Balkanizing the Regulatory Process: Too Many Cooks in the Kitchen

It never ceases to amaze me. There is always someone who thinks they can circumvent the well-intentioned, albeit slow federal response to any one of a hundred issues facing the marine industry in America today. Frustrated politicians in various coastal states continuously inject local solutions onto a particular problem that has national - and even international - implications. The end result is a balkanized process that does nothing more than hinder commerce, while usually failing to solve the problem that it was intended to fix.

Typically, the hardest thing about writing this type of opinion piece is getting your ducks in a row to justify your point of view. In this case, however, I'm left to scratch my head and wonder where to start. In the past 18 months alone, there have been so many instances of knee-jerk reactions to single events and/or unilateral, local responses to one industry challenge or another that I could write a novel and not be done. Even the brightest of these local, uninformed maneuvers borders on - let's just say it right out loud - on blind stupidity. My personal favorite, and I could have selected any one of ten idiotic ideas, is Michigan's effort to combat the problem of invasive species all on their own.

As the Coast Guard moves closer to a standard upon which industry can manufacture and test equipment, the impatience of industry as a whole is understandable. After all, it has been dragging on for a decade or more. So, when Michigan decided to circumvent the entire process by enacting their own legislation in January of last year, the move was viewed by some as a positive step in the effort to spur the process along just a little faster. Instead, the new local regulations (which mandated that vessels arriving at Michigan's ports have equipment on board that prevent the escape of invasive species through ballast water) did nothing except deter ocean commerce from calling on a state where the economy was already on life support.

Michigan identified four methods of invasive species abatement, all of which would require ships to install equipment that might not be approved under international regimes when the Coast Guard and IMO finally come up with a standard. Marine operators, who are reluctant to install questionable equipment that can cost hundreds of thousands of dollars, are simply avoiding the state altogether. Along the way, someone forgot to tell Michigan that invasive species can and do swim. So, a vessel that avoids Michigan and loads elsewhere in the Great Lakes will eventually deballast and have the same effect on Michigan waters. Sadly - Indiana comes to mind here - other states are considering similar, futile unilateral actions.

One of the four methods approved by Michigan is the use of equipment to deoxygenate the ballast water, which would presumably kill anything in the water before it is discharged. But Coast Guard officials, also frustrated by the slowness of the process, say that there is a good reason to put on the brakes and use caution. The required environmental impact studies (EIS) do serve a purpose. Eventually, technologies will be approved for the purpose of fighting the scourge of invasive species. When these are identified, it will also be nice to know (in advance) the cumulative effect of six 100,000 ton tankers simultaneously discharging 35,000 metric tonnes (each) of deoxygenated water into a small, (maybe no longer) vibrant harbor.

Michigan does not own the patent on stupidity. Out in California, and in the messy wake of the COSCO BUSAN allision, Senator Barbara Boxer actually suggested legislation that would direct local VTS centers to tell vessels what to do and how to navigate in certain instances. Amazingly, it took Boxer and friends just 30 days to formulate the answer to a problem that has troubled mariners and port state control for centuries. Fortunately, no one has yet taken her very seriously on the idea that a second class petty officer sitting behind a radar screen miles away should be responsible for telling a seasoned pilot which direction he/she should turn a VLCC in a crowded, restricted waterway.

Perhaps California's biggest regulatory blunder in the past year is their disagreement with the federal government (the U.S. Maritime Administration, to be specific) over how vessel's hulls should and should not be cleaned, especially where it comes to scores of aging hulls rafted together in MARAD's Suisan Bay reserve fleet. MARAD would like to get these obsolete hulls out of California waters and on to other places where they can be safely recycled. But, the Golden State is at odds with a Coast Guard ruling that stipulates the cleaning of organic growth from the hulls (there's that nasty invasive species problem again) before they can be towed away. MARAD has tried to work with California and in fact has come to agreements with two other states (Texas and Virginia) on the very same issue. Hence, California's obstinacy has left them with the old, dangerous ships while scores of others have been removed from other reserve fleets in Virginia and Texas waters.

I could go on and on. Local laws dealing with ship's stack emissions, oil pollution, invasive species and a host of other issues continue to muddy the waters. As the Coast Guard and other federal agencies try to formulate workable solutions to these and other challenges, they face an onerous regulatory process that local entities can seemingly ignore. Eventually, federal standards have to be reconciled with international protocol and then, the prickly problem of deciding which rules have jurisdiction where back home becomes the real problem.

In a recent interview with U.S. Coast Guard Commandant ADM Thad Allen, the Coast Guard's chief executive told MarEx that while he lamented the sometimes slow and fractured federal regulatory process, there is sometimes a real need to proceed with caution. That doesn't mean that he wouldn't like to see things move along a little faster, too.

On a local level, poorly thought out, Band-Aid-type solutions to complex international issues usually do not get the job done and often, they simply make things worse. For ship owners and cargo interests faced with the costs of installing expensive equipment that may or may not be part of the final global solution, there are no easy answers. Local solutions for some issues can sometimes make sense, but decisions on maritime matters are best left to those who are tasked with handling these things at the federal level. It goes without saying that solutions formulated by sometimes obscure, poorly informed members of Congress - or state legislators, for that matter - have no place in the process. - MarEx

Joseph Keefe is the Managing Editor ofThe Maritime Executive. He can be reached at [email protected] with questions or comments on this or any other article in this newsletter.