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OVERARCHING ISSUES AFFECTING ANNEX V IMPLEMENTATION 196 (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
OVERARCHING ISSUES AFFECTING ANNEX V IMPLEMENTATION 197 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 effortsâspecifically, 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).
