[Senate Report 110-269]
[From the U.S. Government Publishing Office]
110th Congress
2d Session SENATE Report
110-269
_______________________________________________________________________
Calendar No. 589
BALLAST WATER MANAGEMENT ACT OF 2007
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 1578
March 3, 2008.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred tenth congress
second session
DANIEL K. INOUYE, Hawaii, Chairman
TED STEVENS, Alaska, Vice-Chairman
JOHN D. ROCKEFELLER IV, West JOHN McCAIN, Arizona
Virginia KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota GORDON H. SMITH, Oregon
BARBARA BOXER, California JOHN ENSIGN, Nevada
BILL NELSON, Florida JOHN E. SUNUNU, New Hampshire
MARIA CANTWELL, Washington JIM DeMINT, South Carolina
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
MARK PRYOR, Arkansas JOHN THUNE, South Dakota
THOMAS CARPER, Delaware ROGER F. WICKER, Mississippi
CLAIRE McCASKILL, Missouri
AMY KLOBUCHAR, Minnesota
Margaret Cummisky, Staff Director and Chief Counsel
Lila Helms, Deputy Staff Director and Policy Director
Jean Toal Eisen, Senior Advisor and Deputy Policy Director
Christine Kurth, Republican Staff Director and General Counsel
Paul J. Nagle, Republican Chief Counsel
Mimi Braniff, Republican Deputy Chief Counsel
Calendar No. 589
110th Congress Report
SENATE
2d Session 110-269
======================================================================
BALLAST WATER MANAGEMENT ACT OF 2007
_______
March 3, 2008.--Ordered to be printed
_______
Mr. Inouye, from the Committee on Commerce, Science, and
Transportation, submitted the following
REPORT
[To accompany S. 1578]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 1578) to amend the
Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990 to establish vessel ballast water management requirements,
and for other purposes, having considered the same, reports
favorably thereon with an amendment (in the nature of a
substitute) and recommends that the bill (as amended) do pass.
Purpose of the Bill
The purpose of S. 1578 is to amend the Nonindigenous Aquatic
Nuisance Prevention and Control Act of 1990 (NANPCA) and
provide an effective, comprehensive, and uniform national
approach for addressing the introduction and spread of aquatic
nuisance species from ballast water and other ship-borne
vectors. The bill would provide additional mandates and
authorities to the United States Coast Guard (Coast Guard), the
lead Federal agency for this program under the NANPCA. S. 1578
would also provide implementing legislation for the
International Convention for the Control and Management of
Ships' Ballast Water and Sediments, adopted by the
International Maritime Organization in 2004. The bill includes
authorizations of $50 million in annual appropriations for
fiscal year (FY) 2008 through FY 2012 for the Coast Guard to
implement the legislation. The bill also authorizes $5 million
for FY 2008 through FY 2012 in additional annual appropriations
for the Federal Ballast Water Demonstration Project to support
development of innovative technologies to address ballast
water, sediment, and other vessel sources of aquatic nuisance
species.
Background and Needs
The United States Commission on Ocean Policy (Commission)
identified ballast water as a major pathway for introduction of
aquatic nuisance species. Ships carry ballast water to aid in
stability and structural integrity. Ships will take on ballast
water in one port, and carry such ballast to other ports, where
it is discharged into harbors--along with non-native species
that are contained in the ballast water. Some of these
organisms may thrive in their new environment, becoming
invasive and destructive to local ecosystems. The only practice
now required to address this issue--exchanging ballast water in
the open ocean--has proven to be only partially effective.
Because open ocean ballast water exchange can be a dangerous
operation, a safety exemption is allowed for this practice. The
Commission recognized that there are other vectors for aquatic
nuisance species but made its strongest recommendations on
improving the Coast Guard's ballast water management program,
including the adoption of uniform, mandatory national standards
for ballast water treatment.
It has been estimated that between 7,000 and 10,000 aquatic
species travel around the globe each day in the ballast water
of cargo ships. Vessels discharge more than two billion gallons
of ballast water into U.S. waters each year. Aquatic nuisance
species may be introduced to the United States from foreign
ports, or may be transferred from one U.S. port to another
through coastal trade. While ballast water is regarded as the
most significant vector for ships in transporting aquatic
nuisance species, ships can transfer aquatic nuisance species
in other ways. These include transport on equipment, such as
anchors and propellers, in the sediment of ballast tanks, and
on the external surfaces of hulls.
Virtually all coastal and Great Lakes States have experienced
damage from aquatic nuisance species. Some of the high profile
invasions stemming from ballast water are the zebra mussel in
the Great Lakes and the European green crab along the Pacific
and Atlantic coasts. Other examples of significant impacts from
aquatic nuisance species from around the United States include:
(1) the non-native Asian clam, which altered the ecology of San
Francisco Bay in the 1980's due to its efficiency at
reproducing and filtering the native plankton, (2) the Asian
whelk, which has established a foothold in the lower Chesapeake
Bay and may threaten local oyster populations, and (3) the
invasive sea squirt, Didemnum spp., which has recently been
found colonizing Georges Bank off of New England and has led to
concerns over impacts on the local scallop fishery.
Additionally, the black coral populations in Hawaii are showing
signs of stress that may be linked to invasive snowflake coral.
Even inland States are being impacted by the spread of aquatic
nuisance species. As of October 2007, zebra mussels have been
found in 25 States: Alabama, Arkansas, Connecticut, Illinois,
Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan,
Minnesota, Mississippi, Missouri, Nebraska, Nevada, New York,
Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Vermont,
Virginia, West Virginia, and Wisconsin. Another eight States
have identified zebra mussels on the hulls of boats brought
into the State overland, but have not yet found wild
populations of the organisms.
Damage to the U.S. environment and economy from aquatic
nuisance species includes the loss of native and commercially
important species, significant altering of native ecosystems,
interference with industrial operations, and the cost of
mitigation and removal efforts. Estimates of the costs to the
U.S. economy from these invasions range from millions to
billions of dollars per year. Millions of dollars have been
spent annually in combating the zebra mussel invasion in the
Great Lakes alone, including efforts to unclog intake pipes and
prevent further infestation.
CURRENT REGULATIONS AND PROGRAMS
The NANPCA, as amended by the National Invasive Species Act
of 1996 (NISA), requires ships to exchange their ballast water
prior to entering the Great Lakes from outside the 200-mile
Exclusive Economic Zone (EEZ). On July 28, 2005, the Coast
Guard published regulations expanding the application of these
requirements to cover entry into all U.S. ports. However,
ballast water exchange is only partially effective and is often
not carried out due to safety considerations. In addition,
current authority does not address the introduction of non-
native species from one U.S. port to another.
Numerous Federal, State, and international efforts are now
focusing on the need to develop and utilize ballast water
treatment technologies. However, the Coast Guard does not
currently have sufficient authority to require such treatment
technologies.
A number of States have passed or are considering their own
ballast water laws. The focus of these laws has been on ballast
water exchange, but some States have passed treatment
requirements, in large part due to the lack of Federal
regulations. The Committee finds that the current patchwork of
State laws is inadequate to address this issue effectively.
Moreover, a national program establishing uniform ballast water
treatment requirements is needed to ensure that ships traveling
from port to port are not subject to different State laws which
would make compliance difficult, if not impossible, and could
disrupt interstate commerce.
INTERNATIONAL MARITIME ORGANIZATION CONVENTION
In February 2004, the International Maritime Organization
(IMO) adopted a new ballast water Convention, negotiated with
U.S. leadership. This agreement set up a timetable for ships to
meet new ballast water treatment standards. These standards
would prohibit ships from discharging ballast water with a
concentration of more than 10 organisms per cubic meter or
greater. Until the performance standards are followed, vessels
would be required to exchange their ballast water offshore. The
Coast Guard has testified that the 10 organisms per cubic meter
standard may not be sufficient to adequately treat ballast
water and may be no more effective than ballast water exchange.
At the IMO negotiations, the Coast Guard pushed for a standard
of 0.01 organisms per cubic meter. The Coast Guard succeeded in
including in the final IMO agreement a provision allowing
countries to adopt more stringent domestic measures and has
supported adopting a tougher standard than the IMO Convention
in Federal law. The Convention must be ratified by at least 30
countries representing at least 35 percent of global shipping
tonnage before it goes into effect; 10 countries have ratified
the agreement thus far.
Summary of Provisions
The bill would amend section 1101 of the NANPCA and provide
an effective, comprehensive, and uniform national approach for
addressing the introduction and spread of aquatic nuisance
species from ballast water and other ship-borne vectors. The
provisions of the bill would apply to vessels that are
designed, constructed, or adapted to carry ballast water.
Certain vessels are excluded from the provisions of the bill,
including vessels of the Armed Services that comply with a
comparable program.
Covered vessels would be required to have an approved ballast
water management plan and keep a ballast water record book on
board documenting their ballast water operations. Until
required to adopt ballast water treatment technology, covered
vessels would be required to conduct ballast water exchange in
accordance with regulations prescribed by the Coast Guard. For
vessels arriving from outside the EEZ, a vessel would be
required to conduct exchanges at least 200 nautical miles from
the nearest point of land, and for voyages within 200 nautical
miles of the United States, a vessel would be required to
conduct exchanges at least 50 nautical miles from the nearest
land. In both cases, the exchanges would take place in water at
least 200 meters in depth. Alternatively, vessels would be able
to comply with this requirement by using ballast water
treatment technology that is as effective as ballast water
exchange, or implement the treatment requirements of the Act in
an earlier timeframe. The Coast Guard would be required to
establish guidelines within one year of enactment of the bill
on what level of treatment would be at least as effective as
ballast water exchange. The Committee views the timely
completion of these guidelines as a priority.
A number of exceptions would be included in the requirements
for ballast water exchange. First, the ballast water exchange
requirements would not apply to discharges or uptakes of
ballast water necessary to ensure the safety or stability of
the vessel, its crew or its passengers. This exemption is
important for certain vessel classes, such as many tug and
barge operations. The Committee intends that the Coast Guard
allow this exemption for specific vessels that are routinely
unable to conduct exchange due to safety considerations, as
opposed to allowing exemptions only on a voyage-by-voyage
basis. Second, the provision would address the problem of
requiring ballast water exchange for vessels on short coastal
voyages by allowing vessel operators to seek a waiver if
conducting exchange would cause the operator substantial
business hardship, as determined by the Secretary. Third, an
exemption would be provided for vessels operating exclusively
between certain areas where the risk of introducing aquatic
nuisance species is insignificant, including vessels operating
exclusively within the Great Lakes and among the main Hawaiian
islands. Additional common geographical areas exempted from
exchange requirements could be added by the Coast Guard after
consultation with other Federal agencies and with State
concurrence.
The bill also would prohibit a vessel from discharging
ballast water or sediment containing aquatic nuisance species
into a National Marine Sanctuary or National Marine Monument.
It also would provide a process by which Federal agencies and
States can establish no-discharge zones for areas that warrant
greater protection.
The bill also would provide that existing regulations in
place for the Great Lakes would not be superseded until the
bill's requirements are fully phased in. It also would require
the Coast Guard to adopt regulations for ships with no ballast
on board.
The bill would require vessels to install ballast water
treatment technologies by 2012 and would establish performance
standards for those technologies. If no technology is available
that would meet the bill's performance standards, vessels would
be required to implement available technologies that, at a
minimum, meet the weaker IMO standards. By allowing the use of
IMO-compliant technologies, the bill also would assure that
ballast water treatment is implemented in a shorter timeframe.
The 2012 deadline could be extended by two years if a
feasibility review determines that no technologies exist that
meet the statutory criteria. This feasibility review would be
repeated if the compliance date had to be extended. The
feasibility review would evaluate specific factors such as the
technology's efficacy, whether a technology has an adverse
impact on the environment, and cost effectiveness. If the Coast
Guard determines that treatment technology exists that exceeds
the performance standards, or that effective technology could
be implemented earlier than the phase-in dates, the Coast Guard
would be required to revise the standards and time frame for
implementation accordingly.
The performance standards themselves follow the approach
adopted by the IMO, using a concentration of organisms per
volume of water. However, the standards in S. 1578 reflect a
more effective target, based on expert testimony and research.
Adopting more effective standards under U.S. law is consistent
with the IMO agreement, which includes a provision, sought by
the U.S. negotiators, assuring that parties can adopt more
stringent measures than those included in the agreement. Under
S. 1578, treatment would be required to achieve less than one
living organism that is 50 or more micrometers in size per 10
cubic meters of water and less than one living organism that is
less than 50 and more than 10 micrometers in size per 10
milliliters. By contrast, the IMO standards require treatment
to a level of 10 living organisms per one cubic meter and one
milliliter, respectively.
The bill would provide the Administrator of the EPA the
authority to set revised performance standards in the future
and to review the standards every three years to evaluate
whether they should be strengthened. The bill also would
provide States with a role in the establishment of
concentrations of indicator microbes and viruses for the
initial performance standards, standards for reception
facilities, and future performance standards.
The bill would require the Coast Guard, in consultation with
the EPA, to issue protocols and procedures for verifying the
performance of ballast water treatment technologies and
approving treatment equipment and systems for shipboard use.
The bill would direct the Coast Guard to use Federal or non-
Federal laboratories that meet standards that would be
established by the Coast Guard for the purpose of evaluating
and certifying ballast water treatment technologies and
equipment. The Committee expects that the Coast Guard will
develop efficient verification methodologies to evaluate the
technical capabilities of ballast water treatment technologies,
such as monitoring the presence or the lack of certain
substances in the ballast water as a surrogate for evaluating
the content of ballast water samples.
The bill would require vessels to dispose of sediment from
ballast tanks either more than 200 nautical miles from the
nearest point of land, or into a reception facility, in
accordance with the ballast water plan and regulations to be
approved by the Coast Guard. The Administrator of the EPA would
be required to promulgate regulations for the reception
facilities, consistent with current EPA authority for land-
based facilities. The bill also would require new vessels to be
designed and constructed in a manner that minimizes the
occurrence of sediment in ballast tanks.
The bill would allow vessels participating in a Coast Guard-
approved pilot program to conduct ship-board testing of ballast
water treatment technologies. The bill would authorize the
Coast Guard to allow the vessels to use such technology for ten
years, which should encourage more vessel operators to test new
technologies in pilot programs. It would also authorize
$5,000,000 annually from FY 2008 through FY 2012 for the
existing Federal Ballast Water Demonstration Project, which
provides grants for research and development of innovative
technologies for the management, treatment, and disposal of
ballast water and sediment, ballast water exchange, and other
vessel vectors of aquatic nuisance species.
The bill would include a provision that requires the
President to establish a national rapid response plan to
address the spread of aquatic nuisance species. The plan would
provide for the coordination of actions among Federal, State,
and local agencies to minimize damage from the introduction of
aquatic nuisance species.
The bill would allow the Secretary to enter into cooperative
management agreements with States, including arrangements for
cooperative enforcement, inspection, research, and other
provisions included in this Act. The Secretary would be
authorized to provide grants to States to implement the
agreements. A total of up to $10 million would be available to
States annually from FY 2008 through FY 2012.
The bill would provide a right of action by States against
the Coast Guard and the EPA for a failure to promulgate
regulations or take similar non-discretionary actions in a
timely manner. This provision was added to address the concern
of some observers that the Coast Guard otherwise would not make
ballast water management a priority given its additional
responsibility for homeland security.
The bill would include a savings clause to allow for State
programs addressing aquatic invasive species, limited by the
need for uniformity in some areas. States could regulate
ballast water treatment and exchange, as long as they do not
impose substantively different requirements from the Federal
requirements, to ensure that a uniform national program is in
place that is consistent with the international agreement.
States could regulate all other aspects of ballast water
management, including reporting, research and development,
enforcement, and the imposition of fees, to the extent that
such State requirements do not conflict with the Federal
requirements.
The bill would provide that section 1101 of the NANPCA is the
sole Federal authority with respect to preventing the
introduction of aquatic nuisance species from ballast water and
other ship vectors. This would not affect the operation of
other Federal statutes, including the Clean Water Act, on other
discharges from ships. The provision would not amend the Clean
Water Act, nor would it alter how the Clean Water Act currently
applies to the discharges covered by the bill. The Clean Water
Act historically has never regulated the discharges covered in
the bill. EPA exempted ballast water and other discharges
incidental to the normal operation of a ship from the National
Pollution Discharge Elimination System (NPDES) 34 years ago,
and Congress adopted a separate Federal law to regulate
invasive species from ballast water in 1990, the NANPCA, as
amended by NISA in 1990. S. 1578 would amend and strengthen
that existing regulatory framework.
This provision would be consistent with Congressional intent
in adopting a savings clause for the Clean Water Act in the
NANPCA. The NANPCA savings clause was not aimed at aquatic
nuisance species, but at concerns that the ballast water
exchange requirements of that legislation not result in
discharges of oil from ballast water tanks. The clarification
is necessary now to avoid confusion resulting from a recent
Federal District Court case, Northwest Environmental Advocates,
et al, vs. the United States Environmental Protection Agency,
2005 U.S. Dist. LEXIS 5373 (N.D. Cal. 2005). There, the court
found that the EPA had erred in exempting ballast water from
the NPDES program 34 years ago. Without this clarification, two
completely separate Federal laws would apply to the same
discharges, and States could adopt divergent laws for ships
that travel to different ports. Moreover, the Clean Water Act's
permit program, effective for regulating stationary sources, is
not a desirable approach for regulating ballast water
discharges from vessels. According to the EPA, the NPDES
program has never applied to the discharges of pollutants from
operational ships as they move from port to port. In fact,
Congress has consistently addressed ship pollution through
other statutory means.
The bill would authorize $50,000,000 in annual appropriations
for the Coast Guard for FY 2008 through FY 2012 to implement
the legislation. In addition, the bill would authorize
$5,000,000 annually for FY 2008 through FY 2012 for development
of innovative technologies through the Federal Ballast Water
Demonstration Project.
Legislative History
S. 1578 was introduced in the Senate on June 7, 2007, by
Senator Inouye, co-sponsored by Senator Stevens, and referred
to the Senate Committee on Commerce, Science, and
Transportation. On September 27, 2007, the bill was considered
by the Committee in an open Executive Session. Senator Inouye
offered an amendment in the nature of a substitute, co-
sponsored by Senator Stevens. By voice vote, the Committee
adopted the amendment and ordered S. 1578 to be reported with
an amendment in the nature of a substitute.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 1578--Ballast Water Management Act of 2007
Summary: S. 1578 would require the U.S. Coast Guard (USCG)
to establish new standards and procedures for controlling the
spread of invasive species through ballast water (water that is
carried in tanks by some ships to maintain balance). Assuming
appropriation of the amounts authorized by the bill, CBO
estimates that implementing S. 1578 would cost $44 million in
2008 and $260 million over the 2008-2012 period. (Of the
amounts authorized, $15 million would be spent after 2012.) CBO
estimates that enacting S. 1578 could increase revenues (from
violations of regulations on treating ballast water) and direct
spending (from amounts collected as criminal penalties and
spent from the Crime Victims Fund) by less than $500,000
annually.
S. 1578 contains intergovernmental and private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
The bill would require owners, operators, and manufacturers of
certain public and private vessels equipped to carry ballast
water to comply with requirements for treating such water. In
addition, the bill would require public and private entities to
respond to subpoenas and would preempt some state and local
laws.
The aggregate costs of complying with those mandates are
uncertain and would depend, in part, on future regulations. CBO
estimates that compliance costs for the intergovernmental
mandates would not exceed the annual threshold established in
UMRA for such mandates ($66 million in 2007, adjusted annually
for inflation) due to the small number of public entities
involved. Because the cost of the treatment systems would be
substantial for private-sector entities, however, CBO estimates
that the aggregate cost to those entities would exceed the
annual threshold established by UMRA for private-sector
mandates ($131 million in 2007, adjusted annually for
inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 1578 is shown in the following table.
The costs of this legislation fall within budget functions 300
(natural resources and environment) and 400 (transportation).
------------------------------------------------------------------------
By fiscal year, in millions of
dollars--
---------------------------------------
2008 2009 2010 2011 2012
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level............. 55 55 55 55 55
Estimated Outlays............... 44 52 54 55 55
------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that S.
1578 will be enacted near the beginning of fiscal year 2008 and
that the authorized amounts will be appropriated for each year.
Estimated outlays are based on historical spending patterns for
similar programs.
S. 1578 would authorize appropriations of $55 million for
each of fiscal years 2008 through 2012. Under the bill, most of
the funds would be used by the USCG to promulgate new
regulations aimed at reducing the spread of invasive species
through ballast water. The regulations would establish
standards and procedures that must be followed by vessel
operators when treating or discharging ballast water and
sediment. Of the amounts authorized for each year, up to $10
million could be provided to states under cooperative
agreements, and $5 million would be authorized for grants to
develop treatment technologies. The bill also would establish
civil and criminal penalties for violating federal regulations.
Assuming appropriation of the authorized amounts, CBO
estimates that implementing S. 1578 would cost $44 million in
2008, $260 million over the 2008-2012 period, and $15 million
after 2012. We also estimate that any increased revenues from
civil and criminal penalties established by the bill, and
direct spending of revenues from criminal penalties (which are
deposited in and spent from the Crime Victims Fund), would not
exceed $500,000 in any year.
Estimated intergovernmental and private-sector impact: S.
1578 would impose intergovernmental and private-sector
mandates, as defined in UMRA, on owners, operators, and
manufacturers of certain vessels and others in the maritime
industry. The aggregate costs of those mandates are uncertain
because they would depend, in part, on regulations to be
developed under the bill. CBO estimates that costs to
governmental entities would not exceed the annual threshold
established in UMRA for intergovernmental mandates ($66 million
in 2007, adjusted annually for inflation) due to the small
number of such entities involved. Because the cost of the
treatment systems for ballast water would be substantial for
private-sector entities, however, CBO estimates that the
aggregate cost to those entities would exceed the annual
threshold established by UMRA for private-sector mandates ($131
million in 2007, adjusted annually for inflation).
Mandates that apply to both public and private entities
Treatment of Ballast Water. Current regulations require
U.S. and foreign vessels with ballast tanks that operate in the
waters of the United States and that are bound for ports or
places in the United States to report on and conduct activities
relating to the discharge of ballast water. The bill would
place additional requirements on owners and operators of those
vessels, including installing new treatment systems and keeping
additional records of their operations. In addition,
manufacturers of such vessels built after 2011 would have to
meet specific design and construction requirements for
treatment systems to be eligible to operate in U.S. waters.
According to several industry experts and the U.S. Coast
Guard, water treatment systems currently available cost between
$300,000 and $1 million to install per ballast system. Some
vessels that would need those systems may have as many as 20
ballast tanks, and each tank would have to be fitted with a
treatment system. CBO estimates that the cost to public
entities would be small because we expect that few vessels
owned by state and local governments would be affected. CBO
estimates, however, that the cost for the private sector would
exceed the threshold for private-sector mandates in at least
one year over the 2008-2012 period.
Subpoena Authority. The bill also would give the Secretary
of Transportation the authority to subpoena public and private
entities in the course of an investigation related to a vessel
conveyance. State, local, and tribal governments, as well as
private-sector entities, if subpoenaed by the Secretary, would
be required to provide testimony, documents, or other evidence.
CBO expects that the Secretary would likely exercise this
authority sparingly and that the costs to comply with a
subpoena would not be significant for those entities.
Mandates that apply to public entities only
Preemption of State and Local Laws. S. 1578 also would
preempt state and local laws that would be inconsistent or
conflict with the new federal requirements. (The bill would
specifically preserve state and local authority to impose
greater penalties or fees for acts or omissions that are
violations of the act.) This preemption constitutes a mandate
as defined in UMRA, but any costs to state and local
governments would be minimal.
Previous CBO estimate: On August 29, 2007, CBO transmitted
a cost estimate for H.R. 2830, the Coast Guard Authorization
Act of 2007, as ordered reported by the House Committee on
Transportation and Infrastructure on June 28, 2007. Title V of
H.R. 2830 and S. 1578 authorize similar activities. The total
amounts authorized to be appropriated by S. 1578 are higher
than those authorized by H.R. 2830, as reflected in the CBO
cost estimates. Also, H.R. 2830 would not establish criminal
penalties; S. 1578 would.
Estimate prepared by: Federal Spending: Deborah Reis,
Impact on State, Local, and Tribal Governments: Elizabeth Cove,
Impact on the Private Sector: Jacob Kuipers.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 1578 as reported by the Committee would authorize
appropriations to establish a uniform national ballast water
exchange and treatment program and make a number of changes to
current law. The bill would have a large regulatory impact for
commercial vessels operating in U.S. waters.
ECONOMIC IMPACT
The reported bill would benefit the U.S. economy by reducing
damages from aquatic nuisance species, now estimated to be in
the range of millions to billions of dollars annually. Up to
$50 million per year for FY 2008 through FY 2012 would be
authorized for appropriations to the Coast Guard to implement
the bill's obligations. Out of the $50 million, up to $10
million would be available to States to implement cooperative
agreements. The bill would also authorize $5 million annually
in support of private sector development of ballast water
treatment technologies. Vessels to which the bill applies would
bear the costs of implementing the bill's requirements for
treatment technologies; however, the purchase of such
technologies would also provide a benefit to the U.S. economy.
PRIVACY
The reported bill would have little, if any, impact on the
personal privacy of U.S. citizens.
PAPERWORK
The reported bill would increase paperwork requirements for
individuals and businesses conducting commercial vessel
operations in U.S. waters by requiring them to prepare ballast
water plans and keep and maintain accurate logs of their
ballast water exchange activities.
Section-by-Section Analysis
Section 1. Short Title.
Section 1 would provide that the Act may be cited as the
``Ballast Water Management Act of 2007.''
Section 2. Findings.
Section 2 would include Congressional findings relevant to
the issue of aquatic nuisance species from ballast water and
other ship vectors.
Section 3: Management of Vessel-Borne Aquatic Nuisance Species.
Section 3 would amend section 1101 of the NANPCA (16 U.S.C.
4711) to establish a stronger and uniform national approach to
addressing aquatic nuisance species from ballast water and
other ship vectors. The approach set forth in Section 3 would
closely track with the requirements and structure of an
international agreement on ballast water that was negotiated,
with United States leadership, in the IMO. The bill would
include additional provisions in applying these requirements to
the United States.
Section 1101 would be amended as follows:
Subsection (a) of section 1101, as amended, would set forth a
statement of purpose and the scope of the requirements of
section 1101. The purpose of section 1101 would be to provide
an effective, comprehensive, and uniform national approach for
addressing the introduction and spread of aquatic nuisance
species from ballast water and other ship vectors. Section 1101
also would apply to vessels that are designed, constructed, or
adapted to carry ballast water, including U.S. vessels and
foreign vessels that come to or depart from a U.S. port or
place and are within waters subject to the jurisdiction of the
United States. Several types of vessels would be exempted from
the requirements of the section, including vessels that carry
permanent ballast water in sealed tanks, vessels of the United
States Armed Forces that follow a comparable program, and small
vessels, for which alternative measures may be promulgated.
Subsection (b) of section 1101, as amended, would establish a
general requirement that vessels to which the legislation
applies may only uptake or discharge ballast water or sediment
in accordance with the requirements and schedule established in
the bill. Certain exceptions would apply, including when the
safety of the vessel is in question, in saving a life at sea,
when damage to the vessel results in an accidental discharge,
or when necessary to prevent discharge of pollution.
Subsection (c) of section 1101, as amended, would require a
vessel to have an approved ballast water management plan on
board that meets requirements prescribed by the Secretary. The
plan would describe the actions to be taken to implement the
ballast water management requirements of the bill. For foreign
vessels, the Secretary would be authorized to approve a plan
based on a certificate of compliance issued by the vessel's
country of registration. The plan would be required to be
maintained on the vessel.
Subsection (d) of section 1101, as amended, would require a
vessel to keep a ballast water record book on board documenting
its ballast water operations, in accordance with regulations
promulgated by the Secretary.
Subsection (e) of section 1101, as amended, would require
vessels to use ballast water exchange to reduce the risk of
introduction of aquatic nuisance species until ballast water
treatment standards outlined in subsection (f) of this section
come into effect. As an alternative, vessels could meet this
requirement by using ballast water treatment that meets the
performance standards of subsection (f) or by using ballast
treatment that does not meet the performance standards in
subsection (f) but is at least as effective as ballast water
exchange. For vessels using ballast water exchange, this
subsection would require vessels arriving at a U.S. port from
outside the U.S. EEZ to conduct exchange at least 200 nautical
miles from the nearest point of land, in water at least 200
meters in depth. Vessels voyaging between ports within 200
nautical miles of the United States would be required to
conduct exchange at least 50 nautical miles from the nearest
land, in water at least 200 meters in depth. Ballast water
exchange would not be allowed in marine sanctuaries or other
designated areas. This subsection would provide a process by
which Federal agencies and States could establish no-discharge
zones for areas that warrant greater protection.
A number of exceptions would be included in this subsection.
First, the ballast water exchange requirements would not apply
to discharges of ballast water necessary to ensure the safety
or stability of the vessel, its crew, or its passengers. This
exemption is important particularly for certain vessel classes,
such as many tug and barge operations. Second, the provision
would address the problem of requiring ballast water exchange
for vessels on short voyages by allowing vessel operators to
seek a waiver if conducting exchange would cause the operator
substantial business hardship, as determined by the Secretary.
Third, an exemption would be provided for vessels operating
exclusively between certain areas where the risk of introducing
aquatic nuisance species is insignificant, including vessels
operating within the Great Lakes and among the main Hawaiian
islands. States would have to concur in the designation of any
additional areas in State waters in which vessels would be
exempted from ballast water exchange. This subsection also
would provide that un-exchanged ballast water discharged
pursuant to an exception should be discharged in an area
designated by the Secretary or into a reception facility
established under subsection (f).
Subsection (f) of section 1101, as amended, would specify the
overall performance standards for ship-board ballast water
treatment, provide exceptions for ballast treated at a
reception facility, set forth the implementation schedule for
treatment and the approval process for treatment systems,
provide for a feasibility review process and a delay if there
are no feasible technologies, provide for earlier
implementation if higher standards are achievable, establish a
schedule for periodic review of treatment technologies and
standards, provide incentives to allow vessels with promising
experimental treatment systems to use those systems for up to
10 years, define certain high risk vessels based on their
operations and origins of their voyages, provide exceptions for
vessels operating in certain areas with insignificant risk of
spreading aquatic nuisance species, and describe laboratories
and protocols for evaluating and certifying technologies for
ballast water treatment.
Paragraph (1) would set forth the performance standards for
ballast water treatment. Treatment is to achieve less than 1
living organism that is 50 or more micrometers in size per 10
cubic meters, and less than 1 living organism that is less than
50 and more than 10 micrometers in size per 10 milliliters. The
standards also include concentrations for three indicator
microbes: Vibrio cholera, Escherichia coli, and enterococci.
Paragraph (2) would provide that the performance standards
are not applicable to discharges of ballast water into a
reception facility designated by the Administrator of the EPA
(Administrator).
Paragraph (3) would set forth the implementation date of
January 1, 2012, for all vessels.
Paragraph (4) would require the Secretary, in consultation
with the Administrator, to establish a process for approval of
ballast water treatment technologies.
Paragraph (5) would set forth the feasibility review process
that the Coast Guard would use to evaluate whether technologies
exist that would meet the performance standards. The process
would include specific criteria, including the effectiveness of
a technology, whether a technology has an adverse impact on the
environment, and cost effectiveness. If the Coast Guard
determines that compliance with the performance standards is
not feasible, vessels would be required to implement available
technologies that, at a minimum, meet the standards of the IMO.
If no feasible technologies exist, the Coast Guard would extend
the date of compliance up to two years. This process would then
be repeated. Paragraph (5) also would provide that if the Coast
Guard determines treatment technology exists that exceeds the
performance standards, or that effective technology could be
implemented sooner than the phase-in dates, the Coast Guard
would be required to revise the standards and timeframe for
implementation accordingly.
Paragraph (6) would provide an incentive for vessels to
participate in a pilot program approved by the Coast Guard to
conduct ship-board testing of ballast water treatment
technologies likely to achieve or exceed the performance
standards, by allowing the vessels to use such technology for
ten years. This provision is aimed at encouraging vessel
operators to participate in such programs. To date operators
have not participated at a high rate due to the costs and risks
otherwise involved in testing technologies on board. The
subsection also would encourage a range of vessel types and
voyages to participate.
Paragraph (7) would require, starting in December 2014, and
every third year thereafter, the Administrator, in consultation
with the Secretary, and other Federal and State agencies, to
determine if the performance standards should be revised to
reduce the amount of organisms or microbes allowed to be
discharged.
Paragraph (8) would provide that if compliant treatment
technologies installed aboard a vessel are maintained and used,
the vessel may keep that technology for up to ten years if the
performance standards of the bill are met, and for up to five
years if the IMO standards are used, even if the Coast Guard
determines during their review that an enhanced treatment
standard is available.
Paragraph (9) would require the Secretary to publish a list
of vessels identified by States that, due to factors such as
the origin of their voyages, the volume of ballast water they
carry, and the fact that they frequently discharge unexchanged
or improperly exchanged ballast water pursuant to an exception,
pose a relatively high risk of introducing aquatic nuisance
species into the waters of the United States. This paragraph
further would provide that the Secretary give priority to such
vessels for participation in technology pilot programs
described in paragraph (f)(6), and that Federal and State
programs would be authorized to provide incentives to such
vessels to more quickly adopt ballast water treatment
technologies.
Paragraph (10) would exempt certain vessels from ballast
water treatment standards if they operate exclusively in areas
where the risk of aquatic nuisance species in ballast water is
insignificant. States would have to concur before such an
exemption was provided.
Paragraph (11) would require the Secretary, in consultation
with the Administrator, to issue interim protocols within 90
days of enactment for verifying the performance of ballast
water treatment technologies, criteria for certifying
laboratories, and procedures for approving such systems for
shipboard use to ensure that the development of technologies
begins promptly. The paragraph would allow the use of both
Federal and non-federal laboratories for evaluating ballast
water treatment technologies and equipment.
Subsection (g) of section 1101, as amended, would require the
Secretary to notify mariners of areas where vessels should not
uptake ballast water due to known conditions.
Subsection (h) of section 1101, as amended, would require
vessels to dispose of sediment from ballast tanks either more
than 200 nautical miles from the nearest point of land, or into
a reception facility, in accordance with the ballast water plan
and regulations to be approved by the Secretary. The
Administrator would be required to promulgate regulations for
the reception facilities themselves. This subsection also would
require new vessels to be designed and constructed in a manner
that minimizes sediment in ballast tanks and facilitates its
removal.
Subsection (i) of section 1101, as amended, would require the
Secretary to inspect new and existing vessels and ballast water
equipment annually to ensure compliance with the requirements
of the bill. Foreign vessels would be inspected the first time
the vessel enters a United States port. The section also would
require the Secretary to prepare and make public an annual
report on ballast water management activities.
Subsection (j) of section 1101, as amended, would authorize
the Secretary to detain a vessel that is in violation of the
ballast water management requirements and to require corrective
action before it gets underway.
Subsection (k) of section 1101, as amended, would authorize
civil or criminal penalties to be charged to the responsible
party if the person or persons are found to be in violation of
a regulation prescribed under this section.
Subsection (l) of section 1101, as amended, would authorize
the Secretary to enforce the requirements of the bill and
regulations promulgated under the bill.
Subsection (m) of section 1101, as amended, would encourage
the Secretary to consult with the governments of Canada and
Mexico, as well as other relevant countries, in implementing
the requirements of the bill.
Subsection (n) of section 1101, as amended, would encourage
the Secretary to enter into negotiations with foreign
governments to develop and implement an effective international
program for preventing the unintentional introduction and
spread of aquatic nuisance species through ballast waters.
Subsection (o) of section 1101, as amended, would require the
Secretary to ensure that vessels registered outside of the U.S.
do not receive more favorable treatment than United States
vessels in implementing the bill.
Subsection (p) of section 1101, as amended, would authorize
$5 million annually from FY 2008 through FY 2012 to the
Secretary to be provided for research and development on
innovative technologies for the management, treatment, and
disposal of ballast water and sediment, ballast water exchange,
and other vessel vectors of aquatic nuisance species.
Subsection (q) of section 1101, as amended, would require the
Secretary to consult with the Aquatic Nuisance Species Task
Force, established by the NANPCA of 1990, in implementing this
section.
Subsection (r) of section 1101, as amended, would require the
Administrator to conduct an evaluation of human health and
environmental risks from vessel discharges other than aquatic
nuisance species that are not required to have discharge
permits and propose strategies to address such risks.
Subsection (s) of section 1101, as amended, would require the
Coast Guard to report to Congress on vessel-borne pathways of
aquatic nuisance species other than through ballast water, such
as from vessel hulls or anchors, and propose strategies to
address such risks, including best practices for Federal
vessels, and to report on the potential risk of foreign vessels
that are transiting United States waters.
Subsection (t) of section 1101, as amended, would require the
President to prepare a coordinated rapid response plan to
detect and address the spread of nuisance aquatic organisms.
Subsection (u) of section 1101, as amended, would require the
Secretary to develop regulations necessary to carry out the
Act. The subsection contains a provision that would allow
States to bring action against the Secretary and the
Administrator to implement the nondiscretionary elements in the
bill.
Subsection (v) of section 1101, as amended, would allow the
Secretary to enter into cooperative management agreements with
States, including arrangements for cooperative enforcement,
inspection, research, and other provisions included in this
Act. The Secretary would be authorized to provide grants to
States to implement these agreements.
Subsection (w) of section 1101, as amended, is a savings
clause stating that the Act would not preempt any State or
local laws regulating aquatic nuisance species in ballast water
or sediment as long as those laws do not impose substantively
different exchange or treatment requirements, do not conflict
with the requirements of the Act, and do not pose an undue
burden on interstate commerce. It also would establish the bill
as the sole Federal authority with respect to preventing the
introduction of aquatic nuisance species from ballast water and
other ship vectors.
Section 3 of the bill also, in subsection (b), would amend
section 1003 of the NANPCA (16 U.S.C. 4702) to establish
several additional definitions and would make conforming
amendments, in subsection (c).
Section 4. Authorization of Appropriations.
Section 4 of the bill would authorize $50,000,000 in annual
appropriations for the Coast Guard for FY 2008 through FY 2012
to implement the legislation, of which a total of up to
$10,000,000 would be available to States to implement
cooperative agreements in subsection (v) of section 1101 of the
NANPCA, as amended.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, 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 material is printed
in italic, existing law in which no change is proposed is shown
in roman):
NONINDIGENOUS AQUATIC NUISANCE PREVENTION AND CONTROL ACT OF 1990
SEC. 1002. FINDINGS AND PURPOSES.
[19 U.S.C. 4701]
(a) Findings.--The Congress finds that--
(1) the discharge of untreated water in the ballast
tanks of vessels and through other means results in
unintentional introductions of nonindigenous species to
fresh, brackish, and saltwater environments;
(2) when environmental conditions are favorable,
nonindigenous species become established, may compete
with or prey upon native species of plants, fish, and
wildlife, may carry diseases or parasites that affect
native species, and may disrupt the aquatic environment
and economy of affected nearshore areas;
(3) the zebra mussel was unintentionally introduced
into the Great Lakes and has infested--
(A) waters south of the Great Lakes, into a
good portion of the Mississippi River drainage;
(B) waters west of the Great Lakes, into the
Arkansas River in Oklahoma; and
(C) waters east of the Great Lakes, into the
Hudson River and Lake Champlain;
(4) the potential economic disruption to communities
affected by the zebra mussel due to its colonization of
water pipes, boat hulls and other hard surfaces has
been estimated at $5,000,000,000 by the year 2000, and
the potential disruption to the diversity and abundance
of native fish and other species by the zebra mussel
and ruffe, round goby, and other nonindigenous species
could be severe;
(5) the zebra mussel was discovered on Lake Champlain
during 1993 and the opportunity exists to act quickly
to establish zebra mussel controls before Lake
Champlain is further infested and management costs
escalate;
(6) in 1992, the zebra mussel was discovered at the
northernmost reaches of the Chesapeake Bay watershed;
(7) the zebra mussel poses an imminent risk of
invasion in the main waters of the Chesapeake Bay;
(8) since the Chesapeake Bay is the largest recipient
of foreign ballast water on the East Coast, there is a
risk of further invasions of other nonindigenous
species;
(9) the zebra mussel is only one example of thousands
of nonindigenous species that have become established
in waters of the United States and may be causing
economic and ecological degradation with respect to the
natural resources of waters of the United States;
(10) since their introduction in the early 1980's in
ballast water discharges, ruffe--
(A) have caused severe declines in
populations of other species of fish in Duluth
Harbor (in Minnesota and Wisconsin);
(B) have spread to Lake Huron; and
(C) are likely to spread quickly to most
other waters in North America if action is not
taken promptly to control their spread;
(11) examples of nonindigenous species that, as of
the date of enactment of the National Invasive Species
Act of 1996, infest coastal waters of the United States
and that have the potential for causing adverse
economic and ecological effects include--
(A) the mitten crab (Eriocher sinensis) that
has become established on the Pacific Coast;
(B) the green crab (Carcinus maenas) that has
become established in the coastal waters of the
Atlantic Ocean;
(C) the brown mussel (Perna perna) that has
become established along the Gulf of Mexico;
and
(D) certain shellfish pathogens;
(12) many aquatic nuisance vegetation species, such
as Eurasian watermilfoil, hydrilla, water hyacinth, and
water chestnut, have been introduced to waters of the
United States from other parts of the world causing or
having a potential to cause adverse environmental,
ecological, and economic effects;
(13) if preventive management measures are not taken
nationwide to prevent and control unintentionally
introduced nonindigenous aquatic species in a timely
manner, further introductions and infestations of
species that are as destructive as, or more destructive
than, the zebra mussel or the ruffe infestations may
occur;
(14) aquatic nuisance species may be introduced by
other vessel conduits, including the hulls of ships;
[(14)] (15) once introduced into waters of the United
States, aquatic nuisance species are unintentionally
transported and introduced into [inland lakes and
rivers by recreational boaters, commercial barge
traffic, and a variety of other pathways; and] other
areas of the United States, including coastal areas,
inland lakes, and rivers by recreational boaters,
commercial traffic, and a variety of other pathways;
[(15)] (16) resolving the problems associated with
aquatic nuisance species will require the participation
and cooperation of the Federal Government and State
governments, nongovernmental entities, institutions of
higher education, and the private sector, and
investment in the development of prevention
[technologies.] technologies;
(17) in 2004, the International Maritime Organization
agreed to a Convention, which the United States played
an active role in negotiating, to prevent, minimize,
and ultimately eliminate the transfer of aquatic
nuisance species through the control and management of
ballast water and sediments;
(18) the International Maritime Organization
agreement specifically recognizes that countries can
take more stringent measures than those of the
Convention with respect to the control and management
of ships' ballast water and sediment; and
(19) due to the interstate nature of maritime
transportation and the ways by which aquatic nuisance
species may be transferred by vessels, a comprehensive
and uniform national approach for addressing vessel-
borne aquatic nuisance species is needed to address
this issue effectively.
(b) Purposes.--The purposes of this Act are--
(1) to prevent unintentional introduction and
dispersal of nonindigenous species into waters of the
United States through ballast water management and
other requirements;
(2) to coordinate federally conducted, funded or
authorized research, prevention[,] control, information
dissemination and other activities regarding the zebra
mussel and other aquatic nuisance species;
(3) to develop and carry out environmentally sound
control methods to prevent, monitor and control
unintentional introductions of nonindigenous species
from pathways other than ballast water exchange;
(4) to understand and minimize economic and
ecological impacts of nonindigenous aquatic nuisance
species that become established, including the zebra
mussel; and
(5) to establish a program of research and technology
development and assistance to States in the management
and removal of zebra mussels.
SEC. 1003. DEFINITIONS.
[19 U.S.C. 4702]
[As used in this Act, the term--] In this Act:
``(1) Administrator.--The term ``Administrator''
means the Administrator of the Environmental Protection
Agency;
[(1)] (2) Aquatic nuisance species._The term
``aquatic nuisance species'' means a nonindigenous
species that threatens the diversity or abundance of
native species or the ecological stability of infested
waters, or commercial, agricultural, aquacultural or
recreational activities dependent on such [waters;]
waters.
[(2)] (3) Assistant secretary._The term ``Assistant
Secretary'' means the Assistant Secretary of the Army
(Civil [Works);] Works).
[(3) ``ballast water'' means any water and associated
sediments used to manipulate the trim and stability of
a vessel;]
(4) Ballast water.--The term ``ballast water''--
(A) means water taken on board a vessel to
control trim, list, draught, stability, or
stresses of the vessel, including matter
suspended in such water; and
(B) any water placed into a ballast tank
during cleaning, maintenance, or other
operations; but
(C) does not include water taken on board a
vessel and used for a purpose described in
subparagraph (A) that, at the time of
discharge, does not contain aquatic nuisance
species.
(5) Ballast water capacity.--The term ``ballast water
capacity'' means the total volumetric capacity of any
tanks, spaces, or compartments on a vessel that is used
for carrying, loading, or discharging ballast water,
including any multi-use tank, space, or compartment
designed to allow carriage of ballast water.
(6) Ballast water management.--The term ``ballast
water management'' means mechanical, physical,
chemical, and biological processes used, either
singularly or in combination, to remove, render
harmless, or avoid the uptake or discharge of aquatic
nuisance species and pathogens within ballast water and
sediment.
(7) Constructed.--The term ``constructed'' means a
state of construction of a 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 undergoes a major conversion.
[(4)] (8) Director._The term ``Director'' means the
Director of the United States Fish and Wildlife
[Service;] Service.
[(5)] (9) Exclusive economic zone._The term
``exclusive economic zone'' means the Exclusive
Economic Zone of the United States established by
Proclamation Number 5030, dated March 10, 1983, and the
equivalent zone of [Canada;] Canada.
[(6)] (10) Environmentally sound._The term
``environmentally sound'' methods, efforts, actions or
programs means methods, efforts, actions or programs to
prevent introductions or control infestations of
aquatic nuisance species that minimize adverse impacts
to the structure and function of an ecosystem and
adverse effects on non-target organisms and ecosystems
and emphasize integrated pest management techniques and
nonchemical [measures;] measures.
[(7)] (11) Great lakes._The term ``Great Lakes''
means Lake Ontario, Lake Erie, Lake Huron (including
Lake St. Clair), Lake Michigan, Lake Superior, and the
connecting channels (Saint Mary's River, Saint Clair
River, Detroit River, Niagara River, and Saint Lawrence
River to the [Canandian] Canadian Border), and includes
all other bodies of water within the drainage basin of
such lakes and connecting channels.
[(8)] (12) Great lakes region._The term ``Great Lakes
region'' means the 8 States that border on the Great
[Lakes;] Lakes.
[(9)] (13) Indian tribe._The term ``Indian tribe''
means any Indian tribe, band, nation, or other
organized group or community, including any Alaska
Native village or regional corporation (as defined in
or established pursuant to the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.)) that is
recognized as eligible for the special programs and
services provided by the United States to Indians
because of their status as [Indians;] Indians.
[(10)] (14) Interstate organization._The term
``interstate organization'' means an entity--
(A) established by--
(i) an interstate compact that is
approved by Congress;
(ii) a Federal statute; or
(iii) a treaty or other international
agreement with respect to which the
United States is a party; and
(B) (i) that represents 2 or more--
(I) States or political subdivisions
thereof; or
(II) Indian tribes; or
(ii) that represents--
(I) 1 or more States or political
subdivisions thereof; and
(II) 1 or more Indian tribes; or
(iii) that represents the Federal Government
and 1 or more foreign governments; and
(C) has jurisdiction over, serves as forum
for coordinating, or otherwise has a role or
responsibility for the management of, any land
or other natural [resource;] resource.
(15) Major conversion.--The term ``major conversion''
means a conversion of a vessel, that--
(A) changes its ballast water carrying
capacity by at least 15 percent;
(B) changes the vessel class;
(C) is projected to prolong the vessel's life
by at least 10 years (as determined by the
Secretary); or
(D) results in modifications to the vessel's
ballast water system, except--
(i) component replacement-in-kind; or
(ii) conversion of a vessel to meet
the requirements of section 1101(e).
[(11)] (16) Nonindigenous species._The term
``nonindigenous species'' means any species or other
viable biological material that enters an ecosystem
beyond its historic range, including any such organism
transferred from one country into [another;] another.
[(12)] (17) Secretary._The term ``Secretary'' means
the Secretary of the department in which the Coast
Guard is [operating;] operating.
(18) Saltwater flushing.--The term ``saltwater
flushing'' means the process of--
(A) adding midocean water to a ballast water
tank that contains residual quantities of
ballast waters;
(B) mixing the midocean water with the
residual ballast water and sediment in the tank
through the motion of a vessel; and
(C) discharging the mixed water so that the
salinity of the resulting residual ballast
water in the tank exceeds 30 parts per
[thousand;] thousand.
(19) Sediment.--The term ``sediment'' means matter
that has settled out of ballast water within a
[vessel;] vessel.
[(13)] (20) Task force._The term ``Task Force'' means
the Aquatic Nuisance Species Task Force established
under section 1201 of this [Act;] Act.
[(14)] (21) Territorial sea._The term ``territorial
sea'' means the belt of the sea measured from the
baseline of the United States determined in accordance
with international law, as set forth in Presidential
Proclamation Number 5928, dated December 27, [1988;]
1988.
[(15)] (22) Under secretary._The term ``Under
Secretary'' means the Under Secretary of Commerce for
Oceans and Atmosphere;
[(16)] (23) Waters of the united states._The term
``waters of the United States'' means the navigable
waters and the territorial sea of the United [States;
and] States.
[(17)] (24) Unintentional introduction._The term
``unintentional introduction'' means an introduction of
nonindigenous species that occurs as the result of
activities other than the purposeful or intentional
introduction of the species involved, such as the
transport of nonindigenous species in ballast or in
water used to transport fish, mollusks or crustaceans
for aquaculture or other purposes.
(25) United states port.--The term ``United States
port'' means a port, river, harbor, or offshore
terminal under the jurisdiction of the United States,
including ports located in Puerto Rico, Guam, the
Northern Marianas, and the United States Virgin
Islands.
(26) Vessel of the armed forces.--The term ``vessel
of the Armed Forces'' means--
(A) any vessel owned or operated by the
Department of Defense, other than a time or
voyage chartered vessel; and
(B) any vessel owned or operated by the
Department of Homeland Security that is
designated by the Secretary of the department
in which the Coast Guard is operating as a
vessel equivalent to a vessel described in
subparagraph (A).
(27) Waters subject to the jurisdiction of the united
states.--The term ``waters subject to the jurisdiction
of the United States'' means navigable waters and the
territorial sea of the United States, the exclusive
economic zone, and the Great Lakes.
* * * * * * *
[SEC. 1101. AQUATIC NUISANCE SPECIES IN WATERS OF THE UNITED STATES.
[19 U.S.C. 4711]
[(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 regulations; 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.]
SEC. 1101. MANAGEMENT OF VESSEL-BORNE AQUATIC NUISANCE SPECIES.
(a) Statement of Purpose; Vessels to Which This Section
Applies.--
(1) Purpose.--The purpose of this section is to
provide an effective, comprehensive, and uniform
national approach for addressing the introduction and
spread of aquatic nuisance species from ballast water
and other ship-borne vectors, and, in furtherance of
that purpose--
(A) to require, as part of that approach,
mandatory treatment technology, with the
ultimate goal of achieving zero discharge of
aquatic nuisance species;
(B) to create incentives for the development
of ballast water treatment technologies;
(C) to implement the International Convention
for the Control and Management of Ships'
Ballast Water and Sediments, adopted by the
International Maritime Organization in 2004;
and
(D) to establish a management approach for
other ship-borne vectors of aquatic nuisance
species.
(2) In general.--Except as provided in paragraphs
(3), (4), (5), and (6) this section applies to a vessel
that is designed, constructed, or adapted to carry
ballast water; and
(A) is a vessel of United States registry or
nationality, or operated under the authority of
the United States, wherever located; or
(B) is a foreign vessel that--
(i) is en route to a United States
port or place; or
(ii) has departed from a United
States port or place and is within
waters subject to the jurisdiction of
the United States.
(3) Permanent ballast water vessels.--Except as
provided in paragraph (6), this section does not apply
to a vessel that carries all of its permanent ballast
water in sealed tanks and is not subject to discharge.
(4) Armed forces vessels.--
(A) Exemption.--Except as provided in
subparagraph (B) and paragraph (6), this
section does not apply to a vessel of the Armed
Forces.
(B) Ballast water management program.--The
Secretary and the Secretary of Defense, after
consultation with each other and with the Under
Secretary of Commerce for Oceans and
Atmosphere, the Administrator of the
Environmental Protection Agency, and other
appropriate Federal agencies as determined by
the Secretary, shall implement a ballast water
management program, including the promulgation
of standards for ballast water exchange and
treatment and for sediment management, for
vessels of the Armed Forces under their
respective jurisdictions designed, constructed,
or adapted to carry ballast water that is--
(i) consistent with the requirements
of this section, including the
deadlines; and
(ii) at least as stringent as the
requirements promulgated for such
vessels under section 312 of the Clean
Water Act (33 U.S.C. 1322).
(5) Special rule for small vessels.--In applying this
section to vessels less than 50 meters in length that
have a maximum ballast water capacity of 8 cubic
meters, the Secretary may promulgate alternative
measures for managing ballast water in a manner that is
consistent with the purposes of this Act.
(6) Other sources of vessel-borne aquatic nuisance
species.--Measures undertaken by the Secretary under
subsection (s) shall apply to all vessels (as defined
in section 3 of title 1, United States Code).
(b) Uptake and Discharge of Ballast Water or Sediment.--
(1) Prohibition.--The operator of a vessel to which
this section applies may not conduct the uptake or
discharge of ballast water or sediment except as
provided in this section.
(2) Exceptions.--Paragraph (1) does not apply to the
uptake or discharge of ballast water or sediment in the
following circumstances:
(A) The uptake or discharge is solely for the
purpose of--
(i) ensuring the safety of the vessel
in an emergency situation; or
(ii) saving a life at sea.
(B) The uptake or discharge is accidental and
the result of damage to the vessel or its
equipment and--
(i) all reasonable precautions to
prevent or minimize ballast water and
sediment discharge have been taken
before and after the damage occurs, the
discovery of the damage, and the
discharge; and
(ii) the owner or officer in charge
of the vessel did not willfully or
recklessly cause the damage.
(C) The uptake or discharge is solely for the
purpose of avoiding or minimizing the discharge
from the vessel of pollution that would
otherwise violate applicable Federal or State
law.
(D) The uptake or discharge of ballast water
and sediment occurs at the same location where
the whole of that ballast water and that
sediment originated and there is no mixing with
ballast water and sediment from another area
that has not been managed in accordance with
the requirements of this section.
(c) Vessel Ballast Water Management Plan.--
(1) In general.--The operator of a vessel to which
this section applies shall conduct all ballast water
management operations of that vessel in accordance with
a ballast water management plan designed to minimize
the discharge of aquatic nuisance species that--
(A) meets the requirements prescribed by the
Secretary by regulation; and
(B) is approved by the Secretary.
(2) Approval criteria.--
(A) In general.--The Secretary may not
approve a ballast water management plan unless
the Secretary determines that the plan--
(i) describes in detail the actions
to be taken to implement the ballast
water management requirements
established under this section;
(ii) describes in detail the
procedures to be used for disposal of
sediment at sea and on shore in
accordance with the requirements of
this section;
(iii) describes in detail safety
procedures for the vessel and crew
associated with ballast water
management;
(iv) designates the officer on board
the vessel in charge of ensuring that
the plan is properly implemented;
(v) contains the reporting
requirements for vessels established
under this section and a copy of each
form necessary to meet those
requirements;
(vi) incorporates regulatory
requirements, guidance, and best
practices developed under subsection
(s) for other vessel pathways by which
aquatic nuisance species are
transported; and
(vii) meets all other requirements
prescribed by the Secretary.
(B) Foreign vessels.--The Secretary may
approve a ballast water management plan for a
foreign vessel (as defined in section 2101(12)
of title 46, United States Code) on the basis
of a certificate of compliance with the
criteria described in subparagraph (A) issued
by the vessel's country of registration in
accordance with regulations promulgated by the
Secretary.
(3) Copy of plan on board vessel.--The owner or
operator of a vessel to which this section applies
shall--
(A) maintain a copy of the vessel's ballast
water management plan on board at all times;
and
(B) keep the plan readily available for
examination by the Secretary at all reasonable
times.
(d) Vessel Ballast Water Record Book.--
(1) In general.--The owner or operator of a vessel to
which this section applies shall maintain a ballast
water record book in English on board the vessel in
which--
(A) each operation involving ballast water or
sediment discharge is fully recorded without
delay, in accordance with regulations
promulgated by the Secretary;
(B) each such operation is described in
detail, including the location and
circumstances of, and the reason for, the
operation; and
(C) the exact nature and circumstances of any
situation under which any operation was
conducted under an exception set forth in
subsection (b)(2) or (e)(3) is described.
(2) Availability.--The ballast water record book--
(A) shall be kept readily available for
examination by the Secretary at all reasonable
times; and
(B) notwithstanding paragraph (1), may be
kept on the towing vessel in the case of an
unmanned vessel under tow.
(3) Retention period.--The ballast water record book
shall be retained--
(A) on board the vessel for a period of 3
years after the date on which the last entry in
the book is made; and
(B) under the control of the vessel's owner
for an additional period of 3 years.
(4) Regulations.--In the regulations prescribed under
this section, the Secretary shall require, at a
minimum, that--
(A) each entry in the ballast water record
book be signed and dated by the officer in
charge of the ballast water operation recorded;
(B) each completed page in the ballast water
record book be signed and dated by the master
of the vessel; and
(C) the owner or operator of the vessel
transmit such information to the Secretary
regarding the ballast operations of the vessel
as the Secretary may require.
(5) Alternative means of recordkeeping.--The
Secretary shall provide by regulation for alternative
methods of recordkeeping, including electronic
recordkeeping, to comply with the requirements of this
subsection. Any electronic recordkeeping method
authorized by the Secretary shall support the
inspection and enforcement provisions of this Act and
shall comply with applicable standards of the National
Institute of Standards and Technology and the Office of
Management and Budget governing reliability, integrity,
identity authentication, and nonrepudiation of stored
electronic data.
(e) Ballast Water Exchange Requirements.--
(1) In general.--
(A) Requirement.--Until a vessel is required
to conduct ballast water treatment in
accordance with subsection (f) of this section,
the operator of a vessel to which this section
applies may not discharge ballast water in
waters subject to the jurisdiction of the
United States except after--
(i) conducting ballast water exchange
as required by this subsection, in
accordance with regulations prescribed
by the Secretary, in a manner that
results in an efficiency of at least 95
percent volumetric exchange of the
ballast water for each ballast water
tank;
(ii) using ballast water treatment
technology that meets the performance
standards of subsection (f); or
(iii) using alternative ballast water
treatment technology, if the Secretary,
in consultation with the Administrator,
determines that such treatment
technology is at least as effective as
the ballast water exchange required by
clause (i) in preventing and
controlling the introduction of aquatic
nuisance species, and will not have an
adverse impact on the environment.
(B) Technology efficacy.--For purposes of
this paragraph, a ballast water treatment
technology shall be considered to be at least
as effective as the ballast water exchange
required by clause (i) in preventing and
controlling the introduction of aquatic
nuisance species if preliminary experiments
prior to installation of the technology aboard
the vessel demonstrate that the technology
removed at least 98 percent of organisms larger
than 50 microns.
(2) Guidance; 5-year usage.--
(A) Guidance.--Within 1 year after the date
of enactment of the Ballast Water Management
Act of 2007, after public notice and
opportunity for comment, the Secretary shall
develop guidance on technology that may be used
under paragraph (1)(A)(iii).
(B) 5-year usage.--The Secretary shall allow
a vessel using environmentally-sound
alternative ballast water treatment technology
under paragraph (1)(A)(iii) to continue to use
that technology for 5 years after the date on
which the environmentally-sound alternative
ballast water treatment technology was first
placed in service on the vessel, or the date on
which treatment requirements under subsection
(f) become applicable, whichever is later.
(3) Exchange areas.--
(A) Vessels outside the united states eez.--
The operator of a vessel en route to a United
States port or place from a port or place
outside the United States exclusive economic
zone shall conduct ballast water exchange--
(i) before arriving at a United
States port or place;
(ii) at least 200 nautical miles from
the nearest point of land; and
(iii) in water at least 200 meters in
depth.
(B) Coastal voyages.--In lieu of using an
exchange zone described in subparagraph (A)(ii)
or (iii), the operator of a vessel originating
from a port or place within waters subject to
the jurisdiction of the United States, or from
a port within 200 nautical miles of the United
States in Canada, Mexico, or other ports
designated by the Secretary for purposes of
this section, and which does not voyage into
waters described in subparagraph (A)(ii) or
(iii), shall conduct ballast water exchange--
(i) at least 50 nautical miles from
the nearest point of land; and
(ii) in water at least 200 meters in
depth.
(4) Safety or stability exception.--
(A) Secretarial determination.--Paragraph (3)
does not apply to the discharge of ballast
water if the Secretary determines that
compliance with that paragraph would threaten
the safety or stability of the vessel, its
crew, or its passengers because of the design
or operating characteristics of the vessel.
(B) Master of the vessel determination.--
Paragraph (3) does not apply to the discharge
of ballast water if the master of a vessel
determines that compliance with that paragraph
would threaten the safety or stability of the
vessel, its crew, or its passengers because of
adverse weather, equipment failure, or any
other relevant condition.
(C) Notification required.--Whenever the
master of a vessel is unable to comply with the
requirements of paragraph (3) because of a
determination made under subparagraph (B), the
master of the vessel shall--
(i) notify the Secretary as soon as
practicable thereafter but no later
than 24 hours after making that
determination and shall ensure that the
determination, the reasons for the
determination, and the notice are
recorded in the vessel's ballast water
record book; and
(ii) undertake ballast water
exchange--
(I) in an alternative area
that may be designated by the
Secretary, after consultation
with the Undersecretary, and
other appropriate Federal
agencies as determined by the
Secretary, and representatives
of States the waters of which
may be affected by the
discharge of ballast water; or
(II) undertake discharge of
ballast water in accordance
with paragraph (6) if safety or
stability concerns prevent
undertaking ballast water
exchange in the alternative
area.
(D) Review of circumstances.--If the master
of a vessel conducts a ballast water discharge
under the provisions of this paragraph, the
Secretary shall review the circumstances to
determine whether the discharge met the
requirements of this paragraph. The review
under this clause shall be in addition to any
other enforcement authority of the Secretary.
(5) Discharge under waiver.--
(A) Substantial business hardship waiver.--
If, because of the short length of a voyage,
the operator of a vessel is unable to discharge
ballast water in accordance with the
requirements of paragraph (3)(B) without
substantial business hardship, as determined
under regulations prescribed by the Secretary,
the operator shall request a waiver from the
Secretary and discharge the ballast water in
accordance with paragraph (6). A request for a
waiver under this subparagraph shall be
submitted to the Secretary at such time and in
such form and manner as the Secretary may
require.
(B) Substantial business hardship.--For
purposes of subparagraph (A), the factors taken
into account in determining substantial
business hardship shall include whether--
(i) compliance with the requirements
of paragraph (3)(B) would require a
sufficiently great change in routing or
scheduling of service as to compromise
the economic or commercial viability of
the trade or business in which the
vessel is operated; or
(ii) it is reasonable to expect that
the trade or business or service
provided will be continued only if a
waiver is granted under subparagraph
(A).
(6) Permissable discharge.--
(A) In general.--The discharge of unexchanged
ballast water shall be considered to be carried
out in accordance with this paragraph if it
is--
(i) in an area designated for that
purpose by the Secretary, after
consultation with the Undersecretary
and other appropriate Federal agencies
as determined by the Secretary and
representatives of any State that may
be affected by discharge of ballast
water in that area; or
(ii) into a reception facility
described in subsection (f)(2).
(B) Limitation on volume.--The volume of any
ballast water discharged under the provisions
of this paragraph may not exceed the volume
necessary to ensure the safe operation of the
vessel.
(7) Partial compliance.--The operator of a vessel
that is unable to comply fully with the requirements of
paragraph (3)--
(A) shall nonetheless conduct ballast water
exchange to the maximum extent feasible in
compliance with those paragraphs; and
(B) may conduct a partial ballast water
exchange under this paragraph only to the
extent that the ballast water in an individual
ballast tank can be completely exchanged in
accordance with the provisions of paragraph
(1)(A).
(8) Certain geographically limited routes.--
Notwithstanding paragraph (3)(B) of this subsection,
the operator of a vessel is not required to comply with
the requirements of this subsection--
(A) if the vessel operates exclusively--
(i) within Lake Superior, Lake
Michigan, Lake Huron, Lake Ontario, and
Lake Erie and the connecting channels;
or
(ii) between or among the main group
of the Hawaiian Islands; or
(B) if the vessel operates exclusively within
any area with respect to which the Secretary
has determined, after consultation with the
Undersecretary, the Administrator, and
concurrence by the State whose state waters
would be affected by the discharge of ballast
water, that the risk of introducing aquatic
nuisance species through ballast water
discharge in the areas in which the vessel
operates is insignificant.
(9) Marine sanctuaries and other prohibited areas.--
(A) In general.--A vessel may not discharge
ballast water or sediment containing aquatic
nuisance species within--
(i) a marine sanctuary designated
under title III of the National Marine
Sanctuaries Act (16 U.S.C. 1431 et.
Seq.);
(ii) a national marine monument
designated under the Antiquities Act of
1906; or
(iii) an area designated by the
Secretary in any other waters, after
consultation with the Undersecretary
and the Administrator and opportunity
for public comment, that meet the
criteria established pursuant to
subparagraph (B) of this paragraph.
(B) Additional areas.--The Secretary shall,
after consultation with the Undersecretary, the
Administrator and other appropriate Federal and
State agencies, as determined by the Secretary,
and opportunity for public comment, establish
criteria for designating additional areas in
which, due to their sensitive ecological
nature, restrictions on the discharge of vessel
ballast water or sediment containing aquatic
nuisance species are warranted.
(C) State waters.--The governor of any State
may submit a written petition to the Secretary
to designate an area of State waters under
subparagraph (A)(iii) that meets the criteria
established under subparagraph (B) of this
paragraph. The petition shall include a
detailed analysis as to how the area proposed
to be designated meets those criteria. An area
may not be designated under this paragraph
until the Secretary determines, based on
evidence provided by the governor, that
adequate alternative areas or reception
facilities for discharging ballast water or
sediment are available. Within 180 days after
receiving such a petition, the Secretary
shall--
(i) make a determination as to
whether the proposal meets the
requirements of this paragraph for
designation, and
(ii) either--
(I) publish a written notice
of the petition and the
proposed restrictions in the
Federal Register; or
(II) notify the governor in
writing that the area proposed
for designation does not
qualify for designation under
this paragraph and include in
the notice a detailed
explanation of why the area
does not qualify for
designation under this
paragraph.
(D) Procedure; deadline.--Before designating
any area under subparagraph (A)(iii), whether
on the Secretary's initiative or in response to
a petition under subparagraph (C), the
Secretary, after providing an opportunity for
public comment, shall publish notice in the
Federal Register of the proposed designation.
The Secretary and the Undersecretary shall make
such information available through other
appropriate mechanisms, including a notice to
mariners and inclusion on nautical charts. The
designation of an area by the Secretary under
subparagraph (A)(iii) may not take effect less
than 180 days after the publishing of such
notice.
(E) Effect on state law.--Nothing in this
paragraph supersedes any State law in effect as
of January 1, 2007, that restricts the
discharge of ballast water or sediment in State
waters and requires such discharges to be made
into reception facilities.
(10) Regulations deadline.--The Secretary shall issue
a final rule for regulations required by this
subsection within 1 year after the date of enactment of
the Ballast Water Management Act of 2007.
(11) Vessels operating in the great lakes.--
(A) Regulations.--Until such time as
regulations are promulgated to implement the
amendments made by the Ballast Water Management
Act of 2007, regulations promulgated to carry
out this Act shall remain in effect until
revised or replaced pursuant to the Ballast
Water Management Act of 2007.
(B) Relationship to other programs.--On
promulgation of regulations required under this
Act to implement a national mandatory ballast
management program that is at least as
comprehensive as the Great Lakes program (as
determined by the Secretary, in consultation
with the Governors of Great Lakes States)--
(i) the program regulating vessels
and ballast water in Great Lakes under
this section shall terminate; and
(ii) the national program shall apply
to such vessels and ballast water.
(12) Vessels with no ballast on board.--Not later
than 180 days after the date of enactment of the
Ballast Water Management Act of 2007, the Secretary
shall promulgate regulations to minimize the discharge
of invasive species from ships entering a United States
port or place from outside the United States exclusive
economic zone that claim no ballast on board, or that
claim to be carrying only unpumpable quantities of
ballast, including, at a minimum, a requirement that--
(i) such a ship shall conduct
saltwater flushing of ballast water
tanks--
(I) outside the exclusive
economic zone; or
(II) at a designated
alternative exchange site; and
(ii) before being allowed entry into
the Great Lakes beyond the St. Lawrence
Seaway, the master of such a ship shall
certify that the ship has complied with
each applicable requirement under this
subsection.
(f) Ballast Water Treatment Requirements.--
(1) Performance standards.--A vessel to which this
section applies shall conduct ballast water treatment
in accordance with the requirements of this subsection
before discharging ballast water so that the ballast
water discharged will contain--
(A) less than 1 living organism per 10 cubic
meters that is 50 or more micrometers in
minimum dimension;
(B) less than 1 living organism per 10
milliliters that is less than 50 micrometers in
minimum dimension and more than 10 micrometers
in minimum dimension;
(C) concentrations of indicator microbes that
are less than--
(i) 1 colony-forming unit of
toxicogenic Vibrio cholera (serotypes
O1 and O139) per 100 milliliters, or
less than 1 colony-forming unit of that
microbe per gram of wet weight of
zoological samples;
(ii) 126 colony-forming units of
escherichia coli per 100 milliliters;
and
(iii) 33 colony-forming units of
intestinal enterococci per 100
milliliters; and
(D) concentrations of such additional
indicator microbes, and of viruses, as may be
specified in regulations promulgated by the
Administrator, after consultation with the
Secretary and other appropriate Federal and
State agencies as determined by the
Administrator, that are less than the amount
specified in those regulations.
(2) Reception facility exception.--
(A) In general.--Paragraph (1) does not apply
to a vessel that discharges ballast water into
a facility for the reception of ballast water
that meets standards prescribed by the
Administrator.
(B) Promulgation of standards.--Within 1 year
after the date of enactment of the Ballast
Water Management Act of 2007, the
Administrator, in consultation with the
Secretary and other appropriate Federal and
State agencies as determined by the
Administrator, shall promulgate standards for--
(i) the reception of ballast water
from vessels into reception facilities;
and
(ii) the disposal or treatment of
such ballast water in a way that does
not impair or damage the environment,
human health, property, or resources.
(3) Implementation schedule.--Paragraph (1) applies
to all vessels to which this section applies on January
1, 2012. Based on the outcome of the feasibility review
conducted under paragraph (5), the Secretary may
require different classes of vessels to comply with
paragraph (1) on a different schedule, and shall
establish different classes of vessels for this purpose
through regulations under this section.
(4) Treatment system approval required.--The operator
of a vessel may not use a ballast water treatment
system to comply with the requirements of this
subsection unless the system is approved by the
Secretary, in consultation with the Administrator. The
Secretary shall promulgate regulations establishing a
process for such approval, after consultation with the
Administrator and other appropriate Federal agencies as
determined by the Secretary, within 1 year after the
date of enactment of the Ballast Water Management Act
of 2007.
(5) Feasibility review.--
(A) In general.--Not less than 2 years before
January 1, 2012, or as that date may be
extended under this paragraph, the Secretary,
in consultation with the Administrator, shall
complete a review to determine whether
appropriate technologies are available to
achieve the standards set forth in paragraph
(1). In reviewing the technologies the
Secretary, after consultation with the
Administrator and other appropriate Federal
agencies as determined by the Secretary, shall
consider--
(i) the effectiveness of a technology
in achieving the standards;
(ii) feasibility in terms of
compatibility with ship design and
operations;
(iii) safety considerations;
(iv) whether a technology has an
adverse impact on the environment; and
(v) cost effectiveness.
(B) Delay in scheduled application.--If the
Secretary determines, on the basis of the
review conducted under subparagraph (A), that
technology that complies with the standards set
forth in paragraph (1) in accordance with the
schedule set forth in paragraph (3), or as that
date may be extended under this paragraph, is
not available or cost-effective for any class
of vessels, the Secretary shall require use of
cost-effective technology that achieves the
performance levels of the best performing
technology available that meets, at a minimum,
the applicable ballast water discharge standard
of the International Maritime Organization. If
the Secretary finds that no technology is
available that will achieve either the
standards set forth in paragraph (1) or the
standards of the International Maritime
Organization, then, the Secretary shall--
(i) extend the date on which that
paragraph applies to vessels for a
period of not more than 24 months; and
(ii) recommend action to ensure that
compliance with the extended date
schedule for that subparagraph is
achieved.
(C) Higher standards; earlier
implementation.--
(i) Standards.--If the Secretary
determines that ballast water treatment
technology exists that exceeds the
performance standards required under
paragraph (1) of this subsection, the
Secretary shall, for any class of
vessels, revise the performance
standards to incorporate the higher
performance standards.
(ii) Implementation.--If the
Secretary determines that technology
that achieves the applicable
performance standards required under
paragraph (1) of this subsection can be
implemented earlier than required by
this subsection, the Secretary shall,
for any class of vessels, accelerate
the implementation schedule under
paragraph (3). If the Secretary
accelerates the implementation schedule
pursuant to this clause, the Secretary
shall provide at least 24 months notice
before such accelerated implementation
goes into effect.
(iii) Determinations not mutually
exclusive.--The Secretary shall take
action under both clause (i) and clause
(ii) if the Secretary makes
determinations under both clauses.
(6) Delay of application for vessel participating in
promising technology evaluations.--
(A) In general.--If a vessel participates in
a program approved by the Secretary to test and
evaluate promising ballast water treatment
technologies that are likely to result in
treatment technologies achieving a standard
that is the same as or more stringent than the
standard that applies under paragraph (1)
before the first date on which paragraph (1)
applies to that vessel, the Secretary shall
allow the vessel to use that technology for a
10-year period and such vessel shall be deemed
to be in compliance with the requirements of
paragraph (1) during that 10-year period.
(B) Vessel diversity.--The Secretary--
(i) shall seek to ensure that a wide
variety of vessel types and voyages are
included in the program; but
(ii) may not grant a delay under this
paragraph to more than 5 percent of the
vessels to which subparagraph (A), (B),
(C), or (D) of paragraph (3) applies.
(C) Termination of grace period.--The
Secretary may terminate the 10-year grace
period of a vessel under subparagraph (A) if
participation of the vessel in the program is
terminated without the consent of the
Secretary.
(D) Annual re-evaluation; termination.--The
Secretary shall establish an annual evaluation
process to determine whether the performance of
an approved technology is sufficiently
effective and whether it is causing harm to the
environment. If the Secretary determines that
an approved technology is insufficiently
effective or is causing harm to the
environment, the Secretary shall revoke the
approval granted under subparagraph (A).
(7) Review of standards.--
(A) In general.--In December, 2014, and in
every third year thereafter, the Administrator,
in consultation with the Secretary, shall
review ballast water treatment standards to
determine, after consultation with the
Undersecretary and Federal and State agencies
as determined by the Administrator, if the
standards under this subsection should be
revised to reduce the amount of organisms,
microbes, or viruses allowed to be discharged,
taking into account improvements in the
scientific understanding of biological
processes leading to the spread of aquatic
nuisance species and improvements in ballast
water treatment technology. The Administrator
shall revise by regulation the performance
standard required under this subsection as
necessary.
(B) Application of adjusted standards.--In
the regulations, the Secretary shall provide
for the prospective application of the adjusted
standards prescribed under this paragraph to
vessels constructed after the date on which the
adjusted standards apply and for an orderly
phase-in of the adjusted standards to existing
vessels.
(8) Installed equipment.--If ballast water treatment
technology used for purposes of complying with the
regulations under this subsection is installed on a
vessel, maintained in good working order, and used by
the vessel, the vessel may use that technology for the
shortest of--
(A) the 10-year period beginning on the date
of initial use of technology required by
paragraph (1);
(B) and the 5-year period beginning on the
date of initial use of technology that, at a
minimum, meets International Maritime
Organization standards; or
(C) the life of the ship on which the
technology is used.
(9) High-risk vessels.--
(A) Vessel list.--Within 1 year after the
date of enactment of the Ballast Water
Management Act of 2007, the Secretary shall
publish a list of vessels identified by States
that, due to factors such as the origin of
their voyages, the frequency of their voyages,
the volume of ballast water they carry, the
biological makeup of the ballast water, or the
fact that they frequently discharge unexchanged
ballast water pursuant to an exception under
subsection (e), pose a relatively high risk of
introducing aquatic nuisance species into the
waters of those States. The Secretary shall
update the list after any calendar quarter in
which new vessels are identified by States
under the preceding sentence.
(B) Incentive programs.--The Secretary shall
give priority to vessels on the list for
participation in pilot programs described in
paragraph (6). Any Federal agency, and any
State agency with respect to vessels identified
by such State to the Secretary for inclusion on
the list pursuant to subparagraph (A), may
develop technology development programs or
other incentives (whether positive or negative)
to such vessels in order to encourage the
adoption of ballast water treatment technology
by those vessels consistent with the
requirements of this section on an expedited
basis.
(10) Exception for vessels operating exclusively in
determined area.--
(A) In general.--Paragraph (1) and subsection
(h)(1) do not apply to a vessel that operates
exclusively within a geographically limited
area if the Secretary has determined through a
rulemaking proceeding, after consultation with
the Undersecretary and other appropriate
Federal agencies as determined by the
Secretary, and representatives of States the
waters of which could be affected by the
discharge of ballast water or sediment, that
the risk of introducing and spreading aquatic
nuisance species through ballast water or
sediment discharge from the vessel is
insignificant.
(B) Certain vessels.--A vessel constructed
before January 1, 2001, that operates
exclusively within Lake Superior, Lake
Michigan, Lake Huron, and Lake Erie and the
connecting channels shall be presumed not to
pose a significant risk of introducing aquatic
nuisance species unless the Secretary finds
otherwise in a rulemaking proceeding under
subparagraph (A).
(C) Best practices.--The Secretary shall
develop, and require vessels exempted under
subparagraph (A) to follow, best practices,
developed in consultation with the Governors or
States that may be affected, to minimize the
spreading of aquatic nuisance species or
infectious diseases in its operating area.
(11) Testing protocols and laboratories.--
(A) In general.--The Secretary, in
consultation with the Administrator, shall, no
later than 90 days after the date of enactment
of the Ballast Water Management Act of 2007 and
without regard to chapter 5 of title 5, United
States Code, issue interim protocols for
verifying the performance of ballast water
treatment technologies required by this Act,
criteria for certifying laboratories to
evaluate such technologies, and procedures for
approving treatment equipment and systems for
shipboard use.
(B) Protocols and procedures for treatment
technologies.--In developing protocols and
procedures for verifying and approving
treatment technologies, the Secretary, in
consultation with the Administrator, shall
consider using existing protocols and
procedures including methods used as part of
the Ballast Water Management Demonstration
Program by the Environmental Protection Agency
as a part of its Environmental Testing &
Verification Program, or by the Secretary as
part of the Coast Guard's Shipboard Technology
Evaluation Program.
(C) Laboratories.--The Secretary shall
utilize Federal or non-Federal laboratories
that meet standards established by the
Secretary for the purpose of evaluating and
certifying ballast water treatment technologies
and equipment under this subsection.
(D) Requirements; updates.--The Secretary, in
consultation with the Administrator, shall
periodically review and, if necessary, revise
the criteria, protocols, and procedures
developed under this paragraph.
(g) Warnings Concerning Ballast Water Uptake.--
(1) In general.--The Secretary shall notify vessel
owners and operators of any area in waters subject to
the jurisdiction of the United States in which vessels
may not uptake ballast water due to known conditions.
(2) Contents.--The notice shall include--
(A) the coordinates of the area;
(B) if possible, the location of alternative
areas for the uptake of ballast water; and
(C) the length of time that such warning
shall remain in place.
(h) Sediment Management.--
(1) In general.--The operator of a vessel to which
this section applies may not remove or dispose of
sediment from spaces designed to carry ballast water
except--
(A) in accordance with this subsection and
the ballast water management plan required
under subsection (c); and
(B) more than 200 nautical miles from the
nearest point of land or into a reception
facility that meets the requirements of
paragraph (3).
(2) Design requirements.--
(A) New vessels.--After December 31, 2011, it
shall be unlawful to construct a vessel in the
United States to which this section applies
unless that vessel is designed and constructed,
in accordance with regulations prescribed under
subparagraph (C), in a manner that--
(i) minimizes the uptake and
entrapment of sediment;
(ii) facilitates removal of sediment;
and
(iii) provides for safe access for
sediment removal and sampling.
(B) Existing vessels.--Every vessel to which
this section applies that was constructed
before January 1, 2012, shall be modified
before January 1, 2012, to the extent
practicable, to achieve the objectives
described in clauses (i), (ii), and (iii) of
subparagraph (A).
(C) Regulations.--The Secretary shall
promulgate regulations establishing design and
construction standards to achieve the
objectives of subparagraph (A) and providing
guidance for modifications and practices under
subparagraph (B). The Secretary shall
incorporate the standards and guidance in the
regulations governing the ballast water
management plan.
(3) Sediment reception facilities.--
(A) Standards.--The Administrator, in
consultation with other appropriate Federal
agencies as determined by the Administrator,
shall promulgate regulations governing
facilities for the reception of vessel sediment
from spaces designed to carry ballast water
that provide for the disposal of such sediment
in a way that does not impair or damage the
environment, human health, or property or
resources of the disposal area.
(B) Designation.--The Administrator, in
consultation with the Secretary and other
appropriate Federal agencies as determined by
the Administrator, shall designate facilities
for the reception of vessel sediment that meet
the requirements of the regulations promulgated
under subparagraph (A) at ports and terminals
where ballast tanks are cleaned or repaired.
(i) Examinations and Certifications.--
(1) Initial examination.--
(A) In general.--The Secretary shall examine
vessels to which this section applies to
determine whether--
(i) there is a ballast water
management plan for the vessel that
meets the requirements of this section;
and
(ii) the equipment used for ballast
water and sediment management in
accordance with the requirements of
this section and the regulations
promulgated hereunder is installed and
functioning properly.
(B) New vessels.--For vessels constructed in
the United States on or after January 1, 2011,
the Secretary shall conduct the examination
required by subparagraph (A) before the vessel
is placed in service.
(C) Existing vessels.--For vessels
constructed before January 1, 2011, the
Secretary shall--
(i) conduct the examination required
by subparagraph (A) before the date on
which subsection (f)(1) applies to the
vessel according to the schedule in
subsection (f)(3); and
(ii) inspect the vessel's ballast
water record book required by
subsection (d).
(D) Foreign vessels.--In the case of a
foreign vessel (as defined in section 2101(12)
of title 46, United States Code), the Secretary
shall perform the examination required by this
paragraph the first time the vessel enters a
United States port.
(2) Subsequent examinations.--The Secretary shall
examine vessels no less frequently than once each year
to ensure vessel compliance with the requirements of
this section.
(3) Inspection authority.--
(A) In general.--The Secretary may carry out
inspections of any vessel to which this section
applies at any time, including the taking of
ballast water samples, to ensure the vessel's
compliance with this Act. The Secretary shall
use all appropriate and practical measures of
detection and environmental monitoring, and
shall establish adequate procedures for
reporting violations and accumulating evidence.
(B) Investigations.--Upon receipt of evidence
that a violation has occurred, the Secretary
shall cause the matter to be investigated. In
any investigation under this section the
Secretary may issue subpoenas to require the
attendance of any witness and the production of
documents and other evidence. In case of
refusal to obey a subpoena issued to any
person, the Secretary may request the Attorney
General to invoke the aid of the appropriate
district court of the United States to compel
compliance.
(4) Required certificate.--If, on the basis of an
initial examination under paragraph (1) the Secretary
finds that a vessel complies with the requirements of
this section and the regulations promulgated hereunder,
the Secretary shall issue a certificate under this
paragraph as evidence of such compliance. The
certificate shall be valid for a period of not more
than 5 years, as specified by the Secretary. The
certificate or a true copy shall be maintained on board
the vessel.
(5) Notification of violations.--If the Secretary
finds, on the basis of an examination under paragraph
(1) or (2), sampling under paragraph (3), or any other
information, that a vessel is being operated in
violation of the requirements of this section or the
regulations promulgated hereunder, the Secretary
shall--
(A) notify in writing--
(i) the master of the vessel; and
(ii) the captain of the port at the
vessel's next port of call; and
(B) take such other action as may be
appropriate.
(6) Compliance and monitoring.--
(A) In general.--The Secretary shall by
regulation establish sampling and other
procedures to monitor compliance with the
requirements of this section and any
regulations promulgated under this section.
(B) Use of markers.--The Secretary may verify
compliance with treatment standards under this
section and the regulations through
identification of markers associated with a
treatment technology's effectiveness, such as
the presence of indicators associated with a
certified treatment technology.
(7) Education and technical assistance programs.--The
Secretary may carry out education and technical
assistance programs and other measures to promote
compliance with the requirements issued under this
section.
(8) Report.--Beginning 1 year after final regulations
have been adopted pursuant to this section after its
amendment by the Ballast Water Management Act of 2007
and annually thereafter, the Secretary shall prepare a
report summarizing the results of ballast water
inspection and enforcement activities. The report
shall, at a minimum, include information on the number
of vessels inspected and the type of inspections, the
status of implementation of treatment technologies, the
number of exemptions claimed from ballast water
exchange requirements, the number of violations, a
summary of enforcement and regulatory actions, and
overall compliance statistics. The report shall be made
available on the National Ballast Information
Clearinghouse established under section 1102(f).
(j) Detention of Vessels.--
(1) In general.--The Secretary, by notice to the
owner, charterer, managing operator, agent, master, or
other individual in charge of a vessel, may detain that
vessel if the Secretary has reasonable cause to believe
that--
(A) the vessel is a vessel to which this
section applies; and
(B) the vessel does not comply with the
requirements of this section or of the
regulations issued hereunder or is being
operated in violation of such requirements.
(2) Clearance.--
(A) In general.--A vessel detained under
paragraph (1) may obtain clearance under
section 4197 of the Revised Statutes (46 U.S.C.
App. 91) only if the violation for which it was
detained has been corrected.
(B) Withdrawal.--If the Secretary finds that
a vessel detained under paragraph (1) has
received a clearance under section 4197 of the
Revised Statutes (46 U.S.C. App. 91) before it
was detained under paragraph (1), the Secretary
shall withdraw, withhold, or revoke the
clearance.
(k) Sanctions.--
(1) Civil penalties.--Any person who violates a
regulation promulgated under this section shall be
liable for a civil penalty in an amount not to exceed
$32,500. Each day of a continuing violation constitutes
a separate violation. A vessel operated in violation of
this section or 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 this section
is guilty of a class C felony.
(3) Revocation of clearance.--Except as provided in
subsection (j)(2), 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 this section
or the regulations issued under this section.
(4) Exception to sanctions.--This subsection does not
apply to a discharge pursuant to subsection (b)(2),
(e)(5), or (e)(7).
(l) Enforcement.--
(1) Administrative actions.--If the Secretary finds,
after notice and an opportunity for a hearing, that a
person has violated any provision of this section or
any regulation promulgated hereunder, the Secretary may
assess a civil penalty for that violation. In
determining the amount of a 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.
(2) 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, or any regulation promulgated
hereunder. Any court before which such an action is
brought may award appropriate relief, including
temporary or permanent injunctions and civil penalties.
(m) 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, after 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 aquatic nuisance
species through ballast water.
(n) International Cooperation.--The Secretary, in cooperation
with the Undersecretary, the Secretary of State, the
Administrator, the heads of other relevant Federal agencies,
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 aquatic nuisance species through
ballast water. The Secretary is particularly encouraged to seek
bilateral or multilateral agreements with Canada, Mexico, and
other nations in the Wider Caribbean (as defined in the
Convention for the Protection and Development of the Marine
Environment of the Wider Caribbean (Cartagena Convention) under
this section.
(o) 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.
(p) Support for Federal Ballast Water Demonstration
Project.--In addition to amounts otherwise available to the
Maritime Administration, the National Oceanic and Atmospheric
Administration, the Environmental Protection Agency, and the
United States Fish and Wildlife Service for the Federal Ballast
Water Demonstration Project, the Secretary shall provide
support, including grants, for research and development of
innovative technologies for the management, treatment, and
disposal of ballast water and sediment, for finalizing the
validation testing of the verification protocol of the
Environmental Technology Verification Program, for ballast
water exchange, and for other vessel vectors of aquatic
nuisance species such as hull-fouling. There are authorized to
be appropriated to the Secretary $5,000,000 for each of fiscal
years 2008 through 2012 to carry out this subsection.
(q) Consultation With Task Force.--The Secretary shall
consult with the Task Force in carrying out this section.
(r) Evaluation of Vessel Discharges.--
(1) In general.--Within 2 years after the date of
enactment of the Ballast Water Management Act of 2007,
the Administrator, in consultation with the Secretary
and other appropriate Federal agencies, shall conduct
an evaluation of vessel discharges other than aquatic
nuisance species, incidental to the normal operation of
a vessel as defined in section 312(a)(12)(A) of the
Clean Water Act (33 U.S.C. 1322(a)(12)(A)) that are not
required by the Clean Water Act (33 U.S.C. 1251 et
seq.) to have National Pollution Effluent Discharge
Standards permits under section 122.3(a) of title 40,
Code of Federal Regulations. The evaluation shall
include--
(A) a characterization of the various types
of discharges by different classes of vessels;
(B) the average volume of such discharges for
individual vessels and by class of vessel in
the aggregate;
(C) conclusions as to whether such discharges
pose a risk to human health or the environment;
and
(D) recommendations as to steps, including
regulations, that are necessary to address such
risks.
(2) Public comment.--The Administrator shall cause a
draft of the evaluation to be published in the Federal
Register for public comment, and shall develop a final
evaluation report after taking into accounts any
comments received during the public comment period.
(3) Final report.--The Administrator shall transmit a
copy of the final report to the Senate Committee on
Commerce, Science, and Transportation and the House of
Representatives Committee on Transportation and
Infrastructure.
(s) Other Sources of Vessel-Borne Nuisance Species.--
(1) Hull-fouling and other vessel sources.--
(A) Report.--Within 180 days after the date
of enactment of the Ballast Water Management
Act of 2007, the Commandant of the Coast Guard
shall transmit a report to the Senate Committee
on Commerce, Science, and Transportation and
the House of Representatives Committee on
Transportation and Infrastructure on vessel-
borne vectors of aquatic nuisance species and
pathogens other than ballast water and
sediment, including vessel hulls, anchors, and
equipment.
(B) Management.--Within 1 year after the date
of enactment of the Ballast Water Management
Act of 2007, the Secretary shall develop a
strategy to address such other vessel sources
of aquatic nuisance species and to reduce the
introduction of invasive species into and
within the United States from vessels. The
strategy shall include--
(i) designation of geographical
locations for update and discharge of
untreated ballast water, as well as
measures to address non-ballast vessel
vectors of aquatic invasive species;
(ii) necessary modifications of
existing regulations;
(iii) best practices standards and
procedures; and
(iv) a timeframe for implementation
of those standards and procedures by
vessels, in addition to the mandatory
requirements set forth in this section
for ballast water.
(C) Report.--The Secretary shall transmit a
report to the Committees describing the
strategy, proposed regulations, best practices,
and the implementation timeframe, together with
any recommendations, including legislative
recommendations if appropriate, the Secretary
deems appropriate.
(D) Federal government vessels.--The strategy
shall include requirements to ensure the
consistent application of best practices to all
vessels owned or operated by any Federal agency
or department and shall preempt any other
requirement of Federal, State, or local law
with respect to such vessel-borne vectors for
those vessels.
(2) Transiting vessels.--Within 180 days after the
date of enactment of the Ballast Water Management Act
of 2007, the Commandant of the Coast Guard shall
transmit a report to the Senate Committee on Commerce,
Science, and Transportation and the House of
Representatives Committee on Transportation and
Infrastructure containing--
(A) an assessment of the magnitude and
potential adverse impacts of ballast water
operations from foreign vessels designed,
adapted, or constructed to carry ballast water
that are transiting waters subject to the
jurisdiction of the United States; and
(B) recommendations, including legislative
recommendations if appropriate, of options for
addressing ballast water operations of those
vessels.
(t) Rapid Response Plan.--
(1) Preparation.--The President shall prepare and
publish a national rapid response plan for killing,
removing, or minimizing the spread of aquatic nuisance
species in the waters of the United States in
accordance with this section.
(2) Contents.--The national rapid response plan shall
provide for efficient, coordinated, and effective
action to minimize damage from aquatic nuisance species
in the navigable waters of the United States, including
killing, containing, and removal of the aquatic
nuisance species, and shall include the following:
(A) Assignment of duties and responsibilities
among Federal departments and agencies in
coordination with State and local agencies and
port authorities and private entities.
(B) Identification, procurement, maintenance,
and storage of equipment and supplies needed to
facilitate the killing, containment, and
removal of aquatic nuisance species under this
section.
(C) Establishment or designation of Federal
aquatic nuisance species response teams,
consisting of--
(i) trained personnel who shall be
available to provide necessary services
to carry out the national rapid
response plan;
(ii) adequate equipment and material
needed to facilitate the killing,
containment, and removal of aquatic
nuisance species under this section;
and
(iii) a detailed plans to kill,
contain, and remove aquatic nuisance
species, including measures to protect
fisheries and wildlife.
(D) A system of surveillance and notice
designed to safeguard against, as well as
ensure earliest possible notice of, the
introduction of aquatic nuisance species and
imminent threats of such introduction to the
appropriate State and Federal agencies.
(E) Establishment of a national center to
provide coordination and direction for
operations in carrying out the plan.
(F) Procedures and techniques to be employed
in identifying, containing, killing, and
removing aquatic nuisance species in the waters
of the United States.
(G) A schedule identifying--
(i) mitigating devices and
substances, if any, that may be used in
carrying out the plan;
(ii) the waters in which such
mitigating devices and substances may
be used; and
(iii) the quantities of such
mitigating device or substance which
can be used safely in such waters.
(H) A system whereby the State or States
affected by an aquatic nuisance species may act
where necessary to remove such species.
(I) Establishment of criteria and procedures
to ensure immediate and effective Federal
identification of, and response to, an
introduction of aquatic nuisance species.
(J) Designation of the Federal official who
shall be the Federal on-scene coordinator for
measures taken to kill, contain, and remove
aquatic nuisance species under this section.
(K) A fish and wildlife response plan for the
immediate and effective protection, rescue, and
rehabilitation of, and the minimization of risk
of damage to, fish and wildlife resources and
their habitat that are harmed or that may be
jeopardized by an introduction of an aquatic
nuisance species.
(3) Federal removal authority.--
(A) Removal requirement.--
(i) In general.--The President shall
ensure, in accordance with the national
rapid response plan, effective and
immediate killing, containing, and
removal of the aquatic nuisance species
in the waters of the United States.
(ii) Discretionary authority.--Under
the authority provided by clause (i),
an aquatic nuisance species may be--
(I) killed, contained, or
removed at any time; and
(II) all Federal, State, and
private actions to kill,
contain, and remove the aquatic
nuisance species may be
directed or monitored.
(B) Actions in accordance with national rapid
response plan.--Each Federal agency, State,
owner or operator, or other person
participating in efforts under this subsection
shall act in accordance with the national rapid
response plan or as directed to carry out the
plan.
(u) Regulations.--
(1) In general.--The Secretary, after consultation
with other appropriate Federal agencies, shall issue
such regulations as may be necessary initially to carry
out this section within 1 year after the date of
enactment of the Ballast Water Management Act of 2007.
(2) Judicial review.--
(A) 120-day rule.--An interested person may
bring an action for review of a final
regulation promulgated under this section by
the Secretary of the department in which the
Coast Guard is operating in the United States
Court of Appeals for the District of Columbia
Circuit. Any such petition shall be filed
within 120 days after the date on which notice
of the promulgation appears in the Federal
Register, except that if the petition is based
solely on grounds arising after the 120th day,
then any petition for review under this
subsection shall be filed within 120 days after
those grounds arise.
(B) Review in enforcement proceedings.--A
regulation for which review could have been
obtained under subparagraph (A) of this
paragraph is not subject to judicial review in
any civil or criminal proceeding for
enforcement.
(3) Right of action.--
(A) In general.--Except as provided in
subparagraph (B) of this paragraph, the
governor of any State which is, or can be,
adversely affected by any act or duty under
this section which is not discretionary, may
bring an action on behalf of that State--
(i) against the Secretary where there
is alleged a failure of the Secretary
to perform an act or duty under this
Act which is not discretionary; and
(ii) against the Administrator where
there is alleged a failure of the
Administrator to perform an act or duty
under this Act which is not
discretionary.
(B) Conditions.--An action may not be
commenced under subparagraph (A) of this
paragraph prior to 60 days after the plaintiff
has given notice, in writing and under oath, to
the Secretary or Administrator, as appropriate.
(C) Venue.--An action brought under this
subsection shall be brought in the United
States district court for the District of
Columbia.
(v) State Cooperative Agreements.--The Secretary may enter
into a cooperative management agreement with the governor of a
State to implement provisions of this section within State
waters. The agreement may include arrangements for cooperative
enforcement, inspection, research, and other provisions
included in this Act. The Secretary may provide grants to
States to implement the agreements.
(w) Savings Clause.--
(1) In general.--Nothing in this section shall
preempt any State or local law related to aquatic
nuisance species from vessel ballast water or sediment
or other vessel-related vectors that--
(A) does not require exchange or treatment
requirements substantively different from those
required under subsections (e) and (f); and
(B) does not conflict with the requirements
of this section; and
(C) does not pose an undue burden on
interstate commerce.
(2) Reception facilities.--The standards prescribed
by the Administrator under subsection (f)(2) do not
supersede any more stringent standard under any
otherwise applicable Federal, State, or local law.
(3) Application with other statutes.--This section
provides the sole Federal authority for preventing the
introduction of aquatic nuisance species through the
control and management of vessel ballast water or
sediment or other vessel-related vectors.
* * * * * * *
[SEC. 1103. ARMED SERVICES BALLAST WATER PROGRAMS.
[19 U.S.C. 4713]
[(a) Department of Defense Vessels.--Subject to operational
conditions, the Secretary of Defense, in consultation with the
Secretary, the Task Force, and the International Maritime
Organization, shall implement a ballast water management
program for seagoing vessels of the Department of Defense to
minimize the risk of introduction of nonindigenous species from
releases of ballast water.
[(b) Coast Guard Vessels.--Subject to operational conditions,
the Secretary, in consultation with the Task Force and the
International Maritime Organization, shall implement a ballast
water management program for seagoing vessels of the Coast
Guard to minimize the risk of introduction of nonindigenous
species from releases of ballast water.]
* * * * * * *
SEC. 1301. AUTHORIZATIONS.
[19 U.S.C. 4741]
(a) Prevention of Unintentional Introductions.--There are
authorized to be appropriated to develop and implement the
provisions of subtitle B--
(1) $500,000 until the end of fiscal year 1992 to the
Secretary to carry out sections 1101 and 1102(a)(3);
(2) $2,000,000 until the end of fiscal year 1992 to
the Director and Under Secretary to carry out the
studies under sections 1102(a)(1) and 1102(a)(2);
(3) to the Secretary to carry out section 1101--
(A) $2,000,000 for each of fiscal years 1997
and 1998; and
(B) $3,000,000 for each of fiscal years 1999
through 2002;
(4) for each of fiscal years 1997 through 2002, to
carry out paragraphs (1) and (2) of section 1102(b)--
(A) $1,000,000 to the Department of the
Interior, to be used by the Director; and
(B) $1,000,000 to the Secretary; [and]
(5) for each of fiscal years 1997 through 2002--
(A) $3,000,000, which shall be made available
from funds otherwise authorized to be
appropriated if such funds are so authorized,
to the Under Secretary to carry out section
1102(e); and
(B) $500,000 to the Secretary to carry out
section [1102(f).] 1102(f); and
(6) $50,000,000 for each of fiscal years 2008 through
2012 to the Secretary to carry out section 1101, of
which up to $10,000,000 shall be made available to
States under subsection (v).
(b) Task Force and Aquatic Nuisance Species Program.--There
are authorized to be appropriated for each of fiscal years 1997
through 2002 to develop and implement the provisions of
subtitle C--
(1) $6,000,000 to the Department of the Interior, to
be used by the Director to carry out sections 1202 and
1209;
(2) $1,000,000 to the Department of Commerce, to be
used by the Under Secretary to carry out section 1202;
(3) $1,625,000, which shall be made available from
funds otherwise authorized to be appropriated if such
funds are so authorized, to fund aquatic nuisance
species prevention and control research under section
1202(i) at the Great Lakes Environmental Research
Laboratory of the National Oceanic and Atmospheric
Administration, of which $500,000 shall be made
available for grants, to be competitively awarded and
subject to peer review, for research relating to Lake
Champlain;
(4) $5,000,000 for competitive grants for university
research on aquatic nuisance species under section
1202(f)(3) as follows:
(A) $2,800,000, which shall be made available
from funds otherwise authorized to be
appropriated if such funds are so authorized,
to fund grants under section 205 of the
National Sea Grant College Program Act (33
U.S.C. 1124);
(B) $1,200,000 to fund grants to colleges for
the benefit of agriculture and the mechanic
arts referred to in the first section of the
Act of August 30, 1890 (26 Stat. 417, chapter
841; 7 U.S.C. 322); and
(C) $1,000,000 to fund grants through the
Cooperative Fisheries and Wildlife Research
Unit Program of the United States Fish and
Wildlife Service;
(5) $3,000,000 to the Department of the Army, to be
used by the Assistant Secretary to carry out section
1202(i)(1)(B); and
(6) $300,000 to the Department of the Interior, to be
used by the Director to fund regional panels and
similar entities under section 1203, of which $100,000
shall be used to fund activities of the Great Lakes
Commission.
(c) Grants for State Management Programs.--There are
authorized to be appropriated for each of fiscal years 1997
through 2002 $4,000,000 to the Department of the Interior, to
be used by the Director for making grants under section 1204,
of which $1,500,000 shall be used by the Director, in
consultation with the Assistant Secretary, for management of
aquatic nuisance vegetation species.
(d) Intentional Introductions Policy Review.--There are
authorized to be appropriated for fiscal year 1991, $500,000 to
the Director and the Under Secretary to conduct the intentional
introduction policy review under section 1207.
(e) Ballast Water Management Demonstration Program.--There
are authorized to be appropriated $2,500,000 to carry out
section 1104.
(f) Research.--There are authorized to be appropriated to the
Director $1,000,000 to carry out research on the prevention,
monitoring, and control of aquatic nuisance species in
Narragansett Bay, Rhode Island. The funds shall be made
available for use by the Department of Environmental Management
of the State of Rhode Island.