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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea 7 Overarching Issues Affecting Annex V Implementation The preceding chapter established that leadership is critical to successful Annex V education and training. In fact, strong national leadership is essential for the entire Annex V implementation program, whether it involves developing and deploying on-board technology, assuring the adequacy and use of port reception facilities, informing vessel crews and passengers about compliance methods, or enforcing the law. This chapter examines why leadership is so important and suggests how it might be provided. Following an analysis of the need for leadership, the chapter explores two broad and significant compliance challenges that demand leadership—U.S. enforcement of Annex V at sea, and issues related to the Wider Caribbean special area. These problems are considered overarching because they are relevant to all fleets, strong national leadership will be required to resolve them, and international considerations are involved. They axe also interrelated, in that coordination of enforcement is particularly problematic in the Wider Caribbean special area. Options for addressing these problems are outlined. THE NEED FOR LEADERSHIP As noted throughout this report, many federal agencies have become involved in implementation of Annex V, yet there is no lead agency for the overall effort. Furthermore, many steps that could be taken to improve implementation would require the cooperation of two or more agencies. For example, development of nationwide standards, regulations, rules, or information networks might be of great benefit, but no agency has broad enough capabilities to tackle such
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea projects across all maritime sectors. What is needed, rather than simply regulation and enforcement of existing rules, is a leader that can view Annex V implementation from a broad systems perspective and implement comprehensive and, where necessary, innovative measures to effect change in all relevant areas. Strategically, there are four possible ways to organize Annex V implementation. One is to maintain the status quo, which essentially means each agency will conduct Annex V activities on its own, as budget and mission priorities allow, and there may be some incremental improvements in how vessel garbage is handled. The problems with this approach are documented throughout this report, in terms of missed opportunities to improve Annex V implementation. The second option is for the Congress or the Administration to assign to one agency the formal task of coordinating the entire program. But in the committee's judgment, no single agency has the requisite breadth of expertise, jurisdiction, and resources to assume this responsibility in full. This situation is reflected in Table 7-1, which brings together and summarizes information provided at various points in this report concerning federal activities related to Annex V implementation. As the table shows, no single agency is active in all key areas. Even agencies that are active in many or most areas lack important capabilities and expertise, not to mention the resources to assume additional duties. For example, the Coast Guard clearly has broad capabilities, including the legal authority to enforce Annex V and oversee all other fleets (see chapters 1, 4, and the forthcoming section on enforcement in this chapter), as well as experience with education and training, both for its own fleet and others, including the public (see Chapter 6). However, the Coast Guard's core mission is policing and enforcement, meaning it has neither the funds or the expertise to carry out technology research and development, scientific monitoring of pollution, or comprehensive (i.e., for all levels of all maritime sectors and the public) Annex V educational program development and information and technology exchange. Moreover, the Coast Guard's mission and proficiency concern activities that take place on the water. Thus, even though the agency has the authority to oversee the disposal of vessel garbage in ports, it lacks the knowledge base and resources to replace the Environmental Protection Agency (EPA) in addressing land-based waste management (see Chapter 5). Because the port side of the vessel garbage management system is a key problem area inhibiting full Annex V implementation, it seems advisable to have experts in land-based waste management—EPA officials—take charge of finding a solution to that aspect of the problem. At the same time, it is clear that EPA cannot assume full leadership in Annex V implementation because its relevant expertise and authority is limited to waste management, environmental monitoring (see Chapter 1), a research fleet consisting of one vessel (see Chapter 2), and some aspects of education and training (see Chapter 6). The EPA has limited contact with mariners, no Annex V enforcement authority, and, while it has expertise in pollution-control equipment, the focus has been on land-based rather than maritime applications. Both the Navy and the
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea TABLE 7-1 Federal Agency Areas of Authority and/or Expertise Related to Annex V Implementation Key areas Enforces Annex V Has own fleeta Oversees other fleets in some way Conducts on-board tech. R&D Oversees natural resource or waste stream Conducts Annex V educ. & training Collects marine debris info. Agencyb Coast Guard (1,2,4,5,6,7) x Milit. All fleets Vessel garbage x DOS (1,7) x Foreign-flag vessels EPA (1,4,5,6) Res. All land waste x x MARAD (1,5) Trng. Cargo ships x MMS (1,4) Offshore industry Resource (OCS)c Navy (1,2,4,5,6) Milit. x x NOAA/NMFS/ME RP (1,2,4,6,8) Res. Fishing vessels Resource (fish stocks) x x NPS (1,2,8) Resource (parks) x USDA (1,5,7) Cargo, cruise ships Quarantine waste a Abbreviations stand for military (milit.), research (res.), and training (trng.) fleets. b The numbers in parentheses indicate the chapters (including forthcoming sections of Chapter 7) in which the agency's relevant activities are described. c Outer Continental Shelf.
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea cruise ship industry have far more experience with on-board garbage treatment technology than does EPA (see Chapter 5). Another possible lead agency might be the National Oceanic and Atmospheric Administration (NOAA), which has broad expertise and experience in marine debris education, research, and information exchange (see Chapter 6) and environmental monitoring (see chapters 2 and 8). However, the only fleets over which NOAA can exert control are its own research vessels and, through the National Marine Fisheries Service (NMFS), commercial fisheries (see Chapter 4). Most importantly, NOAA lacks authority to enforce Annex V or manage garbage generated by other fleets. None of the other agencies has sufficient breadth of involvement in Annex V-related activities to be a serious candidate for providing comprehensive leadership. The Department of State (DOS) focuses on Annex V enforcement as it relates to foreign-flag vessels (as discussed later in this chapter), on special area designations, and on other international and intergovernmental issues. The Maritime Administration (MARAD), the Minerals Management Service (MMS), and the Navy each are engaged primarily in oversight of single maritime sectors (cargo ships, the offshore industry, and the Navy, respectively), although MARAD and the Navy also have programs dedicated to technology development (see Chapter 5). The National Park Service's sole activity related to Annex V is environmental monitoring (see chapters 2 and 8), while the U.S. Department of Agriculture (USDA) manages the handling of quarantined garbage in the cruise and cargo ship sectors (see Chapter 5). A third option would be to establish an interagency task force, such as the marine debris coordinating committee being formed by EPA. (That committee will address land-based sources of marine debris as well as MARPOL-related issues.) A clear legislative mandate would be required to establish the overview authority of the task force and outline its responsibilities. This concept is attractive in that it would combine all the requisite expertise in a single panel, which could serve as a forum for government-wide information exchange and decision making related to Annex V. But an interagency task force, while it could accomplish much of value, would neither go far enough in assigning leadership (in terms of human and fiscal resources) nor go very far in garnering support from the private sector for Annex V implementation. There would still be divided federal leadership, with no clear line of authority and responsibility, and most likely no resources to accomplish much beyond maintenance or reshuffling of existing programs. The fourth option is to establish a permanent national commission to coordinate all aspects of Annex V implementation. Such a commission would symbolize a commitment to Annex V implementation and demand attention to the problem. The U.S. Congress has established numerous permanent commissions to address other major problems. Examples in marine affairs include the Marine
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea Mammal Commission (MMC),1 state and regional marine fisheries commissions, and river basin commissions. Some commissions seek to increase public awareness, advocate resource management, and develop educational materials designed to achieve a specific goal, such as pollution control and protection of living resources. Others provide assistance to states and federal agencies on environmental, natural resource, and conservation issues. Some provide recommendations on policies, public complaints, and directions on various issues of interest to a specific agency. A commission guiding implementation of a single international agreement would be unusual, but federal agencies responsible for Annex V implementation could provide the necessary support. (Indeed, the work of the commission would he assisted by the formation of an interagency task force, described earlier as the third option.) Such an unusual mechanism may be the only way to concentrate on and meet fully the challenges inherent in gaining the cooperation of so many individuals in such diverse maritime sectors. An independent commission would have greater flexibility than would federal agencies or task forces in working with the private sector. A commission not only could marshal the efforts of federal agencies with different missions as well as private organizations, but also could serve as a high-level focal point for U.S. leadership internationally, overseeing the nation's efforts to guide the global community toward increased standards of performance. A commission would be well-positioned to address international issues such as U.S. enforcement of Annex V as it applies to foreign violators, dissemination of Annex V-related information and technology to other nations, and development of innovative programs with neighboring nations. (These issues are examined later in this chapter.) In the committee's judgment, cost probably would not be a barrier to pursuing this option. In fact, establishing a commission likely would cost less than assigning all the tasks it might pursue to individual agencies. This assumption is based on the committee's knowledge of the operating budgets of other commissions, such as the MMC, rather than on a formal cost analysis. A national commission addressing Annex V implementation would require a clear legislative mandate establishing its overview authority and outlining its responsibilities, which could include (1) reviewing information on the sources, amounts, effects, and control of shipborne garbage; (2) providing leadership for federal agencies to assure that they carry out their roles and responsibilities and share relevant information; (3) making recommendations to agencies on actions or policies related to identification and control of sources of shipborne garbage; 1 The MMC was established under the Marine Mammal Protection Act of 1972 (P.L. 92-522). The commission is an independent agency of the Executive Branch charged with developing, reviewing, and making recommendations on the actions and policies of all federal agencies with respect to marine mammal protection and conservation, and with carrying out a research program. Annual appropriations are approximately $1 million.
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea (4) conducting research, regulatory, and policy analyses; (5) periodically providing the Congress with a report on the state of the problem, progress in research and management measures, and factors limiting the effectiveness of response; (6) overseeing a long-term program of Annex V education, training, and information exchange; and (7) overseeing international aspects of Annex V implementation. Legislation also would need to authorize and appropriate funding sufficient for the commission to carry out its duties. If a foundation were created to coordinate Annex V education and training (as suggested in Chapter 6), then its relationship to the commission would need to be defined clearly. The commission would oversee the foundation and seek to integrate its activities with those of other agencies and organizations. For example, an innovative educational program funded by the foundation could be combined and tested with new organizational strategies or other types of interventions outlined in the hazard evolution model (described in Chapter 3). The commission would have to be responsive to the need for integrated and innovative implementation strategies of all kinds. It might be possible to achieve some economies by, for example, combining the administrative staffs of the commission and the foundation into a single office. But it would be important to make clear distinctions between the roles and activities of the commission and those of the foundation to assure that the mandated functions of each were carried out. U.S. ENFORCEMENT OF ANNEX V As mandated in the Marine Plastic Pollution Research and Control Act (MPPRCA), the U.S. Coast Guard submitted an annual report to Congress in 1992, summarizing the status of enforcement of Annex V and identifying obstacles to compliance (Eastern Research Group, 1992). The report concluded that the two principal weaknesses in enforcement capabilities were ''the difficulty of obtaining eyewitness accounts'' and "the limitations imposed on prosecution of foreign vessels." Some difficulties described in the Coast Guard report as "inherent" in enforcement are applicable to all vessels. As with implementation of any agreement aimed at curbing pollution from vessels, comprehensive surveillance is impossible because ocean space is far too large to monitor. Direct observation of violations by enforcement agents is unlikely on the high seas. On several occasions, a basis for proceedings has been provided by self-incriminating statements from vessel masters or crew members and complaints filed by other mariners, port operators, or foreign officials. But incriminating statements cannot be relied upon as a basis for enforcement because there are obvious psychological and economic disincentives for confessing or informing on other professional mariners. The Coast Guard report also mentions a number of more subtle difficulties
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea applicable to all vessels. Among the problems cited were the low national priority given to the problem of shipborne wastes; the complexity of administrative procedures for proceeding against violators; and the shortcomings in training of Coast Guard personnel, especially with respect to international shipping. The economics of compliance also present complex challenges.2 The Coast Guard report notes that "penalties are sufficiently large to be considered significant but the likelihood of getting caught is considered low." Concerning remedies for the enforcement problems, the Coast Guard report suggested that Annex V compliance rates depend on factors other than government efforts—specifically, the levels of environmental consciousness in the industry and among the public. Still, two avenues for improving compliance were proposed: lowering the cost of shoreside garbage disposal and pursuing international cooperation. The committee addressed the disposal cost issue in Chapter 5; international enforcement issues are discussed here. Depending on the location of an alleged violation, the Coast Guard either takes direct action against a foreign-flag vessel or refers the case to the DOS for transmittal to the flag state. It is the handling of these latter cases that has been a key weakness in U.S. implementation of Annex V. As shown in Table 7-2, flag states seldom comply with the MARPOL requirement to notify the United States of the outcome of forwarded cases, much less impose penalties. Provoked by this poor response, in 1992 the United States expanded its exercise of port state enforcement authorities recognized under international law, thereby reducing the proportion of cases forwarded to flag states. Prior to that time, the Coast Guard took action against foreign vessels only when they discharged garbage within 3 miles of the coast; all other cases were transmitted to flag states. Under the new policy, the United States pursues direct civil or criminal action in all cases where jurisdiction can be established. That is, if there is evidence the violation took place within the Exclusive Economic Zone (EEZ), territorial sea, or internal waters, action is taken. In addition, penalties for Annex V violations have been increased, with the criminal offense upgraded to a felony. Port officials are authorized to withhold clearance for departure. Violations detected outside 200 nautical miles, as well as cases where the location of discharge cannot be established, continue to be referred to flag states; Table 7-2 suggests that the responsiveness of flag states may have improved slightly since the new policy was implemented. Notwithstanding these changes, the inherent need to rely on circumstantial evidence makes it extremely difficult for the United States to proceed directly against foreign-flag vessels. If circumstantial evidence is the only indicator of a 2 Cost is a major barrier to Annex V compliance and enforcement in developing countries, which view as onerous and unfair the expense of upgrading their ships, installing port reception facilities, and establishing the requisite administrative bureaucracy (Schrinner, 1992).
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea TABLE 7-2 Flag State Responses to U.S. Reports of Alleged Annex V Violations by Foreign-flag Vessels (since December 31, 1988)a As of 6/92 As of 6/94 Reports transmitted 111 365 No acknowledgement 76 (68.5%) 203 (55.6%) Acknowledged but no other information given 23 (20.7%) 84 (23.0%) Fines levied by flag state 2 (1.8%) 20 (5.5%) Otherb 10 (9.0%) 58 (15.9%) a The 1994 figures include cases referred to flag states under both the old and the new (post-October 1992) U.S. enforcement policies. Because the referral rules changed, the 1992 and the 1994 data do not reflect exactly the same types of cases. However, the two data sets are comparable in that both include only referrals to flag states and exclude direct enforcement actions taken by the United States. b Includes all other cases, including those that were investigated and dropped, those in which warnings or reprimands were issued, and those in which the flag state was not a party to MARPOL. Sources: 1992 data obtained from a report submitted to IMO (United States, 1992); 1994 data provided by the Department of State, Office of Ocean Affairs. violation, then often the location of illegal disposal cannot be established adequately for direct U.S. enforcement action. Options for Improving Annex V Enforcement Annex V establishes simple performance standards, but the sheer number of garbage transactions taking place overwhelms any capability for direct surveillance, by either the Coast Guard or any other authority. Therefore, other alternatives need to be employed where possible, or compliance falls short. A new balance is needed that fosters robust compliance capabilities among vessels, ports, and governments and enhances the effectiveness of existing enforcement mechanisms. Over the long-term, this approach would lay the foundation for a strengthened enforcement capability. Most of the options discussed here were mentioned in previous chapters. Clarify Extent of Port State Authorities The Coast Guard informed a Senate subcommittee in 1992 that notice of its new enforcement policy was submitted to the Marine Environmental Protection
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea Committee (MEPC) of the International Maritime Organization (IMO) (North, 1993). The new policy was seen as consistent with authorities recognized under international law and as not requiring consent by the international community. However, the Coast Guard also stated that the United States did not intend to undertake enforcement actions with respect to violations taking place in international waters. Such actions would "disrupt the institutional arrangements and multinational agreements that led to the existing level of international cooperation" (Eastern Research Group, 1992). Principles of jurisdiction articulated in Article 218 of the 1982 Third United Nations Convention on the Law of the Sea (UNCLOS III) establish that a port state may take action against foreign-flag vessels that violate applicable international rules and standards—even when the violation takes place beyond the port state's EEZ. Thus, to date, the United States has chosen not to exercise the full complement of enforcement authorities recognized under international law. The broad context, including the impact on legal precedents for U.S. enforcement with respect to violations taking place on the high seas, would need to be examined. The DOS could review this issue as part of the federal effort to enhance the effectiveness of U.S. enforcement of Annex V. In addition, the United States could examine with other nations the rights and responsibilities of port states to initiate actions against foreign-flag vessels. Through the appropriate diplomatic channels, clear rules could be developed so that port states can exercise fully and efficiently their jurisdictional authorities in a manner that assures compliance with the international standards set forth in Annex V and general principles of international law. Simplify Handling of Civil Cases The Coast Guard is experimenting with a simplified enforcement procedure for civil cases involving oil discharges that violate the Federal Water Pollution Control Act (FWPCA) (P.L. 80-845), as amended.3 The committee believes this procedure might prove useful in enforcing Annex V. In the pilot project, conducted in three ports4, alleged violators of the FWPCA were issued a Notice of Violation, similar to a traffic ticket, containing a proposed penalty. A penalty was assessed if an investigation established the elements of a civil case. The violator then had the option of paying the fine within 30 days, requesting a determination by a hearing officer, or not responding at all, in which case the file was sent to the 3 The Interim Final Rule (59 Fed. Reg. 16,558 ) took effect April 7, 1994. The procedures, which are related to FWPCA Section 309(g)(2)(A), apply only to discharges of less than 100 gallons of oil. 4 The six-month pilot program was initiated in the spring of 1994 in the ports of Charleston, South Carolina; Galveston, Texas; and Los Angeles, California.
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea district commander for review before processing by the hearing officer according to current procedures (33 C.F.R. 1). By allowing notices to be issued in the field and cases to be settled quickly, the procedures were expected to save time and money, improve the deterrent effect of the sanction, and expedite corrective actions. If the pilot projects are successful, then the final rule will be implemented nationwide. If this occurs, then the Coast Guard could explore using these procedures to handle civil cases5 involving Annex V violations. This approach could be especially effective in the fisheries and recreational boating sectors, which pose special Annex V implementation problems. The ticketing strategy could free the Coast Guard from some extended paperwork duties and make the point among mariners that violators will be prosecuted. A similar method is used by APHIS, which authorizes boarding officers to issue "spot fines" to vessel operators found to violate the standards of the quarantine program. Violators have 72 hours to pay. This authority allows APHIS to enforce its requirements, collect fines, and then release violators quickly so the vessel is not detained for extended periods. Simultaneously, the vessel and the operator are identified throughout the entire APHIS organization, so the vessel can be reinspected at every port if necessary. The spot fine policy is considered an "excellent deterrent" and is credited with improving the attitudes of ship personnel and reducing the number of violations6 (Ronald B. Caffey, assistant to the deputy administrator, APHIS Plant Protection and Quarantine, personal communication to Marine Board staff, July 26, 1994). Track and Punish Repeat Violators To maximize the utility of its past successes in identifying and prosecuting Annex V violators, the Coast Guard could input the names of offending vessel operators and shipping companies into a centralized database. (This approach could be either combined with the ticketing strategy proposed earlier or employed with the current enforcement program.) The database could be used to identify and assess special penalties against those who repeatedly disobey the law. Such a system would be similar to that used by police departments to keep track of motor vehicle operators. 5 The difference between a civil and a criminal case is largely a matter of intent; inadvertent violations are handled under civil law, while willful violations are prosecuted under criminal law and could not be handled through the ticketing process. 6 The annual number of APHIS violations by vessels ranged from 323 to 404 in the fiscal years 1990 to 1993; APHIS collects 98 percent of the fines owed (Ronald B. Caffey, assistant to the deputy administrator, APHIS Plant Protection and Quarantine, personal communication to Marine Board staff, July 26, 1994).
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea For example, a point system could be established; the number of points assessed would vary based on the degree of seriousness of the infraction (with overboard disposal of plastics carrying the highest penalty). Each time a new violation is detected, the names of the vessel operator and shipping company could be checked against the database. Any vessel operator or shipping company accumulating a threshold number of points could be required to pay a heavy fine upon entering the U.S. EEZ. If they were observed within the EEZ but had not paid the fine, then the vessel operator could be arrested and the vessel detained within U.S. jurisdiction pending resolution of the case in court. The APHIS system already tracks high-risk vessels and assesses extra penalties against repeat violators. The "blacklist" primarily includes vessels that have violated the quarantine standards in the past 12 months.7 These vessels are boarded by APHIS inspectors upon all arrivals at U.S. ports for one year after the most recent violation. Initial fines are in the $100 to $200 range and may increase as much as fivefold for repeat violations in a 12-month period (Ronald B. Caffey, assistant to the deputy administrator, APHIS Plant Protection and Quarantine, personal communication to Marine Board staff, July 26, 1994). Monitor Garbage Handling Practices Until recently, there was no way to verify where vessel garbage was discharged. Coast Guard officials could not confirm the claims of vessel operators who said, for example, they had off-loaded garbage in the last port. The Coast Guard has addressed this problem in part by requiring garbage logs on ocean-going, U.S. flag commercial vessels over 12.2 meters (about 40 feet) in length, as well as fixed and floating platforms. Legislation has been proposed that would allow this requirement to be extended to foreign-flag vessels, thereby filling major gaps in accountability in the cargo and cruise ship sectors. Still, it could be difficult and time-consuming to verify the accuracy of the logs. This problem could be remedied if ports were required to provide receipts for garbage off-loaded into their reception facilities, and if the Coast Guard examined these receipts when reviewing vessel logs. Northern European countries have taken even more direct action to monitor potential violators of Annex V. Before departure from Rotterdam, the Netherlands (which is in the North Sea special area), all vessel operators are obliged to off-load garbage or declare their intentions for disposal in a later port of call. That information is recorded in a regional database and can be used to ensure that vessel operators conform with their plans. To further support U.S. monitoring of 7 The violation list is not shared with the Coast Guard. The APHIS program also maintains a separate list of vessels calling at certain Russian ports where Asian gypsy moths may be found. The Coast Guard assists in identifying and tracking those vessels.
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea disposal practices by commercial ships, it might be advisable to require cargo and cruise ships to off-load Annex V and APHIS garbage at every U.S. port call, as suggested in Chapter 5, or to declare their intentions, as in Rotterdam. Surveillance by Government Authorities Although comprehensive surveillance is impossible, various government authorities already monitor the actions of certain fleets and might be able to include Annex V on their lists of concerns. The NMFS stations observers on vessels in some fishing fleets to monitor compliance with fisheries management plans. The MMS routinely inspects offshore oil and gas operations. And state marine police encounter recreational and fishing boats during the course of ordinary duties. Additional Annex V enforcement capabilities would be useful with respect to fisheries fleets, offshore operations, and recreational boaters. If authorities monitoring these fleets were informed about Annex V and methods for reporting violations, perhaps they could provide these extra capabilities. Surveillance by Ship Operators Ship operators have every reason to want to assure the adequacy of garbage reception facilities, and they could be encouraged to help the government monitor ports. The IMO has a form8 ship operators may use to report inadequate port reception facilities, but these forms seldom are filled out. There may be a way to encourage use of these forms, collect the data, and pursue violators on national and international levels—similar to the way the United States keeps track of how its Annex V violation reports are handled by other flag states. This type of voluntary monitoring is condoned by MARPOL and would assist primarily with enforcement focusing on vessels from signatory states. In the United States, Coast Guard or APHIS officers boarding a vessel could hand the crew a report form. Operators of cruise ships and military vessels could obtain forms upon every departure from the United States. In smaller ports and marinas, availability of the IMO forms could be publicized through the Coast Guard and its auxiliary; boating and fishing groups; and education programs, such as the NOAA's Marine Debris Information Offices. In the offshore oil and gas industry, the Offshore Operators Committee could publicize the availability of the forms and circulate them to operators of platforms and service vessels. 8 Lithe form is provided in Appendix B, last page of the implementation guidelines.
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea Surveillance by Citizens Given the vastness of the oceans, it is clear that the U.S. Coast Guard cannot singlehandedly enforce the requirements of Annex V at sea. The MPPRCA envisioned that additional "eyes" for witnessing and reporting violations might be provided by seafarers, beach goers, and vessel passengers. The MPPRCA includes an unprecedented provision that empowers anyone to report a violation. The Act further rewards citizen reporting by authorizing the courts to give some of the fines collected to those reporting the violation. Citizen reporting has proven to be worthwhile. Beginning in 1990, EPA funded a pilot program conducted by the Center for Marine Conservation to develop, test, and evaluate a Citizen Pollution Patrol Program (Podlich, 1992). In addition to educating the maritime community about marine debris and related federal and state regulations, the program was designed to involve citizens in reporting Annex V and MPPRCA violations. A standard form was developed to assist eyewitnesses in documenting suspected violations. In the most highly publicized incident of this type to date, citizen reports led to the criminal conviction of a cruise line operator and the maximum fine allowed—$500,000—for illegal discharge of garbage from a ship (U.S. Department of Justice, 1993). In that case, cruise passengers witnessed and videotaped more than 20 plastic bags of garbage being discharged into the sea near the Florida Keys (U.S. Department of Justice, 1993). If more citizens were educated in how to recognize violations of Annex V and report them, their tips could assist in enforcement. In fact, as mere awareness of the provision for citizen reporting increases, would-be violators may be deterred from carrying out illegal discharges (Weikart, 1993). All mariners should know that they are encouraged to report Annex V violations by any vessel, just as if they had witnessed any other illegal act. The Coast Guard recently added Annex V violations to the types of reports handled by the National Response Center.9 Through the Coast Guard Auxiliary, a campaign recently was initiated in several states to foster public awareness of how to recognize violations and report them to the center's toll-free telephone number (1-800-424-8802). Plans to expand the campaign nationally should be encouraged. ISSUES RELATED TO SPECIAL AREAS As noted in Chapter 1, MARPOL permits the designation of special areas where overboard discharge of garbage other than food waste is prohibited. The 9 The EPA also has recognized the value of citizens as "watch dogs" for ensuring implementation and enforcement of environmental regulations (U.S. Environmental Protection Agency, 1988).
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea convention does not spell out in detail the criteria and characteristics to be considered in designating special areas. Such direction is provided, however, under guidelines recently adopted by the IMO (International Maritime Organization, 1991)10 Significantly, even when the MEPC adopts a proposal for a special area, the requirements become binding only when IMO determines that sufficient numbers of adequate port reception facilities are provided in the region. Eight special areas have been designated under Annex V, although the rules have entered into force in only three.11 Of particular interest to the United States, for reasons of proximity, is the Wider Caribbean special area, which includes the Gulf of Mexico (see Figure 7-1). The United States pushed for the designation of that area12 and has a distinct interest in minimizing pollution there. The U.S. Navy also is concerned with other special areas, such as the Mediterranean Sea, where its missions may demand frequent transits or extended stays. The existence of special areas means that vessels using those waters must achieve zero-discharge capability. An operator can treat garbage on board the vessel, bring the garbage to reception facilities in ports surrounding the special area, hold this garbage for legal discharge at sea or in ports outside the special area, or some combination of these options. All vessels, including U.S.-flag research vessels and cruise ships, have to contend with this mandate when they sail in internationally recognized special areas. Fixed platforms in the Gulf of Mexico already are operating at zero discharge. Eventually, as on-board garbage handling technologies and procedures evolve, awareness of Annex V grows, more special areas come into force13, and adequate port reception facilities become more widely available, zero-discharge capability may become the operating norm. It will be important, therefore, that the U.S. Annex V implementation strat- 10 Among factors to be considered are oceanography, ecological characteristics, social and economic value, scientific and cultural significance, environmental pressures (including those of ship-generated pollution), and measures already in place to protect the local environment. 11 The rules are in force in the Antarctic Ocean, the Baltic Sea, and the North Sea. The other five special areas are the Black Sea, Mediterranean Sea, the Persian Gulf, the Red Sea, and the Wider Caribbean. 12 The United States initially proposed special area status for the Gulf of Mexico in response to public outcry over debris washing up on Texas beaches. Studies indicated that much of the debris was of foreign origin. In reaction to the U.S. proposal, a regional workshop was held in Venezuela, and participants called for extending the special area proposal to include the entire Wider Caribbean, to assure that vessels would not discharge garbage into the Caribbean Sea prior to entering the Gulf of Mexico. The MEPC approved the special area designation in 1991. 13 The number and extent of designated special areas has grown, posing increased challenges for maritime operators. But special areas are unlikely to proliferate without restraint in the near term, because such designations may limit navigational freedoms significantly, and the 1982 Law of the Sea Convention recognized the importance of balancing protection of these freedoms (for the benefit of international commerce) with interests in protecting coastal ecosystems. Nevertheless, pressure to extend special area protections is likely to mount.
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea Figure 7-1 The Wider Caribbean Special Area. Source: World Bank Cartography Section.
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea egy provide for zero-discharge capability for vessels operating in special areas, and that the strategy include measures to assure adequate port reception facilities-not only in U.S. ports (a topic addressed in Chapter 5), but also bordering the Wider Caribbean special area. An international emphasis on building the capability of ports to implement Annex V is important, because the stringent rules associated with special area status will not be enforceable in the Wider Caribbean until the region has sufficient numbers of adequate port reception facilities. Entry into force of special area rules in the Caribbean, as elsewhere, depends on a determination by IMO that sufficient port reception facilities are in place. However, IMO has not established definitive criteria as yet for determining whether this condition has been met. Clearly, MARPOL does not require that all adjacent states become signatories of Annex V, and IMO has indicated that there is no need for all nations adjacent to the special area to establish port reception facilities. But IMO recognizes that vessels cannot be expected to comply with the stringent special area restrictions unless there are adequate and relatively convenient opportunities for disposal of garbage in nearby ports. In the Wider Caribbean, adequate port reception facilities probably would be needed only in key littoral states—such as the United States, Cuba, and Mexico—in order for vessels to comply with Annex V without a great deal of inconvenience. Once this occurs, the special area designation may become enforceable. However, Cuba and Mexico are not now parties to MARPOL. Negotiations are under way to encourage their ratification of MARPOL and Annex V and to secure adequate port reception facilities in these nations. It is no small undertaking to assure that all vessels that need zero-discharge capability achieve it, and that adequate port reception facilities exist near sea areas bordered by multiple nations. These are significant challenges that affect a number of maritime sectors and demand the involvement of multiple federal agencies. (Chapters 4 and 5 identified technical obstacles to achieving zero-discharge capability and providing adequate reception facilities.) Strong national leadership will be required to meet these challenges and develop and execute an effective Annex V implementation strategy. Implementation of Annex V in the Wider Caribbean The Wider Caribbean poses a greater challenge for U.S. implementation of Annex V than does any other region. The Coast Guard has reported a greater number of violations in the Gulf of Mexico and the Caribbean than in other U.S. waters, because ports there are ''frequented more by vessels from nations that are not party to MARPOL and manned by crews who are unaware of the requirements'' (Eastern Research Group, 1992). The severity of the Caribbean debris problem was what prompted the United States to petition IMO for a special area designation for the Gulf of Mexico. (To gain regional support for the initiative,
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea the United States also launched diplomatic efforts in the United Nations Environment Program's Regional Seas Program for the Wider Caribbean Region.) After obtaining the designation, the U.S. government turned its attention to assuring that the prerequisites were met: Adjacent nations had to provide adequate reception facilities. As a next step, the United States led the effort to gain World Bank support for an assessment of the need for waste reception facilities in the region's ports. Officials at the World Bank's Global Environmental Facility agreed to provide funding for such a study. The study determined that, in many of the island nations, the problem of handling vessel-generated garbage could not be separated from the larger issue of management of solid wastes produced on land; a comprehensive waste management strategy was needed for the islands and the region. The World Bank then developed a package of grants and loans to help address the waste management needs of the eastern Caribbean states.14 In addition, recognizing that a region-wide program for financial and technical assistance is needed, the World Bank has initiated the Wider Caribbean Initiative on Ship-Generated Waste in Support of the MARPOL 73/78 Convention (World Bank/Global Environmental Facility, 1994). The World Bank project for the eastern Caribbean states serves as an example of a project designed to produce comprehensive solutions through a waste management strategy that does not merely shift pollution from one place to another. The project also illustrates that finding solutions for other areas of the Caribbean and the globe will be neither inexpensive nor easy. Limited resources are available to aid nations lacking the domestic capacity to handle their own wastes as well as those generated by vessels entering their ports. The administrative and legal infrastructures needed to implement stringent environmental standards are beyond reach of many nations. Regional cooperation may be the only way to surmount these limitations. The United States could continue to exert leadership in promoting the development of cooperative and collaborative programs. One mechanism would be a regional memorandum of understanding that sets terms for the sharing of enforcement assets, training programs, and other resources. Another way to promote international implementation of Annex V, and thereby assist in U.S. implementation efforts, would be to identify and overcome obstacles hindering participation in MARPOL by Caribbean nations. Not enough has been done to analyze how Caribbean states might carry out responsibilities for control of pollution from vessels cost effectively, either by ratifying MARPOL 14 Members of the Organization of Eastern Caribbean States (OECS) are Antigua and Barbuda, Dominica, Grenada, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, and Montserrat. Montserrat is not a member of the World Bank group. A workshop was held in 1993 at which OECS members were informed about the World Bank project.
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea or enacting domestic legislation. New approaches for assisting these states could be considered. For example, to encourage participation in MARPOL, provisions allowing qualifying states to defer certain obligations under annexes I and II may be useful. Another possibility is development of independent, regional agreements incorporating the obligations of Annex V without the burdens of annexes I and II. SUMMARY Implementation of Annex V will require attention to three overarching issues. One is the need for national leadership; many opportunities for improving Annex V implementation require the cooperation of multiple agencies and organizations and diverse maritime sectors. There are four ways to provide leadership: maintain the status quo, assign the task to one agency, establish an interagency task force, or create a national commission. The commission concept may offer the most potential benefits and entail the fewest drawbacks. A commission not only could coordinate the efforts of federal agencies, but also could serve as a high-level focal point for U.S. leadership in guiding the global maritime community toward increased standards of performance. The second issue is enforcement of Annex V. Efforts are under way to improve prosecution of foreign violators. A number of other steps also might be taken to enhance the effectiveness of enforcement. Government authorities could seek to clarify the extent of and fully exercise port state control; issue tickets in civil cases involving Annex V violations, particularly in the fisheries and recreational boating sectors; require that ports provide receipts for garbage off-loaded into their reception facilities, and then compare the receipts to vessel logs; enlist the assistance of the NMFS, MMS, and state marine police in reporting Annex V violations; encourage ship operators to report inadequate garbage reception facilities at ports; and conduct public awareness campaigns urging citizens to report illegal garbage disposal. The third issue is devising an Annex V implementation strategy that takes special areas into account. This issue has both domestic and international aspects. On the domestic side, vessels operating in special areas ultimately need to achieve zero-garbage-discharge capability, and port reception facilities bordering special areas need to be adequate. On the international side, the United States needs to find new and improved ways to assist with the development and improvement of vessel garbage control mechanisms in neighboring nations. One option would be to explore the formulation of memoranda of understanding for the sharing of information, enforcement assets, and other resources. There is a particular need for mechanisms to reduce the administrative burdens on developing countries. The United States also could seek means of increasing the numbers of adequate port reception facilities in special areas.
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea REFERENCES Eastern Research Group (ERG), Inc. 1992. Report to Congress on Compliance with the Marine Plastic Pollution Research and Control Act of 1987. Report prepared for the U.S. Coast Guard by ERG, Arlington, Mass. (now Lexington, Mass.). June 24. International Maritime Organization (IMO). 1991. Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas. IMO Resolution A.720(17). Adopted Nov. 6, 1991. Available from IMO, 4 Albert Embankment, London, SE1 7SR. North, R.C. 1993. Prepared statement of Capt. Robert C. North, chief, Office of the Marine Safety, Security, and Environmental Protection, U.S. Coast Guard, before the Subcommittee on Superfund, Ocean, and Water Protection of the Committee on Environment and Public Works, U.S. Senate, 102nd Congress, Second Session, Washington, D.C., Sept. 17, 1992. Pp. 146-149 in Implementation of the Marine Plastic Pollution Research and Control Act. S. Hrg. 102-984. Washington, D.C.: U.S. Government Printing Office. Podlich, M. 1993. Prepared Statement of Margaret Podlich, project director, Pollution Prevention Program, Center for Marine Conservation, for the Subcommittee on Superfund, Ocean, and Water Protection of the Committee on Environment and Public Works, U.S. Senate, 102nd Congress, Second Session, Washington, D.C., Sept. 17, 1992. Pp. 49-56 in Implementation of the Marine Plastic Pollution Research and Control Act. S. Hrg. 102-984. Washington, D.C.: U.S. Government Printing Office. Schrinner, J.E. 1992. Pollution of Seas—Disposal of Waste. Paper presented to the Caribbean Shipping Association Semi-Annual General and Group Meetings, Grand Cayman, Cayman Islands, May 25-26, 1992. United States. 1992. Enforcement of Pollution Conventions: MARPOL Annex V Violations. MEPC/ INF.44. Document submitted to the 33rd session of the Marine Environment Protection Committee of the International Maritime Organization (IMO). Available from IMO, 4 Albert Embankment, London SE1 7SR. Sept. 9 . U.S. Department of Justice. 1993. News Release. United States Attorney, Southern District of Florida, Miami, Fla. April 15. U.S. Environmental Protection Agency (EPA). 1988. Citizen Volunteers in Environmental Monitoring: Summary Proceedings of a National Workshop. EPA 503/9-89-001. EPA Office of Water, Washington, D.C. September. Weikart, H. 1993. Presentation by Heather Weikart, National Marine Fisheries Service Observers Program, to the Committee on Shipborne Wastes of the National Research Council, Red Lion Inn, Seattle, Wash., July 15, 1993. World Bank/Global Environmental Facility. 1994. Developing Countries of the Wider Caribbean Region: Wider Caribbean Initiative for Ship-Generated Waste. Report No. 12868LAC. Washington, D.C.: World Bank. June 30.
Representative terms from entire chapter: