundamentally changed the natural dynamics of the Great Lakes. 
They have decimated native mussels, allowed toxins to reenter into the 
food chain, may be responsible for causing the collapse in the plankton 
essential to support sport fish and may be responsible for creating 
hypoxic conditions or a ``Dead Zone'' in Lake Erie. Many of our beaches 
are covered by so many zebra mussel shells that you must wear shoes to 
walk the beach, and it is estimated that electrical generation, water 
treatment, and industrial facilities spend tens of millions of dollars 
every year combating the zebra mussel.
    The best effort that we have against invasive species is 
prevention. Because maritime commerce is the largest and most active 
pathway for new species to be introduced into our waters, I believe 
that we need to enact legislation that will require ballast water 
discharge management that will result in ballast water treatment 
technology onboard ships as soon as possible. I believe that technology 
vendors will be able to produce affordable technology that 
significantly improves on ballast water exchange in the very near 
future.
    I recognize the need to put ballast technology onboard ships 
quickly. Under current law, ships that enter the Great Lakes must 
conduct ballast water exchange, empty their ballast tanks, or use 
alternative technology to treat their ballast water. While the Great 
Lakes ballast water program has probably decreased the number of new 
introductions, a new invader appears in the Great Lakes approximately 
every 8 months. Currently, there is no process in place for ships to 
pursue the statutory option to use alternative treatment, except for an 
experimental program that has onerous requirements. Consequently, ships 
carrying ballast water must exchange their ballast water or empty their 
ballast tanks. Roughly 90 percent of ships visiting the Great Lakes 
report no ballast onboard (NOBOB). Unfortunately, researchers believe 
that even when a ship empties its ballast tanks, the small amount of 
ballast that cannot be pumped out still carries viable organisms. When 
ships fill and empty their tanks in the Great Lakes, these species are 
flushed into the Lakes. While technologies and practices might be used 
to reduce the risk of those residuals, the best solution is ballast 
water treatment. Treatment, even to a level equivalent to ballast water 
exchange, would significantly improve the situation for the Great 
Lakes.
    Senator Collins and I introduced the National Aquatic Invasive 
Species Act (S. 770), which directs the Coast Guard and the EPA to set 
an environmentally protective ballast water discharge standard. It 
requires ships to use ballast water exchange or a treatment which 
achieves the best performance level available in the near-term and 
phases out ballast water exchange after 2011. It also addresses the 
risks associated with other aspects of the ship, such as hull fouling. 
The benefit of this approach is not limited to the Great Lakes, and the 
bill will hasten technology development.
    In closing, I again want to thank this subcommittee for today's 
hearing. Aquatic invasive species threaten all of our waters regardless 
whether they are inland or coastal. As the Chairman saw in his own 
State of New Hampshire, invasive species that enter into our waters can 
easily be spread, and a strong ballast water technology is needed to 
prevent any new invaders. I urge my colleagues to authorize legislation 
that does the following.

   Has a comprehensive scope--Federal legislation must address 
        the introduction of invasive species from the whole ship and 
        address all pathways of introduction, rapid response, and 
        research;

   Focuses on prevention--Once introduced to the United States, 
        invasive species are nearly impossible to eradicate, and their 
        spread by other pathways is difficult and costly to control and 
        eradicate. Federal legislation must close the loopholes that 
        allow species to invade our waters and prevent them from being 
        introduced;

   Addresses the whole ship as a pathway--Researchers believe 
        that ballast water is just one way that ships carry organisms. 
        Therefore, Federal legislation must consider the whole ship as 
        a pathway of introduction, and address hull fouling and anchor 
        chains; and

   Mandates an environmentally protective standard for ballast 
        water and facilitates broad near-term use of best available 
        treatments--Federal legislation should require ships to meet an 
        environmentally protective and measurable standard at a future 
        date certain. Legislation should also facilitate the use of 
        treatments and practices that yield the greatest reduction in 
        risk by as many ships as possible.
                                 ______
                                 
             Prepared Statement of Hon. Susan M. Collins, 
                        U.S. Senator from Maine

    Lakes, ponds, and coastal ecosystems in Maine are under attack. 
Aquatic invasive species threaten Maine's drinking water systems, 
recreation, wildlife habitat, lakefront real estate, and fisheries. 
Plants, such as variable-leaf milfoil, are crowding out native species. 
Invasive Asian shore crabs are taking over Southern New England's tidal 
pools and are advancing into Maine to the potential detriment of my 
state's lobster and clam industries.
    Maine, and many other states, are attempting to fight back against 
these invasions. Unfortunately, states can only do so much. As with 
national security, protecting the integrity of our lakes, streams, and 
coastlines from invading species cannot be accomplished by individual 
states alone. We need a uniform, nationwide approach to deal 
effectively with invasive species. For this reason, Senator Levin and I 
introduced S. 770, the National Aquatic Invasive Species Act (NAISA) of 
2005, to reauthorize the Nonindigenous Aquatic Nuisance Prevention and 
Control Act. This bipartisan legislation would create a comprehensive 
nationwide approach to combating alien species that invade our shores, 
whether these species are hitchhikers aboard a ship or carried in the 
cargo of an airplane.
    I want to thank Chairman Sununu and Ranking Member Boxer for 
holding a hearing on ballast water management of aquatic invasive 
species. This issue is of national importance. As the Government 
Accountability Office reported: ``[I]nvasive species are one of the 
most serious, yet least appreciated, environmental threats of the 21st 
century.''
    Federal legislation to address aquatic invasive species must have 
the following features to effectively protective protect U.S. aquatic 
ecosystem , and the economies they support:

   Comprehensive scope--Federal legislation must address the 
        introduction of invasive species from the whole ship as well as 
        address other pathways of introduction such as importation for 
        the pet trade or for food markets, rapid response, and 
        research;

   Focus on prevention--Once introduced to the United States, 
        highly invasive species such as the zebra mussel, European 
        green crab, and watermilfoil are often impossible to eradicate, 
        and their spread by secondary vectors is difficult and costly 
        to control;

   Address the whole ship as a pathway--Current research 
        suggests that hull fouling is a significant contributor in 
        aquatic invasive species introductions; therefore, Federal 
        legislation must consider the whole ship as a vector of 
        introduction, not just ballast water;

   Set environmentally protective standard for ballast water, 
        and facilitate broad near-term use of best treatments 
        available--Federal legislation should require ships to meet an 
        environmentally protective, measurable standard at a certain 
        date in the future, but meanwhile facilitate the use, by as 
        many ships as possible, of treatments and practices that yield 
        the greatest reduction in risk from aquatic invasive species 
        possible; and,

   Retain state sovereignty--Federal legislation should permit 
        states to take steps to protect their aquatic resources from 
        damage by ship-mediated introductions of aquatic invasive 
        species if the Federal program proves ineffective.

   The need for comprehensive national legislation focused on 
        prevention--The stakes are high when invasive species are 
        unintentionally introduced into our Nation's waters. Invasive 
        species endanger ecosystems, reduce biodiversity, and threaten 
        native species. They disrupt people's lives and livelihoods by 
        lowering property values, impairing commercial fishing and 
        aquaculture, degrading recreational experiences, and damaging 
        public water supplies.

    In the 1950s, European green crabs swarmed the Maine coast and 
literally ate the bottom out of Maine's soft-shell clam industry by the 
1980s. Many clam diggers were forced to go after other fisheries or 
find new vocations. In just one decade, this invader reduced the number 
of clam diggers in Maine from nearly 5,000 in the 1940s, to fewer than 
1,500 in the 1950s. The European green crab was first documented on the 
West Coast in San Francisco Bay in 1989. Since its discovery in 
California, the European green crab has spread northward to Oregon and 
Washington. If the European green crab becomes established in on the 
West Coast, it may have a significant impact on the clam, oyster, and 
mussel industries, similar to the impacts on Maine. In California, the 
green crab is thought to have caused the loss of as much as 50 percent 
of Manila clam stocks and substantial decreases in other crab 
populations. European green crabs currently cost an estimated $44 
million a year in damage and control efforts in the United States.
    The European green crab provides the textbook example why the 
United States needs comprehensive legislation to not only address 
ballast water, and to improve coordination to prevent the interstate 
spread of these species once they reach U.S. shores. The European green 
crab likely hitched a ride to the East Coast in the dry ballast of a 
ship. Once here it spread from New Jersey north to Nova Scotia, and 
south to the Chesapeake Bay. Its spread to the West Coast could have 
been caused by a number of human factors that are responsible for the 
spread the species to new areas. Among these is ballast water from 
incoming ships, seaweed packed with lobsters, and through bait. 
Comprehensive legislation would address these various pathways for the 
introduction of species and will help states coordinate efforts to 
prevent the spread of a species once it enters an aquatic ecosystem.
    The National Aquatic Invasive Species Act of 2005, is the most 
comprehensive effort ever to address the threat of invasive species. By 
authorizing $836 million over 6 years, this legislation would open 
numerous new fronts in our war against invasive species. The bill 
directs the Coast Guard to develop regulations that will end the easy 
cruise of invasive species into U.S. waters through the ballast water 
of international ships, and would provide the Coast Guard with $6 
million per year to develop and implement these regulations.
    The bill also would provide $30 million per year for a grant 
program to assist state efforts to prevent the spread of invasive 
species. It would provide $12 million per year for the Army Corps of 
Engineers, and Fish and Wildlife Service, to contain and control 
invasive species. Finally, the Levin-Collins bill would authorize $30 
million annually for research, education, and outreach.
    The most effective means of stopping invading species is to attack 
them before they attack us. We need an early alert, rapid response 
system to combat invading species before they have a chance to take 
hold. For the first time, this bill would establish a national 
monitoring network to detect newly introduced species, while providing 
$25 million to the Secretary of the Interior to create a rapid response 
fund to help states and regions respond quickly once invasive species 
have been detected. This bill is our best effort at preventing the next 
wave of invasive species from taking hold and decimating industries and 
destroying waterways throughout the country. In Washington, the state 
does not believe it can eliminate the European green crab, but it is 
trying to control the population to the point where it is not 
disastrous to the surrounding ecosystem. NAISA would give the states 
the tools and resources for this effort.
    While introduction of aquatic invasive species through ballast 
water poses the greatest threat to our waters, non-native species 
imported for live food, aquaculture, or the pet trade can escape and 
become invasive. The snakehead fish that invaded a Maryland pond and 
now the Potomac River is one example. Currently, there is no uniform, 
systematic process for screening or regulating the proposed importation 
of live organisms to prevent the introduction of harmful invasive 
species. The NAISA legislation creates a screening process for planned 
introductions of non-indigenous species not already in trade. The 
legislation would prohibit the importation of species that are 
determined to pose a high risk of becoming invasive or species with 
insufficient information to determine the risk.
    Prevention is key, but when it fails, we must respond rapidly to 
detect invasive species and stop their spread. This legislation will 
help states and regional organizations detect and respond to future 
invasions through early detection and rapid response. The bill provides 
funding to support ecological surveys to rapidly detect recently-
established aquatic invasive species and to develop and implement rapid 
response plans to eradicate or control aquatic invasive species.
    The legislation also takes precautions to ensure that the methods 
we use to manage and control invasive species do not adversely affect 
health, public safety, or the environment. Ensuring the environmental 
soundness of our response is critical if we are to avoid unintended 
consequences. In the 1990s, biologists in Maine found DDT and other 
pesticides in the mudflats of Maine. In an attempt to eradicate the 
green crab, the state, and individuals, had applied pesticides to the 
flats about 50 years earlier. We must be careful that our current 
attempts to remove invasive species do not cause even more serious 
problems.

    Ship Mediated Introduction of Aquatic Invasive Species--One of the 
leading pathways for the introduction of aquatic organisms to U.S. 
waters from abroad is through transoceanic vessels. Commercial vessels 
fill and release ballast tanks with seawater as a means of 
stabilization. The ballast water contains live organisms from plankton 
to adult fish that are transported and released through this pathway. 
We are still on a steep learning curve regarding the best treatments to 
use to address this problem. However, while a perfect treatment still 
eludes us, many possible treatments would improve substantially on 
ballast water exchange, our current fallback. The best approach to 
resolving this situation is to facilitate use, by as many ships as 
possible, of the best methods available as soon as possible and require 
improvement over time.
    NAISA provides a model for a framework. Since the last 
reauthorization of this legislation in 1996, there has been growing 
consensus about the value of a mandatory national program to prevent 
movement of organisms by ships. NAISA will require all ships to prepare 
Aquatic Invasive Management Plans, carry out best management practices, 
and document all ballast operations and management activities related 
to this legislation. The legislation would require the U.S. Coast 
Guard, in concurrence with the Environmental Protection Agency, to set 
a protective discharge standard for ballast water, and require ballast 
water exchange or the best treatments possible until 2011. After that 
date, ballast water exchange expires as an option. In addition, the 
Coast Guard and EPA must promulgate regulations related to other ship 
operations that pose a significant risk of introduction of aquatic 
invasive species. The legislation protects the investments of ship 
owners in treatments by providing a 10-year approval period for any 
approved installation. These measures will ensure that the United 
States is taking the most effective actions possible to protect our 
waters, ecosystems, and industries.
    Lastly, NAISA does not preempt state efforts to better control 
ballast water discharges and other ship-mediated vectors. For too long, 
the Federal Government has taken little action to address the 
environmental and economic threats posed by ships, states should be 
allowed to continue their efforts at least until there is a strong 
national program enacted and implemented.
    Nonindigenous species infest and degrade U.S. waterways and coastal 
areas in virtually every region of the United States. We are losing the 
fight to protect the Nation's waters from expensive and environmentally 
damaging invasions by aquatic nuisance species. Every day that passes 
without protections to prevent new invasions increases the threat that 
another exotic species will establish itself, altering the ecosystem in 
our great waters.
    The NAISA legislation provides the framework for a comprehensive 
and coordinated response at the Federal, state, and local levels to 
prevent the spread of aquatic invasive species. I urge my colleagues to 
cosponsor this legislation and work to move the bill swiftly through 
the Senate.
                                 ______
                                 
    Prepared Statement of Dr. Celia M. Smith, Professor of Botany, 
                         University of Hawai'i

Regarding the Impacts of Ballast Water and Related Hull-Fouling to 
        Hawaii
    Greetings, Chairman Stevens, Co-Chair Inouye and distinguished 
members of the National Ocean Policy Study Subcommittee of the Commerce 
Committee. This is the testimony for Dr. Celia M. Smith, Professor of 
Botany at the University of Hawai'i. With this testimony, I'd like to 
argue the significance of impacts from ballast water and hull-fouling 
for invasive, non-indigenous species introductions to the Hawaiian 
archipelago. Thank you for this opportunity to outline mechanisms and 
threats associated with these invasive species, emphasizing our 
Hawaiian ecosystems.
    I have four points that I would like to make today. First, our 
islands' coastal ecosystems are unparalleled assemblages of native 
species of fish, invertebrates and marine plants that have evolved for 
several million years, in relative isolation from the U.S. mainland, or 
any other significant land mass. About 25 percent of our marine biota 
is unique to the Hawaiian Islands. Consequently, in a pristine setting, 
our ecosystems are species-rich communities, and highly productive. Our 
geographic isolation brought us one other novelty--the ability to 
detect when a new species has arrived, with relative ease. Since about 
1950, these kinds of observations have lead to a new awareness in a 
tropical setting. Our native marine flora and fauna are under constant 
pressure from the rising tide of introductions and species extinctions 
arising from human activities. This situation will ultimately 
homogenize the tropical Pacific marine biota unless something is done, 
now.
    My second point is borrowed from colleague Dr. Lucius Eldredge 
(Bishop Museum), and his collaborators. Through their efforts, we have 
learned that hundreds of invertebrate species have been introduced to 
the Hawaiian Islands. Worse, is the report that over three-quarters of 
those species introduced by ballast water (over 15 species), hull-
fouling (over 200 species), or solid ballast (over 20 species), have 
established in Hawaiian waters, especially harbors.
    In the marine plant arena, we have fewer numbers of introductions 
associated with ballast or hull-fouling. Yet, as my third point, what 
marine plants lack in numbers, they make up for with stunning levels of 
biomass. At least two algal introductions quite clearly can be followed 
back to hull-fouling as the vector for introduction: Acanthophora 
spicifera, introduced about 1950, and in about 10 years spread to all 
the main Hawaiian Islands, and Dictyota flabelliformis, our most recent 
arrival on a dry dock from southern California. Acanthophora spicifera 
is now one of the most common algae in the Hawaiian Islands. Hypnea 
musciformis, another introduction, probably spread via hull-fouling to 
our neighbor islands. Biomass of this alga accumulates at a rate of 
tens of tons per year in Kihei Maui and has been tied to an estimated 
$20 million per year lost revenue for the county.
    Finally, while the State of Hawaii does have occasional ciguatera 
outbreaks, we have been spared large scale outbreaks of redtides, brown 
tides, and other phytoplankton blooms that have dire consequences to 
coastal food chains and humans. Ballast water is a known vector for 
introduction of toxic phytoplankton to areas in the world where toxic 
species did not occur. For my fourth point, I urge this Committee to 
put in force the strongest possible regulations to protect our state 
from these toxic species.
    Thank you again for the opportunity to comment on the introduction 
of non-native species through the discharge of ballast water and hull-
fouling from ships.

Regarding the Current Threats to Coral Ecosystems in Hawaii
    Greetings, Chairman Stevens, Co-Chair Inouye, and distinguished 
members of the National Ocean Policy Study Subcommittee of the Commerce 
Committee. This is the testimony for Dr. Celia M. Smith, Professor of 
Botany at the University of Hawaii. With this testimony, I'd like to 
argue the significance of threats to coral reefs and coral reef 
ecosystems in the Hawaiian archipelago. Thank you for this opportunity.
    I have three points that I would like to make today. First, as in 
my earlier testimony, our islands' coastal ecosystems are unparalleled 
assemblages of native species of fish, invertebrates, and marine plants 
that have evolved for several million years, in relative isolation from 
the U.S. mainland or any other significant land mass. About 25 percent 
of our marine biota is unique to the Hawaiian Islands. Consequently, in 
a pristine setting, our ecosystems are species-rich communities, and 
highly productive. Our geographic isolation brought us one other 
novelty--the ability to detect when a new species has arrived, with 
relative ease. Since about 1950, these kinds of observations have lead 
to a new awareness in a tropical setting. Our native marine flora and 
fauna are under constant pressure from the rising tide of introductions 
and species extinctions arising from human activities. Perhaps, 
surprisingly though, known hull-foulers have jumped from harbors to 
reef regions, and become ecological dominants. These two issues, 
healthy reefs and alien species introductions by whatever vector, are 
linked in a number of ways.
    My second point goes to the impacts of these alien species 
introductions to coral reefs. Intentional introductions have shifted 
the fundamental competitive advantages that keep a coral ecosystem 
poised with coral dominance. Weedy cultivars of marine crop plants can 
quickly overgrow patch reefs once dominated by coral, produce four 
times the biomass of our most productive Hawaiian species. Reductions 
in the diversity and complexity often associated with coral reefs are 
some of the early costs that we've already observed. Longer term costs 
to us will be being realized as losses in fisheries, losses in 
aesthetic values as shorelines turn murky, losses in mechanical 
strength for our islands against hurricane wave forces.
    My third point goes to underscore the complexity of coral reef 
ecosystems and what we might lose. As Lewis and Clark searched the 
boundaries of our new country adding dozens of new plant species, we 
are only beginning to understand the boundaries of a reef ecosystem. In 
any given day through our deep diving fieldwork, we add new plant 
species to the Hawaiian flora. Are there connections among populations 
of organisms? How might interactions among groups of species change 
over short and long-term natural disturbances? This is the stuff of 
active research. The scientists working to answer to these questions 
are pressed by the threats posed by vessel groundings, overharvesting 
and coastal run off--short and long-term human disturbances that could 
change reef ecosystems profoundly and in such a way that the reefs 
might not recover.
    I urge this committee to put in force the strongest possible 
protections for these vulnerable and valuable ecosystems. Thank you 
again for the opportunity to comment on these important issues.
                                 ______
                                 
      Prepared Statement of the American Waterways Operators (AWO)

    The American Waterways Operators (AWO) is the national trade 
association of the U.S. tugboat, towboat, and barge industry. It 
comprises more than 400 member companies that operate throughout the 
inland and coastal waters of the United States. The barge and towing 
vessel fleet, the largest single segment of the U.S. domestic vessel 
fleet, consists of nearly 4,000 tugboats and towboats, and over 27,000 
barges of all types. These vessels transit 25,000 miles of inland and 
intracoastal waterways, the Great Lakes, and the Atlantic, Pacific, and 
Gulf coasts. AWO members have a long record of safety leadership and 
environmental stewardship, as evidenced by the AWO Responsible Carrier 
Program, a third-party-audited safety management system with which all 
AWO members must comply as a condition of association membership, and 
the first-of-its-kind Coast Guard-AWO Safety Partnership.
    AWO appreciates the opportunity to submit these comments for the 
record. AWO is an active member of the Shipping Industry Ballast Water 
Coalition (Coalition) and strongly supports the statement provided by 
Ms. Kathy Metcalf at the June 15, 2005 hearing on behalf of the 
Coalition. As a member of the Coalition, AWO supports a comprehensive, 
national strategy for ballast water management. AWO supports S. 363 
with several changes to strengthen the bill's provisions on Federal 
preemption, Federal exclusivity, and a safety exemption from ballast 
water exchange requirements for barge and towing vessel operations.

Tug and Barge Industry Ballast Water Practices
    As operators of small vessels, unmanned barges, and vessels that 
are most frequently employed in domestic service, the barge and towing 
industry has a unique set of concerns related to ballast water 
management. Historically, international and national ballast water 
requirements have been designed for sea-going ships and crewed vessels, 
not unmanned barges. Barges have typically not been the focus of 
ballast water legislation or regulations since most are not manned 
vessels and were not designed nor intended to exchange ballast at sea. 
However, barges and towing vessels do engage in ballasting operations, 
and in many cases these operations are essential for safe operations. 
In order to avoid grafting ill-fitting legislative mandates onto small 
vessels, unmanned barges, and vessels in domestic service, it is 
important to understand typical ballasting practices in the barge and 
towing industry and ensure that legislation is drafted with the 
operations and limitations of barges and towing vessels in mind.
    While ballast water practices in the barge and towing industry are 
diverse, it is common to take on or discharge ballast in the harbor to 
adjust the trim of the vessel based on specific characteristics of the 
cargo and how it is stowed or loaded onto the barge. In some 
operations, it is necessary to ballast and deballast at the dock to 
keep the barge at the proper freeboard (height above the water) 
compared to the level of the dock. In Hawaii and Alaska, for example, 
cargo on deck barges is loaded and unloaded using ramps between the 
dock and the deck of the barge. If the barge rides too high or too low 
in the water, the angle of the ramp can be too steep to transfer cargo 
safely. Because of tide changes and because the docks at different 
ports are at different heights, a barge that has the proper freeboard 
for loading in one port is often at the wrong freeboard for unloading 
in the second port. In order to properly adjust the freeboard to 
discharge cargo safely, it may be necessary to discharge ballast water 
at the dock.
    Ballast water is also used to adjust the trim of a vessel (either a 
barge or a towing vessel) based on the cargo carried and the 
requirements of a particular voyage. Tugboats and towboats make 
adjustments to their ballast water while underway to compensate for 
fuel burn-off. These highly technical and voyage-specific adjustments 
are made throughout the waterway system at the discretion of the vessel 
master to ensure that the vessel operates safely within its design 
parameters.

Safety Considerations
    Conducting underway ballast water exchange on barges, as would be 
required under S. 363, poses serious safety concerns for crewmembers 
operating tugs and barges. Most barges are unmanned, and ballasting at 
sea would require bringing the tug alongside a towed barge and getting 
a crewmember onboard the barge to operate the pumps. Waters are rarely 
calm enough to allow the tug and barge to stay safely alongside each 
other, and even in calm waters, this operation could pose a potentially 
serious safety risk. A second option would be to send a crew member to 
the barge in a small boat. The crew member would then have to climb the 
sheer wall of the barge at sea and operate pumps from the rolling deck 
of the barge. In either scenario, getting a crewmember on and off the 
barge is inherently risky and is considered by most in the barge and 
towing industry to be a dangerous, life-threatening operation.

    The Coast Guard, the states, and the shipping industry have all 
recognized the significant risks involved in conducting ballast water 
exchange on barges. In the preamble to its final rule implementing the 
National Invasive Species Act of 1996, the Coast Guard noted, ``For 
example, in many situations, it may be inherently unsafe to conduct an 
exchange of ballast by an unmanned barge.'' (Vol. 66, Number 225, 
Federal Register Nov. 21, 2001.) The States of Washington and Oregon 
have also recognized these risks by limiting the scope of state ballast 
water regulations to self-propelled vessels. In the interest of safety, 
the Shipping Industry Ballast Water Coalition has reached the same 
conclusion and determined that ballast water exchange involving 
unmanned barges is inherently unsafe.
    Safety concerns associated with ballast water exchange extend even 
to the most modern generation of tug-barge units. Articulated tug-barge 
units (ATBs) have different, but significant, difficulties with 
conducting ballast water exchange because of the way they are 
configured. An ATB consists of a tug and barge joined together as a 
unit. An ATB is connected in a notch by pins and the tug and barge must 
maintain the same draft in order to stay locked into position. It is 
impossible to make adjustments to how the tug and barge are connected 
while the vessel is underway. As a result, accepted industry practice 
is generally not to conduct ballast water exchange on ATBs. (AWO is 
aware of one member company that has made significant physical 
modifications to its four ATBs to be able to conduct ballast water 
exchange while underway. However, this company continues to research 
options for treating ballast water on the ATBs because it has serious 
concerns with putting crews onboard barges at sea, and concerns about 
vessel stress when removing ballast water from a barge on the open 
ocean.)

AWO Recommendations for S. 363
    AWO supports the recommendations of the Shipping Industry Ballast 
Water Coalition to amend and improve S. 363. Consistent application of 
Federal requirements for ballast water operations is essential to the 
efficient operation of tugboats, towboats, and barges. Patchwork 
regulatory requirements applied on a state-by-state or waterway-by-
waterway basis are onerous and hinder commerce. Moreover, towing 
vessels and barges operate 24 hours a day, 7 days a week, throughout 
U.S. waters and cannot operate efficiently if regulated by a mechanism 
other than a strong, uniform Federal program. AWO strongly supports the 
Coalition's recommendation that Federal legislation should preempt 
state regulation of the management and control of ballast water 
discharges in the U.S. AWO also urges Congress to specify that enacted 
ballast water legislation is to be the exclusive Federal program that 
regulates ballast water management and discharges in U.S. waters.
    Safe operation of barges and towing vessels necessitates ballast 
water uptake and discharge. The prescriptive ballast water exchange 
provisions in S. 363 that do not differentiate between the minimal 
risks of ballast water exchange on an ocean-going ship versus the 
significant risks on an unmanned, non-self propelled barge are 
problematic for the barge and towing industry. S. 363 should include an 
express provision that exempts barges and towing vessels from the 
ballast water exchange requirements. As described in the Coalition's 
statement, while the existing safety exemption in the legislation would 
arguably cover barge and towing vessel operations, it would be more 
appropriate for Congress to expressly state its intent regarding this 
known hazardous operation, rather than subject barge and towing 
operators to additional scrutiny if they invoke the safety exemption. 
Moreover, the requirements that ballast water exchange be conducted at 
minimum distances from land and in minimum depths of water as 
prescribed in S. 363, would preclude most barges and towing vessels 
from conducting exchange, even if it were safe to do so, because most 
vessels rarely transit outside the Exclusive Economic Zone (EEZ).
    AWO members, because of their deep commitment to marine safety and 
environmental protection, are currently exploring ballast water 
treatment options other than ballast water exchange which could serve 
as safer alternatives to ballast water exchange in the future. At 
present, there are no acceptable means of ballast water exchange nor 
any safe and effective alternative ballast water treatment technologies 
viable for tug and barge application; however, the establishment of a 
national ballast water treatment standard should serve to accelerate 
this process.
    Thank you for the opportunity to present our views for the record. 
We would be pleased to provide any additional information the 
Subcommittee may require.
                                 ______
                                 
 Prepared Statement of Michael L. Ham, Secretariat, United States All 
    Islands Coral Reef Initiative Coordinating Committee (USAICRICC)

    The United States All Islands Coral Reef Initiative Coordinating 
Committee (USAICRICC) extends our appreciation for this opportunity to 
present comments to the U.S. Senate Commerce Committee, on the 
reauthorization of the Coral Reef Conservation Act of 2000 (CRCA).
    The passage of the CRCA in 2000, began the process for seriously 
undertaking the protection and conservation of the Nation's coral reefs 
and their resources. The process for protection and management of coral 
reefs, which began with Presidential Executive Order 13089 in 1998, 
created not only the U.S. Coral Reef Task Force, but a unique and far 
reaching partnership between the Federal and the State/territorial/
commonwealth governments. This partnership has become the model for 
environmental management. The CRCA supported and expanded on that 
effort by defining the focused efforts of the National Oceanic and 
Atmospheric Administration (NOAA), and provided the funding mechanism 
for undertaking the difficult and unprecedented work of environmental 
management of these most fragile ecosystems in America's tropical 
waters.
    The reauthorization process allows us to not only provide for the 
continuation of these efforts, but to build on them and to make the Act 
more responsive to management needs. The following comments are 
intended to support that end. These are presented as a consensus report 
of the USAICRICC, but do not preclude some differences of views between 
the island jurisdictions of the United States. The USAICRICC is 
composed of the designated Points-of-Contact for the Governors of 
Hawaii, Guam, Puerto Rico, American Samoa, U.S. Virgin Islands, and 
Commonwealth of the Northern Mariana Islands, but these remarks are not 
intended to be interpreted as the official comments of those Governors.
    The coral reefs of the United States provide many billions of 
dollars of the Gross National Product. Through the Nation's fisheries, 
recreation, tourism, shoreline protection, medicinal, and 
pharmaceutical industries, the reefs provide for jobs, products, diet, 
and health. They help provide for America's economic, environmental, 
and political security. While most of the Nation never experiences 
coral reefs first hand, all Americans are reliant on them and benefit 
from their protection and conservation.

Specifics on the Draft Bill
    Section 2. While we certainly agree with the suggested division of 
resources in this section, the truth is that the jurisdictions which 
contain more than 80 percent of the Nation's coral reefs directly 
receive no more than 15 percent of the total monies available under the 
CRCA. The Federal activities and structure that exists is, generally 
necessary, and we agree that many of the projects undertaken at the 
Federal partnership level do help the jurisdictions. However, an 
increase in the funds available to the jurisdictions with the 
responsibilities for coral reef management, protection and conservation 
is essential if we are going to achieve the goals of the CRCA. 
Additionally, it is important that funding become programmatic in 
structure within NOAA, in order to better ensure more predictable and 
dependable funding. The following language, below, is offered as 
descriptive of these comments.

        Funding to support wise management of coral reef needs to be 
        structured to provide significant support federally at the 
        local level recognizing that 82+ percent of the coral reefs are 
        in local (state, territorial and commonwealth) waters. 35 
        percent of all Federal funds allocated to coral reefs shall be 
        distributed to island jurisdictions (American Samoa, 
        Commonwealth of the Northern Mariana Islands, Guam, Hawaii, 
        Puerto Rico, and United States Virgin Islands. Out of the 35 
        percent, the Federal Government shall receive 5 percent (35-5 
        percent) to administer the distribution of funds. Administering 
        funds shall be accomplished through the adoption of Federal 
        eligibility requirements. These requirements shall be limited 
        to the following: annual fiscal reporting, annual progress 
        reports. Funds shall be active up to 3 years. Eligibility 
        requirements will also define allowable activities and maximize 
        the local authority to define and implement programs to 
        effectively manage and sustain coral reefs. Activities may 
        include but are not limited to: development and implementation 
        of management actions, research, staffing, training, 
        communication, operational support, enforcement, and education. 
        These parameters may be revised or updated to make the process 
        more effective with the intentions of minimizing administrative 
        oversight and maximizing the funding used toward 
        implementation.

    The approach utilized by the United States Fish and Wildlife 
Service (USFWS) in administering the Sport Fish and Wildlife 
Restoration Funds, should be used as a model for establishing 
eligibility requirements and allowing local jurisdictions the maximum 
flexibility in developing programs.

Section 206. Emergency Assistance
    The All Islands Committee supports this new language. Experience 
has shown us that, not only can communities recover more quickly and 
more fully, but resource damage can be reduced significantly with 
immediate attention to environmental damage following disasters. The 
mechanism to provide that immediate attention did not exist in the 
disaster recovery process prior to this year, when the Federal 
Emergency Management Agency (FEMA) was given the authority and 
responsibility for such through Emergency Support Function 11 of the 
National Response Plan, but the first opportunity to invoke that 
authority following Hurricane Olaf in American Samoa, they failed to 
respond and unnecessary damage to the coral reef resources resulted. As 
provided for in the National Response Plan, Federal action to support 
natural resource recovery in all fifty states, the territories, and 
commonwealths would have been possible. FEMA's stated reasons for not 
activating that responsibility, (no funds to do so, they saw no 
connection between environmental damage and public health, and possible 
conflicts with the Stafford Act), indicate that FEMA would be unlikely 
to provide for natural resources recovery help to any U.S. jurisdiction 
after natural disasters, given that two of those reasons would exist 
after nearly every natural disaster. The language supplied in this 
section and in Section 208(4) should go far in resolving this problem 
in regard to coral reef response, but will not address the problems 
other states will face following natural disasters and their need to 
recover their natural resources in order to fully and quickly recover 
their communities.
    There are two issues which should be included in this section to 
ensure the response being described is accomplished. First, it is 
important that NOAA not be the only agency involved in this response. 
We would suggest that line 24 be amended to read; ``The Secretary may 
[insert ``shall''], undertake or authorize [insert ``in partnership 
with the all Federal agencies with responsibilities for disaster 
relief''] all necessary. . . .'' Second, it should include language 
that would ensure that either reimbursement to the agencies for their 
emergency expenditures under this section, or provide a fund to be used 
for this purpose.

Section 208 Report to Congress
    We believe that the reports to Congress, as identified in this 
section, will serve a multitude of purposes, including providing 
information which can help improve management of the coral reef 
resources at both the Federal and local levels, and better delivery of 
the funds and support required for undertaking the responsibilities of 
the Act. We would, however, caution that reporting requirements all too 
often consume personnel time and effort. We would request that, at a 
minimum, the reports dealing with ``health of the reefs'' be required 
no more often than once every 3 years.
    In short, we strongly support the approach being taken in the draft 
bill and believe that the draft bill holds the potential for greatly 
improving our ability to provide for the conservation of our fragile 
and important coral reef resources. We are hopeful that new allocations 
identified in the draft bill can resolve the current inequities in fund 
allocations. While we do not suggest reducing the Federal effort, any 
new monies allocated should, first and foremost, be directed to the 
jurisdictions, where the day-to-day responsibility for coral reef 
protection and conservation resides.
     We should state that we look forward to continuing to work with 
the Senate on this issue as it moves forward, and in developing the 
mechanisms and possibly other legislation that will provide support to 
the managers who are designated as the responsible parties for coral 
reef conservation. We have, over the past decade, developed a process 
for management in coordination with science for these issues, a unique 
and successful Federal-state/territory/commonwealth partnership for 
action, and local action strategies supported by a wide and divergent 
range of stakeholders through an inclusion process of community 
participation in the process, and we believe that the resources are 
being served well through this approach.

Conclusion
    In closing, I want to repeat that the efforts in coral reef 
management, protection and conservation, and the development of 
successful partnerships between the state/territorial/commonwealth and 
Federal governments and the partnerships between management, science, 
and non-governmental stakeholders, which began with the U.S. Coral Reef 
Initiative in 1994, have been more than simply successful up to this 
point. It was far too long before we, as a Nation began understanding 
the importance of, and expressing our appreciation for our Nation's 
coral reef resources, but in the decade just passed, we have made great 
strides and the CRCA has been an extremely important element in that 
success. We have a long way to go yet, and the CRCA has an important 
role to play in continuing to move forward. We reiterate our request 
that 30 percent of the total funds authorized through the CRCA be given 
directly to the state/territory and commonwealth jurisdictions for 
implementation of projects and programs that will directly impact 
management and protection of coral reefs and coral reef resources.
    We appreciate the efforts of this committee and its staff in 
developing this draft bill, and once again thank the Committee for 
providing us the opportunity to comment.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Daniel K. Inouye to 
                          Timothy R.E. Keeney

Coral Mapping and Assessment B Progress and Needs
    Question 1. The interagency Coral Reef Task Force identified 
mapping and assessment as one of the critical needs in coral reef 
protection, particularly in the Pacific. In addition, the U.S. 
Commission on Ocean Policy recommended increased research and 
characterization of coral reefs. Why is mapping and assessment of 
corals so crucial?
    Answer. Assessment and monitoring through a continued program of 
surveys, systematically undertaken to provide a series of observations 
over time, is the key to understanding and reducing threats to coral 
reef ecosystems. Monitoring can also be used to evaluate the 
effectiveness of specific management strategies, evaluate restoration 
projects, and serve as an early warning system for identifying declines 
in ecosystem health. A combination of direct observations (e.g. diver 
observations), automated sensors (e.g. in situ monitoring buoys), and 
remote sensing (e.g. satellite imagery) provides a suite of 
environmental indices to inform resource managers and policymakers.
    Mapping is crucial for several reasons, including:

        1. Understanding the spatial distribution and assessing the 
        health of coral reef ecosystems helps managers better monitor 
        changes in coral over time, and improves understanding of coral 
        reef ecosystems. This understanding allows the development of 
        informed strategies for more effective conservation efforts.

        2. Maps provide a spatial context for understanding larger-
        scale ecological processes.

        3. Understanding the spatial distribution of coral reef 
        habitats allows scientists to focus studies on particular 
        habitat types and structure research to better understand 
        functional relationships between habitat types.

        4. Maps of coral reef ecosystems help differentiate sensitive 
        areas from areas that are more appropriate for human activity. 
        For example, anchoring of large ships in a sand patch is far 
        less destructive than anchoring on a reef or in a seagrass bed.

        5. For monitoring purposes, coral reef ecosystem maps help 
        scientists track the movement of fish and invertebrate species 
        between habitats and determine where species are likely to be 
        found at different life stages. This process is also helpful in 
        determining the extent of essential fish habitat (EFH) 
        identifications and descriptions for species managed under the 
        Magnuson-Stevens Fishery Conservation and Management Act.

    Question 1a. How much progress have we made since we passed the 
Coral Reef Conservation Act in 2000? What do we know now that we did 
not know then?
    Answer. By the end of Fiscal Year 2005 NOAA will have completed 
planned synoptic habitat maps for shallow-water coral reefs in the Main 
and Northwestern Hawaiian Islands, American Samoa, Guam, the 
Commonwealth of the Northern Mariana Islands, Puerto Rico, and the U.S. 
Virgin Islands. This area includes approximately 37 percent of U.S. 
near-shore waters that contain shallow coral reefs. NOAA's mapping and 
assessment efforts have greatly increased estimates of the potential 
coral reef ecosystems in Florida. Currently, digital shallow water 
benthic habitat maps have been published and distributed for over 
10,500 km\2\ of shallow water coral reef habitat. Coastal managers, 
scientists, and educational groups are using these maps. NOAA's mapping 
and characterization activities in deeper waters have revealed tropical 
reefs at greater depths than previously known, and have improved our 
understanding of the contribution of these habitats to fisheries.
    Our knowledge of coral reefs has increased significantly since the 
Coral Reef Conservation Act was passed in 2000. The U.S. coral reef 
jurisdictions monitor environmental conditions associated with their 
coral reefs, including water quality, benthic habitats, and associated 
biological communities. The coral reef jurisdictions have focused their 
monitoring efforts on these parameters because they: (1) are well-
documented as indicators of specific stressors; (2) are likely to be of 
concern if measurements change markedly over time; (3) can be used to 
define a desired biological condition; and (4) may contribute to the 
development of an index of biotic integrity. As a result of these 
monitoring efforts, managers have obtained a better understanding of 
the threats to their coral reefs; which threats are of most concern or 
are increasing in concern within each jurisdiction; and the effect(s) 
each threat is having.
    We have also gained a better understanding of patterns of coral 
bleaching, the nature of coral diseases, and pathways of disease 
transmission. NOAA has collaborated with numerous Federal, state, 
academic, and non-governmental agencies to create partnerships for 
coral reef conservation. We have determined where gaps in information 
exist and have created a well-established forum of experts. In 
addition, outreach and education efforts for coral reefs have increased 
and are better coordinated.

    Question 1b. How much do you estimate completing mapping, 
monitoring, and characterization would cost?
    Answer. The costs of mapping, monitoring, and characterization 
depend on the water depth and desired resolution of mapping, as well as 
the frequency and spatial coverage of monitoring efforts.

   Mapping: High-resolution satellite imagery (e.g., IKONOS 
        satellite) provides cost-effective and robust data with 
        spectral and spatial resolution suitable for shallow water 
        (less than 40 meters in depth) benthic mapping. Estimated costs 
        to produce maps are $285/km \2\. It is estimated that mapping 
        the 13,000 km \2\ of priority shallow water areas in Florida, 
        the last of the seven U.S. coral reef jurisdictions to be 
        mapped, will cost $4.4 million.
         Mapping coral habitats in deeper water requires different 
        technologies, primarily shipboard multibeam sonar. Cost 
        estimates for gathering and initial shipboard processing of 
        multibeam and backscatter data are about $1,500 per km \2\ in 
        depths between 18-183 meters. In contrast to our work in 
        shallow water, comparatively few of the deeper water tropical 
        coral reefs and associated habitats have been mapped in U.S. 
        waters. To date, NOAA has taken a targeted approach of mapping 
        only the highest priority deeper water areas.

   Monitoring and Assessment: NOAA currently expends more than 
        $5 million annually on monitoring coral reef ecosystems in the 
        United States. This amount complements important monitoring 
        activities conducted by the states, territories, and other 
        Federal agencies (principally the Environmental Protection 
        Agency (EPA) and the Department of the Interior (DOI)), and 
        does not include fine-scale monitoring that may be conducted in 
        association with specific projects or research programs. NOAA's 
        current goal is to ensure reasonable annual monitoring coverage 
        in priority high-use areas (e.g., inside and outside marine 
        protected areas or near major tourism and development areas) 
        and biennial monitoring of more remote areas. NOAA is also 
        providing global monitoring of sea surface temperatures and 
        associated coral bleaching alerts.

   Characterization: A cost estimate for characterization is 
        not readily available. Many of the reefs are in remote 
        locations, which greatly increases the cost associated with 
        conducting a baseline characterization of all U.S. coral reefs. 
        Some characterization is included in the mapping cost.

    Question 1c. Is NOAA planning to leverage funds by working with 
other agencies and outside entities?
    Answer. Yes, NOAA plans to continue to leverage funds, and various 
in-kind contributions, by working with other agencies and outside 
entities. The NOAA Coral Ecosystem Mapping Team has worked 
collaboratively with other Federal, state, and territorial government 
agencies in Puerto Rico, the U.S. Virgin Islands, and Hawaii for many 
years. The NOAA Coral Ecosystem Mapping Team will continue to identify 
opportunities to leverage investments made by other Federal and state 
agencies, universities, and other entities to complete the NOAA mapping 
effort.
    The following examples highlight recent collaborations:

   The NOAA Coral Ecosystem Mapping Team is working with the 
        Florida Department of Environmental Protection to identify 
        matching funds to support mapping southern Florida coral 
        ecosystems, as part of their recently completed Local Action 
        Strategies report.

   The NOAA Coral Ecosystem Mapping Team is working with the 
        Florida Fish and Wildlife Conservation Commission to identify 
        hard bottom and seagrass characterization efforts that will 
        require imagery collection and can be used to support southern 
        Florida coral ecosystem mapping efforts.

   The NOAA Coral Ecosystem Mapping Team working with the U.S. 
        Geological Survey (USGS) to evaluate imagery collected by the 
        USGS Digital Orthophoto map development program, to assess the 
        usefulness of their images for mapping coral ecosystems in 
        southern Florida.

   The NOAA Coral Ecosystem Mapping Team is coordinating with 
        USGS on their shallow-water LIDAR data collection efforts in 
        the Florida Keys and Dry Tortugas for characterizing coral 
        ecosystems and evaluating hurricane impacts.

   The current monitoring and observing activities of NOAA 
        (collectively the Coral Reef Ecosystem Integrated Observing 
        System (CREIOS)) rely on partnerships with Federal agencies; 
        state, territorial, and local governments; and nongovernmental 
        organizations to continually implement a wide range of 
        monitoring activities. Our partners provide in-kind 
        contributions of time and expertise for the sighting, 
        installation, and maintenance of automatic observing systems 
        such as the Coral Reef Early Warning System (CREWS) towers/
        buoys in the Atlantic/Caribbean and in the Pacific.

   NOAA, the National Park Service, and the U.S. Fish and 
        Wildlife Service (USFWS) regularly collaborate and leverage 
        resources to monitor National Parks and Refuges that contain 
        many of the Nation's most pristine coral reefs. USFWS personnel 
        regularly provide staff and expertise on NOAA research, 
        assessment and monitoring cruises, to the Northwestern Hawaiian 
        Islands and other remote island areas. In addition, USFWS 
        personnel often assist with compiling the data obtained by the 
        cruises. The first coral reef assessments of Navassa Island 
        have been made possible through cost-sharing between USFWS and 
        NOAA.

Removing and Responding to Vessel Groundings on Coral Reefs
    Question 2. You were very involved a few years ago in obtaining 
Federal assistance to remove 9 abandoned vessels from Pago Pago harbor, 
which had been driven onto the reef, and were responsible for both 
polluting the waters and crushing the coral resources. It was extremely 
hard to find a responsible program or funding needed to address the 
problem, but through persistence, you were able to leverage the help of 
both NOAA and the Coast Guard. Could you describe the scope of the 
problem today, including the various threats they pose?
    Answer. Abandoned and derelict vessels are a significant problem in 
coastal bays, harbors, and estuaries. The cause of abandonment varies 
regionally. In certain areas, such as South Florida, storm damaged 
vessels are a major cause of abandonment. In the Gulf Coast, abandoned 
barges and oil field vessels are a problem. Abandoned vessels are a 
hazard to navigation and pose additional threats, including pollution 
threats from fuels, paints and batteries, as well as entrapment hazards 
from the vessel or fishing gear aboard. In some cases, the site of an 
abandoned vessel can become an area where illegal dumping of oils and 
household/industrial debris occurs. Additional negative impacts 
associated with abandoned vessels includes economic losses or aesthetic 
impairment at harbors and marinas where vessels are abandoned; and 
physical damage to coral reefs associated with vessels that are not 
removed, begin to break apart, and/or release their cargo.

    Question 2a. How many vessels are abandoned, with no owner to 
respond?
    Answer. Thousands of vessels have been abandoned in U.S. waters. 
Based on surveys conducted in five of the seven U.S. coral reef 
jurisdictions (Guam, American Samoa, the U.S. Virgin Islands, Puerto 
Rico, and the Commonwealth of Northern Mariana Islands), over 200 of 
these vessels pose significant threats to coral reef ecosystems. Most 
of these are smaller vessels (those less than 50 meters in length).
    In many cases, a derelict vessel equals a derelict owner. If the 
owner doesn't have sufficient funds to maintain the vessel, it is 
unlikely the owner would have the funds to properly dismantle and 
dispose of the vessel. In general, tracking down the owner is 
difficult. A vessel may be sold several times before it is ultimately 
abandoned, which makes it difficult to identify the responsible party.

    Question 2b. Which agencies could be part of the solution, and what 
could their roles be?
    Answer. The U.S. Coast Guard is engaged when abandoned vessels 
present a threat to navigation or could result in pollution. The Army 
Corps of Engineers could engage when vessels are abandoned in 
navigational channels. The Environmental Protection Agency is 
responsible for issuing ocean disposal permits. Additionally, any 
Federal or state property/land manager would be responsible if a vessel 
comes ashore (for example, the Department of the Interior if the vessel 
comes ashore in a national seashore; NOAA if the vessel is within a 
national marine sanctuary).

    Question 2c. What existing authorities and funds are available, and 
what new authorities would be needed? Are there any models we can turn 
to?
    Answer. Clear legal authority is needed to remove and properly 
dispose of abandoned vessels. Emergency authority is required to remove 
a vessel before it breaks apart, while it is less expensive to remove, 
and while it may still have some value. Funding sources are fragmented 
and depend on location, type of vessel, size, and type of threat (e.g., 
the Oil Pollution Act applies only when the vessel has oil onboard, and 
the National Marine Sanctuaries Act applies only in designated 
sanctuaries). Many state laws are also limited in scope (e.g. only 
applying up to a certain tonnage or to certain types of vessels). 
Saipan is working on legislation that could be effective.

    Question 2d. Could a public-private funding approach help to 
address this problem?
    Answer. This is a possibility; the State of Washington has a 
potential model. Washington State provides funding to authorized county 
and port districts. However, the state only pays for a percentage of 
the cost, with local governments covering the remaining cost. The state 
levies a $2 tax on each boat registered, in order to fund this program.

    Question 2e. Do you have an estimate of the cost of removal and 
response for the vessels we know about?
    Answer. The cost of removal varies widely depending on logistics 
and size of the vessel. Costs vary anywhere from $10,000 to several 
million dollars for large vessels abandoned in remote locations.

Preventing Vessel Impacts on Coral Reefs
    Question 3. While removal is a huge problem, it is far more cost 
effective to prevent future damage. In the Florida Keys National Marine 
Sanctuary, NOAA worked in collaboration with the Coast Guard to install 
radar transponder beacons to steer passing ships away from ecologically 
sensitive coral reef areas. Apparently, the beacons were purchased by 
the owners of a ship that went aground on a coral reef in the lower 
Keys as part of a damage assessment and restoration agreement. How 
effective are transponders in preventing ship collision and groundings 
on corals?
    Answer. The transponders have no role in ship collisions, but can 
help reduce coral groundings. Since the radar beacons (RACONs) were 
installed in the Florida Keys National Marine Sanctuary (FKNMS), there 
have been no large ship groundings. There continue to be smaller vessel 
groundings (vessels <50 m), as small vessels often do not have the 
technology required to effectively use the beacons, and/or the 
operators do not know what they mean.
    These RACONs have reduced the occurrence of groundings on coral 
reefs within the FKNMS. The RACONs provide unique all-weather radar 
beacon coverage of 360 degrees with a range of 15-25 nautical miles, 
and can respond to several hundred ships within their individual 
service area. The combination of a mandatory ``Area To Be Avoided'' 
(ATBA), enforcement of the ATBA, and the RACON beacons has meant no 
groundings of a vessel over 50 meters within the FKNMS since February 
1997. Prior to that time there was at least one major event per year.

    Question 3a. Could we take the same approach for coral reefs 
outside National Marine Sanctuaries? What are the barriers we would 
face?
    Answer. Because different regions face different navigational 
concerns, an analysis of grounding events would have to be done in 
order to determine how many events would be preventable in another 
region, using this type of system.
    The U.S. Coast Guard maintains the buoys and would need to approve 
the location of additional buoys, as well as agree to add these new 
buoys to their maintenance schedule. Funding to install and maintain 
the system could be a potential barrier.

    Question 3b. Are there any ``hot spots'' in the Pacific, and 
particularly the Northwestern Hawaiian Islands, that could benefit from 
such transponders?
    Answer. There are hot spots for grounded vessels in the Pacific, 
particularly at the major port areas such as Saipan and Apra Harbor in 
Guam. Some of these are due to storm related damage. Apra Harbor has a 
lot of visiting foreign fishing vessels and improved channel markings 
might be a potential way to reduce groundings.
    The current investigation into the most recent grounding event in 
Pearl and Hermes Atoll may answer this question. At this time, it is 
unclear whether improved aids to navigation would have helped prevent 
this recent grounding.

    Question 3c. How much do beacons and transponders cost to install 
and operate?
    Answer. According to the U.S. Coast Guard, each unit currently 
costs $36,435, and $1,000 per year per unit to maintain. Using the 
beacons in areas where navigational platforms do not already exist 
would require additional cost to install these platforms.

    Question 3d. Do you believe industry and non-governmental 
organizations could work with the government to help solve this 
problem, either through donations or through in-kind contributions? Are 
there any models we can look to?
    Answer. Without establishing liability or additional regulation, 
industry incentive to participate in a voluntary system or to make 
donations is not likely. Most companies make donations as a form of 
marketing; their customers learn of their good deeds and increase their 
business with the company. However, shipping lines do not generally 
have the public as their customers. Their customers are corporations; 
therefore, they may not be as concerned about donation-type public 
relations efforts and would not have the incentive to voluntarily 
contribute.
    For smaller vessels, NGO's representing recreational boaters may be 
able to provide incentive for these boaters to avoid vessel impacts to 
coral reefs. There is also a potential role for NGO's, or states, that 
have an interest in using abandoned vessels as artificial reefs.
                                 ______
                                 
    Response to Written Question Submitted by Hon. Barbara Boxer to 
                          Timothy R.E. Keeney
    Question. Your testimony emphasizes the successes of the Federal 
Ballast Water Technology Demonstration Program. Why did the 
Administration request zero funding for this in the Fiscal Year 2006 
budget?
    Answer. The President's Fiscal Year 2006 Budget Request reflects 
the current fiscal climate. Because of the large number of competing 
priorities, not all programs can be funded. However, the Administration 
agrees that aquatic invasive species are a complex and pressing 
problem, and continues to include funding for this issue within the 
overall budget request. The President's Fiscal Year 2006 Budget 
Requests includes $7.9M to continue NOAA's valuable work to prevent 
invasive species through programs such as the Aquatic Invasive Species 
Program, Sea Grant, the Great Lakes Environmental Research Lab, and 
National Centers for Coastal Ocean Science. Based on the history of 
their past projects, these programs will likely support some ballast 
water technology demonstration activities in Fiscal Year 2006.
                                 ______
                                 
 Response to Written Question Submitted by Hon. Frank R. Lautenberg to 
                          Timothy R.E. Keeney

    Question. Although the coral legislation on today's agenda does not 
deal with deep sea coral, it is equally in need of protection. How do 
you believe the protection of deep sea coral habitats would affect 
populations of the many species that depend on them for feeding and 
refuge?
    Answer. Deep sea corals create habitats of exceptional biological 
diversity. Along with sponges, deep sea corals represent important 3-
dimensional vertical relief, providing substrate for invertebrates and 
spawning, refuge and foraging areas for fishes. In a number of cases, 
deep sea coral habitats have been identified as essential fish habitat 
for federally-managed fisheries species. Currently, the principal 
threat to deep sea coral habitats is damage by fishing gear, especially 
mobile bottom-tending gear such as bottom trawls and dredges. Research 
conducted by NOAA has also documented impacts by deep-set gill nets, 
bottom long lines, and crab pots in U.S. waters. Other potential 
threats include impacts associated with activities that may disrupt 
bottom habitat such as oil and gas exploration and drilling, mineral 
mining, and installation of communication cables. As many deep sea 
corals are slow-growing, recovery of habitats from damage is likely to 
be very slow.
    The President's Ocean Action Plan has recognized the importance of 
protecting deep sea coral habitats. NOAA is actively working with each 
of the Regional Fishery Management Councils to address concerns of 
fishing impacts and encourage protection of deep-sea corals when 
developing and implementing regional fishery management plans. Within 
the last year, NOAA has approved the recommendation of the New England 
Council to close two undersea canyons to trawling for monkfish, and a 
Record of Decision on the North Pacific Council essential fish habitat 
environmental impact statement that includes approximately 280,000 
square nautical miles of ocean off-limits to bottom trawling, in part 
to protect deep sea coral habitats.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Daniel K. Inouye to 
                     Rear Admiral Thomas H. Gilmour

Removing and Responding to Vessel Groundings on Coral Reefs
    Question 1. You were very involved a few years ago in obtaining 
Federal assistance to remove 9 abandoned vessels from Pago Pago harbor, 
which had been driven onto the reef, and were responsible for both 
polluting the waters and crushing the coral resources. It was extremely 
hard to find a responsible program or funding needed to address the 
problem, but through persistence, you were able to leverage the help of 
both NOAA and the Coast Guard. Could you describe the scope of the 
problem today, including the various threats they pose?
    Answer. The conditions that allowed, for example, the vessels in 
Pago Pago Harbor to be abandoned continue to exist today. With the 
exception of some barges covered by the Abandoned Barge Act, there is 
no U.S. Federal law that expressly prohibits the abandonment (i.e., 
stranding, wrecking, sinking, or leaving) of a vessel, including as 
part of search and rescue operations. The Coast Guard and other 
Federal, state, and local agencies continue to deal with the threats 
posed by abandoned vessels on a case-by-case basis. The threats posed 
include pollution threats from onboard petroleum and hazardous 
materials (paint, ammonia, etc.), and the physical damage by the hull 
to subsurface structures or marine organisms. Rusting vessel hulls may 
also increase the concentrations of metals in the surrounding waters 
and affect marine organisms and marine coral in particular. EPA and 
MARAD are developing guidance recommending environmental best 
management practices for preparing a vessel for use as an artificial 
reef. That guidance addresses these and other environmental concerns.

    Question 1a. How many vessels are abandoned, with no owner to 
respond?
    Answer. The U.S. Coast Guard last tracked abandoned vessels (in all 
locations) nationwide in 1999, and reported 3,031 abandoned vessels at 
that time.

    Question 1b. Which agencies could be part of the solution, and what 
could their roles be?
    Answer. The U.S. Coast Guard can remove or destroy a vessel if it 
pollutes the environment or poses a substantial threat to pollute. The 
U.S. Army Corps of Engineers can remove vessels that are abandoned 
within, or endanger, a Federal navigation channel. States and 
localities may have laws against abandonment of property and mechanisms 
to remove such property. The Department of Commerce and the Department 
of the Interior often assist the Coast Guard in identifying the type 
and extent of pollution threats posed by vessels and any nearby 
threatened or endangered species. If the abandoned vessel were to be 
towed out to sea for disposal, then the Ocean Dumping Act, which is 
administered by the Environmental Protection Agency, would apply.

    Question 1c. What existing authorities and funds are available, and 
what new authorities would be needed? Are there any models we can turn 
to?
    Answer. Existing authorities for vessel removal or destruction for 
the U.S. Coast Guard come from the Federal Water Pollution Control Act 
(FWPCA) for petroleum threats and from the Comprehensive Environmental 
Response, Compensation and Liability Act (CERCLA) for hazardous 
material threats. Both FWPCA and CERCLA have available funds to remove 
pollution or pollution threats, including the entire vessel if 
necessary. The U.S. Army Corps of Engineers uses existing agency funds 
to remove Federal navigation obstructions. Possible new authorities may 
include a Federal law to make vessel abandonment illegal, requirements 
for adequate and binding pollution insurance for all U.S. vessels, and 
foreign vessels in U.S. waters. International pollution insurance 
requirements may also be sought via the IMO. Models that may serve as 
examples include the FWPCA and CERCLA laws where a particular community 
or commodity is taxed to provide removal funds for irresponsible 
owners.

    Question 1d. Could a public-private funding approach help to 
address this problem?
    Answer. Yes, a public-private funding approach could help address 
this problem, but an optimal solution would be to hold vessel owners 
directly responsible.

    Question 1e. Do you have an estimate of the cost of removal and 
response for the vessels we know about?
    Answer. From past actions, the cost to remove pollutants alone from 
a vessel can run into hundreds of thousands of dollars. Costs to remove 
a grounded vessel may run from hundreds of thousands of dollars to over 
a million dollars per vessel. Larger vessels normally contain more 
petroleum and hazardous materials, and thus are generally more costly 
to clean and remove.

Preventing Vessel Impacts on Coral Reefs
    Question 2. While removal is a huge problem, it is far more cost 
effective to prevent future damage. In the Florida Keys National Marine 
Sanctuary, NOAA worked in collaboration with the Coast Guard to install 
radar transponder beacons to steer passing ships away from ecologically 
sensitive coral reef areas. Apparently, the beacons were purchased by 
the owners of a ship that went aground on a coral reef in the lower 
Keys as part of a damage assessment and restoration agreement. How 
effective are transponders in preventing ship collision and groundings 
on corals?
    Answer. Radar beacons (RACONs) would not materially add to 
preventing ship collisions or groundings on coral reefs. RACONs are 
designed for the following applications:

   Ranging and identification on inconspicuous coastlines.

   Identification of aids to navigation.

   Indicating navigable spans under bridges.

    RACONs are an aid to navigation; one of many types that make up our 
aids to navigation system. With reefs marked on navigational charts 
(both electronic and conventional), current buoyage, combined with 
Global Positioning System (GPS) navigation, RACONs would be of limited 
utility. RACONs merely serve to identify which radar return on a 
vessel's display is a specific aid to navigation. Used in conjunction 
with prudent navigation, they can be an effective tool in an area where 
it is difficult to discern the aid to navigation from other radar 
returns, but they do not take the place of proper navigation of a 
vessel.

    Question 2a. Could we take the same approach for coral reefs 
outside National Marine Sanctuaries? What are the barriers we would 
face?
    Answer. By themselves, RACONs would not prevent ship collisions or 
groundings. RACONs merely serve to identify which radar return on a 
vessel's display is a specific aid to navigation. Used in conjunction 
with prudent navigation, they can be an effective tool in an area where 
it is difficult to discern a single aid to navigation from another 
radar return, but they do not take the place of proper navigation of a 
vessel. To have utility, an entire buoy network would be necessary; 
however, the cost to establish a buoy network, especially with RACON, 
would be cost prohibitive.

    Question 2b. Are there any ``hot spots'' in the Pacific, and 
particularly the Northwestern Hawaiian Islands (NWHI), that could 
benefit from such transponders?
    Answer. There are no ``hot spots'' in the Pacific, nor in the 
Northwestern Hawaiian Islands (NWHI) which support the need for a RACON 
(please note that the term ``transponder'' is not associated with the 
U.S. Aids to Navigation system). There is no recent history of vessel 
groundings, and the NWHI are not within primary shipping lanes, and 
have no primary shipping channel passages.
    There are no RACONs or buoys presently in the NWHI, and current 
data does not support the need for buoys/RACONs in the NWHI. To 
establish a buoy network across the NWHI chain, especially with RACON, 
would be cost prohibitive.

    Question 2c. How much do beacons and transponders cost to install 
and operate?
    Answer. USCG estimates that the cost for a RACON is $36,435.00, 
$750.00 is allocated within the Budget Model annually for maintenance 
of each RACON.

    Question 2d. Do you believe industry and non-governmental 
organizations could work with the government to help solve this 
problem, either through donations or through in-kind contributions? Are 
there any models we can look to?
    Answer. There are mechanisms in place to work with industry and 
non-governmental organization. However, from a navigational 
perspective, and from the perspective of the donor, current data does 
not support the need for RACONs or buoys within the NWHI. There is no 
recent history of vessel groundings, and the NWHI are not within 
primary shipping lanes and have no primary shipping channel passages. 
More to the point, the NWHI chain is thousands of miles long and the 
cost to establish a buoy network, especially with RACONs, would be cost 
prohibitive. If a need for aids to navigation within the NWHI were 
established, the Commandant of the Coast Guard is authorized to accept 
aids to navigation as a gift pursuant to the provisions of 14 U.S.C. 
93.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Barbara Boxer to 
                     Rear Admiral Thomas H. Gilmour

    Question 1. Your written statement indicates that the standard the 
U.S. sought in the IMO negotiations was based on a sound scientific 
foundation. Didn't the U.S. delegation seek a standard that was 1,000 
times stronger than what was adopted in the IMO treaty? Please describe 
what the IMO standard would achieve, compared to the standard that the 
U.S. sought in negotiations, and compared to the standard in S. 363 and 
S. 1224, relative to untreated ballast water that has not gone through 
ballast water exchange.
    Answer. Yes, the U.S. negotiating position at International 
Maritime Organization (IMO) for zooplankton was for a standard of less 
than 0.01/m \3\, which would have been 1,000 times stronger than what 
was adopted under the IMO Standard which is less than 10/m \3\. S. 363 
(Feb. 10, 2005 version) and S. 1224 call for less than 0.1/m \3\.
    The rationale behind the development of the U.S. negotiating 
position at IMO was that ballast water treatment must result in a 
substantial reduction in the concentrations of organisms compared to 
untreated ballast water, specifically with respect to coastal organisms 
which can impact coastal ecosystems.
    The IMO Convention standard represents a reduction in concentration 
of zooplankton from the median observed value for unmanaged ballast, 
but not a substantial reduction of phytoplankton for unmanaged ballast. 
The standard in S. 363 represents a more significant reduction for 
zooplankton and phytoplankton than the IMO standard.
    The purpose of treatment of ballast water to a standard was to 
achieve greater reduction of risk than that presented by ballast water 
exchange, because of the wide variety of efficacy achieved by exchange, 
and certain vessels cannot complete an exchange either based on route 
or vessel characteristics, or both. All of the numeric standards under 
consideration would be an improvement over ballast water exchange in 
that they would provide more consistent reductions in organisms in 
ballast water.

    Question 2. Isn't it consistent with the treaty for the U.S. to 
adopt a more meaningful and effective domestic standard, since the 
treaty specifically contemplates this by providing that countries may 
adopt ``more stringent measures'' than those of the treaty?
    Answer. Yes, there is a specific provision in the Convention for 
the Control and Management of Ship's Ballast Water and Sediment (2004), 
which recognizes the sovereign right of a party to adopt more stringent 
measures to protect its waters, consistent with international law.

    Question 3. How many countries have ratified the IMO treaty to 
date?
    Answer. As of June 15, 2005, no country has ratified the IMO 
Convention for the Control and Management of Ship's Ballast Water and 
Sediments, but the following eight member governments have provided 
documents expressing their intent to ratify:

        Argentina
        Australia
        Brazil
        Finland
        Maldives
        Netherlands
        Spain
        Syrian Arabic Republic
                                 ______
                                 
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to 
                           Joel C. Mandelman

    Question 1. How much does your ozone ballast water treatment system 
cost, and how soon do you think we can require ships to carry them?
    Answer. The cost will vary depending on the size of the ship and, 
most importantly, on the speed with which the ballast water comes 
onboard the ship.
    The flow rate is critical. The faster the ballast water comes 
onboard, the greater the quantity ozone that will be required. The 
Tonsina and Prince William Sound (the BP oil tanker on which the 
current, final stage testing is taking place), are 125,000 dead weight 
ton oil tankers. Both ships take on ballast water at approximately 
15,000 gallons per minute. This requires 5,000 grams of 
ozone per hour to treat their ballast water--approximately 12 million 
gallons.
    Smaller cargo freighters typically take on ballast water at a much 
slower rate. In some cases, such as the Navy's new Lewis & Clark class 
of freighters (50,000 DWT ships), they take on ballast water at a flow 
rate of only 4,500 gallons per minute. This will require significantly 
less ozone to treat even the same quantity of ballast water (and, 
typically, they would carry far less ballast water than a tanker).
    Hence, the cost of the ozone generating equipment, and, possibly 
the installation cost, will drop sharply. What we do not yet know is 
whether that decrease is fully proportional to the flow rate of the 
ballast water. We expect that we will know this after completion of 
this series of tests.
    We also expect that once the use of ballast water treatment 
equipment is mandatory--and there is a significant increase in demand--
this equipment will be manufactured on a production line basis further 
cutting the cost. Therefore, it is difficult to estimate the precise 
cost of outfitting any given ship at this time. However, we estimate 
that this will likely be less than \1/2\ of 1 percent of the total cost 
of building a ship, i.e., less than $750,000--but this is only an 
estimate.
    We believe that our equipment should be available for general 
purchase by the shipping industry within 6 months of passage of the 
Ballast Water Management Act.

    Question 2. Your ozone treatment system kills organisms in ballast 
water. Are there any potential negative environmental effects of this 
treatment on the marine environment outside the ship? You have 
indicated that the ozone breaks down quickly after released into the 
ocean. What studies have been done on impacts before it breaks down?
    Answer. A formal study, funded by NOAA, has just been completed. It 
is entitled Ozone Treatment of Marine Ballast Water: Formation and 
Decay of Total Residual Oxidant. It is co-authored by Dr. William 
Cooper, Professor of Chemistry of the University of North Carolina-
Wilmington; Professor J. Hans Van Leeuwen, Professor of Civil and 
Environmental Engineering at Iowa State University; and Jack Perrins 
and Dr. Russell Herwig of the University of Washington.
    This paper has been submitted for peer review to the Marine 
Pollution Bulletin and publication is expected next year. I have 
submitted a PDF file with the completed paper, in a separate e-mail. 
(This publication can be found at http://www.nutech-o3.com/files/
peer_mpb.pdf.)
    Ozone will have no residual impact if it is used to treat fresh 
ballast water. There are no residual chemicals. Ozone disintegrates in 
a few minutes, in fresh water, and it turns back into oxygen. Thus, all 
that would be discharged into the Great Lakes, for example, would be 
oxygen-rich-clean ballast water which is a major boon to improving 
water quality.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Barbara Boxer to 
                            Kathy J. Metcalf

    Question 1. Does it really over-burden your industry that the 
standard in S. 363, and in S. 1224, is stronger than the IMO standard, 
since the bills also include a feasibility review of technologies prior 
to requiring industry to comply with the standards?
    Answer. It is not a case of over-burdening the industry. 
Establishing a performance standard that does not correlate in some way 
to technological feasibility will need to be changed to reflect 
reality. While this is precisely the purpose of the feasibility review 
as contained in the bills, it is of great concern that establishing an 
unachievable standard could well catch the regulated community in an 
unintended ``no win'' situation should the standard not be timely 
amended if technology is not capable of achieving it as scheduled. 
There is also some benefit at least at the ``first shot'' of adopting 
the IMO standard as a sign the U.S. is willing to be a part of creating 
an international system. If technology is later shown to achieve a more 
stringent level, then the U.S. can simultaneously go back to IMO and 
propose revision of the IMO standard while at the same time amending 
legislation/regulation to make the national standard more stringent, 
regardless of whether IMO agrees to changing the standard at the 
international level (note: IMO Convention provisions that allow a 
country to adopt more stringent standards. Having noted these 
reservations and making a big assumption that ``adjustment'' of the 
standard based on available technology (up or down, the latter not 
being included in the draft legislation) will be done in a timely 
manner, then the standard can be set anywhere from millions to zero, 
since this review should result in an adjusted standard that reflects 
technological achievability at the time required by statute or 
regulation.

    Question 2. Wouldn't it make more sense from an industry stand-
point to require a stronger standard, since the alternative would be to 
require retrofits later on if the initial technology proves to be 
ineffective?
    Answer. In my opinion, these are two separate issues. The standard 
needs to be set based on technological achievability. Retrofit 
requirements for existing ships should take into account a reasonable 
rate of return on the substantial investment of installing a ballast 
water treatment system. In surveying our members, typical amortization 
schedules for shipboard equipment/systems use anywhere between 7 and 15 
years, so establishing a retrofit requirement which required a vessel 
to upgrade its existing treatment system to a new standard every 10 
years would seem reasonable from a cost/benefit perspective. With 
regard to the question posed, establishing an unachievable standard 
does nothing to provide fewer impacts on industry, whether it relates 
to initial treatment system installation or retrofits, and thus, the 
standard should be set based on technological achievability.

    Question 3. Why should the U.S. not adopt the most environmentally 
sound standard, as we did in the case of our double-hull requirements 
for the Oil Pollution Act, since the IMO standard is weak and we don't 
know if it will ever be in force?
    Answer. Agree in part and disagree in part. Agree that the U.S. 
should adopt the most environmentally sound standard technologically 
achievable. However, we do not yet know what that standard is, and 
thus, setting a very stringent standard without regard to practical 
achievability makes no logical sense. With OPA 90, we knew that double-
hulls could be constructed, the principle issue there was with the cost 
associated with implementing the provisions (on a per vessel), and in 
an orderly fashion (on an global industry basis) to ensure sufficient 
hulls to meet the demand for petroleum transportation. Disagree also 
with the comment that the IMO standard is weak . . . based on 
preliminary data we have seen from a number of test worldwide, 10 
organisms is a very challenging level to meet. Disagree also with the 
concerns that the IMO standard may never be in force . . . even if it 
is never in force (which I doubt), the U.S. can establish the standard 
in domestic legislation and then ratchet it down as technology shows 
the ability to reach even lower concentrations.

    Question 4. I understand that the tug and barge industry may have 
concerns about the safety of conducting ballast water exchange. Doesn't 
the safety exemption included in S. 363, and S. 1224 adequately address 
this concern?
    Answer. First, I would like to direct attention to the American 
Waterways Operators written comments submitted to the record for the 
June 15, 2005 hearing. These comments fully explain the concerns by 
this industry relative to the conduct of ballast water exchange on tug/
barge units.
    In the opinion of CSA, the general safety exemption does cover the 
tug/barge concerns. However, this and other draft legislation, have 
included provisions that subject a vessel which claims the safety 
exemption more often than a predetermined frequency, e.g., one draft 
included a trigger of more than twice in six voyages to a more 
intensive port state control review. While this is justifiable in some 
cases, in the case of a tug/barge unit, invoking the exemption will be 
justified most, if not all, of the time. One possible alternative 
relative to a blanket exemption, would be to craft legislative text 
which empowers the USCG to grant the safety exemption to certain types/
classes of vessels on an ongoing basis. It should also be noted that 
the request for the exemption was for exchange only.

    Question 5. Isn't it true that some tug and barge operators have in 
fact been able to undertake ballast water exchange?
    Answer. Yes, one operator of which we are aware is currently 
conducting exchange on specialized tug/barge units, a feat which is 
made possible (not without some safety concerns) by the semi-permanent 
connecting mechanisms between the tug and barge unit. We know of no 
operators that are conducting exchange on ``traditional'' tug/barge 
units, e.g., towing behind or pushing ahead.

    Question 6. Does the IMO treaty exempt this class of vessels from 
the ballast water exchange requirements?
    Answer. No, the IMO treaty does not exempt this class of vessel for 
a variety of reasons discussed during negotiations at the Conference. 
The first, included in (D) above, was the recognition that the general 
safety exemption would cover such a case. The second, equally on point, 
was that the most tug/barge operations are generally contained within 
the EEZ of a single country, and thus, individual countries could 
create their own program for these ``domestic'' voyages without 
violating any provisions of the Convention.
                                 ______
                                 
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to 
                            Kathy J. Metcalf

    Question 1. The ballast water treatment standards in this bill will 
take years to implement even after it becomes law. During this period 
of years, states would not be allowed to apply their own standards. 
Would some states see an erosion of their ballast water treatment 
standards during this time?
    Answer. Yes. If the states enact/promulgate a quantitative ballast 
water discharge standard earlier than the implementation schedule as 
contained in the bill (which is consistent with the IMO Convention). It 
is difficult to comprehend on what basis the states would set this 
standard , particularly with regard to environmental benefit and 
technological achievability (See more details in third paragraph 
below). It would neither benefit the environment nor facilitate the 
continuation of maritime trade if a state created an unachievable 
standard. It is instructive to note that Ms. Maurya Falkner (Ballast 
Water Program Manager for the State of California) has stated that the 
IMO discharge standard permits higher concentrations of organisms than 
the concentrations found currently in California water; however I have 
not seen any data which confirms this statement, and thus, it may be 
prudent for the Committee to contact her and solicit her opinion on the 
question above.
    While the states would certainly be the best source for the 
response to this question, I am pleased to provide the industry 
perspective. First, at this point in time, there is no state of which I 
am aware that has actually proposed a quantitative ballast water 
treatment/discharge standard. The State of Michigan has now promulgated 
regulations that will require a vessel to secure a discharge permit 
beginning, I believe in mid 2006, but has not provided any information 
concerning the discharge standards on which the permit will be based. 
Other states which currently have ballast water management requirements 
base these requirements on a required action by the vessel, e.g., 
exchange in waters ``X'' nautical miles offshore and a minimum of ``X'' 
meters in depth.
    Looking forward, I would expect some states to incorporate a 
discharge standard in future requirements; however, it is difficult to 
conceive the basis on which these standards would be based for two 
reasons. First. The global scientific community agrees that there is 
insufficient knowledge to assert that a particular discharge standard 
will reduce the risk from invasives to a predetermined level. What we 
do know is that reducing the concentration of organisms in the ballast 
water discharge will reduce the risk. Second, integrating operational 
reality into the scientific equation, the IMO standard is the ``best 
guess'' as to what is achievable in the near and medium term. 
Currently, a number of shipboard technology tests are underway around 
the world, and as yet, none have shown the ability to reach even the 
IMO standard as determined at the July 2005 meeting of the IMO Marine 
Environment Protection Committee meeting, at which a technology review 
was conducted as per the requirements of the IMO Ballast Water 
Convention. It was agreed at this meeting that it was likely that some 
technologies would be able to meet the IMO standard by the Convention 
implementation dates (beginning in 2009) for some classes of ships. 
Another technology review will be conducted at the Fall 2006 meeting of 
the MEPC to assess technology availability with regard to developments 
and data generated by studies currently in process.

    Question 2. S. 363 already includes a provision to exempt ballast 
water exchange in unsafe conditions. Why is a specific exclusion for 
barges necessary?
    Answer. A specific provision for barges is not absolutely necessary 
since these situations are presumably covered under the existing safety 
exemption as contained in S. 363. However, in my opinion, it will 
always be unsafe for a tug towing a barge to come ``off the hawser'' 
and move around alongside the barge, and then attempt to transfer a 
crew member from the tug to the barge. It should be noted that even in 
``normal'' sea conditions, we are likely looking at 3 to 6 foot seas 
(swell) acting upon two independently floating objects, making the 
transfer difficult at best. Including a specific safety exemption for 
barges, removes the necessity of the Coast Guard having to review these 
circumstances every time they claim the exemption (which is likely to 
be quite frequent), and allows the Coast Guard to focus more properly 
on self-propelled vessels which invoke the safety exemption for reasons 
less obvious than that found in the case of tug/barges.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Daniel K. Inouye to 
                                Kim Hum

Community-Based Approaches to Coral Protection
    Question 1. What are the top threats to corals in the Pacific, both 
in the main Hawaiian Islands and beyond?
    Answer. Commercially, valuable reef fish in the main Hawaiian 
Islands have declined by 75 percent over the past 100 years due to a 
combination of over-fishing and habitat degradation due to invasive 
species and polluted runoff (from development, aging sewage systems and 
treatment facilities, and channelized streams). In addition, throughout 
the Pacific, the effects of natural disasters (such as tsunamis) on 
coral reef health have been magnified due to climate change and 
associated diseases and bleaching events which often stress corals 
beyond their ability to recover.

    Question 2. How much have NOAA and its partners been able to 
achieve through the funding provided under the Coral Reef Conservation 
Act of 2000?
    Answer. Funding under the Coral Reef Conservation Act (CRCA) has 
significantly increased our understanding of the health and 
distribution of coral reefs in Hawaii and throughout the Pacific. 
However, more funding is needed for on-the-ground management to protect 
and restore coral reef ecosystems, and to build capacity within state 
and local governments, and local communities throughout the Pacific.
    NOAA programs funded under the CRCA have focused on research, 
monitoring and mapping, and provided valuable data about the habitat in 
which we are working throughout the Pacific. In addition, significant 
CRCA funding has ensured that the proposed Northwest Hawaiian Islands 
Sanctuary designation process has been thorough and effective.
    However, additional funding is critically needed for capacity 
building and on-the-ground marine conservation projects, especially 
those involving the human communities associated with the coral 
communities we are trying to protect. NOAA provides approximately 
$400,000 annually to the State of Hawaii for coral reef protection, and 
similar amounts to the territories throughout the Pacific. Hawaii and 
the territories are dependent upon this funding for core programs, and 
require additional funding for reef protection projects that will 
actually begin to address the primary threats to the ecosystem.
    In addition, NOAA has provided $125,000 annually from the CRCA to 
The Nature Conservancy's Hawaii Program, which has enabled us to start 
a marine program focused on: (1) identifying the most important coral 
systems in the main Hawaiian Islands, (2) working with local 
communities to begin managing these important coral reef systems, and 
(3) developing sustainable private financing mechanisms to ensure the 
long-term viability of coral reef protection programs in the islands. 
Additional funding for public and private conservation projects in the 
Pacific would enable us to leverage more private dollars, and 
significantly increase the private sector's ability to address coral 
reef protection issues throughout the region.

    Question 3. How well have the Federal and state agencies 
coordinated and cooperated with local groups to address these threats 
in the Pacific? Do you have any recommendations for improvement?
    Answer. There is excellent coordination between NOAA and the 
private non-profit sector in Hawaii. Cooperation between the state 
Department of Land and Natural Resources (DLNR) and NOAA, and the state 
and the private sector is also improving. However, there is always room 
for more and better cooperation and communication.
    In addition to the national planning and cooperation necessary for 
successful protection of our Nation's reef resources, NOAA should be 
given the authority to coordinate with states, territories, and NGO's 
for regional, ecosystem-based planning that builds upon the National 
Coral Reef Action Strategy, and addresses multiple threats to coral 
reefs, such as over-harvesting, coastal runoff, invasive species, and 
vessel impacts. This authorization would go a long way toward 
encouraging more meaningful cooperation and partnership in coral reef 
protection throughout Hawaii and the Pacific.
    In addition, the Fish and Wildlife Service (FWS) is responsible for 
managing more than 700,000 acres of coral reefs in 10 refuges 
throughout Hawaii and the Pacific, with minimal funding from the 
Department of the Interior. Therefore, interagency cooperation between 
FWS and NOAA is essential to successful implementation of the 
strategies outlined in the CRCA and the Coral Reef Action Strategy, and 
all of the agencies that are responsible for coral reef management 
should be eligible for funding under the Act, including Interior 
agencies such as the FWS and Office of Insular Affairs.
    Mechanisms for interagency cooperation, like the Coral Reef Task 
Force, should be supported through the CRCA, and include national and 
international NGOs, such as The Nature Conservancy, which bring a 
unique perspective and global experience to coral reef conservation.

    Question 4. What do community-based approaches bring to the table 
that the Federal programs alone do not? What do the Federal programs 
provide that community-based approaches cannot?
    Answer. The Federal agencies clearly have the expertise to provide 
scientific research, biological surveys and monitoring, mapping, and a 
nationwide network of experts to draw from for coral reef conservation 
in Hawaii and throughout the Pacific. Their work complements, supports, 
and is supported by the work of local governments, NGOs, and 
communities who have knowledge and expertise in local resource issues.
    For example, many local, coastal communities in Hawaii are 
interested in managing the coral reef resources surrounding their 
communities. NGOs like The Nature Conservancy are working with them 
through a new program with the state DLNR called ``Makai \1\ Watch'' to 
build their capacity to provide: (1) outreach and education to resource 
users so that they know the laws and local best practices (e.g., 
seasons and size limits, how to interact with marine mammals, where 
they can and cannot throw net, etc); (2) surveillance and enforcement 
to ensure that laws are being followed; and (3) human use surveys and 
biological monitoring to understand the threats to reef resources, and 
the biological effects of those threats on the coral reef communities. 
Because they live adjacent to the resources, local communities can 
provide a level of management and enforcement which no government 
agency could ever provide. However, in order to be effective and 
durable, their work must be informed by public and private partners who 
bring good science, an in-depth understanding of marine biology, 
authority for the laws governing the use of local resources, and 
lessons learned from other communities around the world.
---------------------------------------------------------------------------
    \1\ ``Makai'' is Hawaiian for ``towards the sea.''

    Question 5. Do you believe community-based approaches can fill some 
of the remaining gaps in coverage? If so, which ones?
    Answer. The biggest gaps in reef resource protection are (a) the 
designation, and management of a resilient, scientifically-designed 
network of marine managed areas (MMAs) that ensures the future health 
of our coral reefs and associated reef species, and (b) enforcement of 
that system. Community support is essential both for developing a 
system of MMAs, and managing and enforcing it. Our goal is to work with 
local communities, the fishing community, and other stakeholders to 
ensure that a network is designed and implemented which supports their 
goals of sustainable fisheries and protected resources.
    The local community will play an even greater role in ensuring that 
the network and the resources within that network are protected through 
the Makai Watch program as outlined above. Outreach is key to ensuring 
that marine resource users (fishermen, collectors, kayakers, etc.) 
understand the laws and rules governing their use of the resources, and 
communities can play a primary role in providing that outreach. 
Enforcement is the other key to sustainable resource protection, and 
while that is primarily a state role, there are not enough enforcement 
officers to ensure local compliance with resource protection laws. 
Because they live adjacent to the resources, concerned community 
members can serve as the eyes and ears of law enforcement to ensure 
that the resource is truly protected.

    Question 6. Is there strong interest in increasing public-private 
approaches to solving coral reef problems?
    Answer. Yes, there is very strong interest at all levels in 
increasing public-private approaches to solving coral reef problems. It 
is clear that no one agency can manage and protect reef resources in 
Hawaii or anywhere in the Pacific. It takes the scientific expertise of 
the Federal Government, the regulatory authority of the state 
government, the international experience of the NGO's, and the 
knowledge and expertise of the local communities to provide all of the 
skill sets necessary for such a big job. The state is, understandably, 
concerned about communities wanting to take control of reef resources 
for their own use to the exclusion of others. But the resources belong 
to everyone, and it is our collective responsibility to ensure that 
they are managed properly to ensure that everyone is able to enjoy and 
use them, sustainably, for generations to come.
                                 ______
                                 
 Response to Written Question Submitted by Hon. Frank R. Lautenberg to 
                                Kim Hum

    Question. Although the coral legislation on today's agenda does not 
deal with deep sea coral, it is equally in need of protection. How do 
you believe the protection of deep sea coral habitats would affect 
populations of the many species that depend on them for feeding and 
refuge?
    Answer. While The Nature Conservancy does not work on deep sea 
coral issues in the Hawaiian Islands, we recognize that they provide 
important habitat for several species of fish (including commercially 
important species such as cod, roughy, and sea bass), crustaceans, 
anemone, sponges, and other species off all U.S. coasts, and throughout 
the world. Protection of the deep sea corals which provide habitat for 
these species--many of which are disappearing from shallow water 
habitat--is essential for their continued survival.
    While trawling is not a threat to the deep sea corals in Hawaii, it 
is the primary threat to deep sea corals elsewhere in the world, where 
trawlers have been pulling up colonies that are hundreds of years old. 
Some of the natural communities affected by trawling can be well over 
1,000 years old. Because deep sea corals are so slow growing, recovery 
from such catastrophic damage can take decades to centuries. Recently, 
more than 1,100 scientists called for the protection of the world's 
deep sea coral and sponge ecosystems, and urged nations to place a 
moratorium on bottom trawling, saying ``deep sea coral and sponge 
communities appear to be as important to the biodiversity of the oceans 
and the sustainability of fisheries as their analogues in the shallow 
tropical seas.''
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Barbara Boxer to 
                           Maurya B. Falkner

    Question 1. What is the status of California's regulations on 
ballast water?
    Answer. On June 20, 2005, the California State Lands Commission 
approved staff's recommendation to adopt permanent regulations titled 
``Ballast Water Regulations for Vessels Arriving at California Port of 
Places after Departing from Ports or Places within the Pacific Coast 
Region.'' The purpose of these regulations is to establish management 
practices for ballast water that is taken on by marine vessels in ports 
or places within the Pacific Coast Region and is to be discharged in a 
California port or place. This, in turn, would minimize the transport 
of nonindigenous species (NIS) in ballast water discharged into state 
waters. Staff is currently completing the Final Statement of Reasons 
and other associated paperwork for the rulemaking file and intends to 
submit the final package to California's Office of Administrative Law 
(OAL) by the end of July 2005. The OAL has 30 working days to review 
and act upon the rulemaking package. The regulations go into effect 180 
days (6 months) after being filed with the Secretary of State.
    A summary of the regulations and issues raised by the maritime 
industry is attached for your review (Attachment A).

    Question 2. Does California's law exempt tug and barge operations?
    Answer. No, the California Act does not exempt tug and barge 
operators. The Act does include an exemption provision for vessels of 
the armed forces that are subject to ``Uniform National Discharge 
Standards for Vessels of the Armed Forces.'' Additionally, vessels in 
innocent passage are not subject to the Act. During the 2003 
legislative session, the issue of exemptions for specific vessel 
classes was evaluated. It was determined that there were no biological 
reasons to exempt specific commercial vessel classes from the law. 
Furthermore, it was and is hoped that in the near future, technology, 
either ship or shore based, will be developed for vessels unable to 
conduct ballast water exchange while underway. An exemption from the 
Act, or subsequent regulations for these types of vessels would likely 
dissuade vessel owners from pursuing alternative treatment options. 
However, the Act and CSLC recognize the design limitations of, and 
safety concerns associated with, these vessels and have included 
provisions to address these issues.

    Question 3. Isn't it true in California that some tug and barge 
operators have in fact been able to undertake ballast water exchange?
    Answer. Yes, according to data provided to CSLC on the mandatory 
reporting form, some barge operators have conducted ballast water 
exchange. However, the CSLC recognizes that this management option, 
under many situations may pose a serious safety issue for the crew. As 
such, the Act and the proposed regulations include provisions that 
address safety issues as well as severe hardship issues not related to 
safety.

 Attachment A--Summary of Proposed Regulations Governing Ballast Water 
                    Management for Coastal Voyages.

                     title 2, division 3, chapter 1
     article 4.6 ballast water regulations for vessels arriving at 
california ports or places after departing from ports or places within 
                        the pacific coast region

    The proposed regulations contain five sections of management 
requirements:

    Section 2280 describes the purpose, applicability, and date of 
implementation;

    Section 2281 describes the safety exemption;

    Section 2282 defines several key terms used throughout the 
regulation;

    Section 2283 describes the process for submission and approval of 
alternatives; and

    Section 2284 describes the ballast water management options, which 
includes exchange in ``near coastal waters.''

    The requirement to conduct ballast water exchange in ``near coastal 
waters'' that are at least 50 nautical miles (nm) from shore, was 
selected based on input received from the scientific community, 
maritime industries, and state and Federal Government management 
agencies during several workshops. These workshops were held to ensure 
that decision was founded upon the best scientific information 
available, while also considering concerns of affected industries. For 
most voyages, the 50 nm distance would require no course deviation for 
some vessels and a minor deviation for many. Exchange at 50 nm avoids 
ballast discharge in coastal ``retention zones'' and at the mouths of 
estuaries, where currents and tides can carry organisms to shore, or 
sweep them into bays and estuaries. The limit also lies beyond the 
boundaries of sensitive protected areas, such as Marine Sanctuaries. 
Further, the maritime industry requested that California's regulation 
be consistent with other U.S. state, Federal and international 
regulations, in order to avoid confusion that would occur should 
vessels encounter a patchwork of varying regulations as they traveled 
across jurisdictions.
    Issues or Concerns: The Commission staff held two public hearings. 
The first on June 2, 2005, at the Port of Long Beach, and the second on 
June 8, 2005, at the Elihu M. Harris State Building, in Oakland. Two 
people presented oral statements relevant to the proposed regulatory 
action. In addition, Commission staff received ten comment letters 
relevant to the proposed regulatory action. The specifics of each 
comment will be addressed in the Final Statement of Reasons; however, a 
few concerns and comments have been repeatedly raised and warrant 
discussion here.
    For the vast majority of commercial vessels that fall under this 
regulation, near-coastal ballast exchange will be the primary method of 
ballast water management. Currently, it is the best compromise of 
efficacy, environmental safety, and economical practicality. According 
to industry representatives, the vast majority of vessels are capable 
of conducting exchange, and the management practice does not require 
any special structural modification to most of the vessels in 
operation.
    The shipping industry has expressed concern that a small minority 
of vessels and/or commercial shipping routes may be significantly 
impacted by the proposed regulations. Commission staff recognizes this 
possibility. These vessels and/or commercial shipping routes can be 
categorized in two ways. The first are vessels that, due to special 
safety circumstances, are unable to perform ballast water management as 
described in Article 4.5, Section 2284 of the proposed regulation. For 
example, ballast water exchange as outlined in the regulations may pose 
a serious personnel safety concern for tugs and barges. Safely moving a 
crew from a small boat to a barge could pose a serious safety risk. To 
address this issue, a provision (Section 2281) is included in the 
regulation, ensuring that the safety of the vessel, its crew, or its 
passengers is not compromised by the management requirements specified 
in the PRC.
    The second general concern relates to a minority of vessels, for 
which compliance with the proposed ballast water management 
requirements may present some hardship not related to safety. To 
address this issue, a petition process has been included in the 
rulemaking package that would allow impacted entities to present 
individual hardship cases and associated alternative ballast management 
proposals to the Commission. This section is necessary to provide 
flexibility for the Commission to consider special hardship cases from 
the maritime industry, and associated alternative management proposals, 
on a case-by-case basis, while providing a formal public notification 
and/or review process.
    A third concern is related to the ``shared water'' designation. It 
has been suggested that the proposed regulations should include 
geographically-extensive shared-water designations similar to those 
used in Oregon and Washington. For example, for transits between Los 
Angeles and San Diego, and for voyages between the San Francisco Bay-
Delta to Eureka, the industry has requested various relaxations to the 
requirement for exchanging ballast at locations 50 nm offshore and 200 
m depth.
    In consideration of these concerns, staff subsequently contacted 
several scientific experts, reviewed relevant scientific literature, 
and completed preliminary analyses to address the issue. In summary, 
the best available information strongly indicates that estuarine (bay/
port) ballast water should not be transported between California ports, 
and this includes voyages between the specifically mentioned short-haul 
voyages.

   Natural transport of organisms between estuaries appears to 
        be very low, in the absence of human activity.

   Short coastal voyages are more likely to transport organisms 
        in good physical condition, maximizing chance for establishment 
        in a new area.

   The San Francisco Bay estuary is one of the most highly 
        invaded areas of the world, and is likely to act as a ``hub'' 
        from which non-indigenous species can spread to other areas of 
        California.

   Many non-indigenous organisms found in one of the 
        aforementioned ports are not yet found in the other. The 
        potential for their continued spread should be minimized.

   Some non-indigenous species in San Francisco Bay are clearly 
        problematic or are found in very high numbers, and have not yet 
        been found in Humboldt Bay. Examples include the Chinese mitten 
        crab and the Asian clam.

   The region between San Diego and Point Conception is an 
        oceanographic ``retention zone'' where water re-circulates for 
        extended periods. These zones have the capacity to retain 
        organisms released in them, and oceanographers have explicitly 
        recommended avoiding ballast exchange in them.

    Several commenters have suggested the inclusion of language stating 
that a vessel should not be required to deviate from its intended 
voyage or unduly delay its voyage to comply with ballast water 
management. The International Maritime Organization (IMO) has adopted 
recommended guidelines for this issue containing such language with 
regard to deviation and undue delay. Staff feels that, while the 
language may be appropriate for a negotiated international 
recommendation or guideline, it is wholly insufficient for a regulation 
that must meet the mandate of P.R.C. Section 71204.5. Staff has been 
unable to find any data with regard to compliance with the IMO 
guideline, but anecdotal evidence strongly suggests that the ``undue 
delay and deviation'' exemption is used readily, thereby rendering the 
guideline of little value. Without further contingencies and 
definition, a small deviation or minor delay in an intended voyage 
could easily be claimed, exempting those voyages and significantly 
weakening the ability of this regulation to effectively prevent or 
minimize the introduction and spread of NIS. One may consider analogous 
to a speed limit that prohibits driving over the posted speed ``. . . 
unless it is inconvenient.'' The inclusion of the language, that would 
allow noncompliance in the event that it would necessitate deviation 
from an intended voyage or undue delay, puts the decision to comply 
entirely in the hands of the regulated community, not the regulatory 
agency. If there were a clear definition of an acceptable deviation or 
undue delay, it may be possible to craft an enforceable regulation. 
However, the commenters suggesting the language have not provided such 
definitions. Therefore, protection of the state's waterways from 
nonindigenous species, as required under P.R.C. Section 71204.5, would 
not be assured if such a vague, undefined and lenient exemption were 
allowed. Additionally, it is believed that without sufficient 
definition, this language would not meet the ``Clarity Standard'' 
required in the Administrative Procedures Act. As an alternative, staff 
has included a petition process, under Section 2283, that would allow 
impacted entities to present individual hardship cases and associated 
alternative ballast management proposals to the Commission. If 
compliance with the regulation would clearly cause significant 
hardship, then the Commission and the affected operator could determine 
what course of action could be taken as an appropriate alternative to 
meet the mandate of the statute, while at the same time limiting or 
eliminating the hardship.
    Finally, one commenter suggested that staff include in the proposed 
regulations, a provision requiring an evaluation of these regulations 
and their impact on the shipping industry, six to twelve months after 
their implementation. While staff disagrees with the need to include 
such a provision in the regulation, Staff does agree that the 
effectiveness of the proposed regulations should be evaluated on a 
regular basis. To that end, Staff recommends that the Commission direct 
Staff to review and evaluate the impact of the amendment on the 
regulated community 12 months after its implementation date, and report 
to the Commission on its findings. In addition, the Act already 
requires the Commission to evaluate, summarize, and report to the 
legislature and the public on the status of the Program, including the 
effectiveness of adopted regulations. This report is due biennially, 
with the next scheduled for January 2007.

Response to Written Questions Submitted by Hon. Frank R. Lautenberg to 
                           Maurya B. Falkner
    Question 1. Although the coral legislation on today's agenda does 
not deal with deep sea coral, it is equally in need of protection. How 
do you believe the protection of deep sea coral habitats would affect 
populations of the many species that depend on them for feeding and 
refuge?
    Answer. I do not have any expertise in deep sea coral or programs 
designed to protect them.
    They have only recently been recognized as important habitat for 
several fish species, including a number of commercially-important 
species. They are long-lived (100s to over 1,000 years old) and 
extremely diverse. They are being threatened by a variety of fishing 
practices and oil exploration and extraction activities.
    Coral protections will affect associated species populations 
positively. Through protection, associated populations numbers should 
remain stable because their habitat remains stable, new species should 
come to light through increased research funding, and commercial 
fisheries will also benefit from better understanding of deep ocean 
climate changes recorded in coral rings, which are the practical 
equivalent of tree rings on land.
    I would suggest Committee members contact Peter Etnoyer of 
Aquanautix Consulting ([email protected]) and Lance Morgan 
([email protected]), or Elliott Norse ([email protected]) of Marine 
Conservation Biology Institute. Drs. Etnoyer, Morgan, and Norse have 
been involved in research on deep sea corals.
    Additionally, information can be found at the following websites:

    http://www.coris.noaa.gov/about/deep/deep.html.
    http://www.mcbi.org/DSC_statement/sign.htm.

    Question 2. You testified that vessels traveling short distances, 
but distances between two different estuaries, should still exchange 
ballast water offshore. These vessels, though, may have to go 
significantly out of their way to do this. Do you have a sense of how 
many vessels will have to significantly alter their course and be 
delayed by this process?
    Answer. It is difficult to quantify the number of vessels or 
voyages that will ultimately be impacted by this new regulation. Based 
on comments the California State Lands Commission (CSLC) received 
before and during the formal public review period for the rulemaking 
package (see Attachment A ``Final Statement of Reasons,'' which 
summarizes and responds to comments CSLC received during the initial 
notice period), most of the companies have advised us that they will be 
able to accommodate the proposed regulations with little difficulty. 
Only a relatively small percentage of the population of coastal traffic 
has stated that they will suffer dramatic economic consequences under 
the new rule. This issue will be further defined in meetings scheduled 
between the CSLC and the maritime industry in late October 2005. 
Currently, staff is aware of 15 vessels, out of the 1,000 vessels that 
visit the state annually that, due to their design or trade route, will 
be significantly impacted by the new regulation. Under the new 
regulation, these vessels may be accommodated by provisions of Section 
2283, Alternatives. Such vessels may petition for an alternative to 
comply with the regulation.

                Attachment A--Final Statement of Reasons
                 update of initial statement of reasons

    As a result of the comments only one non-substantive change has 
been made to the text of the regulations. The word ``or'' in subsection 
2284(a)(1) has been struck out in response to comment No. 4. No other 
modifications have been made to the proposed regulations. As such, 
there is no update to the Initial Statement of Reasons.
Summary and Response to Comments Received During the Initial Notice 
        Period of April 13, 2005 Through June 8, 2005
Written Comments of Carlton D. Moore, CDFG, OSPR
    Comment 1: Commenter believes that the proposed regulations provide 
a good starting point for controlling ballast discharges through 
exchange, but hopes that the provisions are revised as ballast water 
treatment technologies are developed that provide a higher level of 
protection.
    Response: As currently drafted, the proposed regulation includes 
the option for ballast water management through approved ballast water 
treatment technologies. Section 2284(a)(3) permits a vessel to manage 
ballast water using a ballast treatment technology that is approved by 
the California State Lands Commission (CSLC).

    Comment 2: Add language to Section 2280(c) that clarifies that 
there is another regulation in place that applies to vessels arriving 
to California from outside the Pacific Coast Region.
    Response: The comment does not pertain to the proposed regulation, 
but to other existing requirements of the enabling legislation, Public 
Resources Code (P.R.C.) Sec. 7204.2. The CSLC notes that vessels are 
obligated to comply with the requirements outlined in P.R.C. 
Sec. 71204.2, which applies to vessels carrying ballast that originates 
from ports or places outside of the U.S. EEZ.

    Comment 3(a-d): The California Department of Fish and Game (CDFG) 
requests that terms and processes in Section 2283, ``Alternatives,'' be 
elaborated upon for clarification. Specifically, the commenter requests 
that more information on which practices can be adopted as alternative 
management options, steps a petitioner must take to navigate the 
petition process, the length of time the process will take, criteria 
that will be used to evaluate the merits of a proposed alternative, and 
if there may be an appeals process.
    Response: The purpose for the provision is to allow for the 
flexible development of management alternatives for unusual and rare 
hardship situations that are deemed valid by the Commission (See ISOR). 
Through its frequent communication with the commercial shipping 
industry, the CSLC anticipates that petitions will be submitted by 
vessels, owners, or operators with unique difficulties and 
circumstances. Therefore, a specific list of allowable alternative 
management options was not directly included in the regulation so the 
range of management solutions would not be constrained. Second, the 
CSLC maintains open communications with the commercial shipping 
industry. Should a petitioner request, the CSLC intends to work 
directly with petitioners to develop biologically protective 
alternatives for submission to the Commission.

    Comment 4: Correct apparent typographical error in Section 2284: 
``Exchange the vessel's ballast water . . . taken on in a port or place 
or within the Pacific Coast Region.''
    Response: Accepted. Text will be amended as suggested.

    Comment 5: Add a section to the regulation that informs the 
regulated community of potential consequences for non-compliance.
    Response: Consequences for non-compliance are currently included in 
the enabling legislation (Marine Invasive Species Act, P.R.C. 
Sec. 71216 and Sec. 71217). Including non-compliance language in the 
proposed regulation would be redundant. The entire regulated community 
is fully conversant with the statue.

Written Comments of Capt. Phil Davies, ChevronTexaco
    Comment 6: Commenter states that ChevronTexaco has been a supporter 
of the Marine Invasive Species Program, and recognizes that ballast 
water exchange is an interim solution that will reduce the risk of 
invasive species introductions.
    Response: The Commission thanks the commenter for their support, 
and notes that no response is required.

    Comment 7: The commenter lists the five ballast water management 
options allowed by the proposed regulation and states that ballast 
water exchange is the primary method utilized by the majority of ship 
owners. The remaining management options are not possible for 
ChevronTexaco vessels due to operating schemes, lack of infrastructure, 
or lack of technological development.
    Response: Ballast water exchange 50 nautical miles offshore is 
among the acceptable management options listed in the proposed 
regulation Section 2284. A vessel utilizing the method would be in 
compliance with the regulation. Thus, ChevronTexaco will be in full 
compliance should they choose to conduct ballast exchange. Vessels that 
are unable to conduct one of the five management options of Section 
2284 due to issues not related to safety, may be accommodated by 
provisions of Section 2283, ``Alternatives.'' Such vessels may petition 
for an alternative to comply with the regulation.

    Comment 8: The proposed regulation does not make allowances for 
extenuating circumstances, which is inconsistent with related 
International Maritime Organization (IMO) agreements and U.S. Federal 
regulations, which do not impact commerce. Those regulations 
accommodate vessels that would be subject to delays or experience 
impacts to scheduling.
    Response: The term ``undue deviation and delay,'' used in the U.S. 
Federal regulation and IMO Convention and are not adequately defined, 
as no criteria for substantive deviation or delay is set forth. 
Additionally, the regulation must be developed pursuant to California 
statute. Vessels that are unable to comply with the proposed regulation 
due to issues not related to safety may be accommodated by provisions 
of Section 2283, ``Alternatives.'' Such vessels may petition for an 
alternative to comply with the regulation. These may include cases of 
extreme financial hardship, provided that the petitioner includes all 
the data and information required to evaluate the merits of the 
petition, and that the proposed alternative fulfills the purpose of the 
proposed regulation.

    Comment 9: The commenter states that, during a meeting in 2004, the 
CSLC estimated that less than 15 percent of vessels that will be 
required to exchange ballast water, will be unable to do so due to 
their short voyage duration or vessel design. The economic impact to 
these operators will be millions annually, though the reduction in the 
number of species transferred has not been quantified.
    The commenter further states that the CSLC's intention with the 
alternatives petition process (Section 2283, ``Alternatives'') was to 
collect monies from vessel operators to perform a management practice 
other than ballast water exchange. Such an arrangement was not agreed 
upon during the development of the proposed regulation.
    Response: Vessels that are unable to comply with the proposed 
regulation due to issues not related to safety may be accommodated by 
provisions of Section 2283, ``Alternatives.'' Such vessels may petition 
for an alternative to comply with the regulation. These may include 
cases of extreme financial hardship, provided that the petitioner 
includes all the data and information required to evaluate the merits 
of the petition, and that the proposed alternative fulfills the purpose 
of the proposed regulation.
    Several studies conducted on the efficacy of ballast water exchange 
have shown a 70-95 percent reduction in the number of organisms 
transferred in a ballast tank. See ISOR for the proposed regulation, 
``Information Relied Upon.''
    No fees will be collected in conjunction with Section 2283, 
``Alternatives.''

    Comment 10a: Consider that in order to conduct ballast water 
exchange 50 nm from shore, more vessels will move into tanker lanes and 
will cross other designated shipping lanes, increasing the risk of 
collision.
    Response: The proposed regulation does not define routes by which 
vessels must travel in order to conduct ballast exchange. Theses 
regulations do not supersede the international navigational and ship 
handling standards found in the Convention on the International 
Regulations for Preventing Collisions at Sea, 1972, (Colregs). The only 
formally designated vessel traffic routing scheme exists on the Central 
and Southern California coast. This internationally recognized Traffic 
Separation Scheme (TSS) requires vessels using it to proceed in 
prescribed ways including methods for entering, departing, and crossing 
the TSS. Nothing in these regulations would change those methods. Most 
of the TSS is closer than 50 nautical miles to the shore.
    There is a voluntary agreement between the State (Office of Spill 
Prevention and Response of the California Department of Fish and Game) 
and operators of crude oil tankers in the Alaska trade (through the 
Western States Petroleum Association). The agreement includes a 
provision that those vessels will transit the California coast at least 
50 nautical miles offshore. There are no prescribed routes or tracks 
that these vessels must follow. They must comply with the Colregs.
    The Commission has no information supporting the contention that 
collisions are likely to increase if more ships are required to transit 
beyond 50 nm.

    Comment 10b-c: Consider that under the proposed regulation, vessels 
that are not able to perform ballast water exchange will travel more 
slowly or stop in tanker lanes. Vessels that move at reduced speeds 
will be more difficult to maneuver and control, and will be a more 
vulnerable security risk.
    Response: If a vessel is unable to perform ballast water exchange, 
it is not clear why it would be required to slow down or stop in tanker 
lanes. A vessel unable to conduct exchange may opt to perform one of 
the remaining four management options of Section 2284. Additionally, 
vessels that are unable to comply with the regulation due to issues not 
related to safety as defined in Section 2281, may be accommodated by 
provisions of Section 2283, ``Alternatives.'' Such vessels may petition 
for an alternative to comply with the regulation.

    Comment 10d: Consider that under the proposed regulation, vessels 
will be required to travel further distances to comply, increasing air 
emissions.
    Response: This issue has not been studied carefully, but since 
these ballast water exchanges will take place greater than 50 nautical 
miles from shore, it is anticipated that air quality in California 
would not be affected.
    Further, the Commission has no information supporting the 
conclusion that air emissions may increase or whether those increases 
would be significant. The Commission has no information supporting the 
contention that ships would have to slow down, nor is the information 
on where they might slow down. Whether, where, or how much air 
emissions may increase cannot, therefore, be determined.

    Comment 10e: Consider that the proposed regulation will increase 
costs for the maritime industry, resulting in costs that will be passed 
on to consumers, and potential loss of business to the state.
    Response: Vessels that are unable to comply with the regulation due 
to issues not related to safety as defined in Section 2281, may be 
accommodated by provisions of Section 2283, ``Alternatives.'' Such 
vessels may petition for an alternative to comply with the regulation.

    Comment 10f: Consider that Washington, Oregon, and British Columbia 
do not require ballast water management of vessels traveling wholly 
within their states. These states conform with the International 
Maritime Organization (IMO) and U.S. Coast Guard (USCG) agreements, and 
accommodate short voyages. The proposed regulation would be 
inconsistent with those of neighboring West Coast states, and will 
create voyage delays particularly for short voyages.
    Response: The regulation must be developed pursuant to California 
statute, and thus, is not required to conform with regulations of other 
U.S. states or countries. Vessels that are unable to comply with the 
proposed regulation due to issues not related to safety may be 
accommodated by provisions of Section 2283, ``Alternatives.'' Such 
vessels may petition for an alternative to comply with the regulation. 
These may include cases of extreme financial hardship, provided that 
the petitioner includes all the data and information required to 
evaluate the merits of the petition, and that the proposed alternative 
fulfills the purpose of the proposed regulation.

    Comment 10g: Consider that the Oil Pollution Act of 1990 limits the 
number of hours seamen may work, and the proposed regulation will 
create financial hardship or transit delays.
    Response: Most ballast water exchanges are not personnel intensive. 
The affect on the work hour limitations imposed by Federal statute will 
be different from vessel to vessel. Operators that are unable to comply 
with the regulation due to issues not related to safety may be 
accommodated by provisions of Section 2283, ``Alternatives.'' Such 
operators may petition for an alternative to comply with the 
regulation. These may include cases of extreme financial hardship, 
provided that the petitioner includes all the data and information 
required to evaluate the merits of the petition, and that the proposed 
alternative fulfills the purpose of the proposed regulation.

    Comment 11: The CSLC should make accommodations within the 
regulations for vessels that are unable to comply with the proposed 
regulations. The regulations as written would place businesses in 
California at a disadvantage in comparison to other West Coast ports.
    Response: Vessels are not required to comply with the proposed 
regulation under conditions that endanger a vessel, its crew, and its 
passengers. Vessels that are unable to comply with the regulation due 
to issues not related to safety may be accommodated by provisions of 
Section 2283, ``Alternatives.'' Such vessels may petition for an 
alternative to comply with the regulation. These may include cases of 
extreme financial hardship, provided that the petitioner includes all 
the data and information required to evaluate the merits of the 
petition, and that the proposed alternative fulfills the purpose of the 
proposed regulation. See comments 15 and 18, and response thereto.

Written Comments of John Berge, Pacific Merchant Shipping Association 
        (May 26, 2005)
    Comment 12: The Pacific Merchant Shipping Association (PMSA) 
supported the renewal of the enabling statue, AB 433 (2003), supports 
the management efforts of the program, and recognizes that current 
regulations will reduce the risk of invasive species introductions 
until better technologies are developed to eliminate the risk.
    Response: The Commission thanks the commenter for the comment and 
notes that no response is required.

    Comment 13 and Comment 15: PMSA applauds the CSLC's effort to align 
the proposed regulation with aspects of the IMO and the USCG proposals. 
However, these other regulations make accommodations that the proposed 
regulation does not, for vessels that would be required to make 
extensive deviations or suffer delays. Failure to accommodate these 
vessels could result in financial hardship to the industry, and could 
eliminate some trade in California. Specifically, accommodation should 
be made for vessels in regular trade that cannot comply, and vessels 
that encounter irregular situations.
    Response: The accommodations made for deviation and delay used in 
the U.S. Federal regulation and IMO Convention are not adequately 
defined, as criteria for substantive deviation or delay is not set 
forth. Vessels that are unable to comply with the proposed regulation 
due to issues not related to safety may be accommodated by provisions 
of Section 2283, ``Alternatives.'' Such vessels may petition for an 
alternative to comply with the regulation. These may include cases of 
extreme financial hardship, provided that the petitioner includes all 
the data and information required to evaluate the merits of the 
petition, and that the proposed alternative fulfills the purpose of the 
proposed regulation. See comment 8 and 15, and response thereto.

    Comment 14a: Consider that the efficacy of ballast water exchange 
at reducing invasive species transport has not yet been fully 
quantified.
    Response: Though the exact numerical efficacy of ballast water 
exchange for removing organisms in tanks varies depending on vessel and 
voyage pattern, numerous studies have shown that the management 
practice reduces the number of organisms transferred in a ballast tank. 
See ISOR for the proposed regulation, ``Information Relied Upon.''

    Comment 14b: Consider that the proposed regulation should reduce 
the risk invasive species transfer, even if a small number of vessels 
are accommodated.
    Response: P.R.C. Sec. 71204.5 requires that the proposed regulation 
be ``. . . designed to protect the waters of the state.'' This requires 
that the proposed regulation be protective, rather than merely reduce 
the risk of species transfer. Therefore, the small population of 
vessels that petition for an alternative ballast management option 
under Section 2283, ``Alternatives,'' will be required to fulfill the 
purpose of the regulation.

    Comment 14c: The supporting science in terms of risk factors is 
still not well established.
    Response: The majority of research experts, and peer-reviewed 
scientific literature on marine and estuarine non-indigenous species 
generally agree that ballast water is likely the largest vehicle by 
which invasions have occurred. This recognition is reflected in 
existing ballast water regulations or conventions adopted by other U.S. 
Pacific states, the U.S. Federal Government, and the International 
Maritime Organization. Further, the best available science shows that a 
coastal voyage can transfer millions of organisms to a destination 
port. See ISOR for the proposed regulation, ``Information Relied 
Upon.''

    Comment 14d: Consider that for ballast water exchange, a given 
distance off of the West Coast is more protective than the same 
distance off of other U.S. or European coasts, because of the narrow 
continental shelf on the Pacific West Coast.
    Response: The requirement to exchange ballast in water at least 200 
m deep and 50 nm offshore is based on recommendations provided by 
Pacific West Coast oceanographic experts during a workshop in 2002. In 
order to minimize the possibility that organisms discharged from 
vessels reached the shoreline, oceanographers recommended that exchange 
occur in areas deeper than 200 m. In order to avoid exchange in areas 
where water currents tend to retain organisms (retention zones), they 
recommended that ballast water exchange be conducted least 50 nm 
offshore of these regions. See ISOR, ``Information Relied Upon.''

    Comment 14e: Consider that the majority of vessels will be able to 
meet the proposed regulation without undue burden.
    Response: The Commission agrees with the commenter, and notes that 
no response is required.

    Comment 14f: Consider that ports in Oregon, Washington, and British 
Columbia do not require exchange of vessels engaged in coastal voyages 
to accommodate short routes between these ports. The proposed 
regulation makes no such accommodations.
    Response: The proposed regulation does accommodate vessels on short 
voyages within defined shared waters, as described in Section 2280(b). 
Vessels are not required to manage ballast when transiting wholly 
within the San Francisco Bay/San Joaquin/Sacramento Delta, or when 
transiting wholly within the Los Angeles/Long Beach/El Segundo port 
complex.
    In addition, the regulation must be developed pursuant to 
California statute, and thus, is not required to conform with 
regulations of other U.S. states or countries. Vessels that are unable 
to comply with the proposed regulation due to issues not related to 
safety may be accommodated by provisions of Section 2283, 
``Alternatives.'' Such vessels may petition for an alternative to 
comply with the regulation. This may include regularly scheduled, 
short-distance voyages, provided that the petitioner includes all the 
data and information required to evaluate the merits of the petition, 
and that the proposed alternative fulfills the purpose of the proposed 
regulation. See comment 10f and response thereto.

    Comment 14g: Consider that the stated goal of the proposed 
regulation is to create a harmonized approach between Pacific Coastal 
states.
    Response: The regulation must be developed pursuant to California 
statute, and thus, is not required to conform with regulations of other 
U.S. states or countries. Nonetheless, it does create consistency with 
other North American Pacific states by requiring ballast water exchange 
at a distance offshore identical to those required by ballast water 
regulations or conventions in Washington, major Pacific Coast Canadian 
ports (Vancouver, Nanaimo, Fraser River), and the International 
Maritime Organization. The 50 nm distance is also identical to that 
prescribed by pending ballast water legislation in Oregon (Oregon HB 
2170, 2005).

    Comment 14h: Consider that the IMO Convention and Federal ballast 
water proposals accommodate vessels that would be required to deviate 
or extend their voyages to accomplish exchange.
    Response: The language accommodating undue deviation and delay used 
in the U.S. Federal regulation and IMO Convention and are not 
adequately defined, as criteria for substantive deviation or delay is 
not set forth. Additionally, the regulation must be developed pursuant 
to California statute, and thus is not required to conform with other 
states or countries. Vessels that are unable to comply with the 
proposed regulation due to issues not related to safety may be 
accommodated by provisions of Section 2283, ``Alternatives.'' Such 
vessels may petition for an alternative to comply with the regulation. 
These may include vessels on regularly scheduled short-haul voyages, 
provided that the petitioner includes all the data and information 
required to evaluate the merits of the petition, and that the proposed 
alternative fulfills the purpose of the proposed regulation. See 
comment 8 and response thereto.

    Comment 14i: Consider that the effect of mandating these rules 
under all scenarios could seriously impede state commerce and burden 
the maritime industry.
    Response: The proposed regulation does not mandate ballast water 
management under all circumstances. As described in Section 2281 
``Safety of Ballasting Operations,'' ballast management is not required 
in circumstances that endanger a vessel, its crew or its passengers. 
Vessels that are unable to comply with the proposed regulation due to 
issues not related to safety may be accommodated by provisions of 
Section 2283, ``Alternatives.'' Such vessels may petition for an 
alternative to comply with the regulation. These may include 
circumstances of undue financial hardship, provided that the petitioner 
includes all the data and information required to evaluate the merits 
of the petition, and that the proposed alternative fulfills the purpose 
of the proposed regulation.

    Comment 16a: For vessels that cannot comply with the five ballast 
management practices required by Section 2284 due to vessel design or 
voyage duration, language is suggested that allows ballast water 
exchange ``to the extent possible'' in near coastal waters (at least 50 
nm offshore and 200 m deep). For vessels on regular trade routes that 
are unable to comply, language is suggested that would allow vessels to 
petition for a vessel-specific, route-specific variance. For vessels on 
irregular routes, language is suggested to allow a petition for a one-
time variance.
    Response: Ballast water exchange ``to the extent possible'' is not 
adequately defined in the commenter's suggested language, and does not 
meet the clarity standard of the Administrative Procedures Act. Under 
such unspecified language, a vessel could exchange inadequate volumes 
of ballast providing little or no reduction for the risk of invasive 
species introduction. Such a scenario would not fulfill the intent of 
the enabling statute to, ``protect the waters of the state.''
    Section 2283, ``Alternatives,'' included in the proposed regulation 
already includes language allowing vessels that are unable to comply 
with the regulation due to issues not related to safety to petition for 
an alternative to comply with the regulation. As currently written, the 
petition process may be available to vessels traveling on regular trade 
routes, or to vessels on irregular trade routes, provided that the 
petitioner includes all the data and information required to evaluate 
the merits of the petition, and that the proposed alternative fulfills 
the purpose of the proposed regulation. Therefore, the suggested change 
in language is unnecessary.

    Comment 16b: PMSA requests that review and approval of variance 
petitions for vessels under irregular routes or circumstances be 
completed at the staff level of the CSLC.
    Response: For petitions that require an immediate response, the 
Commission has delegated authority to the Executive Officer for 
approving and disapproving requests for an ``Alternative'' under 
section 2283. In cases that do not require an immediate response, such 
as a request for a long-term or fleet-wide alternative, the Commission 
will approve or disapprove the request.

    Comment 17: PMSA requests that a review of the effects of the 
proposed regulation is conducted 6-12 months after the regulation is 
implemented.
    Response: A report reviewing the activities of the larger 
administrative program (Marine Invasive Species Program) is produced 
biennially as mandated by the Marine Invasive Species Act. The next 
report will be produced in January of 2007, approximately 16 months 
after the implementation of the proposed regulation, and will include 
the requested review. As such, a separate review and associated report 
would be redundant.
    In addition, the Commission has required that after the regulation 
has been in effect for 12 months, staff evaluate and report on the 
impact of the regulation. This report will be presented at a subsequent 
Commission meeting that is open to the public.

    Comment 18: The regulation should include accommodation or 
exemptions for vessels that are unable to comply with the proposed 
regulation due to economic hardship. The commenter provides a 
spreadsheet summary of estimated economic impacts the proposed 
regulation will place on five unnamed companies.
    Response: Vessels that are unable to comply with the proposed 
regulation due to issues not related to safety may be accommodated by 
provisions of Section 2283, ``Alternatives.'' Such vessels may petition 
for an alternative to comply with the regulation. These may include 
cases of extreme financial hardship, provided that the petitioner 
includes all the data and information required to evaluate the merits 
of the petition, and that the proposed alternative fulfills the purpose 
of the proposed regulation. See comment 11 and response thereto.

Written Comments of Jeff Browning, Sause Brothers Ocean Towing Co. Inc.
    Comment 19: Unmanned barges are unable to manage ballast water 
through four of the five ballast water management options allowed by 
Section 2284 (near-coastal exchange, retention, alternative ballast 
water treatment, or discharge into a reception facility).
    Response: Vessels that are unable to comply with the regulation due 
to issues not related to safety may be accommodated by provisions of 
Section 2283, ``Alternatives.'' Such vessels may petition for an 
alternative to comply with the regulation, provided that the petitioner 
includes all the data and information required to evaluate the merits 
of the petition, and that the proposed alternative fulfills the purpose 
of the proposed regulation.
    In addition, Section 2284 allows for a fifth ballast management 
option under extraordinary circumstances, which allows a vessel to 
exchange ballast in an area agreed to by the Commission in consultation 
with the U.S. Coast Guard. Should an unmanned barge choose this ballast 
management option, it will be in compliance with the regulation.

    Comment 20: In most cases, Sause Brothers, Inc. barges are able to 
take on and discharge ballast in the same port, or minimize the amount 
of ballast transported between ports.
    Response: If the ballast water is taken on and discharged in the 
same place, and is not mixed with water from another port or place, the 
operation is in compliance with the statute. However, if a vessel 
discharges ballast water from one port or place in another port or 
place without undergoing ballast water management as described in 
section 2284, the vessel will be in violation of the law.

    Comment 21: Sause Brothers, Inc. will apply their existing Federal 
ballast water plan to the plans for vessels that operate in California. 
An excerpt of Sause Brothers' Federal plan is included with the 
comment.
    Response: The requirement to maintain a vessel-specific ballast 
water management plan onboard is not required by the proposed 
regulation. Rather, this requirement is mandated by the enabling 
statute (The Marine Invasive Species Act, P.R.C. Sec. 71204).

    Comment 22: Sause Brothers Inc. vessels that have operated outside 
U.S. EEZ and taken on ballast water less than 200 nm from shore 
typically discharge in the next Captain of the Port (COTP) zone, 
discharge in the same COTP zone as uptake, or discharge prior to 
entering port. Vessels will not deviate or delay a voyage to exchange 
ballast water 200 nm from shore due to safety reasons.
    Response: Under the proposed regulation, vessels may opt to manage 
ballast water by exchanging 50 nm from shore. As such, vessels will not 
be required to deviate to locations 200 nm from shore.
    Additionally, the requirement to manage ballast water originating 
from outside of the Pacific Coast Region is not addressed by the 
proposed regulation. Rather, requirements for management of such 
ballast water are described in the enabling statue (The Marine Invasive 
Species Act, P.R.C. Sec. 71204.2). If ballast water originates from 
ports or places within the Pacific Coast Region, however, the proposed 
regulation will require vessels to manage ballast through one of the 
five options under Section 2284.
    Vessels are not required to manage ballast water if faced with 
safety issues as described in Section 2281, and vessels unable to 
comply for reasons other than safety may petition for an alternative as 
described in Section 2283. See comments 11, 15, and 18, and response 
thereto.

    Comment 23: If Sause Brothers, Inc. vessels are unable to conduct 
ballast management practices due to safety issues or voyage 
characteristics, they will not be prohibited from discharging minimal 
amounts operationally necessary.
    Response: Vessels are not required to comply with the proposed 
regulation under conditions that endanger a vessel, its crew, and its 
passengers, as described in Section 2281 of the proposed regulation. 
Vessels that are unable to comply with the regulation due to issues not 
related to safety may be accommodated by provisions of Section 2283, 
``Alternatives.'' Such vessels may petition for an alternative to 
comply with the regulation, provided that the petitioner includes all 
the data and information required to evaluate the merits of the 
petition, and that the proposed alternative fulfills the purpose of the 
proposed regulation.
    Following implementation of the proposed regulation, vessels that 
do not manage ballast water through one of the 5 management options of 
Section 2284, or through a petition for an alternative, will be in 
violation of the law. Violators may be subject to penalties set forth 
in the enabling statute, P.R.C. Sec. 71204.2.

    Comment 24: Sause Brothers, Inc. requests that it be exempt from 
the proposed regulation until ballast water reception facilities are 
available.
    Response: Sause Brothers may present their petition and proposal 
for an alternative to the management practices to the Commission as 
described in Section 2283.
Written Comments of William Douros, National Marine Sanctuary Program, 
        National Oceanic and Atmospheric Administration (NOAA)
    Comment 25: The Northern California National Marine Sanctuaries 
(Cordell Bank, Gulf of the Farallones, and Monterey Bay) view non-
native species introductions as a priority resource protection issue, 
and support the ballast water discharge restrictions of the proposed 
regulation. The Sanctuaries would like to coordinate with the CSLC on 
this issue in the future.
    Response: The CSLC appreciates the support of the Sanctuary Program 
and looks forward to continuing a working relationship with them.
Written Comments of Jon Gurish, California Coastal Conservancy (letter 
        dated 
        6/9/2005)--Late Comments
    Comment 26: Commenter questions why the proposed regulation does 
not require the officer in charge of a vessel to document ballast water 
exchange time and location for purposes of audit.
    Response: The enabling statute requires vessels submit information 
on date and time of ballast water exchange for every California port of 
call to the Commission (P.R.C. Sec. 71205). As such, inclusion of the 
same requirements in the proposed regulation would be redundant.

    Comment 27: The commenter believes that the placement of safety 
exemption language near the beginning of the text of the proposed 
regulation discourages compliance.
    Response: The Commission disagrees. Regardless of the textual 
order, the requirement to comply with the regulation is mandatory. 
Vessels that do not comply will be in violation of the law and are 
subject to civil and/or criminal penalties.

    Comment 28: The commenter questions why there are not audit 
requirements to evaluate compliance.
    Response: The Commission currently conducts a vessel inspection 
program for purposes of audit and compliance evaluation, as mandated by 
P.R.C. Sec. 71206 of the enabling statute. As such, inclusion of the 
same requirements in the proposed regulation would be redundant.
Written Comments of John Berge, Pacific Merchant Shipping Association 
        (2nd 
        Letter, Dated 6-8-2005)
    Comment 29: PMSA suggests additional language to the proposed 
regulation that allows vessels to petition the Commission for a 
variance to the proposed regulation for reasons of vessel design or 
voyage duration.
    Response: A provision for petitions of alternatives to the proposed 
regulation is already included in the current version of the proposed 
regulation, Section 2283, ``Alternatives.'' Vessels that are unable to 
comply with the regulation due to issues not related to safety may be 
accommodated by provisions of Section 2283, ``Alternatives.'' These may 
include vessels that unable to comply for reasons of vessel design or 
voyage duration, provided that the petitioner includes all the data and 
information required to evaluate the merits of the petition, and that 
the proposed alternative fulfills the purpose of the proposed 
regulation. Thus, including the commenter's suggested language would be 
redundant.
Written Comments of Capt. Khush Fritter, K.P. Fitter & Associates, Inc. 
        (Letter Dated 6-9-2005)--Late Comment
    Comment 30a: Ballast operations are required for safe cargo 
operations. De-ballasting and ballasting at sea can be unsafe and can 
cause stress on the hull.
    Response: Vessels are not required to comply with the proposed 
regulation under conditions that endanger a vessel, its crew, and its 
passengers, as described in Section 2281 of the proposed regulation. 
Vessels that are unable to comply with the regulation due to issues not 
related to safety may be accommodated by provisions of Section 2283, 
``Alternatives.'' Such vessels may petition for an alternative to 
comply with the regulation, provided that the petitioner includes all 
the data and information required to evaluate the merits of the 
petition, and that the proposed alternative fulfills the purpose of the 
proposed regulation.

    Comment 30b: Statute AB 433 prescribes sedimentation reduction and 
control, and should be addressed.
    Response: The comment does not pertain to the proposed regulation, 
and does not need to be addressed. Further, sedimentation reduction and 
control was not mandated in AB 433 (2004), by which the controlling 
statue P.R.C. Sec. 71204.5 was enacted.

    Comment 30c: The commenter states that some vessels will have to 
travel 75 miles offshore and remain for over 10 hours to conduct 
exchange, causing longer routes, voyage delay, increased costs, and 
pose a danger for crew and vessels.
    Response: Vessels are not required to comply with the proposed 
regulation under conditions that endanger a vessel, its crew, and its 
passengers, as described in Section 2281 of the proposed regulation. 
Vessels that are unable to comply with the regulation due to issues not 
related to safety may be accommodated by provisions of Section 2283, 
``Alternatives.'' These may include cases of extreme financial 
hardship. Such vessels may petition for an alternative to comply with 
the regulation, provided that the petitioner includes all the data and 
information required to evaluate the merits of the petition, and that 
the proposed alternative fulfills the purpose of the proposed 
regulation.

    Comment 30d: The commenter states that there will be an increased 
risk of collision when vessels cross the Traffic Separation Scheme off 
the West Coast.
    Response: The proposed regulation does not define routes by which 
vessels must travel in order to conduct ballast exchange. There is no 
legal shipping traffic scheme requiring tankers or other vessels to 
transit 50 nm offshore or otherwise. See comment 10a and response 
thereto.

    Comment 31a: Mariners on foreign flagged vessels will give highest 
importance to IMO regulations, secondary importance to Federal 
regulations, and lowest importance to regional regulations different 
from Federal ones. The proposed regional regulations will likely not be 
incorporated into documents a master will rely upon for guidance.
    Response: Compliance rates by foreign vessels for other CSLC 
regulations are very high. For example, the requirement to manage 
ballast water originating outside the U.S. EEZ, has consistently exceed 
90 percent since 2000 (P.R.C. Sec. 71204.3). Therefore, it is 
anticipated that compliance rates with the proposed regulation will 
also be very high.
    As with other CSLC regulations, education and outreach will 
continue with the implementation of the proposed regulation, with the 
goal of informing mariners of California state regulations.

    Comment 31b: K.P. Fitter and Associate, Inc. associated tugs and 
barges will find it difficult to comply with the proposed regulation.
    Response: Vessels are not required to comply with the proposed 
regulation under conditions that endanger a vessel, its crew, and its 
passengers. Vessels that are unable to comply with the regulation due 
to issues not related to safety may be accommodated by provisions of 
Section 2283, ``Alternatives.'' Such vessels may petition for an 
alternative to comply with the regulation. These may include cases of 
extreme financial hardship, provided that the petitioner includes all 
the data and information required to evaluate the merits of the 
petition, and that the proposed alternative fulfills the purpose of the 
proposed regulation.
Written Comments of Peter Korody, Indlandbotman's Union of the Pacific
    Comment 32: The proposed regulation will pose serious risk to crew 
members on tug boats, particularly when personnel must transfer from a 
tug to a barge in open ocean.
    Response: Vessels are not required to comply with the proposed 
regulation under conditions that endanger a vessel, its crew, and its 
passengers, as described in Section 2281 of the proposed regulation. 
Vessels that are unable to comply with the regulation due to issues not 
related to safety may be accommodated by provisions of Section 2283, 
``Alternatives.'' Such vessels may petition for an alternative to 
comply with the regulation, provided that the petitioner includes all 
the data and information required to evaluate the merits of the 
petition, and that the proposed alternative fulfills the purpose of the 
proposed regulation. See comment 33 and response hereto.
Oral comments of Jason Lewis, American Waterways Operators (Public 
        Hearing transcript, 6/8/2005, Oakland)
    Comment 33: Ballast is essential for the safe operation of tugs and 
barges. The process of ballast water exchange as required by the 
proposed regulation can be impractical and unsafe, because it requires 
that a tug or other small boat come along side a barge and transfer of 
personnel between them. Articulated tug barges (ATB's) can become 
disconnected and result in an uncontrolled barge.
    Response: Vessels are not required to comply with the proposed 
regulation under conditions that endanger a vessel, its crew, and its 
passengers, as described in Section 2281 of the proposed regulation. 
Vessels that are unable to comply with the regulation due to issues not 
related to safety may be accommodated by provisions of Section 2283, 
``Alternatives.'' Such vessels may petition for an alternative to 
comply with the regulation. These may include cases of extreme 
financial hardship, provided that the petitioner includes all the data 
and information required to evaluate the merits of the petition, and 
that the proposed alternative fulfills the purpose of the proposed 
regulation.

    Comment 34: The States of Oregon and Washington include provisions 
for safety and feasibility regulations.
    Response: The proposed regulation makes accommodation for safety 
and feasibility. Vessels are not required to comply with the proposed 
regulation under conditions that endanger a vessel, its crew, and its 
passengers, as described in Section 2281 of the proposed regulation. 
Vessels that are unable to comply with the regulation due to issues not 
related to safety may be accommodated by provisions of Section 2283, 
``Alternatives.'' Such vessels may petition for an alternative to 
comply with the regulation. These may include cases of extreme 
financial hardship, provided that the petitioner includes all the data 
and information required to evaluate the merits of the petition, and 
that the proposed alternative fulfills the purpose of the proposed 
regulation.
    Additionally, though the proposed regulation does provide safety 
exemptions as do neighboring Pacific states, the regulation must be 
developed pursuant to California statute (P.R.C. Sec. 71204.2), and 
thus, is not required to conform with regulations of other U.S. states 
or countries.

    Comment 35: The shipping industry's Ballast Water Coalition has 
reached the conclusion that ballast water exchange for the tug and 
barge industry is inherently unsafe.
    Response: Vessels are not required to comply with the proposed 
regulation under conditions that endanger a vessel, its crew, and its 
passengers, as described in Section 2281 of the proposed regulation. 
Vessels that are unable to comply with the regulation due to issues not 
related to safety may be accommodated by provisions of Section 2283, 
``Alternatives.'' Such vessels may petition for an alternative to 
comply with the regulation. These may include cases of extreme 
financial hardship, provided that the petitioner includes all the data 
and information required to evaluate the merits of the petition, and 
that the proposed alternative fulfills the purpose of the proposed 
regulation.
    In addition, the proposed regulations allow for other ballast water 
management options in addition to exchange. Vessels may choose to 
retain ballast, use an alternative ballast management method (treatment 
system) approved by the Commission or USCG prior to the voyage, or 
discharge ballast to an approved reception facility. It is hoped that 
vessels currently unable to manage ballast through exchange will begin 
actively pursuing alternative management options, such as shore-based 
or shipboard treatment system development.

    Comment 36: Ballast exchange is inherently unsafe for American 
Waterway Operators (AWO) members and vessel owners should not be 
required to risk the lives of crew.
    Response: Vessels are not required to comply with the proposed 
regulation under conditions that endanger a vessel, its crew, and its 
passengers, as described in section 2281, ``Safety of Ballasting 
Operations.''

    Comment 37: The AWO requests that the proposed regulation use 
Washington as a reference for the development of them, due to unique 
nature of tugs and barges.
    Response: Though the proposed regulation does provide safety 
exemptions as do neighboring Pacific states, the regulation must be 
developed pursuant to California statute (P.R.C. Sec. 71204.2). 
Conformity with regulations of other U.S. states or countries may not 
therefore be possible.
Oral Comments of John Berge, PMSA (Public Hearing transcript, 6/8/2005, 

        Oakland)
    Comment 38: PMSA views the goal to reduce the risk of invasive 
species introductions between coastal U.S. ports as the next logical 
step from the currently regulated goal of preventing invasions from 
outside the U.S. EEZ. Ballast water exchange is the only viable, 
current ballast management option, until technologies are developed to 
treat ballast water on-board a vessel.
    Response: Noted. The Commission agrees with the commenter.

    Comment 39: PMSA lauds and supports the Commission's efforts to 
carefully analyze ballast water movements to formulate the proposed 
regulation. Though the proposed regulation is a compromise between 
practicality and invasive species risk reduction, he views the proposed 
regulation as an improvement to the current program that places an 
acceptable burden on the shipping industry.
    Response: Noted. The Commission agrees with the commenter.

    Comment 40: The vast majority of PMSA members will be able to 
comply with the regulation without threatening their economic 
viability. However, a small number of ships will face economic 
difficulties due to vessel design or voyage duration.
    Response: Noted. Vessels that are unable to comply with the 
regulation due to issues not related to safety may be accommodated by 
provisions of Section 2283, ``Alternatives.'' Such vessels may petition 
for an alternative to comply with the regulation. These may include 
cases of extreme financial hardship, provided that the petitioner 
includes all the data and information required to evaluate the merits 
of the petition, and that the proposed alternative fulfills the purpose 
of the proposed regulation.

    Comment 41: Regulators must accommodate the small population of 
vessels that will be placed in an economically untenable situation due 
to vessel design, extended voyage duration, as required by P.R.C. 
Sec. 71204.5(a).
    Response: The Commission considered the issue of vessel design and 
voyage duration in the proposed regulation, and as such included 
Section 2283, ``Alternatives,'' in the proposed regulation. Vessels 
that are unable to comply with the regulation due to issues not related 
to safety may petition the Commission for a ballast management 
alternative. The petitioner must provide all the data and information 
required to evaluate the merits of the petition, and that the proposed 
alternative must fulfill the purpose of the proposed regulation. 
Petitioners may include owners or operators of vessels that are unable 
to comply for reasons of vessel design, voyage duration, or economic 
hardship.

    Comment 42: The commenter requests the completion of a review of 
the program 6-12 months after implementation of the proposed 
regulation.
    Response: A report reviewing the activities of the larger 
administrative program (Marine Invasive Species Program) is produced 
biennially as mandated by the Marine Invasive Species Act. The next 
report will be produced in January of 2007, approximately 16 months 
after the implementation of the proposed regulation, and will include 
the requested review. As such, a separate review and associated report 
would be redundant. See comment 17, and response thereto.

    Comment 43: PMSA is dedicated to the implementation and success of 
the proposed regulation and ask that agencies recognize physical and 
logistical limitations of vessels as the regulation moves forward.
    Response: The Commission recognizes the safety, physical, and 
logistical limitations of vessels in relation to the proposed 
regulation. As such, accommodations have been included for vessels that 
encounter safety issues and other formidable difficulties while 
attempting to comply. Vessels are not required to comply with the 
proposed regulation under conditions that endanger a vessel, its crew, 
and its passengers, as described in Section 2281. Vessels that are 
unable to comply with the regulation due to issues not related to 
safety may be accommodated by provisions of Section 2283, 
``Alternatives.'' Such vessels may petition for an alternative to 
comply with the regulation. These may include cases of extreme 
financial hardship, provided that the petitioner includes all the data 
and information required to evaluate the merits of the petition, and 
that the proposed alternative fulfills the purpose of the proposed 
regulation.
Alternatives Determination
    The State Lands Commission has determined that no alternative would 
be more effective in carrying out the purpose for which the regulation 
is proposed or would be as effective and less burdensome to affected 
private persons than the proposed regulation.
Local Mandate Determination
    The proposed regulations do not impose any mandate on local 
agencies or school districts.

                                  
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