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past half-dozen years. Nonetheless, in light of the failure of the Coast Guard to implement it properly, we have several recommendations which we believe would help ensure that the original intent of Congress is fulfilled. (A) The act should state that use of “Best Available Pollution Prevention Technology" is mandated
While this Committee and the Environmental Groups have always considered that the Act requires the Coast Guard to develop standards based upon the “best available pollution prevention technoogy," nonetheless there is no explicit language in the Act as it now stands to such effect, and the Coast Guard has publicly taken the position that, “Title II of the Ports and Waterways Safety Act, Section 201 (4) does not specifically require the application of the best available pollution prevention technology.” 41 Fed. Reg. 1481 (January 8, 1976). An amendment specifically restating the statutory standard, such as that proposed in S. 333 annd H.R. 6091, woud thus be appropriate. (B) The act should state that U.S. standards must be applied unless interna
tional standards are of equal or greater stringency
The Act establishes a unique and laudable scheme for relating independent, United States development of tanker design and consruction standards to the development of international rules and regulations. This Committee's intention was that "standards for the protection of the marine environment be adopted, multilaterally if possibe, but adopted in any event.” Senate Report at 2788 (emphasis added). Unfortunately, in terms of the Act's implementation, there has been a total reliance upon international standard setting rather than vigorous independent action by the United States. To remedy this problem and restate the intent of Congress in terms clear to the Coast Guard, we suggest that the Act be amended explicitly to require the Coast Guard to promulgate standards in specified subject areas, based upon the best available technology criterion outlined in paragraph (A) above and to take effect immediately, irrespective of any international agreement, convention or treaty, unless existing international standards are of equal or greater stringency. (C) The act should state that distinctions between coastwise and foreign trade
While we fully believe that a distinction between coastwise and foreign trade is now authorized by law, the Coast Guard has not so interpreted the Act. Thus, while we emphasize that any such distinction should not be an excuse for applying less than adequate standards to tankers in foreign trade, nonetheless, we believe that an explicit statement of the distinction in the Act would help ensure that particularly sensitive coastal trades, such as the Alaska trade, are stringently protected against the dangers of oil spills. (D) The act should expressly state that it is not preemptive of State law
As this Committee is aware, a lawsuit is currently pending in the United States District Court for the Western District of Washington (ARCO v. Evans, C. 75–648), challenging as unconsitutional a Washington State law regulating oil traffic in Puget Sound. While we firmly believe that neither Title I nor Title II of the Act is preemptive of state action, and while authority for state regulation of oil pollution is generally consistent with federal enactments, nonetheless it is the position of the Coast Guard, as I understand it, that the Act is preemptive. In order to alter the Coast Guard's perspective on this issue, an amendment along the lines of Section 311 (0) (2) of the Federal Water Pollution Control Act 6 would seem appropriate. (E) The act should explicitly reject grandfathering except when undue economi
cal hardship would occur and not be outweighed by environmental benefits
As I pointed out above, this Committee specifically rejected "legislative creation of 'grandfather rights'” on the grounds that it would defeat the basic environmental protective purposes of the Act. Senate Report at 2786–2787. Nonetheless, the Coast Guard has established absolute grandfather rights with respect to major design and construction requirements, such as segregated ballast. While in certain circumstances grandfathering might be appropriate, we believe that
& Section 311 (0) (2) of the Federal Water Pollution Control Act, 33 U.S.C. $1321 (0) (2), provides : "Nothing in this section shall be construed as preempting any State or political subdivision thereof from imposing any requirements or liability with respect to the discharge of oil or hazardous substance into any waters within such State." the Act should explicitly prohibit grandfathering, except where retrofit would impose an undue economic hardship and such hardship would not be outweighed by the environmental benefits of the proposed requirement. (F) The act should mandate specific design and consruction standards
Short of explicitly laying down technical requirements. Congress has rarely drawn up such clear roadmap for administrative agencies to follow in implementing Congressional will. Nonetheless, the Coast Guard seems to have made a judgment that, regardless of the Congressional intent, changes in vessel design and construction do not represent the best way, or even a desirable way, to go about solving the tanker pollution problem. In these circumstances, we believe it would be appropriate for Congress itself to establish basic environmental design requirements for oil tankers, along the lines of S. 333 and H.R. 569.
IV. CONCLUSION In sum, despite the bright promise of the Act, in three annd a half years we have not come anywhere near as far as we should have. Mr. Chairman, you deserve as much praise as we can possibly bestow for leading the fight to establish tough tanker design and construction standards. But more remains to be done, and we urge this Committee to take vigorous action to ensure that the original objectives of the Act are met. Thank you.
The CHAIRMAN. I want to thank all of you for coming up for this hearing.
And the Chair will recess.
[Whereupon, at 2:10 p.m., the hearing was adjourned subject to the call of the Chair:]
ADDITIONAL ARTICLES, LETTERS, AND STATEMENTS
THE MARYLAND WATERMEN'S ASSOCIATION, INC.,
March 2, 1976. HON. WARREN G. MAGNUSON, U.S. Senate, Chairman, Committee on Commerce, Washington, D.C.
DEAR SENATOR MAGNUSON: We have received the announcement of your Committee oversight hearings on the Ports and Waterways Safety Act of 1972 (Public Law 92–340). Due to the time and expense involved in coming to Washington to testify at Congressional hearings, our organization will very likely be unable to attend. However, we are very interested in the implementation (or lack thereof) of this legislation and want to have some comments inserted into the Hearing Record.
The bulk of our membership is composed of small vessel operators who restrict their fishing to the Chesapeake Bay. As you know, the Bay is the most productive estuary in the United States. It is also a heavily used commercial shipping lane with large vessels carrying all types of cargo into Batimore, Portsmouth and the C & D Canal. Due to damages suffered by our members in the past, we are concerned about the lack of a traffic system in the Chesapeake Bay. While we understand a system is slated to be implemented in 1981, we have never seen any details nor have we been able to participate in any discussions related to this subject. We strongly believe that organized vessel flow at proper, safe speeds would allevlate many of the problems associated with an unorganized system.
We also feel that the longer such a system is absent on the Bay, the greater the likelihood for mishaps. While we believe our Coast Guard Commander is doing everything he can to implement a reasonable system, we urge that your committee provide whatever impetus (monetary or otherwise) necessary to further a program of vessel control.
We appreciate the opportunity to make our thoughts known, and hope that you will keep us informed of the progress of your committee hearings. Sincerely,
[From the Waterman's Gazette, July 1975)
WATERMEN' WAKE WOES WORSEN
A situation that has plagued watermen up and down Chesapeake Bay was aggravated June 24.
Early that Tuesday morning, a large container ship heading down the Bay at a high rate of speed left a wake that some watermen said reminded them of the storm surf at Ocean City and others described as the biggest wake they had ever seen.
Some of the clammers and crab potters in the ship's area were able to prepare for the approaching waves, but two clammers were unable to draw their rigs off the bottom before the wake hit.
"Something has to give," said one of the clammers, Dave Whitby, captain of the “Mistress," "when you have 14 tons of ship lifting up on a rig that is 18 inches into the bottom.” The spring tension bar and davits were broken by the force of the impact of that wake.
Elwood Smith, captain of the “Gussy May,” said damage to his boat and rig was almost $200. Damage to Whitby's gear was about the same. However, the cabin top of Whitby's vessel was also damaged and will require repairs by a carpenter.
The Maryland Watermen's Association, in cooperation with Norman Dorrell of the Queen Anne's Clammers Association, and Congressman Robert E. Bauman's office, is attempting to correct this serious Bay problem.
The Baltimore Port Authority has been contacted and damage compensation is being sought.
The problem is an old one to many Bay watermen. Drift gill netters have frequently found their gear run down when their nets haven't even been in the channel. Crab potters have lost many pots and floats as a direct result of shipping channel incidents.
Most of the problem seems to come with the container ships, which are said to travel as fast as 30 to 32 knots once they are beneath the spans of the Bay bridges.
Admiral Bullend of the U.S. Coast Guard told the MWA the Coast Guard is forming a vessel traffic system which may help solve the problem. MWA plans to pursue the problem until a fair solution is reached.
The Coast Guard, which has been a part of the problem with the testing of its vessels around the mile markers just below the Bay bridges, said July 14 it will no longer test until after the noon cut off for clamming.
AMERICAN PILOTS' ASSOCIATION, INC.,
Washington, D.C., March 12, 1976. Hon. WARREN G. MAGNUSON, Chairman, Senate Commerce Committee, Dirksen Senate Office Building, Washington, D.C.
DEAR SENATOR MAGNUSON: As President of the American Pilots' Association I am taking the liberty of writing to you in response to the testimony of Mr. James J. Reynolds, President of the American Institute of Merchant Shipping (AIMS), presented to the Committee on March 3, 1976 during its oversight hearings on the Ports and Waterways Safety Act of 1972. During his testimony which focused basically on vessel traffic as addressed by Title I and construction standards for tankers as covered by Title II, Mr. Reynolds on behalf of AIMS gratuitiously commented at pages 5–7 of his prepared testimony on the country's pilotage system, a subject mentioned briefly in the Act and which is also the subject of bill S. 2831 before the Committee. AIMS position appears to be that the United States Coast Guard by regulatory fiat can and should prempt control of the pilotage system which the Congress has since 1789 left to the states for regulation. Since, as Mr. Reynolds acknowledges at p. 7 of his statement that a similar AIMS appeal was found unavailing in 1971 and 1972, during both the Senate's and the House's consideration of legislation which led to the enactment of the Ports and Waterways Safety Act (which legislation this Association testified in favor of), we shall not belabor his most recent attempt to destroy the State pilotage system as we know it today. We would, however, respectfully request that this letter be placed in the record of these preceedings in order to briefly reflect our views.
The American Pilots' Association (A.P.A.), formed in 1884, is a national trade organization comprised of fifty-nine State Pilots' Associations located in the twenty-two continental states bordering on the Atlantic, Gulf and Pacific Coasts, in addition to Alaska and Hawaii and Districts No. 1 and 2, covering the designated waters of the Great Lakes from St. Regis, New York to Port Huron, Michigan, pursuant to the Great Lakes Pilotage Act of 1960 (46 U.S.C. 216). This Act was modeled upon the State Pilotage Laws. There are approximately one thousand individual members in these associations who pilot all types of vessels on virtually all of the navigable waters of the United States.
The A.P.A. is a member group of the International Maritime Pilots' Association (I.M.P.A.), of which I have the pleasure of being President. I.M.P.A. represents pilots from thirty-two nations and is recognized by the Inter-Governmental Consultative Organization (I.M.C.O.), as consultants on all matters relating to pilotage universally.
Prior to the existence of the Constitution of the United States, several of the States had compulsory state pilotage systems. The pilotage system which had developed during the colonial days and which carried on through the period of the Articles of Confederation, found itself subject to a new overall authority when the Constitution of the United States was adopted and decared in effect on March 4, 1789. Under the Constitution, the States surrendered certain specific