[House Report 111-331]
[From the U.S. Government Publishing Office]
111th Congress Rept. 111-331
HOUSE OF REPRESENTATIVES
1st Session Part I
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CLEAN HULL ACT OF 2009
_______
November 7, 2009.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Oberstar, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
[To accompany H.R. 3618]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 3618) to provide for implementation
of the International Convention on the Control of Harmful Anti-
Fouling Systems on Ships, 2001, and for other purposes, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
Purpose of the Legislation
H.R. 3618, the ``Clean Hull Act of 2009'', provides for the
implementation of the International Convention on the Control
of Harmful Anti-Fouling Systems on Ships 2001, and for other
purposes.
Background and Need for Legislation
The fouling of a vessel's surface can produce many serious
consequences.\1\ For example, fouling on a vessel's hull
increases the ship's weight and slows it progress through the
water, causing the vessel to burn additional fuel. Untreated, a
deep draft tank vessel's hull can accumulate up to 6,000 tons
of fouling material in less than six months of exposure to sea
water.\2\ Such fouling can increase a vessel's fuel consumption
by up to 40 percent, causing significant economic and
environmental impacts.\3\ Antifouling is the process of
removing or preventing the accumulation of biological fouling
organisms. It is estimated that total expenditures on
antifouling applications for commercial and recreational
vessels exceeds $700 million a year.\4\
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\1\Biological fouling is defined by the International Maritime
Organization (IMO) as the unwanted accumulation of microorganisms,
algae, mussels, plats, or other ``biological material'' on structures
that are ``immersed in water''. There are more than 4,000 species of
biological organisms that can foul an immersed surface.
\2\IMO, Anti-Fouling Systems, (2002).
\3\AMBIO, What is Biofouling and How Will the AMBIO Project Help to
Solve it Through Nanotechnology (2002).
\4\Id.
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In the 1960s, antifouling coatings based on tributyltin
(TBT) were developed. This product was so successful that, by
the 1970s, it was the standard antifouling application
throughout the shipping industry. As the number of vessels
using antifouling paints containing TBT increased, scientists
began to find high concentrations of TBT in marinas, ports and
harbors that had a large number of boats and vessels.
Eventually, high TBT levels were discovered in the open seas
and oceanic waters. TBT has been noted as ``the most toxic
substance ever deliberately introduced into the marine
environment.''\5\
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\5\Antarctic Treaty Consultative Meeting 2006, The Use of Anti-
fouling Biocide Paints by National Antarctic Program Vessels (2006).
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In October 2001, IMO adopted the International Convention
on the Control of Harmful Anti-fouling Systems on Ships, which
entered into force on September 17, 2008, after 25 States
representing 25 percent of the international commercial
shipping tonnage adopted the Convention.
Countries that became parties to the Convention were
required to ban the new application of TBT coatings by January
1, 2003, and to ensure that all vessels that had a TBT-based
coating removed the coating or covered it with a barrier
through which it could not leach by January 1, 2008. Parties to
the Convention must also ensure that no vessel of a party using
antifouling paint containing TBT will be allowed in their
ports, shipyard, or offshore terminal.
In the United States, antifouling systems containing
organotins, including TBT, are currently regulated under the
Organotin Anti-Fouling Paint Control Act of 1988 (OAPCA), 33
U.S.C. Sec. Sec. 2401-2410 (2009). The OAPCA prohibits
organotin-based antifouling paints on vessels less than 25
meters (excluding aluminum hulls, outboard motors, and external
drive units), and limits the leaching rate of antifouling
paints on larger vessels. Under the OAPCA, the sale, purchase,
and application of antifouling paint containing organotins were
banned.
In 2008, the Senate ratified the Convention and the Bush
administration submitted draft legislation to implement the
requirements of the Convention for purposes of U.S. law. The
United States will not become a party to the Convention until
implementing legislation is enacted.
It is important for the United States to become a party to
the Convention to not only replace the OAPCA, but also to ban
vessels using antifouling paint containing TBT from entering
the country and continuing to pollute the marine environment.
Summary of the Legislation
Section 1. Short title
Section 1 states that the Act may be referred to as ``The
Clean Hull Act of 2009.''
Title I--General Provisions
Sec. 101. Definitions
Section 101 defines several terms for purposes of the Act.
Sec. 102. Covered vessels
Section 102 requires that, after the Convention enters into
force for the United States, the Act shall apply to a vessel
documented under chapter 121 of title 46, United States Code,
or one that is operated under authority of the United States
wherever located; any vessel permitted by a Federal agency to
operate on the Outer Continental Shelf; or any other vessel if
it is in the internal waters of the United States, in any port,
shipyard, offshore terminal or other place in the United
States, lightering in the territorial sea or anchoring in the
territorial sea of the United States.
This section also lists the vessels excluded from the Act,
including any warship, naval auxiliary or other ship owned or
operated by a foreign State, and used, for the time being, only
on government non-commercial service and any warship, naval
auxiliary or any other ship owned or operated by the United
States and used for the time being only on Government non-
commercial service, provided that the Administrator of the
Environmental Protections Agency (Administrator) may determine
that some or all of the requirements under this Act shall apply
to one or more classes of such ships, but any such
determination by the Administrator is subject to the
concurrence of the head of the Federal department or agency
under which such ships operate. In no event shall these
requirements apply to combat-related ships.
Sec. 104. Administration and enforcement
Section 104 requires the Secretary of the department in
which the Coast Guard is operating (Secretary) to administer
and enforce the Convention and this Act, with respect to
vessels, unless otherwise specified. This section requires the
Administrator to administer and enforce title III of this Act,
with the exception of sections 301(b) and 301(c) and authorizes
the Administrator and Secretary to prescribe and enforce
regulations as may be necessary to carry out their respective
responsibilities under this Act.
Sec. 105. Compliance with international law
Section 105 requires that any action taken under this Act
be taken in accordance with treaties to which the United States
is a party and other international obligations of the United
States.
Sec. 106. Utilization of personnel, facilities or equipment of other
federal departments and agencies
Section 106 authorizes the Secretary and Administrator, by
agreement, to utilize personnel, facilities or equipment of
other Federal departments and agencies, with or without
reimbursement to administer the Convention, this Act, or any
regulations thereunder.
Title II--Implementation of the Convention
Sec. 201. Certificates
Section 210(a) requires any vessel of at least 400 gross
tonnage that engages in one or more international voyages
(except fixed or floating platforms, floating storage units
(FSUs) and floating production, storage and offloading (FPSOs))
to carry an International Antifouling System Certificate upon
the Convention's entry into force in the United States.
This section also requires a ship of at least 400 gross
tons that engages in one or more international voyages (except
fixed or floating platforms, FSUs and FPSOs) that has completed
a successful survey required by the Convention, to be issued an
International Antifouling System Certificate upon the
Convention's entry into force in the United States. The
Secretary is authorized to issue the Certificate required by
this section, or may delegate the authority to an organization
the Secretary determines is qualified to undertake such
responsibility.
This section also states that the Certificate required by
this section shall be maintained as required by the Secretary
and authorizes a Certificate issued by a country that is a
party to the Convention to have the same validity as a
Certificate issued by the Secretary under this section.
Notwithstanding subsection (a), section 201 allows a ship
of 400 gross tonnage and above, having the nationality of or
entitled to fly the flag of a country that is not a party to
the Convention, to demonstrate compliance through other
documentation deemed acceptable by the Secretary.
Sec. 202. Declaration
Section 202 requires a vessel of 24 meters or more in
length, but less than 400 gross tons, engaged on an
international voyage (except fixed or floating platforms, FSUs
and FPSOs) to carry a declaration signed by the owner or
owner's authorized agent. The declaration shall be accompanied
by appropriate documentation, such as paint receipt or a
contractor invoice, or contain an appropriate endorsement and
must contain a clear statement that the antifouling system on
the ship complies with the Convention. The Secretary is
authorized to prescribe the form and other requirements of the
declaration.
Sec. 203. Other compliance documentation
Section 203 authorizes the Secretary to require vessels to
hold other documentation deemed necessary to verify compliance
with this Act in addition to the requirements under sections
201 and 202.
Sec. 204. Process for considering additional controls
Section 204 authorizes the Administrator to participate in
the technical group, described in article 7 of the Convention,
and in any other body convened pursuant to the Convention for
the consideration of new or additional controls on antifouling
systems; evaluate any risks of adverse effects on non-target
organisms or human health presented by a given antifouling
system; undertake an assessment of relevant environmental,
technical and economic considerations necessary to evaluate any
proposals for new or additional controls of antifouling
systems, including benefits in the United States and elsewhere,
associated with the production and uses of the subject
antifouling system; and develop recommendations based on such
assessment.
This section requires the Secretary of State to convene a
public meeting of the Shipping Coordinating Committee upon
referral of any antifouling system to the technical group
described in article 7 of the Convention, for consideration of
new or additional controls. The purpose of the meeting will be
to receive information and comments regarding controls on such
antifouling system. Advanced notice of such meeting shall be
published in the Federal Register and on the State Department's
website by the Secretary of State. The Administrator shall
assemble and maintain a public docket containing notices
pertaining to such meeting, any comments responding to such
notices, the minutes of such meeting, and materials presented
at such meeting.
The Administrator shall promptly make any report by the
technical group described in the Convention available to the
public through the docket established pursuant to this section
and announce the availability of such report in the Federal
Register. The Administrator shall provide an opportunity for a
public comment for a period of not less than 30 days from the
time the availability of the report is announced in the Federal
Register. Where practicable, the Administrator shall take such
comments into consideration in developing recommendations
pursuant to this section.
Sec. 205. Scientific and technical research and monitoring;
communication and information
Section 205 authorizes the Secretary, Administrator, and
the Administrator of the National Oceanic and Atmospheric
Administration to each undertake scientific and technical
research and monitoring pursuant to article 8 of the Convention
and to promote the availability of relevant information
concerning the scientific and technical activities undertaken
in accordance with the Convention; marine scientific and
technological programs and their objectives; and the effects
observed from any monitoring and assessment programs relating
to antifouling systems.
Sec. 206. Communication and exchange of information
Section 206 requires the Administrator to provide, to any
party to the Convention who requests it, relevant information
on which the decision to regulate was based, including
information provided for in annex 3 to the Convention, or other
information suitable for making an appropriate evaluation of
the antifouling system; provided that, this section shall not
be construed to authorize the provision of information whose
disclosure is otherwise prohibited by law.
Title III--Prohibitions and Enforcement Authority
Sec. 301. Prohibitions
Notwithstanding any other provision of law, section 301
prohibits a person from selling or distributing organotin or an
antifouling system containing organotin; manufacturing,
processing, or using organotin to formulate an antifouling
system; or applying an antifouling system containing organotin
on any ship to which this Act applies.
This section also prohibits vessels from bearing any
antifouling system containing organotin on its hull or outer
surface, regardless of when the system was applied, unless that
vessel bears an overcoating that forms a barrier to organotin
leaching from the underlying antifouling system.
However, these hull restrictions do not apply to fixed and
floating platforms, FSUs, or FPSOs that were constructed prior
to January 1, 2003, and that have not been in dry dock on or
after that date.
In addition, this section does not apply to the sale,
distribution, or use pursuant to any agreement between the
Administrator and any person that results in an earlier
prohibition or cancellation date than specified in this Act, or
the manufacture, processing, formulation, sale, distribution,
or use of organotin or antifouling systems containing organotin
used or intended for use only for sonar domes or in
conductivity sensors in oceanographic instruments.
Sec. 302. Investigations and inspections by secretary
Section 302 authorizes the Secretary to conduct
investigations and inspections regarding a vessel's compliance
with this Act or the Convention. If an investigation is being
conducted under this section, the Secretary may issue subpoenas
to require the attendance of witnesses and the production of
documents and other evidence. If a person refuses to obey a
subpoena issued to them, the Secretary may request the Attorney
General to invoke the aid of the appropriate district court of
the United States to compel compliance. After the investigation
is completed, the Secretary may take whatever further action
considered by the Secretary to be appropriate under the
Convention or this Act. The Secretary may cooperate with other
parties to the Convention to detect violations and enforce the
Convention. This section does not affect or alter requirements
under any other laws.
Sec. 303. EPA enforcement
For purposes of enforcing the provisions of title III,
section 303 authorizes officers or employees of the
Environmental Protection Agency or of any State designated by
the Administrator to enter any location, at reasonable times,
where organotin or antifouling systems containing organotin are
held with the authority to inspect and obtain samples of any
container or labeling for organotin or other substance or
system regulated under the Convention. In case of refusal to
obey a subpoena issued to any person, the Administrator may
request the Attorney General to compel compliance.
Consistent with section 104 of this Act, whenever any
organotin or other substance or system is found by the
Administrator and there is reason to believe that a seller,
manufacturer, distributer or user has violated or is in
violation of any provisions of this Act, or that such organotin
or other substance or system has been or is intended to be
manufactured, distributed, sold, or used in violation of this
Act, the Administrator may issue a stop manufacture, sale, use
or removal order to any other person who owns, controls or has
custody of such organotin or substance or system regulated
under the Convention. After receipt of such order, no person
shall manufacture, sell, distribute, use or remove the
organotin or other substance or system described in the order
except in accordance with the order.
Sec. 304. Additional authority of the administrator
Section 304 authorizes the Administrator, in consultation
with the Secretary, to establish, as necessary, terms and
conditions regarding the removal and disposal of antifouling
systems prohibited or restricted under this Act.
Title IV--Action Upon Violation, Penalties and Referrals
Sec. 401. Criminal enforcement
Section 410 establishes criminal enforcement such that any
person who knowingly violates the Convention, this Act, or any
regulation issued thereunder shall be fined under title 18, or
imprisoned not more than six (6) years, or both.
Sec. 402. Civil enforcement
Section 402 establishes civil penalties for violations of
the Convention, this Act, or any relevant regulations. After
notice and an opportunity for a hearing, violators are liable
for a civil penalty of not more than $37,500 for each
violation. Section 402 also provides a civil penalty not to
exceed $50,000 for each false, fictitious, or fraudulent
statement or representation to the Secretary under the
Convention, this Act, or any relevant regulations. Each day or
instance of a continuing violation constitutes a separate
violation. The provisions of this section do not limit or
affect the authority of the United States, under 18 U.S.C.
Sec. 1001. Section 402 establishes a lesser civil penalty for
violations that are committed by an owner or operator of a
recreational vessel. Such penalties may not exceed $5,000 for
each violation.
For purposes of this section, the Secretary or
Administrator shall determine the amount of the penalty, taking
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
offenses, the economic impact of the penalty on the violator,
the economic benefit to the violator and other matters as
justice may require.
Section 402 also provides a reward for any person who gives
information that leads to the assessment or imposition of a
civil penalty. The amount of the reward shall be equal to not
more than one-half of any penalties.
If any person fails to pay an assessment of an
administrative civil penalty after it has become final or fails
to comply with an order issued under this Act, the Secretary or
Administrator, as appropriate, may refer the matter to the U.S.
Attorney General for collection in any appropriate district
court of the United States.
Before referring any civil penalty that is subject to
assessment or has been assessed under this section to the
Attorney General, the Secretary, or Administrator may
compromise, modify, or remit, the civil penalty with or without
conditions.
Any person who fails to pay on a timely basis an assessment
of a civil administrative penalty shall be liable to the United
States for 11 percent interest on the penalty, attorney's fees
and costs for collection proceedings and a quarterly nonpayment
penalty for each quarter during which such failure to pay
persists. Such nonpayment penalty shall be in an amount equal
to 20 percent of the aggregate amount of such person's
penalties and nonpayment penalties that are unpaid as of the
beginning of such quarter.
Sec. 403. Liability in rem
Section 403 requires that a vessel operated in violation of
the Convention, this Act, or any regulation issued thereunder
to be liable in rem for any fine imposed under section 18,
United States Code, or civil penalty assessed pursuant to
section 402, and may be proceeded against in the U.S. District
court of any district in which the ship may be found.
Sec. 404. Vessel clearance or permits; refusal or revocation; bond or
other surety
Section 404 authorizes any vessel subject to the
Convention, or this Act, or its owner, operator, or person in
charge to be liable for a fine or civil penalty under section
402 or 403. If reasonable cause exists to believe the vessel,
its owner, operator or person in charge may be subject to a
fine or civil penalty under section 402 or 403, the Secretary
may refuse or revoke the clearance required by 46 U.S.C.
Sec. 60105. Clearance may be granted upon the filing of a bond
or other surety satisfactory to the Secretary.
Sec. 405. Warnings, detentions, dismissals, exclusion
Section 405 authorizes the Secretary to warn, detain,
dismiss, or exclude the vessel from any port or offshore
terminal under the jurisdiction of the United States if the
vessel is detected to be in violation of the Convention, this
Act or any relevant regulations.
This section also requires that if action is taken against
a vessel registered in another country, the Secretary, in
consultation with the Secretary of State, shall make the
notifications required by the Convention.
Sec. 406. Referrals for appropriate action by foreign country
Notwithstanding sections 401, 402, 403, and 405, section
406 states that, if a violation of the Convention is committed
by a vessel registered in or of the nationality of a country
that is party to the Convention or by a vessel operated under
the authority of a country that is a party to the Convention,
the Secretary, acting in coordination with the Secretary of
State, may refer the matter to the government of the country of
the vessel's registry or nationality, or under whose authority
the vessel is operating for appropriate action, rather than
taking the actions otherwise required or authorized by this
title.
Sec. 407. Remedies not affected
Section 407 requires that nothing in this Act shall limit,
deny, amend, modify, or repeal any other remedy available to
the United States. Also, nothing in this Act shall limit, deny,
amend, modify, or repeal the rights under existing law, of any
State, territory or possession of the United States, or
political subdivision to regulate antifouling system.
Compliance with the requirements of any State or political
subdivision thereof respecting antifouling paint or any other
antifouling system shall not relieve any person of the
obligation to comply with the provisions of this Act.
Sec. 408. Repeal
Section 408 repeals The Organotin Antifouling Paint Control
Act of 1988 (33 U.S.C. 2401 et seq.).
Legislative History and Committee Consideration
In the 111th Congress, the Subcommittee on Coast Guard and
Maritime Transportation held a legislative hearing on June 10,
2009, entitled ``Control of Anti-Fouling Systems on Ships'', to
receive testimony regarding the control of antifouling systems
on ocean-going vessels. The purpose of the hearing was to
examine antifouling systems that have been applied to ships in
the past and discuss the contamination that such systems have
released into the marine environment. The hearing examined the
International Convention on the Control of Harmful Anti-fouling
Systems on Ships, which established a comprehensive regulatory
framework to enable assessments of the safety of new
antifouling systems to be made before they are approved for
use.
On September 23, 2009, Representative James L. Oberstar
introduced H.R. 3618. This bill has not been introduced in a
previous Congress.
On September 24, 2009, the Committee on Transportation and
Infrastructure met in open session to consider H.R. 3618, and
ordered the bill reported favorably to the House by voice vote
with a quorum present.
Record Votes
Clause 3(b) of rule XIII of the Rules 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. There were no recorded votes taken in connection
with consideration of H.R. 3618, or ordering the bill reported.
A motion to order H.R. 3618 reported favorably to the House was
agreed to by voice vote with a quorum present.
Committee Oversight Findings
With respect to the requirements of clause 3(c)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in this report.
Cost of Legislation
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives does not apply where a cost estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974 has been timely submitted prior to the filing of the
report and is included in the report. Such a cost estimate is
included in this report.
Compliance With House Rule XIII
1. With respect to the requirement of clause 3(c)(2) of
rule XIII of the Rules of the House of Representatives, and
section 308(a) of the Congressional Budget Act of 1974, the
Committee references the report of the Congressional Budget
Office included in the report.
2. 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 objective of this legislation are to
implement the International Convention on the Control of
Harmful Anti-fouling Systems on Ships, and to regulate the use
of antifouling paints in the United States.
3. 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 enclosed cost estimate for H.R. 3618
from the Director of the Congressional Budget Office.
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 19, 2009.
Hon. James L. Oberstar,
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. 3618, the Clean
Hull Act of 2009.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Deborah Reis.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure.
H.R. 3618--Clean Hull Act of 2009
H.R. 3618 would implement the International Convention on
the Control of Harmful Anti-Fouling Systems on Ships, 2001.
Under the bill, both the U.S. Coast Guard and the Environmental
Protection Agency (EPA) would establish regulations to enforce
the convention, which addresses water pollution caused by
paints and other treatments to eliminate unwanted organisms
from ship hulls.
Based on information provided by the two agencies, CBO
estimates that implementing H.R. 3618 would have no significant
effect on the federal budget. We expect that EPA costs (to
enforce regulations regarding the manufacture and distribution
of hull treatments that are harmful to the environment) and
Coast Guard expenses (to enforce regulations on vessel owners
or operators that use such treatments) would be minimal because
the agencies already have enforcement responsibilities under
the convention. Those responsibilities would not change
significantly under the bill.
The bill also would establish new criminal and civil
penalties. CBO estimates that any new revenues resulting from
penalties or related direct spending (of criminal penalties
from the Crime Victims Fund) would be less than $500,000
annually.
CBO has not reviewed H.R. 3618 for the presence of
intergovernmental or private-sector mandates because section 4
of the Unfunded Mandates Reform Act excludes from the
application of that act legislative provisions that are
necessary for the ratification or implementation of
international treaty obligations. CBO has determined that the
legislation falls within that exclusion because it would
implement an international treaty.
The CBO staff contact for this estimate is Deborah Reis.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Compliance With House Rule XXI
Pursuant to clause 9 of rule XXI of the Rules of the House
of Representatives, the Committee is required to include a list
of congressional earmarks, limited tax benefits, or limited
tariff benefits, as defined in clause 9(e), 9(f), and 9(g) of
rule XXI of the Rules of the House of Representatives. H.R.
3618 does not contain any earmarks, limited tax benefits, or
limited tariff benefits under clause 9(e), 9(f), or 9(g) of
rule XXI.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, committee reports on a bill or joint
resolution of a public character shall include a statement
citing the specific powers granted to the Congress in the
Constitution to enact the measure. The Committee on
Transportation and Infrastructure finds that Congress has the
authority to enact this measure pursuant to its powers granted
under article I, section 8 of the Constitution.
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 (P.L. 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. 3618 does not
preempt any state, local, or tribal law.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act are 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 (P.L. 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):
ORGANOTIN ANTIFOULING PAINT CONTROL ACT OF 1988
[SECTION 1. SHORT TITLE.
[This Act may be cited as the ``Organotin Antifouling Paint
Control Act of 1988''.
[SEC. 2. FINDINGS; PURPOSE.
[(a) Findings.--The Congress finds the following:
[(1) Antifouling paints containing organotin biocides
are used to prevent the build-up of barnacles and other
encrusting organisms on vessels.
[(2) Laboratory and field studies show that organotin
is very toxic to marine and freshwater organisms at
very low levels.
[(3) Vessels that are less than 25 meters in length
and are coated with organotin antifouling paint account
for a large amount of the organotin released into the
aquatic environment.
[(4) The Environmental Protection Agency has
determined that concentrations of organotin currently
in the waters of the United States may pose
unreasonable risks to oysters, clams, fish, and other
aquatic life.
[(b) Purpose.--The purpose of this Act is to protect the
aquatic environment by reducing immediately the quantities of
organotin entering the waters of the United States.
[SEC. 3. DEFINITIONS.
[For purposes of this Act:
[(1) The term ``Administrator'' means the
Administrator of the Environmental Protection Agency.
[(2) The term ``antifouling paint'' means a coating,
paint, or treatment that is applied to a vessel to
control fresh water or marine fouling organisms.
[(3) The term ``estuary'' means a body of water
having an unimpaired connection with open sea, where
the sea water is measurably diluted with fresh water
derived from land drainage, and such term includes the
Chesapeake Bay and estuary-type areas of the Great
Lakes.
[(4) The term ``organotin'' means any compound of tin
used as a biocide in an antifouling paint.
[(5) The term ``person'' means any individual, and
partnership, association, corporation, or organized
group of persons whether incorporated or not, or any
government entity, including the military.
[(6) The term ``qualified antifouling paint
containing organotin'' means an antifouling paint
containing organotin that--
[(A) is allowed to be used under the terms of
the final decision referred to in section
12(c); or
[(B) until such final decision takes effect,
is certified by the Administrator under section
6 as having a release rate of not more than 4.0
micrograms per square centimeter per day.
[(7) The term ``release rate'' means the rate at
which organotin is released from an antifouling paint
over the long term, as determined by the Administrator,
using--
[(A) the American Society for Testing
Materials (ASTM) standard test method which the
Environmental Protection Agency required in its
July 29, 1986, data call-in notice on
tributyltin compounds used in antifouling
paints; or
[(B) any similar test method specified by the
Administrator.
[(8) The term ``retail'' means the transfer of title
to tangible personal property other than for resale,
after manufacturing or processing.
[(9) The term ``Secretary'' means the Secretary of
the Navy.
[(10) The term ``State'' means a State of the United
States, the District of Columbia, the Commonwealth of
Puerto Rico, the Commonwealth of the Northern Mariana
Islands, or any territory or possession of the United
States.
[(11) The term ``vessel'' includes every description
of watercraft or other artificial contrivance used, or
capable of being used, as a means of transportation on
water.
[SEC. 4. PROHIBITION ON THE APPLICATION OF ORGANOTIN ANTIFOULING PAINTS
ON CERTAIN VESSELS.
[(a) Prohibition.--Subject to section 12(d), and except as
provided in subsection (b), no person in any State may apply to
a vessel that is less than 25 meters in length an antifouling
paint containing organotin.
[(b) Exceptions.--Subsection (a) shall not prohibit the
application of a qualified antifouling paint containing
organotin on--
[(1) the aluminum hull of a vessel that is less than
25 meters in length; or
[(2) the outboard motor or lower drive unit of a
vessel that is less than 25 meters in length.
[SEC. 5. PROHIBITION OF CERTAIN ORGANOTIN ANTIFOULING PAINTS AND
ORGANOTIN ADDITIVES USED TO MAKE SUCH PAINTS.
[(a) Interim Prohibition of Certain Organotin Antifouling
Paints.--Subject to section 12(d), no person in any State may--
[(1) sell or deliver to, or purchase or receive from,
another person an antifouling paint containing
organotin; or
[(2) apply to a vessel an antifouling paint
containing organotin;
unless the antifouling paint is certified by the Administrator
as being a qualified antifouling paint containing organotin.
[(b) Prohibition of Certain Organotin Additives.--Subject to
section 12(d), no person in any State may sell or deliver to,
or purchase or receive from, another person at retail any
substance containing organotin for the purpose of adding such
substance to paint to create an antifouling paint.
[SEC. 6. CERTIFICATION.
[(a) Initial Certification.--Not later than 90 days after the
date of the enactment of this Act, the Administrator shall
certify each antifouling paint containing organotin that the
Administrator determines has a release rate of not more than
4.0 micrograms per square centimeter per day on the basis of
the information submitted to the Environmental Protection
Agency before the date of the enactment of this Act in response
to its July 29, 1986, data call-in notice on tributyltin or any
other data call-in notice.
[(b) Subsequent Certification.--After the initial period of
certification required by subsection (a), and not later than 90
days after the receipt of information with regard to an
antifouling paint containing organotin submitted--
[(1) in response to a data call-in referred to in
subsection (a); or
[(2) under any provision of law;
the Administrator shall certify such paint if, on the basis of
such information, the Administrator determines that such paint
has a release rate of not more than 4.0 micrograms per square
centimeter per day.
[SEC. 7. MONITORING AND RESEARCH OF ECOLOGICAL EFFECTS.
[(a) Estuarine Monitoring.--The Administrator, in
consultation with the Under Secretary of Commerce for Oceans
and Atmosphere, shall monitor the concentrations of organotin
in the water column, sediments, and aquatic organisms of
representative estuaries and near-coastal waters in the United
States. This monitoring program shall remain in effect until 10
years after the date of the enactment of this Act. The
Administrator shall submit a report annually to the Speaker of
the House of Representatives and to the President pro tempore
of the Senate detailing the results of such monitoring program
for the preceding year.
[(b) Navy Home Port Monitoring.--The Secretary shall provide
for periodic monitoring, not less than quarterly, of waters
serving as the home port for any Navy vessel coated with an
antifouling paint containing organotin to determine the
concentration of organotin in the water column, sediments, and
aquatic organisms of such waters.
[(c) Navy Research of Ecological Effects.--The Secretary
shall continue existing Navy programs evaluating the laboratory
toxicity and environmental risks associated with the use of
antifouling paints containing organotin.
[(d) Assistance to States.--To the extent practicable, the
Administrator shall assist States in monitoring waters in such
States for the presence of organotin and in analyzing samples
taken during such monitoring.
[(e) Five-Year Report.--At the end of the 5-year period
beginning on the date of the enactment of this Act, the
Administrator shall submit a report to the Speaker of the House
of Representatives and to the President pro tempore of the
Senate providing an assessment of--
[(1) the effectiveness of existing laws and rules
concerning organotin compounds in ensuring protection
of human health and the environment;
[(2) compliance with water quality criteria
established pursuant to section 9 of this Act and any
applicable water quality standards; and
[(3) recommendations for additional measures to
protect human health and the environment.
[SEC. 8. ALTERNATIVE ANTIFOULANT RESEARCH.
[(a) Research.--The Secretary and the Administrator shall
conduct research into chemical and nonchemical alternatives to
antifouling paints containing organotin.
[(b) Report.--At the end of the 4-year period beginning on
the date of the enactment of this Act, the Administrator, in
consultation with the Secretary, shall submit a report to the
Speaker of the House of Representatives and to the President
pro tempore of the Senate detailing the results of the research
conducted pursuant to subsection (a).
[SEC. 9. WATER QUALITY CRITERIA DOCUMENT.
[Not later than March 30, 1989, the Administrator shall issue
a final water quality criteria document concerning organotin
compounds pursuant to section 304(a) of the Federal Water
Pollution Control Act (33 U.S.C. 1314(a)).
[SEC. 10. PENALTIES.
[(a) Civil Penalties.--(1) Any person violating section 4 or
5 shall be assessed a civil penalty of not more than $5,000 for
each offense.
[(2) After notice and an opportunity for a hearing, a person
found by the Administrator to have violated section 4 or 5 is
liable to the United States Government for the civil penalty
assessed under subsection (a). The amount of the civil penalty
shall be assessed by the Administrator by written notice. In
determining the amount of the penalty, the Administrator shall
consider 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 offenses,
ability to pay, and other matters that justice requires.
[(3) The Administrator may compromise, modify, or remit, with
or without consideration, a civil penalty assessed under this
section until the assessment is referred to the Attorney
General.
[(4) If a person fails to pay an assessment of a civil
penalty after it has become final, the Administrator may refer
the matter to the Attorney General for collection in the
appropriate United States district court.
[(b) Criminal Penalties.--Any person knowingly violating
section 4 or 5 shall be fined not more than $25,000, or
imprisoned for not more than one year, or both.
[SEC. 11. OTHER AUTHORITIES; STATE LAWS.
[(a) Other Authorities of the Administrator.--Nothing in this
Act shall limit or prevent the Administrator from establishing
a lower permissible release rate for organotin under
authorities other than this Act.
[(b) State Laws.--Nothing in this Act shall preclude or deny
any State or political subdivision thereof the right to adopt
or enforce any requirement regarding antifouling paint or any
other substance containing organotin. Compliance with the
requirements of any State or political subdivision thereof
respecting antifouling paint or any other substance containing
organotin shall not relieve any person of the obligation to
comply with the provisions of this Act.
[SEC. 12. EFFECTIVE DATES; USE OF EXISTING STOCKS.
[(a) In General.--Except as provided in subsection (b), this
Act shall take effect on the date of its enactment.
[(b) Termination of Interim Prohibition.--Section 5(a) shall
remain in effect until a final decision regarding the release
of organotin into the aquatic environment by antifouling
paints, pursuant to the process initiated by the
Administrator's Position Document 1 dated January 8, 1986--
[(1) is issued by the Administrator; and
[(2) takes effect.
[(c) Final Decision Defined.--For purposes of subsection (b),
a final decision shall be considered to have taken effect upon
the date of the expiration of the time for making any appeal
with respect to such decision or, in the case of any such
appeal, the resolution of such appeal.
[(d) Use of Existing Stocks.--Notwithstanding the
prohibitions contained in sections 4 and 5, the Administrator,
not later than 90 days after the date of the enactment of this
Act, shall provide reasonable times--
[(1) not to exceed 180 days after the date of the
enactment of this Act, for the continued sale,
delivery, purchase, and receipt of any antifouling
paints containing organotin and organotin additives
that exist before the date of the enactment of this
Act; and
[(2) not to exceed one year after the date of the
enactment of this Act, for the application of any
antifouling paints containing organotin and organotin
additives that exist before the date of the enactment
of this Act.]
Committee Correspondence
House of Representatives, Committee on Science and
Technology,
Washington, DC, September 28, 2009.
Hon. James L. Oberstar,
Chairman, Committee on Transportation and Infrastructure, House of
Representatives, Rayburn House Office Building, Washington, DC.
Dear Chairman Oberstar: I write to you regarding H.R. 3618,
the Clean Hull Act of 2009. This legislation was initially
referred to both the Committee on Transportation and
Infrastructure and the Committee on Science and Technology.
I recognize and appreciate your desire to bring this
legislation before the House in an expeditious manner, and,
accordingly, I will waive further consideration of this bill in
Committee. However, agreeing to waive consideration of this
bill should not be construed as the Committee on Science and
Technology waiving its jurisdiction over H.R. 3618, or any
similar legislation.
Further, I request your support for the appointment of
Science and Technology Committee conferees during any House-
Senate conference convened on this, or any similar legislation.
I also ask that a copy of this letter and your response be
placed in the legislative report on H.R. 3618 and the
Congressional Record during consideration of this bill.
I look forward to working with you as we prepare to pass
this important legislation.
Sincerely,
Bart Gordon,
Chairman.
------
House of Representatives, Committee on
Transportation and Infrastructure,
Washington, DC, September 29, 2009.
Hon. Bart Gordon,
Chairman, Committee on Science and Technology, House of
Representatives, Rayburn House Office Building, Washington, DC.
Dear Chairman Gordon: I write to you regarding H.R. 3618,
the ``Clean Hull Act of 2009''.
I appreciate your willingness to waive rights to further
consideration of H.R. 3618, notwithstanding the jurisdictional
interest of the Committee on Science and Technology. Of course
this waiver does not prejudice any further jurisdictional
claims by your Committee over this or similar legislation.
Further, I will support your request to be represented in a
House-Senate conference on those provisions over which the
Committee on Science and Technology has jurisdiction in H.R.
3618.
This exchange of letters will be placed in the Committee
Report on H.R. 3618 and inserted in the Congressional Record as
part of the consideration of this legislation in the House.
Thank you for the cooperative spirit in which you have worked
regarding this matter and others between our respective
committees.
I look forward to working with you as we prepare to pass
this important legislation.
Sincerely,
James L. Oberstar,
Chairman.
------
House of Representatives,
Committee on Homeland Security,
Washington, DC, November 12, 2009.
Hon. James L. Oberstar,
Chairman, Committee on Transportation and Infrastructure, Rayburn Bldg.
House of Representatives, Washington, DC.
Dear Chairman Oberstar: I write to you regarding H.R. 3618,
the ``Clean Hull Act of 2009.''
H.R. 3618 contains provisions that fall within the
jurisdiction of the Committee on Homeland Security. I recognize
and appreciate your desire to bring this legislation before the
House in an expeditious manner and, accordingly, I will not
seek a sequential referral of the bill. However, agreeing to
waive consideration of this bill should not be construed as the
Committee on Homeland Security waiving, altering, or otherwise
affecting its jurisdiction over subject matters contained in
the bill which fall within its Rule X jurisdiction.
Further, I request your support for the appointment of an
appropriate number of Members of the Committee on Homeland
Security to be named as conferees during any House-Senate
conference convened on H.R. 3618 or similar legislation. I also
ask that a copy of this letter and your response be included in
the legislative report on H.R. 3618 and in the Congressional
Record during floor consideration of this bill.
I look forward to working with you as we prepare to pass
this important legislation.
Sincerely,
Bennie G. Thompson,
Chairman.
------
House of Representatives, Committee on
Transportation and Infrastructure,
Washington, DC, November 12, 2009.
Hon. Bennie G. Thompson,
Chairman, Committee on Homeland Security, Ford House Office Building,
Washington, DC.
Dear Chairman Thompson: I write to you regarding H.R. 3618,
the ``Clean Hull Act of 2009''.
I agree that provisions in H.R. 3618 are of jurisdictional
interest to the Committee on Homeland Security. I acknowledge
that by forgoing a sequential referral, your Committee is not
relinquishing its jurisdiction and I will fully support your
request to be represented in a House-Senate conference on those
provisions over which the Committee on Homeland Security has
jurisdiction in H.R. 3618.
This exchange of letters will be inserted in the Committee
Report on H.R. 3618 and in the Congressional Record as part of
the consideration of this legislation in the House.
I look forward to working with you as we prepare to pass
this important legislation.
Sincerely,
James L. Oberstar,
Chairman.