[House Report 112-266]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-266
======================================================================
COMMERCIAL VESSEL DISCHARGES REFORM ACT OF 2011
_______
November 3, 2011.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Mica, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2840]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 2840) to amend the Federal Water
Pollution Control Act to regulate discharges from commercial
vessels, and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
CONTENTS
Page
Purpose of the Legislation and Summary........................... 14
Background and Need for the Legislation.......................... 14
Section-by-Section Analysis of the Legislation................... 19
Legislative History.............................................. 23
Committee Votes.................................................. 23
Hearings......................................................... 23
Committee Oversight Findings..................................... 23
New Budget Authority and Tax Expenditures........................ 24
Congressional Budget Office Cost Estimate........................ 24
Performance Goals and Objectives................................. 25
Advisory of Earmarks............................................. 25
Federal Mandates Statement....................................... 25
Preemption Clarification......................................... 25
Advisory Committee Statement..................................... 26
Applicability to the Legislative Branch.......................... 26
Changes in Existing Law Made by the Bill, as Reported............ 26
Minority Views................................................... 53
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Commercial Vessel Discharges Reform
Act of 2011''.
SEC. 2. DISCHARGES FROM COMMERCIAL VESSELS.
Title III of the Federal Water Pollution Control Act (33 U.S.C. 1311
et seq.) is amended by adding at the end the following:
``SEC. 321. DISCHARGES FROM COMMERCIAL VESSELS.
``(a) Definitions.--In this section, the following definitions apply:
``(1) Aquatic nuisance species.--The term `aquatic nuisance
species' means a nonindigenous species (including a pathogen)
that threatens the diversity or abundance of native species or
the ecological stability of navigable waters or commercial,
agricultural, aquacultural, or recreational activities
dependent on such waters.
``(2) Ballast water.--
``(A) In general.--The term `ballast water' means any
water (including any sediment suspended in such water)
taken aboard a commercial vessel--
``(i) to control trim, list, draught,
stability, or stresses of the vessel; or
``(ii) during the cleaning, maintenance, or
other operation of a ballast water treatment
system of the vessel.
``(B) Exclusion.--The term `ballast water' does not
include any pollutant that is added to water described
in subparagraph (A) that is not directly related to the
operation of a properly functioning ballast water
treatment technology certified under subsection (e).
``(3) Ballast water performance standard.--The term `ballast
water performance standard' or `performance standard' means a
numerical ballast water performance standard specified under
subsection (c) or established under subsection (d).
``(4) Ballast water treatment system.--The term `ballast
water treatment system' means any equipment on board a
commercial vessel (including all compartments, piping, spaces,
tanks, and multi-use compartments, piping, spaces, and tanks)
that is--
``(A) designed for loading, carrying, treating, or
discharging ballast water; and
``(B) installed and operated to meet a ballast water
performance standard.
``(5) Ballast water treatment technology.--The term `ballast
water treatment technology' or `treatment technology' means any
mechanical, physical, chemical, or biological process used,
either singularly or in combination, to remove, render
harmless, or avoid the uptake or discharge of aquatic nuisance
species within ballast water.
``(6) Biocide.--The term `biocide' means a substance or
organism, including a virus or fungus, that is introduced into,
or produced by, a ballast water treatment technology as part of
the process used to comply with a ballast water performance
standard under this section.
``(7) Commercial vessel.--The term `commercial vessel' means
every description of watercraft, or other artificial
contrivance used or capable of being used as a means of
transportation on water, that is engaged in commercial service
(as defined under section 2101 of title 46, United States
Code).
``(8) Constructed.--The term `constructed' means a state of
construction of a commercial vessel at which--
``(A) the keel is laid;
``(B) construction identifiable with the specific
vessel begins;
``(C) assembly of the vessel has begun comprising at
least 50 tons or 1 percent of the estimated mass of all
structural material of the vessel, whichever is less;
or
``(D) the vessel commences a major conversion.
``(9) Discharge incidental to the normal operation of a
commercial vessel.--
``(A) In general.--The term `discharge incidental to
the normal operation of a commercial vessel' means--
``(i) a discharge into navigable waters from
a commercial vessel of--
``(I)(aa) graywater (except graywater
referred to in section 312(a)(6)),
bilge water, cooling water, oil water
separator effluent, anti-fouling hull
coating leachate, boiler or economizer
blowdown, byproducts from cathodic
protection, controllable pitch
propeller and thruster hydraulic fluid,
distillation and reverse osmosis brine,
elevator pit effluent, firemain system
effluent, freshwater layup effluent,
gas turbine wash water, motor gasoline
and compensating effluent,
refrigeration and air condensate
effluent, seawater pumping biofouling
prevention substances, boat engine wet
exhaust, sonar dome effluent, exhaust
gas scrubber washwater, or stern tube
packing gland effluent; or
``(bb) any other pollutant associated
with the operation of a marine
propulsion system, shipboard
maneuvering system, habitability
system, or installed major equipment,
or from a protective, preservative, or
absorptive application to the hull of a
commercial vessel;
``(II) weather deck runoff, deck
wash, aqueous film forming foam
effluent, chain locker effluent, non-
oily machinery wastewater, underwater
ship husbandry effluent, welldeck
effluent, or fish hold and fish hold
cleaning effluent; or
``(III) any effluent from a properly
functioning marine engine; or
``(ii) a discharge of a pollutant into
navigable waters in connection with the
testing, maintenance, and repair of a system,
equipment, or engine described in subclause
(I)(bb) or (III) of clause (i) whenever the
commercial vessel is waterborne.
``(B) Exclusion.--The term `discharge incidental to
the normal operation of a commercial vessel' does not
include--
``(i) a discharge into navigable waters from
a commercial vessel of--
``(I) ballast water;
``(II) rubbish, trash, garbage,
incinerator ash, or other such material
discharged overboard;
``(III) oil or a hazardous substance
within the meaning of section 311; or
``(IV) sewage within the meaning of
section 312; or
``(ii) an emission of an air pollutant
resulting from the operation onboard a
commercial vessel of a vessel propulsion
system, motor driven equipment, or incinerator.
``(10) Existing commercial vessel.--The term `existing
commercial vessel' means a commercial vessel constructed prior
to January 1, 2012.
``(11) Geographically limited area.--The term `geographically
limited area' means an area--
``(A) with a physical limitation that prevents a
commercial vessel from operating outside the area, as
determined by the Secretary; or
``(B) that is ecologically homogeneous, as determined
by the Administrator, in consultation with the
Secretary.
``(12) Major conversion.--The term `major conversion' means a
conversion of a commercial vessel that--
``(A) changes its ballast water capacity by 15
percent or more; or
``(B) prolongs the life of the commercial vessel by
10 years or more, as determined by the Secretary.
``(13) Manufacturer.--The term `manufacturer' means a person
engaged in the manufacturing, assembling, or importation of a
ballast water treatment technology.
``(14) Navigable waters.--The term `navigable waters'
includes the exclusive economic zone, as defined in section 107
of title 46, United States Code.
``(15) Nonindigenous species.--The term `nonindigenous
species' means a species or other viable biological material
that enters an ecosystem beyond its historic range.
``(16) Owner or operator.--The term `owner or operator' means
a person owning, operating, or chartering by demise a
commercial vessel.
``(17) Secretary.--The term `Secretary' means the Secretary
of the department in which the Coast Guard is operating.
``(18) Vessel general permit.--The term `Vessel General
Permit' means the Vessel General Permit for Discharges
Incidental to the Normal Operation of Vessels issued by the
Administrator under section 402 for ballast water and other
discharges incidental to the normal operation of vessels, as in
effect on December 19, 2008, for all jurisdictions except
Alaska and Hawaii, and February 6, 2009, for Alaska and Hawaii.
``(b) General Provisions.--
``(1) Ballast water discharge requirements for commercial
vessels.--An owner or operator may discharge ballast water from
a commercial vessel into navigable waters only if--
``(A) the discharge--
``(i) meets the ballast water performance
standard;
``(ii) is made pursuant to the safety
exemption established by subsection (c)(2);
``(iii) meets the requirements of an
alternative method of compliance established
for the commercial vessel under subsection (f);
or
``(iv) is made pursuant to a determination
that the commercial vessel meets the
requirements relating to geographically limited
areas under subsection (g); and
``(B) the owner or operator discharges the ballast
water in accordance with a ballast water management
plan approved under subsection (i).
``(2) Applicability.--
``(A) Covered vessels.--Paragraph (1) shall apply to
the owner or operator of a commercial vessel that is
designed, constructed, or adapted to carry ballast
water if the commercial vessel is--
``(i) documented under the laws of the United
States; or
``(ii) operating in navigable waters on a
voyage to or from a point in the United States.
``(B) Exempted vessels.--Paragraph (1) shall not
apply to the owner or operator of--
``(i) a commercial vessel that carries all of
its ballast water in sealed tanks that are not
subject to discharge;
``(ii) a commercial vessel that continuously
takes on and discharges ballast water in a
flow-through system;
``(iii) any vessel in the National Defense
Reserve Fleet that is scheduled to be disposed
of through scrapping or sinking;
``(iv) a commercial vessel that discharges
ballast water consisting solely of water--
``(I) taken aboard from a municipal
or commercial source; and
``(II) that, at the time the water is
taken aboard, meets the applicable
regulations or permit requirements for
such source under the Safe Drinking
Water Act (42 U.S.C. 300f et seq.) and
section 402 of this Act; or
``(v) a commercial vessel that is 3 years or
fewer from the end of its useful life, as
determined by the Secretary, on the date on
which the regulations issued under paragraph
(3) become effective for the vessel pursuant to
the implementation schedule issued under
paragraph (3)(B).
``(C) Limitation.--An exemption under subparagraph
(B)(v) shall cease to be effective on the date that is
3 years after the date on which the regulations under
paragraph (3) become effective for the commercial
vessel pursuant to the implementation schedule issued
under paragraph (3)(B).
``(3) Issuance of regulations.--
``(A) In general.--Not later than 180 days after the
date of enactment of this section, the Secretary, in
consultation with the Administrator, shall issue final
regulations to implement the requirements of this
section.
``(B) Proposed rule.--For the purposes of chapter 5
of title 5, United States Code, the proposed rulemaking
published by the Coast Guard on August 28, 2009 (74
Fed. Reg. 44632; relating to standards for living
organisms in ships' ballast water discharged in U.S.
waters), shall serve as a proposed rule for the
purposes of issuing regulations under this section.
``(4) Compliance schedules.--
``(A) Initial performance standard compliance
deadlines.--
``(i) In general.--An owner or operator shall
comply with the performance standard
established under subsection (c) on or before
the deadline that applies to the commercial
vessel of the owner or operator, as specified
in clause (ii).
``(ii) Deadlines.--The deadlines for
compliance with the performance standard
established under subsection (c) are as
follows:
``(I) For a commercial vessel
constructed on or after January 1,
2012, the date of delivery of the
vessel.
``(II) For an existing commercial
vessel with a ballast water capacity of
less than 1,500 cubic meters, the date
of the first drydocking of the vessel
after January 1, 2016.
``(III) For an existing commercial
vessel with a ballast water capacity of
at least 1,500 cubic meters but not
more than 5,000 cubic meters, the date
of the first drydocking of the vessel
after January 1, 2014.
``(IV) For an existing commercial
vessel with a ballast water capacity of
greater than 5,000 cubic meters, the
date of the first drydocking of the
vessel after January 1, 2016.
``(iii) Regulations.--In issuing regulations
under paragraph (3), the Secretary shall
include a compliance schedule that sets forth
the deadlines specified in clause (ii).
``(B) Revised performance standard compliance
deadlines.--
``(i) In general.--Upon revision of a
performance standard under subsection (d), the
Secretary, in consultation with the
Administrator, shall issue a compliance
schedule that establishes deadlines for an
owner or operator to comply with the revised
performance standard.
``(ii) Factors.--In issuing a compliance
schedule under this subparagraph, the
Secretary--
``(I) shall consider the factors
identified in subparagraph (C)(iv); and
``(II) may establish different
compliance deadlines based on vessel
class, type, or size.
``(iii) Vessels constructed after issuance of
revised performance standards.--A compliance
schedule issued under this subparagraph with
respect to a revised performance standard shall
require, at a minimum, the owner or operator of
a commercial vessel that commences a major
conversion or is constructed on or after the
date of issuance of the revised performance
standard to comply with the revised performance
standard.
``(C) Extension of compliance deadlines.--
``(i) In general.--The Secretary may extend a
compliance deadline established under
subparagraph (A) or (B) on the Secretary's own
initiative or in response to a petition
submitted by an owner or operator.
``(ii) Processes for granting extensions.--In
issuing regulations under paragraph (3), the
Secretary shall establish--
``(I) a process for the Secretary, in
consultation with the Administrator, to
issue an extension of a compliance
deadline established under subparagraph
(A) or (B) for a commercial vessel (or
class, type, or size of vessel); and
``(II) a process for an owner or
operator to submit a petition to the
Secretary for an extension of a
compliance deadline established under
subparagraph (A) or (B) with respect to
the commercial vessel of the owner or
operator.
``(iii) Period of extensions.--An extension
issued under this subparagraph shall--
``(I) apply for a period of not to
exceed 18 months; and
``(II) be renewable for an additional
period of not to exceed 18 months.
``(iv) Factors.--In issuing an extension or
reviewing a petition under this subparagraph,
the Secretary shall consider, with respect to
the ability of an owner or operator to meet a
compliance deadline, the following factors:
``(I) Whether the treatment
technology to be installed is available
in sufficient quantities to meet the
compliance deadline.
``(II) Whether there is sufficient
shipyard or other installation facility
capacity.
``(III) Whether there is sufficient
availability of engineering and design
resources.
``(IV) Vessel characteristics, such
as engine room size, layout, or a lack
of installed piping.
``(V) Electric power generating
capacity aboard the vessel.
``(VI) Safety of the vessel and crew.
``(v) Consideration of petitions.--
``(I) Determinations.--The Secretary
shall approve or deny a petition for an
extension of a compliance deadline
submitted by an owner or operator under
this subparagraph.
``(II) Deadline.--If the Secretary
does not approve or deny a petition
referred to in subclause (I) on or
before the last day of the 90-day
period beginning on the date of
submission of the petition, the
petition shall be deemed approved.
``(c) Ballast Water Performance Standard for Commercial Vessels.--
``(1) In general.--To meet the ballast water performance
standard, an owner or operator shall--
``(A) conduct ballast water treatment before
discharging ballast water from a commercial vessel into
navigable waters using a ballast water treatment
technology certified for the vessel (or class, type, or
size of vessel) under subsection (e); and
``(B) ensure that any ballast water so discharged
meets, at a minimum, the numerical ballast water
performance standard set forth in the International
Convention for the Control and Management of Ships'
Ballast Water and Sediments, as adopted on February 13,
2004, or a revised numerical ballast water performance
standard established under subsection (d).
``(2) Safety exemption.--Notwithstanding paragraph (1), an
owner or operator may discharge ballast water without regard to
a ballast water performance standard if--
``(A) the discharge is done solely to ensure the
safety of life at sea;
``(B) the discharge is accidental and the result of
damage to the commercial vessel or its equipment and--
``(i) all reasonable precautions to prevent
or minimize the discharge have been taken; and
``(ii) the owner or operator did not
willfully or recklessly cause such damage; or
``(C) the discharge is solely for the purpose of
avoiding or minimizing discharge from the vessel of
pollution that would otherwise violate an applicable
Federal or State law.
``(d) Review of Performance Standard.--
``(1) In general.--Not later than January 1, 2016, and every
10 years thereafter, the Administrator, in consultation with
the Secretary, shall complete a review to determine whether
revising the ballast water performance standard would result in
a scientifically demonstrable and substantial reduction in the
risk of the introduction or establishment of aquatic nuisance
species.
``(2) Considerations.--In conducting the review, the
Administrator shall consider--
``(A) improvements in the scientific understanding of
biological and ecological processes that lead to the
introduction or establishment of aquatic nuisance
species;
``(B) improvements in ballast water treatment
technology, including--
``(i) the capability of such technology to
achieve a revised ballast water performance
standard;
``(ii) the effectiveness and reliability of
such technology in the shipboard environment;
``(iii) the compatibility of such technology
with the design and operation of commercial
vessels by class, type, and size;
``(iv) the commercial availability of such
technology; and
``(v) the safety of such technology;
``(C) improvements in the capabilities to detect,
quantify, and assess the viability of aquatic nuisance
species at the concentrations under consideration;
``(D) the impact of ballast water treatment
technology on water quality; and
``(E) the costs, cost-effectiveness, and impacts of--
``(i) a revised ballast water performance
standard, including the potential impacts on
shipping, trade, and other uses of the aquatic
environment; and
``(ii) maintaining the existing ballast water
performance standard, including the potential
impacts on water-related infrastructure,
recreation, the propagation of native fish,
shellfish, and wildlife, and other uses of
navigable waters.
``(3) Revision of performance standard.--
``(A) Rulemaking.--If, pursuant to a review conducted
under paragraph (1), the Administrator, in consultation
with the Secretary, determines that revising the
ballast water performance standard would result in a
scientifically demonstrable and substantial reduction
in the risk of the introduction or establishment of
aquatic nuisance species, the Administrator shall
undertake a rulemaking to revise the performance
standard.
``(B) Special rule.--The Administrator may not issue
a revised performance standard pursuant to this
paragraph that applies to a commercial vessel
constructed prior to the date on which the revised
performance standard is issued unless the revised
performance standard is at least 2 orders of magnitude
more stringent than the performance standard in effect
on the date that the review is completed.
``(4) State petition for review of performance standards.--
``(A) In general.--The Governor of a State may submit
a petition requesting that the Administrator review a
ballast water performance standard if there is
significant new information that could reasonably
indicate the performance standard could be revised to
result in a scientifically demonstrable and substantial
reduction in the risk of the introduction or
establishment of aquatic nuisance species.
``(B) Timing.--A Governor may not submit a petition
under subparagraph (A) during the 1-year period
following the date of completion of a review under
paragraph (1).
``(C) Required information.--A petition submitted to
the Administrator under subparagraph (A) shall include
the scientific and technical information on which the
petition is based.
``(D) Review and reporting.--Upon receipt of a
petition from a Governor under subparagraph (A), the
Administrator shall make publicly available a copy of
the petition, including the scientific and technical
information provided by the Governor under subparagraph
(C).
``(E) Review and revision of performance standards.--
``(i) In general.--If, after receiving a
petition submitted by a Governor under
subparagraph (A) for review of a performance
standard, the Administrator, in consultation
with the Secretary, determines that the
petition warrants additional action, the
Administrator may--
``(I) in consultation with the
Secretary, initiate a review of the
performance standard under paragraph
(1); and
``(II) in consultation with the
Secretary, revise the performance
standard through a rulemaking under
paragraph (3)(A), subject to the
limitation in paragraph (3)(B).
``(ii) Treatment of more than one petition as
a single petition.--The Administrator may treat
more than one petition as a single petition for
review.
``(e) Treatment Technology Certification.--
``(1) Certification required.--
``(A) Certification process.--
``(i) Evaluation.--Upon application of a
manufacturer, the Secretary shall evaluate a
ballast water treatment technology with respect
to--
``(I) whether the treatment
technology meets the ballast water
performance standard when installed on
a commercial vessel (or a class, type,
or size of commercial vessel);
``(II) the effect of the treatment
technology on commercial vessel safety;
and
``(III) any other criteria the
Secretary considers appropriate.
``(ii) Certification.--If, after conducting
the evaluation required by clause (i), the
Secretary determines the treatment technology
meets the criteria established under such
clause, the Secretary may certify the treatment
technology for use on a commercial vessel (or a
class, type, or size of commercial vessel).
``(iii) Suspension and revocation of
certification.--The Secretary shall, by
regulation, establish a process to suspend or
revoke a certification issued under this
subparagraph.
``(B) Certificates of type approval.--
``(i) Issuance of certificates to
manufacturer.--If the Secretary certifies a
ballast water treatment technology under
subparagraph (A), the Secretary shall issue to
the manufacturer of the treatment technology,
in such form and manner as the Secretary
determines appropriate, a certificate of type
approval for the treatment technology.
``(ii) Conditions to be included in
certificates.--A certificate of type approval
issued under clause (i) shall include any
conditions that are imposed by the Secretary
under paragraph (2).
``(iii) Issuance of copies of certificates to
owners and operators.--A manufacturer that
receives a certificate of type approval under
clause (i) for a ballast water treatment
technology shall furnish a copy of the
certificate to any owner or operator of a
commercial vessel on which the treatment
technology is installed.
``(iv) Inspections.--An owner or operator who
receives a copy of a certificate under clause
(iii) for a ballast water treatment technology
installed on a commercial vessel shall retain a
copy of the certificate onboard the commercial
vessel and make the copy of the certificate
available for inspection at all times that such
owner or operator is utilizing the treatment
technology.
``(C) Treatment technologies that use or generate
biocides.--The Secretary may not certify a ballast
water treatment technology that--
``(i) uses a biocide or generates a biocide
that is a `pesticide', as defined in section 2
of the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 136), unless the
biocide is registered under such Act or the
Administrator has approved the use of such
biocide in such treatment technology; or
``(ii) uses or generates a biocide the
discharge of which causes or contributes to a
violation of a water quality standard under
section 303 of this Act.
``(D) Prohibition.--
``(i) In general.--Except as provided by
clause (ii), an owner or operator may not use a
ballast water treatment technology to comply
with the requirements of this section unless
the Secretary has certified the treatment
technology under subparagraph (A).
``(ii) Exceptions.--
``(I) Coast guard shipboard
technology evaluation program.--An
owner or operator may use a ballast
water treatment technology that has not
been certified by the Secretary to
comply with the requirements of this
section if the technology is being
evaluated under the Coast Guard
Shipboard Technology Evaluation
Program.
``(II) Ballast water treatment
technologies certified by foreign
entities.--An owner or operator may use
a ballast water treatment technology
that has not been certified by the
Secretary to comply with the
requirements of this section if the
technology has been certified by a
foreign entity and the certification
demonstrates performance and safety of
the treatment technology equivalent to
the requirements of this subsection, as
determined by the Secretary.
``(2) Certification conditions.--
``(A) Imposition of conditions.--In certifying a
ballast water treatment technology under this
subsection, the Secretary, in consultation with the
Administrator, may impose any condition on the
subsequent installation, use, or maintenance of the
treatment technology onboard a commercial vessel as is
necessary for--
``(i) the safety of the vessel, the crew of
the vessel, and any passengers aboard the
vessel;
``(ii) the protection of the environment; and
``(iii) the effective operation of the
treatment technology.
``(B) Failure to comply.--The failure of an owner or
operator to comply with a condition imposed under
subparagraph (A) is a violation of this section.
``(3) Use of ballast water treatment technologies once
installed.--
``(A) In general.--Subject to subparagraph (B), an
owner or operator who installs a ballast water
treatment technology that the Secretary has certified
under paragraph (1) may use the treatment technology,
notwithstanding any revisions to a ballast water
performance standard occurring after the installation
so long as the owner or operator--
``(i) maintains the treatment technology in
proper working condition; and
``(ii) maintains and uses the treatment
technology in accordance with--
``(I) the manufacturer's
specifications; and
``(II) any conditions imposed by the
Secretary under paragraph (2).
``(B) Limitation.--Subparagraph (A) shall cease to
apply with respect to a commercial vessel after the
first to occur of the following:
``(i) The expiration of the service life of
the ballast water treatment technology of the
vessel, as determined by the Secretary.
``(ii) The expiration of service life of the
vessel, as determined by the Secretary.
``(iii) The completion of a major conversion
of the vessel.
``(4) Testing protocols.--Not later than 180 days after the
date of enactment of this section, the Administrator, in
consultation with the Secretary, shall issue guidelines
specifying land-based and shipboard testing protocols or
criteria for--
``(A) certifying the performance of ballast water
treatment technologies under this subsection; and
``(B) certifying laboratories to evaluate such
treatment technologies.
``(5) Prohibition.--Following the date on which the
requirements of subsection (b)(1) apply with respect to a
commercial vessel pursuant to the implementation schedule
issued under subsection (b)(3)(B), no manufacturer of a ballast
water treatment technology shall sell, offer for sale, or
introduce or deliver for introduction into interstate commerce,
or import into the United States for sale or resale, a ballast
water treatment technology for the commercial vessel unless the
technology has been certified under this subsection.
``(f) Alternative Methods of Compliance.--
``(1) Establishment.--Not later than 180 days after the date
of enactment of this section, the Secretary, in consultation
with the Administrator, shall establish an alternative method
of compliance with this section for a commercial vessel having
a maximum ballast water capacity of less than 8 cubic meters.
``(2) Factors for consideration.--In establishing an
alternative method of compliance under paragraph (1), the
Secretary shall consider--
``(A) the effectiveness of the alternative method in
reducing the risk of the introduction or establishment
of aquatic nuisance species relative to the performance
standard; and
``(B) any other factor the Secretary considers
appropriate.
``(3) Best management practices.--The Secretary may establish
as an alternative method of compliance appropriate ballast
water best management practices to minimize the introduction or
establishment of aquatic nuisance species.
``(g) Geographically Limited Areas.--
``(1) In general.--Subsections (c), (e), and (i) shall not
apply to a commercial vessel that--
``(A) operates exclusively within a geographically
limited area, as determined by the Secretary, in
consultation with the Administrator; or
``(B) operates pursuant to a geographic restriction
issued for the commercial vessel under section 3309 of
title 46, United States Code.
``(2) Petition for determination by the secretary.--
``(A) Submission of petitions.--Following the date of
issuance of final regulations under subsection (b), an
owner or operator may petition the Secretary for a
determination under paragraph (1).
``(B) Determinations.--The Secretary shall approve or
deny a petition submitted by an owner or operator under
subparagraph (A).
``(C) Deadline.--If the Secretary does not approve or
deny a petition submitted by an owner or operator under
subparagraph (A) on or before the last day of the 90-
day period beginning on the date of submission of the
petition, the petition shall be deemed approved.
``(3) Notification.--The Secretary shall notify the
Administrator and the Governor of each State the waters of
which could be affected by the discharge of ballast water from
a commercial vessel for which a petition has been granted under
paragraph (2) of the granting of any such petition.
``(4) Best management practices.--For a commercial vessel for
which a petition is granted under paragraph (2), the Secretary
shall require the owner or operator to implement appropriate
ballast water best management practices to minimize the
introduction or establishment of aquatic nuisance species.
``(h) Reception Facilities.--
``(1) In general.--An owner or operator shall discharge
ballast water in compliance with subsection (c) or (f) unless
discharging ballast water into--
``(A) an onshore facility for the reception of
ballast water that meets standards issued by the
Administrator, in consultation with the Secretary; or
``(B) an offshore facility for the reception of
ballast water that meets standards issued by the
Secretary, in consultation with the Administrator.
``(2) Issuance of standards.--Not later than 2 years after
the date of enactment of this section--
``(A) the Administrator, in consultation with the
Secretary, shall issue the standards referred to in
paragraph (1)(A); and
``(B) the Secretary, in consultation with the
Administrator, shall issue the standards referred to in
paragraph (1)(B).
``(3) Sole method of discharge.--The Secretary, in
consultation with the Administrator, and upon petition by an
owner or operator, may issue to an owner or operator a
certificate stating that a commercial vessel is in compliance
with the requirements of subsection (b)(1)(A) if discharging
ballast water into a facility meeting the standards issued
under this subsection is the sole method by which the owner or
operator discharges ballast water from the commercial vessel.
``(4) Ballast water management plans.--An owner or operator
discharging ballast water under this subsection shall discharge
such water in accordance with a ballast water management plan
approved under subsection (i).
``(i) Commercial Vessel Ballast Water Management Plan.--
``(1) In general.--An owner or operator shall discharge
ballast water in accordance with a ballast water management
plan that--
``(A) meets requirements prescribed by the Secretary;
and
``(B) is approved by the Secretary.
``(2) Foreign commercial vessels.--The Secretary may approve
a ballast water management plan for a foreign commercial vessel
on the basis of a certificate of compliance issued by the
country of registration of the commercial vessel if the
requirements of the government of that country for a ballast
water management plan are substantially equivalent to
regulations issued by the Secretary.
``(3) Recordkeeping.--
``(A) In general.--Except as provided by subparagraph
(B), an owner or operator shall maintain in English and
have available for inspection by the Secretary a
ballast water record book in which each operation of
the commercial vessel involving a ballast water
discharge is recorded in accordance with regulations
issued by the Secretary.
``(B) Alternative means of recordkeeping.--The
Secretary may provide for alternative methods of
recordkeeping, including electronic recordkeeping, to
comply with the requirements of this paragraph.
``(j) Regulation of Ballast Water Discharges.--Effective on and after
the date of enactment of this section--
``(1) the Administrator (or a State in the case of a permit
program approved under section 402) shall not require any new
permit or permit condition under section 402 for any discharge
of ballast water from a commercial vessel into navigable
waters; and
``(2) except as provided by subsection (k), a State or
political subdivision thereof shall not adopt or enforce any
law or regulation of the State or political subdivision with
respect to such a discharge.
``(k) State Authority.--
``(1) State programs.--The Governor of a State desiring to
administer its own inspection and enforcement authority for
ballast water discharges within its jurisdiction may submit to
the Secretary a complete description of the program the
Governor proposes to establish and administer under State law.
In addition, the Governor shall submit a statement from the
State attorney general that the laws of the State provide
adequate authority to carry out the described program.
``(2) Approval.--The Secretary, with the concurrence of the
Administrator, may approve a program of a State submitted under
paragraph (1) providing for the State's own inspection and
enforcement authority for ballast water discharges within its
jurisdiction, if the Secretary determines that the State
possesses adequate resources to--
``(A) inspect, monitor, and board a commercial vessel
at any time, including the taking and testing of
ballast water samples, to ensure the commercial
vessel's compliance with this section;
``(B) ensure that any ballast water discharged within
the waters subject to the jurisdiction of the State
meets the requirements of this section;
``(C) establish adequate procedures for reporting
violations of this section;
``(D) investigate and abate violations of this
section, including the imposition of civil and criminal
penalties consistent with subsection (o); and
``(E) ensure that the Secretary and the Administrator
receive notice of each violation of this section in an
expeditious manner.
``(3) Compliance.--Any State program approved under paragraph
(2) shall at all times be conducted in accordance with this
subsection.
``(4) Withdrawal of approval.--Whenever the Secretary, in
consultation with the Administrator, determines, after
providing notice and the opportunity for a public hearing, that
a State is not administering a program in accordance with the
terms of the program as approved under paragraph (2), the
Secretary shall notify the State, and, if appropriate
corrective action is not taken within a period of time not to
exceed 90 days, the Secretary, with the concurrence of the
Administrator, shall withdraw approval of the program. The
Secretary shall not withdraw approval of a program unless the
Secretary has first notified the State and made public, in
writing, the reasons for the withdrawal.
``(5) Limitation on statutory construction.--Nothing in this
subsection shall limit the authority of the Administrator or
the Secretary to carry out inspections of any commercial vessel
under subsection (n).
``(6) State laws.--Notwithstanding any other provision of
this section, a State may enact such laws as are necessary to
provide for the implementation of the State ballast water
inspection and enforcement program provided under this
subsection. The requirements for a ballast water inspection and
enforcement program contained in such State law shall be
substantively and procedurally equivalent to those required in
this section, and any requirements relating to recordkeeping,
reporting, and sampling or analysis contained in such State law
shall be substantively and procedurally equivalent to the
requirements of this section and its implementing regulations
and guidance.
``(l) Discharges Incidental to the Normal Operations of a Commercial
Vessel.--
``(1) Evaluation of incidental discharges.--
``(A) In general.--Not later than 3 years after the
date of enactment of this section, the Administrator,
in consultation with the Secretary, shall complete an
evaluation of discharges incidental to the normal
operation of a commercial vessel.
``(B) Factors.--In carrying out the evaluation, the
Administrator shall analyze--
``(i) the characterization of the various
types and composition of discharges incidental
to the normal operation of a commercial vessel
by different classes, types, and sizes of
commercial vessels;
``(ii) the volume of such discharges for
representative individual commercial vessels
and by classes, types, and sizes of commercial
vessels in the aggregate;
``(iii) the availability and feasibility of
implementing technologies or best management
practices for the control of such discharges;
``(iv) the characteristics of the receiving
waters of such discharges;
``(v) the nature and extent of potential
effects of such discharges on human health,
welfare, and the environment;
``(vi) the extent to which such discharges
are currently subject to and addressed by
regulations under existing Federal laws or
binding international obligations of the United
States; and
``(vii) any additional factor that the
Administrator considers appropriate.
``(2) Regulation of incidental discharges.--Effective on and
after the date of enactment of this section--
``(A) the Administrator (or a State in the case of a
permit program approved under section 402) shall not
require any new permit or permit conditions under
section 402 for any discharge incidental to the normal
operation of a commercial vessel; and
``(B) a State or political subdivision thereof shall
not adopt or enforce any law or regulation of the State
or political subdivision with respect to such a
discharge.
``(m) Effect on Vessel General Permit.--
``(1) Expiration.--Notwithstanding the expiration date set
forth in the Vessel General Permit, the Vessel General Permit
shall expire as follows:
``(A) The terms and conditions of section 6 of such
permit or any law of a State regulating the discharge
of ballast water or any discharge incidental to the
normal operation of a commercial vessel, upon the date
of enactment of this section.
``(B) For each commercial vessel, the terms and
conditions of such permit (except the terms and
conditions referred to in subparagraph (A)) applicable
to a discharge of ballast water--
``(i) on the date on which--
``(I) a ballast water treatment
technology certified under subsection
(e) is installed on the commercial
vessel;
``(II) an alternative method of
compliance established for the
commercial vessel under subsection (f)
is implemented for the commercial
vessel;
``(III) a petition is granted for the
commercial vessel under subsection (g);
or
``(IV) a certificate is issued for
the commercial vessel under subsection
(h); or
``(ii) in any case not described in clause
(i), on December 18, 2013.
``(2) Discharges incidental to the normal operation of
commercial vessels.--Notwithstanding the expiration date set
forth in the Vessel General Permit, the terms and conditions of
such permit (except the terms and conditions referred to in
paragraph (1)(A)) applicable to discharges incidental to the
normal operation of a commercial vessel shall remain in effect.
``(n) Inspections and Enforcement.--
``(1) In general.--
``(A) Coast guard enforcement.--The Secretary shall
enforce the requirements of this section and may
utilize by agreement, with or without reimbursement,
law enforcement officers or other personnel and
facilities of the Administrator, other Federal
agencies, and the States.
``(B) Environmental protection agency actions.--
Notwithstanding any enforcement decisions of the
Secretary under subparagraph (A), the Administrator may
use the authorities provided in sections 308, 309, 312,
and 504 whenever required to carry out this section.
``(2) Coast guard inspections.--The Secretary may carry out
inspections of any commercial vessel at any time, including the
taking of ballast water samples, to ensure compliance with this
section. The Secretary shall use all appropriate and practical
measures of detection and environmental monitoring of such
commercial vessels and shall establish adequate procedures for
reporting violations of this section and accumulating evidence
regarding such violations.
``(o) Compliance.--
``(1) Detention of commercial vessel.--The Secretary, by
notice to the owner or operator, may detain the commercial
vessel if the Secretary has reasonable cause to believe that
the commercial vessel does not comply with a requirement of
this section or is being operated in violation of such a
requirement.
``(2) Sanctions.--
``(A) Civil penalties.--
``(i) In general.--Any person who violates
this section shall be liable for a civil
penalty in an amount determined under clause
(ii). Each day of a continuing violation
constitutes a separate violation. A commercial
vessel operated in violation of this section is
liable in rem for any civil penalty assessed
for that violation.
``(ii) Penalty amounts.--The amount of a
civil penalty assessed under clause (i) shall
be determined as follows:
``(I) For vessels with a ballast
water capacity less than 1500 cubic
meters, not to exceed $25,000 for each
violation.
``(II) For vessels with a ballast
water capacity of 1500 cubic meters but
not more than 5,000 cubic meters, not
to exceed $28,750 for each violation.
``(III) For vessels with a ballast
water capacity greater than 5,000 cubic
meters, not to exceed $32,500 for each
violation.
``(B) Criminal penalties.--Any person who knowingly
violates this section shall be punished by a fine of
not less that $5,000 nor more than $50,000 per day of
violation, or by imprisonment for not more than 3
years, or both. If a conviction of a person is for a
violation committed after a first conviction of such
person under this paragraph, punishment shall be by a
fine of not more than $100,000 per day of violation, or
imprisonment of not more than 6 years, or both.
``(C) Revocation of clearance.--Upon request of the
Secretary, the Secretary of Homeland Security shall
withhold or revoke the clearance of a commercial vessel
required by section 60105 of title 46, United States
Code, if the owner or operator is in violation of this
section.
``(3) Enforcement actions.--
``(A) Administrative actions.--If the Secretary finds
that a person has violated this section, the Secretary
may assess a civil penalty for the violation. In
determining the amount of the civil penalty, the
Secretary shall take into account the nature,
circumstances, extent, and gravity of the prohibited
acts committed and, with respect to the violator, the
degree of culpability, any history of prior violations,
and such other matters as justice may require.
``(B) Civil actions.--At the request of the
Secretary, the Attorney General may bring a civil
action in an appropriate district court of the United
States to enforce this section. Any court before which
such an action is brought may award appropriate relief,
including temporary or permanent injunctions and civil
penalties.
``(4) Exclusion.--No person shall be found in violation of
this section whose commission of prohibited acts is found by
the Secretary to have been in the interest of ensuring the
safety of life at sea.
``(p) Regulation Under Other Sections of This Act.--This section
shall not affect the regulation of discharges from a commercial vessel
pursuant to section 311 or 312.''.
SEC. 3. DISCHARGES INCIDENTAL TO THE NORMAL OPERATION OF A COVERED
VESSEL.
(a) Discharges Incidental to the Normal Operation of a Covered
Vessel.--
(1) No permit required.--Section 402 of the Federal Water
Pollution Control Act (33 U.S.C. 1342) is amended by adding at
the end the following:
``(s) Discharges Incidental to the Normal Operation of a Covered
Vessel.--No permit shall be required under this Act by the
Administrator (or a State, in the case of a permit program approved
under subsection (b)) for a discharge incidental to the normal
operation of a covered vessel (as defined in section 312(p)).''.
(2) Best management practices for covered vessels.--Section
312 of the Federal Water Pollution Control Act (33 U.S.C. 1342)
is amended by adding at the end the following:
``(p) Best Management Practices for Covered Vessels.--
``(1) Definitions.--In this subsection, the following
definitions apply:
``(A) Covered vessel.--The term `covered vessel'
means every description of watercraft, or other
artificial contrivance used or capable of being used as
a means of transportation on water, that is engaged in
commercial service (as defined under section 2101 of
title 46, United States Code), and--
``(i) is less than 79 feet in length; or
``(ii) is a fishing vessel (as defined in
section 2101 of title 46, United States Code),
regardless of length of the vessel.
``(B) Discharge incidental to the normal operation of
a covered vessel.--The term `discharge incidental to
the normal operation of a covered vessel' means a
discharge incidental to the normal operation of a
commercial vessel (as defined in section 321), insofar
as the commercial vessel is a covered vessel.
``(2) Determination of discharges subject to best management
practices.--
``(A) Determination.--
``(i) In general.--The Administrator, in
consultation with the Secretary of the
department in which the Coast Guard is
operating, shall determine the discharges
incidental to the normal operation of a covered
vessel for which it is reasonable and
practicable to develop best management
practices to mitigate the adverse impacts of
such discharges on the waters of the United
States.
``(ii) Promulgation.--The Administrator shall
promulgate the determinations under clause (i)
in accordance with section 553 of title 5,
United States Code.
``(B) Considerations.--In making a determination
under subparagraph (A), the Administrator shall
consider--
``(i) the nature of the discharge;
``(ii) the environmental effects of the
discharge, including characteristics of the
receiving waters;
``(iii) the effectiveness of the best
management practice in reducing adverse impacts
of the discharge on water quality;
``(iv) the practicability of developing and
using a best management practice;
``(v) the effect that the use of a best
management practice would have on the
operation, operational capability, or safety of
the vessel;
``(vi) applicable Federal and State law;
``(vii) applicable international standards;
and
``(viii) the economic costs of the use of the
best management practice.
``(C) Timing.--The Administrator shall--
``(i) make initial determinations under
subparagraph (A) not later than 1 year after
the date of enactment of this subsection; and
``(ii) every 5 years thereafter--
``(I) review the determinations; and
``(II) if necessary, revise the
determinations based on any new
information available to the
Administrator.
``(3) Regulations for the use of best management practices.--
``(A) In general.--The Secretary of the department in
which the Coast Guard is operating shall promulgate
regulations on the use of best management practices for
discharges incidental to the normal operation of a
covered vessel that the Administrator determines are
reasonable and practicable to develop under paragraph
(2).
``(B) Regulations.--
``(i) In general.--The Secretary shall
promulgate the regulations under this paragraph
as soon as practicable after the Administrator
makes determinations pursuant to paragraph (2).
``(ii) Considerations.--In promulgating
regulations under this paragraph, the Secretary
may--
``(I) distinguish among classes,
types, and sizes of vessels;
``(II) distinguish between new and
existing vessels; and
``(III) provide for a waiver of the
applicability of the standards as
necessary or appropriate to a
particular class, type, age, or size of
vessel.
``(4) Effect of other laws.--This subsection shall not affect
the application of section 311 to a covered vessel.
``(5) Prohibition relating to covered vessels.--After the
effective date of the regulations promulgated by the Secretary
of the department in which the Coast Guard is operating under
paragraph (3), the owner or operator of a covered vessel shall
neither operate in, nor discharge any discharge incidental to
the normal operation of the vessel into navigable waters, if
the owner or operator of the vessel is not using any applicable
best management practice meeting standards established under
this subsection.''.
SEC. 4. CONFORMING AND TECHNICAL AMENDMENTS.
(a) Effluent Limitations.--Section 301(a) of the Federal Water
Pollution Control Act (33 U.S.C. 1311(a)) is amended by inserting
``312, 321,'' after ``318,''.
(b) Review of Administrator's Actions.--The first sentence of section
509(b)(1) of such Act (33 U.S.C. 1369(b)(1)) is amended--
(1) by striking ``and (G)'' and inserting ``(G)''; and
(2) by inserting after ``section 304(l),'' the following:
``and (H) in issuing any regulation or otherwise taking final
agency action under section 312 or 321,''.
SEC. 5. REGULATION OF BALLAST WATER AND INCIDENTAL DISCHARGES FROM A
COMMERCIAL VESSEL.
(a) In General.--Effective on the date of enactment of this Act, the
following discharges shall not be regulated in any manner other than as
specified in section 312 or 321 of the Federal Water Pollution Control
Act (as added by this Act):
(1) A discharge incidental to the normal operation of a
commercial vessel.
(2) A discharge of ballast water from a commercial vessel.
(b) Definitions.--In this section, the terms ``ballast water'',
``commercial vessel'', and ``discharge incidental to the normal
operation of a commercial vessel'' have the meanings given those terms
in section 321(a) of the Federal Water Pollution Control Act (as added
by this Act).
SEC. 6. NONINDIGENOUS AQUATIC NUISANCE PREVENTION AND CONTROL ACT OF
1990.
(a) Aquatic Nuisance Species in Waters of the United States.--
Effective on the date of issuance of final regulations under section
321(b) of the Federal Water Pollution Control Act (as added by this
Act), section 1101 of the Nonindigenous Aquatic Nuisance Prevention and
Control Act of 1990 (16 U.S.C. 4711) is repealed.
(b) Relationship to Other Laws.--Effective on the date of enactment
of this Act, section 1205 of the Nonindigenous Aquatic Nuisance
Prevention and Control Act of 1990 (16 U.S.C. 4725) is repealed.
Purpose of the Legislation and Summary
H.R. 2840, the Commercial Vessel Discharges Reform Act of
2011 establishes a single, uniform national standard for the
treatment of ballast water discharged from vessels into
navigable waters. The bill also provides for uniform federal
regulation of other discharges incidental to the normal
operation of a vessel.
Background and Need for Legislation
In order to maintain stability during transit, most ocean
going vessels fill internal tanks with ballast water during the
loading of cargo and then release it during unloading. Ballast
water has long been recognized as one of several pathways by
which invasive species are transported globally and introduced
into coastal waters where they did not live before. Many
aquatic nuisance species have been introduced into U.S. waters
via ballast water discharges. One of the most well known is the
zebra mussel in the Great Lakes, which has caused millions of
dollars in damage to infrastructure.
Current efforts to reduce the likelihood of invasive
species being introduced are haphazard, contradictory, and
ineffective. Ballast water is currently governed differently by
the Coast Guard and the Environmental Protection Agency (EPA),
as well as by numerous state laws and regulations. As a result,
vessels engaged in international and interstate commerce are
required to meet several different standards for the treatment
of ballast water, some of which are not technologically
achievable or verifiable.
CURRENT CONTRADICTORY REGULATORY PROGRAMS
International
On February 13, 2004, the IMO agreed to the International
Convention for the Control and Management of Ships' Ballast
Water & Sediments (Convention). The Convention, if ratified by
a sufficient number of nations and entered into force, will be
the first time international law has attempted to minimize the
spread of nonindigenous aquatic organisms by requiring vessels
to manage their ballast water using ballast water treatment
systems and procedures. The Convention also would establish
performance standards applicable to ballast water treatment
which would prohibit the release of ballast water containing
more than 10 organisms that are greater than 10 micrometers in
size per cubic meter of ballast water or certain concentrations
of smaller size classes of organisms (the IMO D-2 standard).
The Convention will enter into force only after it has been
ratified by at least 30 IMO member nations representing more
than 35 percent of global merchant shipping tonnage. As of
October 2011, 30 nations have ratified the Convention,
representing 26.44% of world merchant shipping tonnage. The
United States currently is not a party to the Convention.
Over 8,000 foreign flagged vessels enter U.S. waters on an
annual basis. Once the IMO Convention enters into force, these
vessels will begin installing treatment technology to meet the
IMO D-2 standard.
Coast Guard
Under the Nonindigenous Aquatic Nuisance Prevention and
Control Act of 1990 and the National Invasive Species Act of
1996, the Coast Guard has implemented regulations to minimize
the introduction of these organisms into U.S. waters. Under
current regulations promulgated by the Coast Guard in July 2004
(69 Fed. Reg. 44952-44961), all vessels that are engaged on an
international voyage and bound for a U.S. port are required to
conduct ballast water exchange before the vessel enters the
U.S. Exclusive Economic Zone (EEZ) which extends roughly 200
miles from the U.S. coast. The intent of ballast water exchange
is to discharge or kill any near coastal organisms that inhabit
ballast water, and prevent the discharge of those alien
organisms into U.S. waters. It is not clear how effective
ballast water exchange is in preventing introductions of
invasive species because it does not remove all organisms from
ballast tanks or sediments that settle to the bottom of the
ballast tanks. In addition, no significant monitoring program
currently exists to establish a pre- or post-exchange baseline
for the introduction of aquatic invasive species in U.S.
waters.
The Coast Guard released a Notice of Proposed Rulemaking
(NPRM) in 2009 to amend its regulations on ballast water
management (74 FR 44632). The NPRM, which is currently at
Department of Homeland Security for final review and approval,
establishes a standard for the allowable concentration of
living organisms in vessel ballast water discharged in U.S.
waters and creates a two-phase implementation plan. It would
require all vessels operating in U.S. waters or bound for ports
in the U.S. to install and operate a Coast Guard approved
ballast water management system (BWMS) before discharging
ballast water into U.S. waters.
The proposed rule includes a phase-in schedule for
complying with both the phase 1 and phase 2 proposed ballast
water discharge standard based on the vessel's ballast capacity
and build date. All vessels would be required to manage their
ballast water through a Coast Guard approved BWMS and meet
either the proposed phase 1 or phase 2 discharge standard, as
applicable, or retain their ballast water onboard. The phase 1
standard is the same as the standard adopted by the IMO. The
proposed phase 2 standard is 1,000 times more stringent than
the phase 1 standard. The Coast Guard notes that reliable
technology to achieve the phase 2 standard and a testing
protocol to ensure compliance with the standard does not yet
exist. As a result, the Coast Guard proposes a practicability
review to ensure a verifiable system is available to meet the
phase 2 standard before mandating the installation of such
system.
EPA
The Federal Water Pollution Control Act of 1972, popularly
known as the Clean Water Act (CWA), regulates the discharge of
pollutants into U.S. waters. Unless the discharge is otherwise
exempt from permitting, individuals, companies, municipalities,
and others who discharge pollutants from point sources must do
so in compliance with a permit issued by the Environmental
Protection Agency (EPA) under the National Pollutant Discharge
Elimination System (NPDES) permit program (established under
section 402 of the CWA, 33 USC 1342) or by one of the 45 states
that issue permits in lieu of the EPA.
On May 22, 1973, EPA first promulgated a regulation
excluding, certain discharges from vessels from the requirement
to obtain an NPDES permit, including the discharge of sewage
from vessels; effluent from properly functioning marine
engines; laundry, shower, and galley sink wastes (collectively
known as graywater); as well as ``any other discharge
incidental to the normal operation of a vessel,'' which
includes ballast water (40 C.F.R. 122.3(a)).
In December 2003, the long-standing exclusion of discharges
incidental to the normal operation of vessels from the NPDES
program became the subject of a lawsuit in the U.S. District
Court for the Northern District of California. The lawsuit
arose from a January 13, 1999, rulemaking petition submitted to
EPA by a number of parties concerned about the environmental
effects of ballast water discharges. The petition asked EPA to
repeal its regulation that excludes certain discharges
incidental to the normal operation of vessels from the
requirement to obtain an NPDES permit. The petition asserted
that vessels are ``point sources'' requiring NPDES permits for
discharges to U.S. waters; that EPA lacks authority to exclude
point source discharges from vessels from the NPDES program;
and that ballast water must be regulated under the NPDES
program because it contains invasive plant and animal species,
as well as other materials of concern. In March 2005, the Court
ruled the regulatory exemption for discharges incidental to the
normal operation of vessels exceeded the EPA's authority under
the CWA (Northwest Envtl. Advocates et al. v. United States
EPA, 2005 U.S. Dist. (N.D. Cal., 2005). EPA appealed the
ruling, but the Ninth Circuit Court of Appeals upheld the
District Court decision in July 2008.
Pursuant to the Court order, in December 2008, EPA
promulgated final regulations establishing a Vessel General
Permit (VGP) under the NPDES program to govern ballast water
and other discharges incidental to the normal operation of
vessels. The VGP requires vessel operators to be in compliance
with best management practices covering 26 types of discharges
incidental to normal vessel operations, including deck runoff,
air conditioner condensate, bilge water, graywater, and cooling
system discharge. With respect to ballast water, the VGP
incorporates the Coast Guard's mandatory ballast water
management and exchange standards. Vessel operators must
maintain records with EPA indicating they are in compliance
with training, inspection, monitoring, and reporting protocols,
as well as implement any corrective actions upon identification
of violations. Vessel operators are required to file a notice
of intent (NOI) indicating they intend to be covered by the
VGP. Approximately 45,000 vessels currently operate under an
NOI with the EPA.
Vessel operators that do not file an NOI, or are not in
compliance with the VGP or an individual permit governing these
discharges can be found to be in violation of the CWA. In
addition to criminal penalties, violations of the CWA can carry
civil penalties totaling up to $32,500 per day per violation.
Under a memorandum of understanding with EPA, the Coast Guard
began a VGP enforcement and compliance monitoring program in
March 2011.
The EPA's current VGP expires in December 2013. EPA is
planning to propose a new draft VGP by November 30, 2011, and
take final action on the new VGP by November 30, 2012. The new
VGP would become effective when the current VGP expires.
Pursuant to a March 2011 Court settlement with several
environmental groups and the State of Michigan (Natural
Resources Defense Council v. EPA, Case No. 09-1089), EPA agreed
to replace the current requirement for ballast water exchange
with new numeric concentration-based limits on the discharge of
organisms in ballast water in the draft VGP. The draft VGP will
also include monitoring standards for ballast water treatment
systems. There is no requirement for the EPA to align its
ballast water standard in the new VGP with the new Coast Guard
regulations.
State, Territory, and Tribal Regulations
Under section 401 of the CWA (33 U.S.C. 1341), those
seeking federal license or permit to conduct activities that
may result in a discharge into U.S. waters must first receive a
water quality certification from the state, territory, or
Indian tribe in which the activity may occur that the permitted
discharge will comply with state water quality requirements.
These 401 certifications may require those seeking a federal
permit to comply with additional water quality regulatory
requirements when conducting activities. With respect to the
VGP, 26 states, 2 Indian tribes, and 1 territory have filed 401
certifications requiring vessel operators to be in compliance
with local water quality regulatory requirements. As a result,
to transit U.S. waters, vessel operators must ensure they are
in compliance with Coast Guard and EPA regulations, as well as
over two dozen state, territory, or tribal regulations
governing 26 discharges.
Ensuring a vessel is in compliance with federal regulations
as augmented by state 401 certifications under the VGP can be
difficult, if not impossible, as some of the state
certifications are contradictory in nature. For instance, New
York will be requiring vessels to install ballast water
treatment systems to eliminate organisms at a rate 1000 times
greater than the international standard proposed by the IMO.
Meanwhile, Great Lakes states such as Ohio are only requiring
vessels to install treatment systems that meet IMO standards.
In addition, some states permit ballast water treatment systems
which use chlorine as a biocide, while other prohibit them.
Finally, standards governing the discharge of bilge water,
graywater, and other incidental discharges also can vary from
state to state.
Under current law, any recreational vessel that is not
subject to Coast Guard inspection and carrying paying
passengers or engaged in commercial use are permanently exempt
from the VGP and related permits regulating discharges
incidental to the normal operation of a vessel (33 U.S.C.
1342(r)). Congress has also enacted a temporary moratorium of
the VGP for commercial fishing vessels regardless of size, as
well as commercial vessels less than 79 feet in length (Public
Law 111-215). The moratorium expires on December 18, 2013. The
EPA estimates there are approximately 140,000 vessels currently
subject to the moratorium which will have to come into
compliance with the VGP and state 401 certifications.
CURRENT SCIENCE
EPA and the Coast Guard jointly tasked the National
Research Council (NRC) of the National Academies of Sciences
and the EPA Office of Water tasked the EPA Science Advisory
Board's Ecological Processes and Effects Committee (SAB) to
report back on several aspects of regulating the discharge of
ballast water.
National Research Council
The NRC completed its report (Assessing the
Relationship Between Propagule Pressure and Invasion Risk in
Ballast Water) in June 2011 and found the following: An
assumption in the development of a numeric standard for live
organisms per unit volume ballast water discharged is that
there is a direct and quantifiable relationship between the
density of individuals released in a ballast discharge and the
probability of their eventual establishment. While a
relationship between density and establishment probability may
exist, many other factors also affect establishment success in
aquatic systems. Additionally, ballast water is just one of
several pathways for the introduction of nonindigenous species
or pathogens.
Available methods for determining a numeric
standard for ballast water discharge are limited by a profound
lack of data to develop and validate models determining risk of
invasion.
However, a discharge standard, for example the
Coast Guard phase 1 or IMO D-2 standard, should be established.
This will reduce the likelihood of invasion in coastal
ecosystems beyond what we presently experience and will serve
as a benchmark to use in future studies.
Steps should be taken to develop sampling
protocols, standardize methods and analytical processes, and
create the framework necessary to produce high-quality data
specifically needed to populate risk-release models. Once data
can be collected, experiments and studies can commence to
determine the efficacy of numeric limits on reducing the risk
of invasion from nonindigenous species or pathogens.
Science Advisory Board Report
The EPA Office of Water requested the SAB to review and
provide advice regarding whether existing shipboard treatment
technologies can reach specified concentrations of organisms in
vessel ballast water, how these technologies might be improved
in the future, and how to overcome limitations in existing
data. On June 2011, the SAB released its report (Efficacy of
Ballast Water Treatment Systems) which found the following:
Five categories of existing BWMS are currently
able to comply with the least stringent standard proposed by
the USCG (i.e., the Coast Guard phase 1 standard, which is
equivalent to the IMO D-2 standard). However, no current BWMS
can meet a 100x or 1000x standard (i.e., the Coast Guard phase
2 standard) or the complete removal of all living organisms.
The IMO D-2/Coast Guard phase 1 performance
standards for discharge quality are currently measurable.
However, currently available methods prevent testing of BWMS to
any standard more stringent than the IMO D-2/Coast Guard phase
1 standard and make it impracticable for verifying a standard
1000x more stringent. Verification of standards that set very
low organism concentrations (those more stringent than the
Coast Guard phase 1/IMO D-2 standard) may require water samples
that are too large to be logistically feasible. Furthermore, a
zero detectable discharge standard is not statistically
verifiable.
The primary impediments to the ability of
shipboard systems to meet stringent discharge standards beyond
exiting technologies is that treatment processing plants will
likely need to be large, heavy, and energy intensive. Many
existing vessels may be unable to overcome these barriers
through retrofitting. More stringent standards may require a
fundamental shift in how ballast water is managed.
Section-by-Section Analysis of the Legislation
Section 1. Short title
``Commercial Vessel Discharges Reform Act of 2011''.
Section 2. Discharges from commercial vessels
Section 2 of the bill amends Title III of the Federal Water
Pollution Control Act of 1972, popularly known as the Clean
Water Act (CWA) by adding at the end a new section: Sec. 321.
Discharges from Commercial Vessels.
Section 321(a) defines certain terms only applicable to
section 321.
Section 321(b) specifies the circumstances in which a
discharge of ballast water from a commercial vessel (vessel)
into navigable waters is permitted and identifies applicable
vessels. It further requires the Secretary of the department in
which the Coast Guard is operating to issue final regulations
within 180 days of the date of enactment of the bill to
implementing requirements of the bill, including compliance
deadlines for an initial ballast water performance standard
(performance standard) established under subsection (c) and
revised under (d) and a process to issue extensions of such
deadlines.
Section 321(c) establishes an initial performance standard
that is consistent with the International Maritime Organization
standard and requires vessel operators to conduct ballast water
treatment using technologies certified to meet the performance
standard. It further provides for an exemption for the
discharge of ballast water that does not meet the performance
standard if such discharge was done to ensure the safety of
life at sea, as the result of accidental damage, or to avoid or
minimize the discharge of another pollutant.
Section 321(d) requires the Administrator of the EPA to
review of the performance standard no later than January 1,
2016, and every ten years thereafter to determine whether
revising the performance standard would result in a
demonstrable and substantial reduction in the risk of
introduction or establishment of aquatic nuisance species. If
after considering such factors as improvements to ballast water
treatment technology (treatment technology), testing methods,
and impacts on water quality, the Administrator may revise the
performance standard for any new or converted vessel. If the
after the review, the Administrator determines the existing
performance standard can be made more stringent by at least two
orders of magnitude, the Administrator may revise the
performance standard by such amount for vessels constructed
prior to the date of the revision. This subsection also
provides a mechanism for the governor of a state to petition
the Administrator to revise the performance standard if new
information reasonably indicates that such revision could
result in a scientifically demonstrable and substantial
reduction in the risk of the introduction or establishment of
aquatic nuisance species.
Section 321(e) establishes a process for manufacturers of
treatment technology to apply for and for the Secretary to
review and grant certifications for treatment technology. The
subsection requires Secretary to issue guidelines to govern the
certification testing process. It also requires the treatment
technology to meet certain criteria before the Secretary may
certify it, and allows the Secretary to accept the
certification of treatment systems done by foreign flag states
under certain conditions. It further prohibits vessel owners
from using a treatment technology that has not been certified
and prohibits manufacturers from selling a treatment technology
that has not been certified. Finally, it allows a vessel
operator to continue to use a properly maintained treatment
technology until the vessel reaches the end of it service life,
the treatment technology reaches the end of its service life,
or the vessel completes a major conversion.
Section 321(f) requires the Secretary to establish an
alternative method of compliance with this section for vessels
having a maximum ballast water capacity of less than eight
cubic meters.
Section 321(g) establishes a mechanism for the owners of
vessels that operate exclusively within a geographically
limited area to petition the Secretary for a waiver from the
requirement to install a certified treatment technology. Owners
of vessels whose petitions are granted are required to comply
with best management practices to minimize the introduction or
establishment of aquatic nuisance species.
Section 321(h) allows vessels owners to discharge ballast
water that does not meet a performance standard if such
discharge is into an onshore or offshore ballast water
reception facility that meets standard issued by the
Administrator or Secretary, respectively.
Section 321(i) requires the owner of a vessel to discharge
ballast water in accordance with a ballast water management
plan that meets requirements prescribed by the Secretary and
that is approved by the Secretary. It authorizes the Secretary
to approve a ballast water management plan for a foreign vessel
under certain conditions and requires all vessels to maintain
for inspection aboard the vessel a ballast water record book.
Section 321(j) prohibits the Administrator or a state from
requiring a vessel operator to obtain any new permit or permit
condition under section 402 of the Clean Water Act for any
discharge of ballast water into navigable waters. It also
prohibits any state or political subdivision thereof from
adopting or enforcing any law or regulation governing the
discharge of ballast water into navigable waters.
Section 321(k) authorizes a state to establish its own
program to inspect vessels to ensure compliance with the
ballast water requirements of this section and to enforce such
requirements. A state desiring to establish such program must
satisfy certain criteria and seek the approval of its program
from the Secretary. A state inspection and enforcement program
must be substantially and procedurally equivalent to the
requirements of this section and any implementing regulations
or guidance promulgated pursuant to this section.
Section 321(l) requires the Administrator to complete an
evaluation of discharges incidental to the normal operation of
a vessel within three years of the date of enactment. It
prohibits the Administrator or a state from requiring a vessel
operator to obtain any new permit or permit condition under
section 402 of the CWA for any discharge incidental to the
normal operation of a vessel into navigable waters. It also
prohibits any state or political subdivision thereof from
adopting or enforcing any law or regulation governing discharge
incidental to the normal operation of a vessel into navigable
waters.
Section 321(m) provides conditions for the expiration of
EPA's current VGP. Upon the date of enactment of this section,
the terms and conditions of state section 401 water quality
certifications included in section six of the VGP or state law
regulating the discharge of ballast water or any discharge
incidental to the normal operation of a vessel expire. Upon the
date on which a vessel owner installs a certified treatment
technology or otherwise comes into compliance with this
section, the terms and conditions of the VGP applicable to the
discharge of ballast water from such vessel expire. Finally,
the terms and conditions of the VGP with respect to discharges
incidental to the normal operation of a vessel do not expire.
Section 321(n) requires the Secretary to enforce the
requirements of this section through the inspection of vessels
and other means. It also authorizes the Administrator to use
existing CWA authorities to enforce the requirements of this
section.
Section 321(o) establishes civil, criminal and
administrative penalties for any violation of the requirements
of this section. It also includes a provision clarifying that
actions taken by an individual determined by the Secretary to
have been in the interest of ensuring the safety of life at sea
do not constitute a violation of the requirements of this
section.
Section 321(p) clarifies that nothing in this section
affects the regulation of discharges from vessels of oil and
other hazardous substances under section 311 of the CWA, or
sewage under section 312 of the CWA.
Section 3. Discharges incidental to the normal operation of a covered
vessel
Section 3 adds a new subsection (s) to section 402 of the
CWA and a new subsection (p) to section 312 of the CWA.
Subsection 402(s) exempts covered vessels (commercial
vessels less than 79 feet in length and commercial fishing
vessels regardless of length) from the requirement to obtain a
permit under section 402 of the CWA for discharges incidental
to the normal operation of a vessel.
Subsection 312(p) requires the Administrator to determine
the discharges incidental to the normal operation of a covered
vessel for which it is reasonable and practicable to develop a
best management practice (BMP) to mitigate adverse impacts of
such discharges on waters of the United States. In determining
which discharges to develop best management practices for, the
Administrator must consider such factors as the impact on the
environment of the discharge, the effectiveness BMP would have
in reducing any adverse impact, the effect the BMP would have
on the operation and safety of the vessel, and the economic
impact of the BMP. The Administrator must review the
determinations every five years. The subsection further
requires the Secretary to promulgate regulations governing the
use of BMPs for the discharges the Administrator determines it
is reasonable and practicable to develop. In promulgating such
regulations, the Secretary may consider vessel size, type,
class and age. The Secretary may also provide waivers to
certain vessels as necessary. Once the regulations go into
effect, operators of covered vessels are prohibited from
discharging any discharge incidental to the normal operation of
a covered vessel unless using a BMP.
Section 4. Conforming and technical amendments
Section 3 makes conforming and technical amendments to the
CWA.
Section 5. Regulation of ballast water and incidental discharges from a
commercial vessel
Section 5 clarifies that upon enactment of this act,
discharges of ballast water and discharges incidental to the
normal operation of a vessel shall not be regulated in any
manner other than as specified in section 321 and 312 of the
CWA.
Section 6. Nonindigenous aquatic nuisance prevention and control act of
1990
Section 6 repeals certain sections of the Nonindigenous
Aquatic Nuisance Prevention and Control Act of 1990 that
authorize the Secretary to issue regulations to prevent the
introduction and spread of aquatic nuisance species.
Legislative History
On September 2, 2011, Subcommittee on Coast Guard and
Maritime Transportation Chairman Frank A. LoBiondo introduced
for himself, Transportation and Infrastructure Committee
Chairman John L. Mica, and Subcommittee on Water Resources and
Environment Chairman Bob Gibbs, H.R. 2840, The Commercial
Vessel Discharge Reform Act. On October 13, 2011, the Committee
on Transportation and Infrastructure met in open session to
consider H.R. 2838, and ordered the bill, as amended, reported
favorably to the House of Representatives by voice vote with a
quorum present. Amendments were offered in Committee by
Representatives LoBiondo, Bishop, and Ribble. Mr. LoBiondo
offered an amendment in the nature of a substitute which was
adopted by voice vote. The amendment made technical and
clarifying changes to the bill, set a revised schedule for
implementation of the performance standard on new and existing
vessels; reduced the limitation on revising the performance
standard; set a tiered civil penalty for violations; revised
the period for the use of treatment technologies; revised the
applicability of the alternative compliance program; and
clarified that best management practices apply to vessels not
required to install treatment technologies. Mr. Bishop offered
and withdrew an amendment regarding state operational
requirements. Mr. Ribble offered and withdrew an amendment
regarding the applicability of the bill to certain federally
owned vessels.
Committee Votes
Clause 3(b) of rule XIII of the House of Representatives
requires each committee report to include the total number of
votes cast for and against on each record vote on a motion to
report and on any amendment offered to the measure or matter,
and the names of those members voting for and against. During
consideration of H.R. 2840, no recorded votes were taken. The
bill, as amended, was reported favorably to the House of
Representatives by voice vote.
Hearings
On July 26, 2011, the Subcommittee on Coast Guard and
Maritime Transportation and the Subcommittee on Water Resources
and Environment held a joint hearing on ``Reducing Regulatory
Burdens, Ensuring the Flow of Commerce, and Protecting Jobs: A
Common Sense Approach to Ballast Water Regulation.''
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee on Transportation and
Infrastructure's oversight findings and recommendations are
reflected in this report.
New Budget Authority and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee adopts as its
own the estimate of new budget authority, entitlement
authority, or tax expenditures or revenues contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974, included below.
Congressional Budget Office Cost Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
402 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for H.R. 2840 from the
Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 3, 2011.
Hon. John L. Mica,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2840, the
Commercial Vessel Discharges Reform Act of 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CHO staff contact is Sarah Puro.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 2840--Commercial Vessel Discharges Reform Act of 2011
H.R. 2840 would set standards for ballast water discharged
from ships into United States waters. Under current law, the
United States Coast Guard (USCG) and the Environmental
Protection Agency (EPA) already set such standards, and those
agencies have proposed the same standards that would be set by
the legislation. The bill also would require the USCG to
complete additional inspections on certain ships; however, the
agency would conduct that work during inspections for
violations of other laws. Based on information from those
agencies, CBO estimates that any additional requirements under
the bill would not have a significant impact on the federal
budget.
The Statutory-Pay-As-You-Go-Act of 2010 establishes budget-
reporting and enforcement procedures for legislation affecting
direct spending or revenues. Enacting H.R. 2840 could result in
the collection of additional civil penalties, which are
recorded as revenues and deposited in the U.S. Treasury.
However, CBO estimates that such collections would be minimal
and the effect on revenues would be insignificant. Because
those prosecuted and convicted under the bill could be subject
to criminal fines, the federal government might collect
additional fines if the legislation is enacted. Criminal fines
are recorded as revenues, deposited in the Crime Victims Fund,
and later spent. CBO expects that any additional revenues and
direct spending would not be significant because of the small
number of cases likely affected.
H.R. 2840 would impose intergovernmental and private-sector
mandates, as defined in the Unfunded Mandates Reform Act
(UMRA), on owners and operators of vessels. The bill would
impose additional private-sector mandates on manufacturers of
vessels and manufacturers of ballast water treatment systems
and would preempt state and local laws relating to vessel
discharges. Because of uncertainty about the timing and scope
of regulations forthcoming from USCG and EPA, CBO cannot
determine whether the aggregate cost of the mandates in the
bill would exceed the annual threshold established in UMRA for
private-sector mandates ($142 million in 2011, adjusted
annually for inflation).
However, because of the relatively small number of public
entities affected, CBO estimates that the aggregate cost of
intergovernmental mandates in the bill would fall below the
annual threshold in UMRA ($71 million in 2011, adjusted
annually for inflation).
The CBO staff contacts for this estimate are Sarah Puro
(for USCG) and Susanne Mehlman (for EPA). The estimate was
approved by Theresa Gullo, Deputy Assistant Director for Budget
Analysis.
Performance Goals and Objectives
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
performance goals and objectives of this legislation are to
provide for the uniform regulation of discharges of ballast
water and other discharges incidental to the normal operation
of a vessel in a manner which protects U.S. waters from aquatic
nuisance species without disrupting the flow of international
and interstate commerce.
Advisory of Earmarks
In compliance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2840 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act (Public Law 104-4).
Preemption Clarification
Section 423 of the Congressional Budget Act of 1974
requires the report of any Committee on a bill or joint
resolution to include a statement on the extent to which the
bill or joint resolution is intended to preempt state, local,
or tribal law. The Committee states that H.R. 2840 preempts
state and local law by prohibiting states from adopting or
enforcing any law or regulation of the state or political
subdivision thereof with respect to a discharge incidental to
the normal operation of a vessel into the navigable waters of
the U.S.
Advisory Committee Statement
No advisory committee within the meaning of section 5(b) of
the Federal Advisory Committee Act was created by this
legislation.
Applicability to the Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Public Law
104-1).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
FEDERAL WATER POLLUTION CONTROL ACT
* * * * * * *
TITLE III--STANDARDS AND ENFORCEMENT
EFFLUENT LIMITATIONS
Sec. 301. (a) Except as in compliance with this section and
sections 302, 306, 307, 318, 312, 321, 402, and 404 of this
Act, the discharge of any pollutant by any person shall be
unlawful.
* * * * * * *
MARINE SANITATION DEVICES
Sec. 312. (a) * * *
* * * * * * *
(p) Best Management Practices for Covered Vessels.--
(1) Definitions.--In this subsection, the following
definitions apply:
(A) Covered vessel.--The term ``covered
vessel'' means every description of watercraft,
or other artificial contrivance used or capable
of being used as a means of transportation on
water, that is engaged in commercial service
(as defined under section 2101 of title 46,
United States Code), and--
(i) is less than 79 feet in length;
or
(ii) is a fishing vessel (as defined
in section 2101 of title 46, United
States Code), regardless of length of
the vessel.
(B) Discharge incidental to the normal
operation of a covered vessel.--The term
``discharge incidental to the normal operation
of a covered vessel'' means a discharge
incidental to the normal operation of a
commercial vessel (as defined in section 321),
insofar as the commercial vessel is a covered
vessel.
(2) Determination of discharges subject to best
management practices.--
(A) Determination.--
(i) In general.--The Administrator,
in consultation with the Secretary of
the department in which the Coast Guard
is operating, shall determine the
discharges incidental to the normal
operation of a covered vessel for which
it is reasonable and practicable to
develop best management practices to
mitigate the adverse impacts of such
discharges on the waters of the United
States.
(ii) Promulgation.--The Administrator
shall promulgate the determinations
under clause (i) in accordance with
section 553 of title 5, United States
Code.
(B) Considerations.--In making a
determination under subparagraph (A), the
Administrator shall consider--
(i) the nature of the discharge;
(ii) the environmental effects of the
discharge, including characteristics of
the receiving waters;
(iii) the effectiveness of the best
management practice in reducing adverse
impacts of the discharge on water
quality;
(iv) the practicability of developing
and using a best management practice;
(v) the effect that the use of a best
management practice would have on the
operation, operational capability, or
safety of the vessel;
(vi) applicable Federal and State
law;
(vii) applicable international
standards; and
(viii) the economic costs of the use
of the best management practice.
(C) Timing.--The Administrator shall--
(i) make initial determinations under
subparagraph (A) not later than 1 year
after the date of enactment of this
subsection; and
(ii) every 5 years thereafter--
(I) review the
determinations; and
(II) if necessary, revise the
determinations based on any new
information available to the
Administrator.
(3) Regulations for the use of best management
practices.--
(A) In general.--The Secretary of the
department in which the Coast Guard is
operating shall promulgate regulations on the
use of best management practices for discharges
incidental to the normal operation of a covered
vessel that the Administrator determines are
reasonable and practicable to develop under
paragraph (2).
(B) Regulations.--
(i) In general.--The Secretary shall
promulgate the regulations under this
paragraph as soon as practicable after
the Administrator makes determinations
pursuant to paragraph (2).
(ii) Considerations.--In promulgating
regulations under this paragraph, the
Secretary may--
(I) distinguish among
classes, types, and sizes of
vessels;
(II) distinguish between new
and existing vessels; and
(III) provide for a waiver of
the applicability of the
standards as necessary or
appropriate to a particular
class, type, age, or size of
vessel.
(4) Effect of other laws.--This subsection shall not
affect the application of section 311 to a covered
vessel.
(5) Prohibition relating to covered vessels.--After
the effective date of the regulations promulgated by
the Secretary of the department in which the Coast
Guard is operating under paragraph (3), the owner or
operator of a covered vessel shall neither operate in,
nor discharge any discharge incidental to the normal
operation of the vessel into navigable waters, if the
owner or operator of the vessel is not using any
applicable best management practice meeting standards
established under this subsection.
* * * * * * *
SEC. 321. DISCHARGES FROM COMMERCIAL VESSELS.
(a) Definitions.--In this section, the following definitions
apply:
(1) Aquatic nuisance species.--The term ``aquatic
nuisance species'' means a nonindigenous species
(including a pathogen) that threatens the diversity or
abundance of native species or the ecological stability
of navigable waters or commercial, agricultural,
aquacultural, or recreational activities dependent on
such waters.
(2) Ballast water.--
(A) In general.--The term ``ballast water''
means any water (including any sediment
suspended in such water) taken aboard a
commercial vessel--
(i) to control trim, list, draught,
stability, or stresses of the vessel;
or
(ii) during the cleaning,
maintenance, or other operation of a
ballast water treatment system of the
vessel.
(B) Exclusion.--The term ``ballast water''
does not include any pollutant that is added to
water described in subparagraph (A) that is not
directly related to the operation of a properly
functioning ballast water treatment technology
certified under subsection (e).
(3) Ballast water performance standard.--The term
``ballast water performance standard'' or ``performance
standard'' means a numerical ballast water performance
standard specified under subsection (c) or established
under subsection (d).
(4) Ballast water treatment system.--The term
``ballast water treatment system'' means any equipment
on board a commercial vessel (including all
compartments, piping, spaces, tanks, and multi-use
compartments, piping, spaces, and tanks) that is--
(A) designed for loading, carrying, treating,
or discharging ballast water; and
(B) installed and operated to meet a ballast
water performance standard.
(5) Ballast water treatment technology.--The term
``ballast water treatment technology'' or ``treatment
technology'' means any mechanical, physical, chemical,
or biological process used, either singularly or in
combination, to remove, render harmless, or avoid the
uptake or discharge of aquatic nuisance species within
ballast water.
(6) Biocide.--The term ``biocide'' means a substance
or organism, including a virus or fungus, that is
introduced into, or produced by, a ballast water
treatment technology as part of the process used to
comply with a ballast water performance standard under
this section.
(7) Commercial vessel.--The term ``commercial
vessel'' means every description of watercraft, or
other artificial contrivance used or capable of being
used as a means of transportation on water, that is
engaged in commercial service (as defined under section
2101 of title 46, United States Code).
(8) Constructed.--The term ``constructed'' means a
state of construction of a commercial vessel at which--
(A) the keel is laid;
(B) construction identifiable with the
specific vessel begins;
(C) assembly of the vessel has begun
comprising at least 50 tons or 1 percent of the
estimated mass of all structural material of
the vessel, whichever is less; or
(D) the vessel commences a major conversion.
(9) Discharge incidental to the normal operation of a
commercial vessel.--
(A) In general.--The term ``discharge
incidental to the normal operation of a
commercial vessel'' means--
(i) a discharge into navigable waters
from a commercial vessel of--
(I)(aa) graywater (except
graywater referred to in
section 312(a)(6)), bilge
water, cooling water, oil water
separator effluent, anti-
fouling hull coating leachate,
boiler or economizer blowdown,
byproducts from cathodic
protection, controllable pitch
propeller and thruster
hydraulic fluid, distillation
and reverse osmosis brine,
elevator pit effluent, firemain
system effluent, freshwater
layup effluent, gas turbine
wash water, motor gasoline and
compensating effluent,
refrigeration and air
condensate effluent, seawater
pumping biofouling prevention
substances, boat engine wet
exhaust, sonar dome effluent,
exhaust gas scrubber washwater,
or stern tube packing gland
effluent; or
(bb) any other pollutant
associated with the operation
of a marine propulsion system,
shipboard maneuvering system,
habitability system, or
installed major equipment, or
from a protective,
preservative, or absorptive
application to the hull of a
commercial vessel;
(II) weather deck runoff,
deck wash, aqueous film forming
foam effluent, chain locker
effluent, non-oily machinery
wastewater, underwater ship
husbandry effluent, welldeck
effluent, or fish hold and fish
hold cleaning effluent; or
(III) any effluent from a
properly functioning marine
engine; or
(ii) a discharge of a pollutant into
navigable waters in connection with the
testing, maintenance, and repair of a
system, equipment, or engine described
in subclause (I)(bb) or (III) of clause
(i) whenever the commercial vessel is
waterborne.
(B) Exclusion.--The term ``discharge
incidental to the normal operation of a
commercial vessel'' does not include--
(i) a discharge into navigable waters
from a commercial vessel of--
(I) ballast water;
(II) rubbish, trash, garbage,
incinerator ash, or other such
material discharged overboard;
(III) oil or a hazardous
substance within the meaning of
section 311; or
(IV) sewage within the
meaning of section 312; or
(ii) an emission of an air pollutant
resulting from the operation onboard a
commercial vessel of a vessel
propulsion system, motor driven
equipment, or incinerator.
(10) Existing commercial vessel.--The term ``existing
commercial vessel'' means a commercial vessel
constructed prior to January 1, 2012.
(11) Geographically limited area.--The term
``geographically limited area'' means an area--
(A) with a physical limitation that prevents
a commercial vessel from operating outside the
area, as determined by the Secretary; or
(B) that is ecologically homogeneous, as
determined by the Administrator, in
consultation with the Secretary.
(12) Major conversion.--The term ``major conversion''
means a conversion of a commercial vessel that--
(A) changes its ballast water capacity by 15
percent or more; or
(B) prolongs the life of the commercial
vessel by 10 years or more, as determined by
the Secretary.
(13) Manufacturer.--The term ``manufacturer'' means a
person engaged in the manufacturing, assembling, or
importation of a ballast water treatment technology.
(14) Navigable waters.--The term ``navigable waters''
includes the exclusive economic zone, as defined in
section 107 of title 46, United States Code.
(15) Nonindigenous species.--The term ``nonindigenous
species'' means a species or other viable biological
material that enters an ecosystem beyond its historic
range.
(16) Owner or operator.--The term ``owner or
operator'' means a person owning, operating, or
chartering by demise a commercial vessel.
(17) Secretary.--The term ``Secretary'' means the
Secretary of the department in which the Coast Guard is
operating.
(18) vessel general permit.--The term ``Vessel
General Permit'' means the Vessel General Permit for
Discharges Incidental to the Normal Operation of
Vessels issued by the Administrator under section 402
for ballast water and other discharges incidental to
the normal operation of vessels, as in effect on
December 19, 2008, for all jurisdictions except Alaska
and Hawaii, and February 6, 2009, for Alaska and
Hawaii.
(b) General Provisions.--
(1) Ballast water discharge requirements for
commercial vessels.--An owner or operator may discharge
ballast water from a commercial vessel into navigable
waters only if--
(A) the discharge--
(i) meets the ballast water
performance standard;
(ii) is made pursuant to the safety
exemption established by subsection
(c)(2);
(iii) meets the requirements of an
alternative method of compliance
established for the commercial vessel
under subsection (f); or
(iv) is made pursuant to a
determination that the commercial
vessel meets the requirements relating
to geographically limited areas under
subsection (g); and
(B) the owner or operator discharges the
ballast water in accordance with a ballast
water management plan approved under subsection
(i).
(2) Applicability.--
(A) Covered vessels.--Paragraph (1) shall
apply to the owner or operator of a commercial
vessel that is designed, constructed, or
adapted to carry ballast water if the
commercial vessel is--
(i) documented under the laws of the
United States; or
(ii) operating in navigable waters on
a voyage to or from a point in the
United States.
(B) Exempted vessels.--Paragraph (1) shall
not apply to the owner or operator of--
(i) a commercial vessel that carries
all of its ballast water in sealed
tanks that are not subject to
discharge;
(ii) a commercial vessel that
continuously takes on and discharges
ballast water in a flow-through system;
(iii) any vessel in the National
Defense Reserve Fleet that is scheduled
to be disposed of through scrapping or
sinking;
(iv) a commercial vessel that
discharges ballast water consisting
solely of water--
(I) taken aboard from a
municipal or commercial source;
and
(II) that, at the time the
water is taken aboard, meets
the applicable regulations or
permit requirements for such
source under the Safe Drinking
Water Act (42 U.S.C. 300f et
seq.) and section 402 of this
Act; or
(v) a commercial vessel that is 3
years or fewer from the end of its
useful life, as determined by the
Secretary, on the date on which the
regulations issued under paragraph (3)
become effective for the vessel
pursuant to the implementation schedule
issued under paragraph (3)(B).
(C) Limitation.--An exemption under
subparagraph (B)(v) shall cease to be effective
on the date that is 3 years after the date on
which the regulations under paragraph (3)
become effective for the commercial vessel
pursuant to the implementation schedule issued
under paragraph (3)(B).
(3) Issuance of regulations.--
(A) In general.--Not later than 180 days
after the date of enactment of this section,
the Secretary, in consultation with the
Administrator, shall issue final regulations to
implement the requirements of this section.
(B) Proposed rule.--For the purposes of
chapter 5 of title 5, United States Code, the
proposed rulemaking published by the Coast
Guard on August 28, 2009 (74 Fed. Reg. 44632;
relating to standards for living organisms in
ships' ballast water discharged in U.S.
waters), shall serve as a proposed rule for the
purposes of issuing regulations under this
section.
(4) Compliance schedules.--
(A) Initial performance standard compliance
deadlines.--
(i) In general.--An owner or operator
shall comply with the performance
standard established under subsection
(c) on or before the deadline that
applies to the commercial vessel of the
owner or operator, as specified in
clause (ii).
(ii) Deadlines.--The deadlines for
compliance with the performance
standard established under subsection
(c) are as follows:
(I) For a commercial vessel
constructed on or after January
1, 2012, the date of delivery
of the vessel.
(II) For an existing
commercial vessel with a
ballast water capacity of less
than 1,500 cubic meters, the
date of the first drydocking of
the vessel after January 1,
2016.
(III) For an existing
commercial vessel with a
ballast water capacity of at
least 1,500 cubic meters but
not more than 5,000 cubic
meters, the date of the first
drydocking of the vessel after
January 1, 2014.
(IV) For an existing
commercial vessel with a
ballast water capacity of
greater than 5,000 cubic
meters, the date of the first
drydocking of the vessel after
January 1, 2016.
(iii) Regulations.--In issuing
regulations under paragraph (3), the
Secretary shall include a compliance
schedule that sets forth the deadlines
specified in clause (ii).
(B) Revised performance standard compliance
deadlines.--
(i) In general.--Upon revision of a
performance standard under subsection
(d), the Secretary, in consultation
with the Administrator, shall issue a
compliance schedule that establishes
deadlines for an owner or operator to
comply with the revised performance
standard.
(ii) Factors.--In issuing a
compliance schedule under this
subparagraph, the Secretary--
(I) shall consider the
factors identified in
subparagraph (C)(iv); and
(II) may establish different
compliance deadlines based on
vessel class, type, or size.
(iii) Vessels constructed after
issuance of revised performance
standards.--A compliance schedule
issued under this subparagraph with
respect to a revised performance
standard shall require, at a minimum,
the owner or operator of a commercial
vessel that commences a major
conversion or is constructed on or
after the date of issuance of the
revised performance standard to comply
with the revised performance standard.
(C) Extension of compliance deadlines.--
(i) In general.--The Secretary may
extend a compliance deadline
established under subparagraph (A) or
(B) on the Secretary's own initiative
or in response to a petition submitted
by an owner or operator.
(ii) Processes for granting
extensions.--In issuing regulations
under paragraph (3), the Secretary
shall establish--
(I) a process for the
Secretary, in consultation with
the Administrator, to issue an
extension of a compliance
deadline established under
subparagraph (A) or (B) for a
commercial vessel (or class,
type, or size of vessel); and
(II) a process for an owner
or operator to submit a
petition to the Secretary for
an extension of a compliance
deadline established under
subparagraph (A) or (B) with
respect to the commercial
vessel of the owner or
operator.
(iii) Period of extensions.--An
extension issued under this
subparagraph shall--
(I) apply for a period of not
to exceed 18 months; and
(II) be renewable for an
additional period of not to
exceed 18 months.
(iv) Factors.--In issuing an
extension or reviewing a petition under
this subparagraph, the Secretary shall
consider, with respect to the ability
of an owner or operator to meet a
compliance deadline, the following
factors:
(I) Whether the treatment
technology to be installed is
available in sufficient
quantities to meet the
compliance deadline.
(II) Whether there is
sufficient shipyard or other
installation facility capacity.
(III) Whether there is
sufficient availability of
engineering and design
resources.
(IV) Vessel characteristics,
such as engine room size,
layout, or a lack of installed
piping.
(V) Electric power generating
capacity aboard the vessel.
(VI) Safety of the vessel and
crew.
(v) Consideration of petitions.--
(I) Determinations.--The
Secretary shall approve or deny
a petition for an extension of
a compliance deadline submitted
by an owner or operator under
this subparagraph.
(II) Deadline.--If the
Secretary does not approve or
deny a petition referred to in
subclause (I) on or before the
last day of the 90-day period
beginning on the date of
submission of the petition, the
petition shall be deemed
approved.
(c) Ballast Water Performance Standard for Commercial
Vessels.--
(1) In general.--To meet the ballast water
performance standard, an owner or operator shall--
(A) conduct ballast water treatment before
discharging ballast water from a commercial
vessel into navigable waters using a ballast
water treatment technology certified for the
vessel (or class, type, or size of vessel)
under subsection (e); and
(B) ensure that any ballast water so
discharged meets, at a minimum, the numerical
ballast water performance standard set forth in
the International Convention for the Control
and Management of Ships' Ballast Water and
Sediments, as adopted on February 13, 2004, or
a revised numerical ballast water performance
standard established under subsection (d).
(2) Safety exemption.--Notwithstanding paragraph (1),
an owner or operator may discharge ballast water
without regard to a ballast water performance standard
if--
(A) the discharge is done solely to ensure
the safety of life at sea;
(B) the discharge is accidental and the
result of damage to the commercial vessel or
its equipment and--
(i) all reasonable precautions to
prevent or minimize the discharge have
been taken; and
(ii) the owner or operator did not
willfully or recklessly cause such
damage; or
(C) the discharge is solely for the purpose
of avoiding or minimizing discharge from the
vessel of pollution that would otherwise
violate an applicable Federal or State law.
(d) Review of Performance Standard.--
(1) In general.--Not later than January 1, 2016, and
every 10 years thereafter, the Administrator, in
consultation with the Secretary, shall complete a
review to determine whether revising the ballast water
performance standard would result in a scientifically
demonstrable and substantial reduction in the risk of
the introduction or establishment of aquatic nuisance
species.
(2) Considerations.--In conducting the review, the
Administrator shall consider--
(A) improvements in the scientific
understanding of biological and ecological
processes that lead to the introduction or
establishment of aquatic nuisance species;
(B) improvements in ballast water treatment
technology, including--
(i) the capability of such technology
to achieve a revised ballast water
performance standard;
(ii) the effectiveness and
reliability of such technology in the
shipboard environment;
(iii) the compatibility of such
technology with the design and
operation of commercial vessels by
class, type, and size;
(iv) the commercial availability of
such technology; and
(v) the safety of such technology;
(C) improvements in the capabilities to
detect, quantify, and assess the viability of
aquatic nuisance species at the concentrations
under consideration;
(D) the impact of ballast water treatment
technology on water quality; and
(E) the costs, cost-effectiveness, and
impacts of--
(i) a revised ballast water
performance standard, including the
potential impacts on shipping, trade,
and other uses of the aquatic
environment; and
(ii) maintaining the existing ballast
water performance standard, including
the potential impacts on water-related
infrastructure, recreation, the
propagation of native fish, shellfish,
and wildlife, and other uses of
navigable waters.
(3) Revision of performance standard.--
(A) Rulemaking.--If, pursuant to a review
conducted under paragraph (1), the
Administrator, in consultation with the
Secretary, determines that revising the ballast
water performance standard would result in a
scientifically demonstrable and substantial
reduction in the risk of the introduction or
establishment of aquatic nuisance species, the
Administrator shall undertake a rulemaking to
revise the performance standard.
(B) Special rule.--The Administrator may not
issue a revised performance standard pursuant
to this paragraph that applies to a commercial
vessel constructed prior to the date on which
the revised performance standard is issued
unless the revised performance standard is at
least 2 orders of magnitude more stringent than
the performance standard in effect on the date
that the review is completed.
(4) State petition for review of performance
standards.--
(A) In general.--The Governor of a State may
submit a petition requesting that the
Administrator review a ballast water
performance standard if there is significant
new information that could reasonably indicate
the performance standard could be revised to
result in a scientifically demonstrable and
substantial reduction in the risk of the
introduction or establishment of aquatic
nuisance species.
(B) Timing.--A Governor may not submit a
petition under subparagraph (A) during the 1-
year period following the date of completion of
a review under paragraph (1).
(C) Required information.--A petition
submitted to the Administrator under
subparagraph (A) shall include the scientific
and technical information on which the petition
is based.
(D) Review and reporting.--Upon receipt of a
petition from a Governor under subparagraph
(A), the Administrator shall make publicly
available a copy of the petition, including the
scientific and technical information provided
by the Governor under subparagraph (C).
(E) Review and revision of performance
standards.--
(i) In general.--If, after receiving
a petition submitted by a Governor
under subparagraph (A) for review of a
performance standard, the
Administrator, in consultation with the
Secretary, determines that the petition
warrants additional action, the
Administrator may--
(I) in consultation with the
Secretary, initiate a review of
the performance standard under
paragraph (1); and
(II) in consultation with the
Secretary, revise the
performance standard through a
rulemaking under paragraph
(3)(A), subject to the
limitation in paragraph (3)(B).
(ii) Treatment of more than one
petition as a single petition.--The
Administrator may treat more than one
petition as a single petition for
review.
(e) Treatment Technology Certification.--
(1) Certification required.--
(A) Certification process.--
(i) Evaluation.--Upon application of
a manufacturer, the Secretary shall
evaluate a ballast water treatment
technology with respect to--
(I) whether the treatment
technology meets the ballast
water performance standard when
installed on a commercial
vessel (or a class, type, or
size of commercial vessel);
(II) the effect of the
treatment technology on
commercial vessel safety; and
(III) any other criteria the
Secretary considers
appropriate.
(ii) Certification.--If, after
conducting the evaluation required by
clause (i), the Secretary determines
the treatment technology meets the
criteria established under such clause,
the Secretary may certify the treatment
technology for use on a commercial
vessel (or a class, type, or size of
commercial vessel).
(iii) Suspension and revocation of
certification.--The Secretary shall, by
regulation, establish a process to
suspend or revoke a certification
issued under this subparagraph.
(B) Certificates of type approval.--
(i) Issuance of certificates to
manufacturer.--If the Secretary
certifies a ballast water treatment
technology under subparagraph (A), the
Secretary shall issue to the
manufacturer of the treatment
technology, in such form and manner as
the Secretary determines appropriate, a
certificate of type approval for the
treatment technology.
(ii) Conditions to be included in
certificates.--A certificate of type
approval issued under clause (i) shall
include any conditions that are imposed
by the Secretary under paragraph (2).
(iii) Issuance of copies of
certificates to owners and operators.--
A manufacturer that receives a
certificate of type approval under
clause (i) for a ballast water
treatment technology shall furnish a
copy of the certificate to any owner or
operator of a commercial vessel on
which the treatment technology is
installed.
(iv) Inspections.--An owner or
operator who receives a copy of a
certificate under clause (iii) for a
ballast water treatment technology
installed on a commercial vessel shall
retain a copy of the certificate
onboard the commercial vessel and make
the copy of the certificate available
for inspection at all times that such
owner or operator is utilizing the
treatment technology.
(C) Treatment technologies that use or
generate biocides.--The Secretary may not
certify a ballast water treatment technology
that--
(i) uses a biocide or generates a
biocide that is a ``pesticide'', as
defined in section 2 of the Federal
Insecticide, Fungicide, and Rodenticide
Act (7 U.S.C. 136), unless the biocide
is registered under such Act or the
Administrator has approved the use of
such biocide in such treatment
technology; or
(ii) uses or generates a biocide the
discharge of which causes or
contributes to a violation of a water
quality standard under section 303 of
this Act.
(D) Prohibition.--
(i) In general.--Except as provided
by clause (ii), an owner or operator
may not use a ballast water treatment
technology to comply with the
requirements of this section unless the
Secretary has certified the treatment
technology under subparagraph (A).
(ii) Exceptions.--
(I) Coast guard shipboard
technology evaluation
program.--An owner or operator
may use a ballast water
treatment technology that has
not been certified by the
Secretary to comply with the
requirements of this section if
the technology is being
evaluated under the Coast Guard
Shipboard Technology Evaluation
Program.
(II) Ballast water treatment
technologies certified by
foreign entities.--An owner or
operator may use a ballast
water treatment technology that
has not been certified by the
Secretary to comply with the
requirements of this section if
the technology has been
certified by a foreign entity
and the certification
demonstrates performance and
safety of the treatment
technology equivalent to the
requirements of this
subsection, as determined by
the Secretary.
(2) Certification conditions.--
(A) Imposition of conditions.--In certifying
a ballast water treatment technology under this
subsection, the Secretary, in consultation with
the Administrator, may impose any condition on
the subsequent installation, use, or
maintenance of the treatment technology onboard
a commercial vessel as is necessary for--
(i) the safety of the vessel, the
crew of the vessel, and any passengers
aboard the vessel;
(ii) the protection of the
environment; and
(iii) the effective operation of the
treatment technology.
(B) Failure to comply.--The failure of an
owner or operator to comply with a condition
imposed under subparagraph (A) is a violation
of this section.
(3) Use of ballast water treatment technologies once
installed.--
(A) In general.--Subject to subparagraph (B),
an owner or operator who installs a ballast
water treatment technology that the Secretary
has certified under paragraph (1) may use the
treatment technology, notwithstanding any
revisions to a ballast water performance
standard occurring after the installation so
long as the owner or operator--
(i) maintains the treatment
technology in proper working condition;
and
(ii) maintains and uses the treatment
technology in accordance with--
(I) the manufacturer's
specifications; and
(II) any conditions imposed
by the Secretary under
paragraph (2).
(B) Limitation.--Subparagraph (A) shall cease
to apply with respect to a commercial vessel
after the first to occur of the following:
(i) The expiration of the service
life of the ballast water treatment
technology of the vessel, as determined
by the Secretary.
(ii) The expiration of service life
of the vessel, as determined by the
Secretary.
(iii) The completion of a major
conversion of the vessel.
(4) Testing protocols.--Not later than 180 days after
the date of enactment of this section, the
Administrator, in consultation with the Secretary,
shall issue guidelines specifying land-based and
shipboard testing protocols or criteria for--
(A) certifying the performance of ballast
water treatment technologies under this
subsection; and
(B) certifying laboratories to evaluate such
treatment technologies.
(5) Prohibition.--Following the date on which the
requirements of subsection (b)(1) apply with respect to
a commercial vessel pursuant to the implementation
schedule issued under subsection (b)(3)(B), no
manufacturer of a ballast water treatment technology
shall sell, offer for sale, or introduce or deliver for
introduction into interstate commerce, or import into
the United States for sale or resale, a ballast water
treatment technology for the commercial vessel unless
the technology has been certified under this
subsection.
(f) Alternative Methods of Compliance.--
(1) Establishment.--Not later than 180 days after the
date of enactment of this section, the Secretary, in
consultation with the Administrator, shall establish an
alternative method of compliance with this section for
a commercial vessel having a maximum ballast water
capacity of less than 8 cubic meters.
(2) Factors for consideration.--In establishing an
alternative method of compliance under paragraph (1),
the Secretary shall consider--
(A) the effectiveness of the alternative
method in reducing the risk of the introduction
or establishment of aquatic nuisance species
relative to the performance standard; and
(B) any other factor the Secretary considers
appropriate.
(3) Best management practices.--The Secretary may
establish as an alternative method of compliance
appropriate ballast water best management practices to
minimize the introduction or establishment of aquatic
nuisance species.
(g) Geographically Limited Areas.--
(1) In general.--Subsections (c), (e), and (i) shall
not apply to a commercial vessel that--
(A) operates exclusively within a
geographically limited area, as determined by
the Secretary, in consultation with the
Administrator; or
(B) operates pursuant to a geographic
restriction issued for the commercial vessel
under section 3309 of title 46, United States
Code.
(2) Petition for determination by the secretary.--
(A) Submission of petitions.--Following the
date of issuance of final regulations under
subsection (b), an owner or operator may
petition the Secretary for a determination
under paragraph (1).
(B) Determinations.--The Secretary shall
approve or deny a petition submitted by an
owner or operator under subparagraph (A).
(C) Deadline.--If the Secretary does not
approve or deny a petition submitted by an
owner or operator under subparagraph (A) on or
before the last day of the 90-day period
beginning on the date of submission of the
petition, the petition shall be deemed
approved.
(3) Notification.--The Secretary shall notify the
Administrator and the Governor of each State the waters
of which could be affected by the discharge of ballast
water from a commercial vessel for which a petition has
been granted under paragraph (2) of the granting of any
such petition.
(4) Best management practices.--For a commercial
vessel for which a petition is granted under paragraph
(2), the Secretary shall require the owner or operator
to implement appropriate ballast water best management
practices to minimize the introduction or establishment
of aquatic nuisance species.
(h) Reception Facilities.--
(1) In general.--An owner or operator shall discharge
ballast water in compliance with subsection (c) or (f)
unless discharging ballast water into--
(A) an onshore facility for the reception of
ballast water that meets standards issued by
the Administrator, in consultation with the
Secretary; or
(B) an offshore facility for the reception of
ballast water that meets standards issued by
the Secretary, in consultation with the
Administrator.
(2) Issuance of standards.--Not later than 2 years
after the date of enactment of this section--
(A) the Administrator, in consultation with
the Secretary, shall issue the standards
referred to in paragraph (1)(A); and
(B) the Secretary, in consultation with the
Administrator, shall issue the standards
referred to in paragraph (1)(B).
(3) Sole method of discharge.--The Secretary, in
consultation with the Administrator, and upon petition
by an owner or operator, may issue to an owner or
operator a certificate stating that a commercial vessel
is in compliance with the requirements of subsection
(b)(1)(A) if discharging ballast water into a facility
meeting the standards issued under this subsection is
the sole method by which the owner or operator
discharges ballast water from the commercial vessel.
(4) Ballast water management plans.--An owner or
operator discharging ballast water under this
subsection shall discharge such water in accordance
with a ballast water management plan approved under
subsection (i).
(i) Commercial Vessel Ballast Water Management Plan.--
(1) In general.--An owner or operator shall discharge
ballast water in accordance with a ballast water
management plan that--
(A) meets requirements prescribed by the
Secretary; and
(B) is approved by the Secretary.
(2) Foreign commercial vessels.--The Secretary may
approve a ballast water management plan for a foreign
commercial vessel on the basis of a certificate of
compliance issued by the country of registration of the
commercial vessel if the requirements of the government
of that country for a ballast water management plan are
substantially equivalent to regulations issued by the
Secretary.
(3) Recordkeeping.--
(A) In general.--Except as provided by
subparagraph (B), an owner or operator shall
maintain in English and have available for
inspection by the Secretary a ballast water
record book in which each operation of the
commercial vessel involving a ballast water
discharge is recorded in accordance with
regulations issued by the Secretary.
(B) Alternative means of recordkeeping.--The
Secretary may provide for alternative methods
of recordkeeping, including electronic
recordkeeping, to comply with the requirements
of this paragraph.
(j) Regulation of Ballast Water Discharges.--Effective on and
after the date of enactment of this section--
(1) the Administrator (or a State in the case of a
permit program approved under section 402) shall not
require any new permit or permit condition under
section 402 for any discharge of ballast water from a
commercial vessel into navigable waters; and
(2) except as provided by subsection (k), a State or
political subdivision thereof shall not adopt or
enforce any law or regulation of the State or political
subdivision with respect to such a discharge.
(k) State Authority.--
(1) State programs.--The Governor of a State desiring
to administer its own inspection and enforcement
authority for ballast water discharges within its
jurisdiction may submit to the Secretary a complete
description of the program the Governor proposes to
establish and administer under State law. In addition,
the Governor shall submit a statement from the State
attorney general that the laws of the State provide
adequate authority to carry out the described program.
(2) Approval.--The Secretary, with the concurrence of
the Administrator, may approve a program of a State
submitted under paragraph (1) providing for the State's
own inspection and enforcement authority for ballast
water discharges within its jurisdiction, if the
Secretary determines that the State possesses adequate
resources to--
(A) inspect, monitor, and board a commercial
vessel at any time, including the taking and
testing of ballast water samples, to ensure the
commercial vessel's compliance with this
section;
(B) ensure that any ballast water discharged
within the waters subject to the jurisdiction
of the State meets the requirements of this
section;
(C) establish adequate procedures for
reporting violations of this section;
(D) investigate and abate violations of this
section, including the imposition of civil and
criminal penalties consistent with subsection
(o); and
(E) ensure that the Secretary and the
Administrator receive notice of each violation
of this section in an expeditious manner.
(3) Compliance.--Any State program approved under
paragraph (2) shall at all times be conducted in
accordance with this subsection.
(4) Withdrawal of approval.--Whenever the Secretary,
in consultation with the Administrator, determines,
after providing notice and the opportunity for a public
hearing, that a State is not administering a program in
accordance with the terms of the program as approved
under paragraph (2), the Secretary shall notify the
State, and, if appropriate corrective action is not
taken within a period of time not to exceed 90 days,
the Secretary, with the concurrence of the
Administrator, shall withdraw approval of the program.
The Secretary shall not withdraw approval of a program
unless the Secretary has first notified the State and
made public, in writing, the reasons for the
withdrawal.
(5) Limitation on statutory construction.--Nothing in
this subsection shall limit the authority of the
Administrator or the Secretary to carry out inspections
of any commercial vessel under subsection (n).
(6) State laws.--Notwithstanding any other provision
of this section, a State may enact such laws as are
necessary to provide for the implementation of the
State ballast water inspection and enforcement program
provided under this subsection. The requirements for a
ballast water inspection and enforcement program
contained in such State law shall be substantively and
procedurally equivalent to those required in this
section, and any requirements relating to
recordkeeping, reporting, and sampling or analysis
contained in such State law shall be substantively and
procedurally equivalent to the requirements of this
section and its implementing regulations and guidance.
(l) Discharges Incidental to the Normal Operations of a
Commercial Vessel.--
(1) Evaluation of incidental discharges.--
(A) In general.--Not later than 3 years after
the date of enactment of this section, the
Administrator, in consultation with the
Secretary, shall complete an evaluation of
discharges incidental to the normal operation
of a commercial vessel.
(B) Factors.--In carrying out the evaluation,
the Administrator shall analyze--
(i) the characterization of the
various types and composition of
discharges incidental to the normal
operation of a commercial vessel by
different classes, types, and sizes of
commercial vessels;
(ii) the volume of such discharges
for representative individual
commercial vessels and by classes,
types, and sizes of commercial vessels
in the aggregate;
(iii) the availability and
feasibility of implementing
technologies or best management
practices for the control of such
discharges;
(iv) the characteristics of the
receiving waters of such discharges;
(v) the nature and extent of
potential effects of such discharges on
human health, welfare, and the
environment;
(vi) the extent to which such
discharges are currently subject to and
addressed by regulations under existing
Federal laws or binding international
obligations of the United States; and
(vii) any additional factor that the
Administrator considers appropriate.
(2) Regulation of incidental discharges.--Effective
on and after the date of enactment of this section--
(A) the Administrator (or a State in the case
of a permit program approved under section 402)
shall not require any new permit or permit
conditions under section 402 for any discharge
incidental to the normal operation of a
commercial vessel; and
(B) a State or political subdivision thereof
shall not adopt or enforce any law or
regulation of the State or political
subdivision with respect to such a discharge.
(m) Effect on Vessel General Permit.--
(1) Expiration.--Notwithstanding the expiration date
set forth in the Vessel General Permit, the Vessel
General Permit shall expire as follows:
(A) The terms and conditions of section 6 of
such permit or any law of a State regulating
the discharge of ballast water or any discharge
incidental to the normal operation of a
commercial vessel, upon the date of enactment
of this section.
(B) For each commercial vessel, the terms and
conditions of such permit (except the terms and
conditions referred to in subparagraph (A))
applicable to a discharge of ballast water--
(i) on the date on which--
(I) a ballast water treatment
technology certified under
subsection (e) is installed on
the commercial vessel;
(II) an alternative method of
compliance established for the
commercial vessel under
subsection (f) is implemented
for the commercial vessel;
(III) a petition is granted
for the commercial vessel under
subsection (g); or
(IV) a certificate is issued
for the commercial vessel under
subsection (h); or
(ii) in any case not described in
clause (i), on December 18, 2013.
(2) Discharges incidental to the normal operation of
commercial vessels.--Notwithstanding the expiration
date set forth in the Vessel General Permit, the terms
and conditions of such permit (except the terms and
conditions referred to in paragraph (1)(A)) applicable
to discharges incidental to the normal operation of a
commercial vessel shall remain in effect.
(n) Inspections and Enforcement.--
(1) In general.--
(A) Coast guard enforcement.--The Secretary
shall enforce the requirements of this section
and may utilize by agreement, with or without
reimbursement, law enforcement officers or
other personnel and facilities of the
Administrator, other Federal agencies, and the
States.
(B) Environmental protection agency
actions.--Notwithstanding any enforcement
decisions of the Secretary under subparagraph
(A), the Administrator may use the authorities
provided in sections 308, 309, 312, and 504
whenever required to carry out this section.
(2) Coast guard inspections.--The Secretary may carry
out inspections of any commercial vessel at any time,
including the taking of ballast water samples, to
ensure compliance with this section. The Secretary
shall use all appropriate and practical measures of
detection and environmental monitoring of such
commercial vessels and shall establish adequate
procedures for reporting violations of this section and
accumulating evidence regarding such violations.
(o) Compliance.--
(1) Detention of commercial vessel.--The Secretary,
by notice to the owner or operator, may detain the
commercial vessel if the Secretary has reasonable cause
to believe that the commercial vessel does not comply
with a requirement of this section or is being operated
in violation of such a requirement.
(2) Sanctions.--
(A) Civil penalties.--
(i) In general.--Any person who
violates this section shall be liable
for a civil penalty in an amount
determined under clause (ii). Each day
of a continuing violation constitutes a
separate violation. A commercial vessel
operated in violation of this section
is liable in rem for any civil penalty
assessed for that violation.
(ii) Penalty amounts.--The amount of
a civil penalty assessed under clause
(i) shall be determined as follows:
(I) For vessels with a
ballast water capacity less
than 1500 cubic meters, not to
exceed $25,000 for each
violation.
(II) For vessels with a
ballast water capacity of 1500
cubic meters but not more than
5,000 cubic meters, not to
exceed $28,750 for each
violation.
(III) For vessels with a
ballast water capacity greater
than 5,000 cubic meters, not to
exceed $32,500 for each
violation.
(B) Criminal penalties.--Any person who
knowingly violates this section shall be
punished by a fine of not less that $5,000 nor
more than $50,000 per day of violation, or by
imprisonment for not more than 3 years, or
both. If a conviction of a person is for a
violation committed after a first conviction of
such person under this paragraph, punishment
shall be by a fine of not more than $100,000
per day of violation, or imprisonment of not
more than 6 years, or both.
(C) Revocation of clearance.--Upon request of
the Secretary, the Secretary of Homeland
Security shall withhold or revoke the clearance
of a commercial vessel required by section
60105 of title 46, United States Code, if the
owner or operator is in violation of this
section.
(3) Enforcement actions.--
(A) Administrative actions.--If the Secretary
finds that a person has violated this section,
the Secretary may assess a civil penalty for
the violation. In determining the amount of the
civil penalty, the Secretary shall take into
account the nature, circumstances, extent, and
gravity of the prohibited acts committed and,
with respect to the violator, the degree of
culpability, any history of prior violations,
and such other matters as justice may require.
(B) Civil actions.--At the request of the
Secretary, the Attorney General may bring a
civil action in an appropriate district court
of the United States to enforce this section.
Any court before which such an action is
brought may award appropriate relief, including
temporary or permanent injunctions and civil
penalties.
(4) Exclusion.--No person shall be found in violation
of this section whose commission of prohibited acts is
found by the Secretary to have been in the interest of
ensuring the safety of life at sea.
(p) Regulation Under Other Sections of This Act.--This
section shall not affect the regulation of discharges from a
commercial vessel pursuant to section 311 or 312.
TITLE IV--PERMITS AND LICENSES
* * * * * * *
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
Sec. 402. (a) * * *
* * * * * * *
(s) Discharges Incidental to the Normal Operation of a
Covered Vessel.--No permit shall be required under this Act by
the Administrator (or a State, in the case of a permit program
approved under subsection (b)) for a discharge incidental to
the normal operation of a covered vessel (as defined in section
312(p)).
* * * * * * *
TITLE V--GENERAL PROVISIONS
* * * * * * *
ADMINISTRATIVE PROCEDURE AND JUDICIAL REVIEW
Sec. 509. (a) * * *
(b)(1) Review of the Administrator's action (A) in
promulgating any standard of performance under section 306, (B)
in making any determination pursuant to section 306(b)(1)(C),
(C) in promulgating any effluent standard, prohibition, or
pretreatment standard under section 307, (D) in making any
determination as to a State permit program submitted under
section 402(b), (E) in approving or promulgating any effluent
limitation or other limitation under sections 301, 302, 306, or
405, (F) in issuing or denying any permit under section 402,
[and (G)] (G) in promulgating any individual control strategy
under section 304(l), and (H) in issuing any regulation or
otherwise taking final agency action under section 312 or 321,
may be had by any interested person in the Circuit Court of
Appeals of the United States for the Federal judicial district
in which such person resides or transacts business which is
directly affected by such action upon application by such
person. Any such application shall be made within 120 days from
the date of such determination, approval, promulgation,
issuance or denial, or after such date only if such application
is based solely on grounds which arose after such 120th day.
* * * * * * *
----------
NONINDIGENOUS AQUATIC NUISANCE PREVENTION AND CONTROL ACT OF 1990
TITLE I--AQUATIC NUISANCE PREVENTION AND CONTROL
* * * * * * *
Subtitle B--Prevention of Unintentional Introductions of Nonindigenous
Aquatic Species
[SEC. 1101. AQUATIC NUISANCE SPECIES IN WATERS OF THE UNITED STATES.
[(a) Great Lakes Guidelines.--
[(1) In general.--Not later than 6 months after the
date of enactment of this Act, the Secretary shall
issue voluntary guidelines to prevent the introduction
and spread of aquatic nuisance species into the Great
Lakes through the exchange of ballast water of vessels
prior to entering those waters.
[(2) Content of guidelines.--The guidelines issued
under this subsection shall--
[(A) ensure to the maximum extent practicable
that ballast water containing aquatic nuisance
species is not discharged into the Great Lakes;
[(B) protect the safety of--
[(i) each vessel; and
[(ii) the crew and passengers of each
vessel;
[(C) take into consideration different vessel
operating conditions; and
[(D) be based on the best scientific
information available.
[(b) Regulations.--
[(1) In general.--Not later than 2 years after the
date of enactment of this Act, the Secretary, in
consultation with the Task Force, shall issue
regulations to prevent the introduction and spread of
aquatic nuisance species into the Great Lakes through
the ballast water of vessels.
[(2) Content of regulations.--The regulations issued
under this subsection shall--
[(A) apply to all vessels equipped with
ballast water tanks that enter a United States
port on the Great Lakes after operating on the
waters beyond the exclusive economic zone;
[(B) require a vessel to--
[(i) carry out exchange of ballast
water on the waters beyond the
exclusive economic zone prior to entry
into any port within the Great Lakes;
[(ii) carry out an exchange of
ballast water in other waters where the
exchange does not pose a threat of
infestation or spread of aquatic
nuisance species in the Great Lakes and
other waters of the United States, as
recommended by the Task Force under
section 1102(a)(1); or
[(iii) use environmentally sound
alternative ballast water management
methods if the Secretary determines
that such alternative methods are as
effective as ballast water exchange in
preventing and controlling infestations
of aquatic nuisance species;
[(C) not affect or supersede any requirements
or prohibitions pertaining to the discharge of
ballast water into waters of the United States
under the Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.);
[(D) provide for sampling procedures to
monitor compliance with the requirements of the
regulations;
[(E) prohibit the operation of a vessel in
the Great Lakes if the master of the vessel has
not certified to the Secretary or the
Secretary's designee by not later than the
departure of that vessel from the first lock in
the St. Lawrence Seaway that the vessel has
complied with the requirements of the
regulations;
[(F) protect the safety of--
[(i) each vessel; and
[(ii) the crew and passengers of each
vessel;
[(G) take into consideration different
operating conditions; and
[(H) be based on the best scientific
information available.
[(3) Additional regulations.--In addition to
promulgating regulations under paragraph (1), the
Secretary, in consultation with the Task Force, shall,
not later than November 4, 1994, issue regulations to
prevent the introduction and spread of aquatic nuisance
species into the Great Lakes through ballast water
carried on vessels that enter a United States port on
the Hudson River north of the George Washington Bridge.
[(4) Education and technical assistance programs.--
The Secretary may carry out education and technical
assistance programs and other measures to promote
compliance with the regulations issued under this
subsection.
[(c) Voluntary National Guidelines.--
[(1) In general.--Not later than 1 year after the
date of enactment of the National Invasive Species Act
of 1996, and after providing notice and an opportunity
for public comment, the Secretary shall issue voluntary
guidelines to prevent the introduction and spread of
nonindigenous species in waters of the United States by
ballast water operations and other operations of
vessels equipped with ballast water tanks.
[(2) Content of guidelines.--The voluntary guidelines
issued under this subsection shall--
[(A) ensure to the maximum extent practicable
that aquatic nuisance species are not
discharged into waters of the United States
from vessels;
[(B) apply to all vessels equipped with
ballast water tanks that operate in waters of
the United States;
[(C) protect the safety of--
[(i) each vessel; and
[(ii) the crew and passengers of each
vessel;
[(D) direct a vessel that is carrying ballast
water into waters of the United States after
operating beyond the exclusive economic zone
to--
[(i) carry out the exchange of
ballast water of the vessel in waters
beyond the exclusive economic zone;
[(ii) exchange the ballast water of
the vessel in other waters where the
exchange does not pose a threat of
infestation or spread of nonindigenous
species in waters of the United States,
as recommended by the Task Force under
section 1102(a)(1); or
[(iii) use environmentally sound
alternative ballast water management
methods, including modification of the
vessel ballast water tanks and intake
systems, if the Secretary determines
that such alternative methods are at
least as effective as ballast water
exchange in preventing and controlling
infestations of aquatic nuisance
species;
[(E) direct vessels to carry out management
practices that the Secretary determines to be
necessary to reduce the probability of
unintentional nonindigenous species transfer
resulting from--
[(i) ship operations other than
ballast water discharge; and
[(ii) ballasting practices of vessels
that enter waters of the United States
with no ballast water on board;
[(F) provide for the keeping of records that
shall be submitted to the Secretary, as
prescribed by the guidelines, and that shall be
maintained on board each vessel and made
available for inspection, upon request of the
Secretary and in a manner consistent with
subsection (i), in order to enable the
Secretary to determine compliance with the
guidelines, including--
[(i) with respect to each ballast
water exchange referred to in clause
(ii), reporting on the precise location
and thoroughness of the exchange; and
[(ii) any other information that the
Secretary considers necessary to assess
the rate of effective compliance with
the guidelines;
[(G) provide for sampling procedures to
monitor compliance with the guidelines;
[(H) take into consideration--
[(i) vessel types;
[(ii) variations in the
characteristics of point of origin and
receiving water bodies;
[(iii) variations in the ecological
conditions of waters and coastal areas
of the United States; and
[(iv) different operating conditions;
[(I) be based on the best scientific
information available;
[(J) not affect or supersede any requirements
or prohibitions pertaining to the discharge of
ballast water into waters of the United States
under the Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.); and
[(K) provide an exemption from ballast water
exchange requirements to passenger vessels with
operating ballast water systems that are
equipped with treatment systems designed to
kill aquatic organisms in ballast water, unless
the Secretary determines that such treatment
systems are less effective than ballast water
exchange at reducing the risk of transfers of
invasive species in the ballast water of
passenger vessels; and
[(L) not apply to crude oil tankers engaged
in the coastwise trade.
[(3) Education and technical assistance programs.--
Not later than 1 year after the date of enactment of
the National Invasive Species Act of 1996, the
Secretary shall carry out education and technical
assistance programs and other measures to encourage
compliance with the guidelines issued under this
subsection.
[(d) Report to Congress.--Not sooner than 24 months after the
date of issuance of guidelines pursuant to subsection (c) and
not later than 30 months after such date, and after
consultation with interested and affected persons, the
Secretary shall prepare and submit to Congress a report
containing the information required pursuant to paragraphs (1)
and (2) of subsection (e).
[(e) Periodic Review and Revision.--
[(1) In general.--Not later than 3 years after the
date of issuance of guidelines pursuant to subsection
(c), and not less frequently than every 3 years
thereafter, the Secretary shall, in accordance with
criteria developed by the Task Force under paragraph
(3)--
[(A) assess the compliance by vessels with
the voluntary guidelines issued under
subsection (c) and the regulations promulgated
under this Act;
[(B) establish the rate of compliance that is
based on the assessment under subparagraph (A);
[(C) assess the effectiveness of the
voluntary guidelines and regulations referred
to in subparagraph (A) in reducing the
introduction and spread of aquatic nuisance
species by vessels; and
[(D) as necessary, on the basis of the best
scientific information available--
[(i) revise the guidelines and
regulations referred to in subparagraph
(A);
[(ii) promulgate additional
regulations pursuant to subsection
(f)(1); or
[(iii) carry out each of clauses (i)
and (ii).
[(2) Special review and revision.--Not later than 90
days after the Task Force makes a request to the
Secretary for a special review and revision for coastal
and inland waterways designated by the Task Force, the
Secretary shall--
[(A) conduct a special review of guidelines
and regulations applicable to those waterways
in accordance with the review procedures under
paragraph (1); and
[(B) as necessary, in the same manner as
provided under paragraph (1)(D)--
[(i) revise those guidelines;
[(ii) promulgate additional
regulations pursuant to subsection
(f)(1); or
[(iii) carry out each of clauses (i)
and (ii).
[(3) Criteria for effectiveness.--Not later than 18
months after the date of enactment of the National
Invasive Species Act of 1996, the Task Force shall
submit to the Secretary criteria for determining the
adequacy and effectiveness of the voluntary guidelines
issued under subsection (c).
[(f) Authority of Secretary.--
[(1) General regulations.--If, on the basis of a
periodic review conducted under subsection (e)(1) or a
special review conducted under subsection (e)(2), the
Secretary determines that--
[(A) the rate of effective compliance (as
determined by the Secretary) with the
guidelines issued pursuant to subsection (c) is
inadequate; or
[(B) the reporting by vessels pursuant to
those guidelines is not adequate for the
Secretary to assess the compliance with those
guidelines and provide a rate of compliance of
vessels, including the assessment of the rate
of compliance of vessels under subsection
(e)(2),
the Secretary shall promptly promulgate regulations
that meet the requirements of paragraph (2).
[(2) Requirements for regulations.--The regulations
promulgated by the Secretary under paragraph (1)--
[(A) shall--
[(i) not be promulgated sooner than
180 days following the issuance of the
report to Congress submitted pursuant
to subsection (d);
[(ii) make mandatory the requirements
included in the voluntary guidelines
issued under subsection (c); and
[(iii) provide for the enforcement of
the regula-tions; and
[(B) may be regional in scope.
[(3) International regulations.--The Secretary shall
revise regulations promulgated under this subsection to
the extent required to make such regulations consistent
with the treatment of a particular matter in any
international agreement, agreed to by the United
States, governing management of the transfer of
nonindigenous aquatic species by vessel.
[(g) Sanctions.--
[(1) Civil penalties.--Any person who violates a
regulation promulgated under subsection (b) or (f)
shall be liable for a civil penalty in an amount not to
exceed $25,000. Each day of a continuing violation
constitutes a separate violation. A vessel operated in
violation of the regulations is liable in rem for any
civil penalty assessed under this subsection for that
violation.
[(2) Criminal penalties.--Any person who knowingly
violates the regulations promulgated under subsection
(b) or (f) is guilty of a class C felony.
[(3) Revocation of clearance.--Upon request of the
Secretary, the Secretary of the Treasury shall withhold
or revoke the clearance of a vessel required by section
4197 of the Revised Statutes (46 U.S.C. App. 91), if
the owner or operator of that vessel is in violation of
the regulations issued under subsection (b) or (f).
[(4) Exception to sanctions.--This subsection does
not apply to a failure to exchange ballast water if--
[(A) the master of a vessel, acting in good
faith, decides that the exchange of ballast
water will threaten the safety or stability of
the vessel, its crew, or its passengers; and
[(B) the recordkeeping and reporting
requirements of the Act are complied with.
[(h) Coordination With Other Agencies.--In carrying out the
programs under this section, the Secretary is encouraged to
use, to the maximum extent practicable, the expertise,
facilities, members, or personnel of established agencies and
organizations that have routine contact with vessels, including
the Animal and Plant Health Inspection Service of the
Department of Agriculture, the National Cargo Bureau, port
administrations, and ship pilots' associations.
[(i) Consultation With Canada, Mexico, and Other Foreign
Governments.--In developing the guidelines issued and
regulations promulgated under this section, the Secretary is
encouraged to consult with the Government of Canada, the
Government of Mexico, and any other government of a foreign
country that the Secretary, in consultation with the Task
Force, determines to be necessary to develop and implement an
effective international program for preventing the
unintentional introduction and spread of nonindigenous species.
[(j) International Cooperation.--The Secretary, in
cooperation with the International Maritime Organization of the
United Nations and the Commission on Environmental Cooperation
established pursuant to the North American Free Trade
Agreement, is encouraged to enter into negotiations with the
governments of foreign countries to develop and implement an
effective international program for preventing the
unintentional introduction and spread of nonindigenous species.
[(k) Safety Exemption.--
[(1) Master discretion.--The master of a vessel is
not required to conduct a ballast water exchange if the
master decides that the exchange would threaten the
safety or stability of the vessel, its crew, or its
passengers because of adverse weather, vessel
architectural design, equipment failure, or any other
extraordinary conditions.
[(2) Other requirements.--(A) In general.--Except as
provided in subparagraph (B), a vessel that does not
exchange ballast water on the high seas under paragraph
(1) shall not be restricted from discharging ballast
water in any harbor.
[(B) Great lakes.--Subparagraph (A) shall not apply
in a case in which a vessel is subject to the
regulations issued by the Secretary under subsection
(b).
[(3) Crude oil tanker ballast facility study.--(A)
Within 60 days of the date of enactment of this Act,
the Secretary of the department in which the Coast
Guard is operating, in consultation with the Under
Secretary of Commerce for Oceans and Atmosphere,
affected shoreside ballast water facility operators,
affected crude oil tanker operators, and interested
parties, shall initiate a study of the effectiveness of
existing shoreside ballast water facilities used by
crude oil tankers in the coastwise trade off Alaska in
preventing the introduction of nonindigenous aquatic
species into the waters off Alaska, as well as the cost
and feasibility of modifying such facilities to improve
such effectiveness.
[(B) The study required under subparagraph (A) shall
be submitted to the Congress by no later than October
1, 1997.
[(l) Non-Discrimination.--The Secretary shall ensure that
vessels registered outside of the United States do not receive
more favorable treatment than vessels registered in the United
States when the Secretary performs studies, reviews compliance,
determines effectiveness, establishes requirements, or performs
any other responsibilities under this Act.]
* * * * * * *
Subtitle C--Prevention and Control of Aquatic Nuisance Species
Dispersal
* * * * * * *
[SEC. 1205. RELATIONSHIP TO OTHER LAWS.
[All actions taken by Federal agencies in implementing the
provisions of section 1202 shall be consistent with all
applicable Federal, State, and local environmental laws.
Nothing in this title shall affect the authority of any State
or political subdivision thereof to adopt or enforce control
measures for aquatic nuisance species, or diminish or affect
the jurisdiction of any State over species of fish and
wildlife. Compliance with the control and eradication measures
of any State or political subdivision thereof regarding aquatic
nuisance species shall not relieve any person of the obligation
to comply with the provisions of this subtitle.]
* * * * * * *
MINORITY VIEWS
Ballast water has been documented as a significant source
for introducing and spreading non-native (invasive) species
into aquatic ecosystems where they would not otherwise be
present. According to a recent report of the Natural Research
Council of the National Academies (NRC), many of these invasive
species have caused extensive and adverse environmental,
economic, and human health impacts in receiving ecosystems.
For example, in the Great Lakes region, approximately 180
individual aquatic invasive species have been detected and
documented and 55 to 70 percent of those introductions are
attributed to ballast water releases. One of the most infamous
of these invasive species, the zebra mussel, clogs the water
intake pipes of communities around the Lakes, impedes
recreational activities by accumulating on boats, docks and
buoys, and has a wide range of impacts on other native Great
Lakes species. The States and Federal Government have spent two
decades trying to control zebra mussels at an estimated cost of
$500 million per year. The adverse impacts of zebra mussels are
not limited to the Great Lakes. While first observed in Lake
St. Clair, zebra mussels have now been redistributed to at
least 26 States where they create similar adverse economic and
environmental impacts.
Similarly, for coastal marine ecosystems in the State of
California, scientists have documented more than 250 distinct
aquatic invasive species that have become established in tidal
waters. The San Francisco Bay, where ocean-going ships from
around the globe come into port, has the dubious distinction of
being the most invaded aquatic ecosystem on earth. The economic
and environmental costs associated with invasive species are
substantial and far ranging. Green Crabs originally from the
Black Sea feast on native shellfish, and the Chinese Mitten
crab weakens California's critical levee system when it burrows
into their banks, placing millions of persons at risk.
Thousands of other species also cost California hundreds of
millions of dollars a year in lost revenues and mitigation
expenses.
In short, aquatic invasive species pose a significant
ecological and economic impact on States and local communities.
Yet, the reality is that controlling invasive species after
they have been introduced though ballast water discharges is
extremely difficult, if not impossible, and much more costly to
public and private interests than preventing the introduction
of new invasive species.
This is why we strongly support the implementation of
stringent ballast water discharge standards through the
installation of treatment technologies on vessels that will
reduce the introduction and spread of new aquatic invasive
species through ballast water.
While we recognize that there are costs associated with
ballast water treatment technologies, the costs of relying on
the existing, ineffective management practice of ballast water
exchange, are much greater. It makes sense that Congress should
require discharge standards that are technologically feasible,
but we should not become complacent with the belief that
existing technologies have the ability to eliminate the future
risk of introduction and spread of new aquatic invasive
species. With today's technologies, even treated ballast water
is likely to contain some nonindigenous species. The
International Maritime Organization (IMO)-based standard in the
bill acknowledges that. Any legislative action by Congress on
ballast water treatment should encourage and support the
development of new technologies that will reduce operational
costs to shippers while providing ever greater benefits to the
environment and the economy by reducing the risk of invasion.
That is the current structure of the Clean Water Act, and is
good for business, good for innovation and job creation, and is
good for the environment.
There has been a strong push for Congress to legislate a
uniform, national standard for ballast water discharges to
harmonize the requirements for ship owners to install ballast
water treatment technologies, as well as facilitate the
interstate and international nature of waterborne commerce.
H.R. 2840, the ``Commercial Vessel Discharges Reform Act of
2011'', provides a framework to accomplish this purpose by
proposing adoption of the IMO-based standard as the national
baseline technological requirement for commercial vessels, and
allowing for further strengthening of ballast water treatment
standards as improvements in technology are realized over time.
However, we also believe that there is an important role
for individual states in the protection of local water
resources. Over the past few years, several States have made it
clear that they oppose Federal efforts to preempt more
protective state or local regulation of discharges of ballast
water containing aquatic invasive species. States have
commented that Federal preemption is ``contrary to the bedrock
principle of environmental law that states may set standards
that are more protective of the environmental health and safety
of their citizens than those set by the federal government.''
In fact, the Clean Water Act, which H.R. 2840 proposes to
amend, is premised on a Federal-State partnership, both in the
establishment of a Federal floor for regulation of point source
discharges, whereby states can require more stringent levels of
protection for their state waters, as well as in the
establishment of uniform standards for discharges for marine
sanitation devices under section 312 of the Act.
However, even in section 312 of the Act, which is the
closest analogy to the issue of ballast water discharges from
commercial vessels, the Clean Water Act specifically reserves a
role for States to petition the Environmental Protection Agency
(EPA) to establish ``no-discharge zones'' for important State
waters, provided that these zones will not adversely impact
vessels from operating within the State's waters.
To date, EPA has approved petitions from 26 individual
States under section 312 and created special ``no-discharge
zones'' within the State's waters--protecting resources as
diverse as the Boundary Waters Canoe Area in Minnesota,
Barnegat Bay in New Jersey, and Mission Bay in southern
California. In the State of New York, EPA has agreed to the
State's request to protect the unique aquatic resources of the
Hudson River and waters of East Hampton from discharges of
marine sewage.
However, under H.R. 2840, as approved by the Committee,
States would have a greater role in protecting their waters
from marine sewage than from the potential impacts caused by
discharges of ballast water. A State can petition EPA to
prevent a person from flushing a toilet into sensitive waters,
but could not prevent someone from flushing zebra mussels into
those same waters. This is unwise.
We recognize that Congress must try to strike an
appropriate balance between protecting the health of the public
and the environment and the promotion of healthy economies,
including the promotion of international and interstate trade.
This balance can be achieved by both the adoption of stringent,
national standards for ballast water treatment technologies
that continue to improve over time, as well as the adoption of
a legitimate role for individual states to seek additional
protection for important local aquatic resources.
During the markup of H.R. 2840, Mr. Bishop (NY) offered an
amendment that would recognize the importance of both Federal
and State efforts to protect the waters of individual states by
preserving an opportunity for States to seek operational
limitations to protect important state resource waters. See
attached Bishop amendment.
This amendment would authorize States to seek approval from
EPA and the Coast Guard for additional operational requirements
for the discharge of ballast water to protect their unique
local waters. These additional operational requirements must be
properly evaluated and approved by the Federal agencies before
they could become effective. To be clear, under the Bishop
amendment, States could not require vessel owners to install or
implement additional technological controls--those standards
would be uniform and national. However, under this amendment,
States would be given the flexibility, after review and
approval by the EPA and the U.S. Coast Guard, to require
additional operational requirements--such as the establishment
of no-discharge zones--to protect local waters.
Similar to section 312 of the Clean Water Act, the Bishop
amendment would require that States demonstrate a need for the
requirement and the ability for vessels to safely operate
within designated waters before these additional protections
are put in place. Federal review of a new no-discharge zone
would require careful consideration of the impacts on the
safety of vessels, on shipping and trade, and on the costs and
benefits of the additional protections.
As the Clean Water Act states so clearly and directly in
its first section, ``It is the policy of the Congress to
recognize, preserve, and protect the primary responsibilities
and rights of States to prevent, reduce, and eliminate
pollution.'' Without the Bishop amendment, these primary
responsibilities and rights of States would be completely
extinguished. The Clean Water Act respects the rights of the
States to have no-discharge zones for sewage and for discharges
from vessels of the Armed Forces. Surely we can afford the same
rights to the States when it comes to invasive species and
pathogens.
At the conclusion of the debate on the amendment, Mr.
Bishop agreed to withdraw the amendment based on a commitment
of the Chairman of the Coast Guard and Maritime Transportation
Subcommittee to continue to work on this issue before Floor
consideration of H.R. 2840. However, we will continue to press
for inclusion of a legitimate role for individual States to
protect local waters.
Nick J. Rahall II.
Rick Larsen.
Timothy H. Bishop.
Amendment to the Amendment in the Nature of a Substitute to H.R. 2840
Offered by Mr. Bishop of New York
Page 40, after line 14, insert the following:
``(7) State operational requirements.--
``(A) In general.--If any State determines
that the protection and enhancement of the
quality of some or all of the waters within the
State require greater environmental protection,
the State may impose standards that are more
protective than the standards established under
this section, except that a State standard
imposed under this paragraph may not--
``(i) require the installation of a
ballast water treatment technology that
exceeds that required by the standard
established under subsection (c) or as
revised under subsection (d); or
``(ii) apply until the Administrator
and the Secretary determine that the
waters of the State require greater
environmental protection and such
greater environmental protection can be
achieved.
``(B) Factors for determination.--
``(i) Determinations by
administrator.--In making the
determination under subparagraph
(A)(ii), the Administrator shall
consider--
``(I) whether the receiving
waters have been afforded
special protection under
Federal or State law;
``(II) the benefits to human
health, welfare, or the
environment of the additional
protection for the receiving
waters;
``(III) the reduction in risk
to human health, welfare, or
the environment resulting from
the additional protection;
``(IV) the propagule pressure
to be addressed by the
additional protection;
``(V) applicable Federal and
State law;
``(VI) applicable
international standards; and
``(VII) the costs and
benefits of providing the
additional protection.
``(ii) Determinations by secretary.--
In making the determination under
(A)(ii), the Secretary shall consider--
``(I) the effect that the use
of additional protection would
have on the operation,
operational capability, or
safety of the vessel;
``(II) the potential impacts
on shipping, trade, and other
uses of the aquatic
environment;
``(III) applicable
international standards; and
``(IV) the costs and benefits
of providing the additional
protection.
``(C) Deadline.--Upon application of the
State, the Administrator and the Secretary
shall make the determination within 180 days of
the date of the application.
``(D) Approval of state standards.--If the
Administrator and the Secretary determine upon
application by a State that the protection and
enhancement of the quality of specified waters
within that State requires more protective
standards and that such greater environmental
protection can be achieved, the Administrator
and the Secretary shall approve the State
standards.''.