33 USC 1322 - Marine sanitation devices; discharges incidental to the normal operation of vessels

U.S Code last checked for updates: Nov 22, 2024

§ 1322.

Marine sanitation devices; discharges incidental to the normal operation of vessels

(a)

Definitions

In this section, the term—

(1)

“new vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on the navigable waters, the construction of which is initiated after promulgation of standards and regulations under this section;

(2)

“existing vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on the navigable waters, the construction of which is initiated before promulgation of standards and regulations under this section;

(3)

“public vessel” means a vessel owned or bareboat chartered and operated by the United States, by a State or political subdivision thereof, or by a foreign nation, except when such vessel is engaged in commerce;

(4)

“United States” includes the States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Canal Zone, and the Trust Territory of the Pacific Islands;

(5)

“marine sanitation device” includes any equipment for installation on board a vessel which is designed to receive, retain, treat, or discharge sewage, and any process to treat such sewage;

(6)

“sewage” means human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes except that, with respect to commercial vessels on the Great Lakes, such term shall include graywater;

(7)

“manufacturer” means any person engaged in the manufacturing, assembling, or importation of marine sanitation devices, marine pollution control device equipment, or vessels subject to standards and regulations promulgated under this section;

(8)

“person” means an individual, partnership, firm, corporation, association, or agency of the United States, but does not include an individual on board a public vessel;

(9)

“discharge” includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping;

(10)

“commercial vessels” means those vessels used in the business of transporting property for compensation or hire, or in transporting property in the business of the owner, lessee, or operator of the vessel;

(11)

“graywater” means galley, bath, and shower water;

(12)

“discharge incidental to the normal operation of a vessel”—

(A)

means a discharge, including—

(i)

graywater, bilge water, cooling water, weather deck runoff, ballast water, oil water separator effluent, and any other pollutant discharge from the operation of a marine propulsion system, shipboard maneuvering system, crew habitability system, or installed major equipment, such as an aircraft carrier elevator or a catapult, or from a protective, preservative, or absorptive application to the hull of the vessel; and

(ii)

a discharge in connection with the testing, maintenance, and repair of a system described in clause (i) whenever the vessel is waterborne; and

(B)

does not include—

(i)

a discharge of rubbish, trash, garbage, or other such material discharged overboard;

(ii)

an air emission resulting from the operation of a vessel propulsion system, motor driven equipment, or incinerator; or

(iii)

a discharge that is not covered by part 122.3 of title 40, Code of Federal Regulations (as in effect on February 10, 1996);

(13)

“marine pollution control device” means, except as provided in subsection (p), any equipment or management practice, for installation or use on board a vessel of the Armed Forces, that is—

(A)

designed to receive, retain, treat, control, or discharge a discharge incidental to the normal operation of a vessel; and

(B)

determined by the Administrator and the Secretary of Defense to be the most effective equipment or management practice to reduce the environmental impacts of the discharge consistent with the considerations set forth in subsection (n)(2)(B); and

(14)

“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 Transportation 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).

(b)

Federal standards of performance

(1)

As soon as possible, after October 18, 1972, and subject to the provisions of section 1254(j) of this title, the Administrator, after consultation with the Secretary of the department in which the Coast Guard is operating, after giving appropriate consideration to the economic costs involved, and within the limits of available technology, shall promulgate Federal standards of performance for marine sanitation devices (hereafter in this section referred to as “standards”) which shall be designed to prevent the discharge of untreated or inadequately treated sewage into or upon the navigable waters from new vessels and existing vessels, except vessels not equipped with installed toilet facilities. Such standards and standards established under subsection (c)(1)(B) of this section shall be consistent with maritime safety and the marine and navigation laws and regulations and shall be coordinated with the regulations issued under this subsection by the Secretary of the department in which the Coast Guard is operating. The Secretary of the department in which the Coast Guard is operating shall promulgate regulations, which are consistent with standards promulgated under this subsection and subsection (c) of this section and with maritime safety and the marine and navigation laws and regulations governing the design, construction, installation, and operation of any marine sanitation device on board such vessels.

(2)

Any existing vessel equipped with a marine sanitation device on the date of promulgation of initial standards and regulations under this section, which device is in compliance with such initial standards and regulations, shall be deemed in compliance with this section until such time as the device is replaced or is found not to be in compliance with such initial standards and regulations.

(c)

Initial standards; effective dates; revision; waiver

(1)

(A)

Initial standards and regulations under this section shall become effective for new vessels two years after promulgation; and for existing vessels five years after promulgation. Revisions of standards and regulations shall be effective upon promulgation, unless another effective date is specified, except that no revision shall take effect before the effective date of the standard or regulation being revised.

(B)

The Administrator shall, with respect to commercial vessels on the Great Lakes, establish standards which require at a minimum the equivalent of secondary treatment as defined under section 1314(d) of this title. Such standards and regulations shall take effect for existing vessels after such time as the Administrator determines to be reasonable for the upgrading of marine sanitation devices to attain such standard.

(2)

The Secretary of the department in which the Coast Guard is operating with regard to his regulatory authority established by this section, after consultation with the Administrator, may distinguish among classes, type, and sizes of vessels as well as between new and existing vessels, and may waive applicability of standards and regulations as necessary or appropriate for such classes, types, and sizes of vessels (including existing vessels equipped with marine sanitation devices on the date of promulgation of the initial standards required by this section), and, upon application, for individual vessels.

(d)

Vessels owned and operated by the United States

(e)

Pre-promulgation consultation

(f)

Regulation by States or political subdivisions thereof; complete prohibition upon discharge of sewage

(1)

(A)

Except as provided in subparagraph (B), after the effective date of the initial standards and regulations promulgated under this section, no State or political subdivision thereof shall adopt or enforce any statute or regulation of such State or political subdivision with respect to the design, manufacture, or installation or use of any marine sanitation device on any vessel subject to the provisions of this section.

(B)

A State may adopt and enforce a statute or regulation with respect to the design, manufacture, or installation or use of any marine sanitation device on a houseboat, if such statute or regulation is more stringent than the standards and regulations promulgated under this section. For purposes of this paragraph, the term “houseboat” means a vessel which, for a period of time determined by the State in which the vessel is located, is used primarily as a residence and is not used primarily as a means of transportation.

(2)

If, after promulgation of the initial standards and regulations and prior to their effective date, a vessel is equipped with a marine sanitation device in compliance with such standards and regulations and the installation and operation of such device is in accordance with such standards and regulations, such standards and regulations shall, for the purposes of paragraph (1) of this subsection, become effective with respect to such vessel on the date of such compliance.

(3)

After the effective date of the initial standards and regulations promulgated under this section, if any State determines that the protection and enhancement of the quality of some or all of the waters within such State require greater environmental protection, such State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters, except that no such prohibition shall apply until the Administrator determines that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for such water to which such prohibition would apply. Upon application of the State, the Administrator shall make such determination within 90 days of the date of such application.

(4)

(A)

If the Administrator determines upon application by a State that the protection and enhancement of the quality of specified waters within such State requires such a prohibition, he shall by regulation completely prohibit the discharge from a vessel of any sewage (whether treated or not) into such waters.

(B)

Upon application by a State, the Administrator shall, by regulation, establish a drinking water intake zone in any waters within such State and prohibit the discharge of sewage from vessels within that zone.

(g)

Sales limited to certified devices; certification of test device; recordkeeping; reports

(1)

No manufacturer of a marine sanitation device or marine pollution control device equipment shall sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States for sale or resale any marine sanitation device or marine pollution control device equipment manufactured after the effective date of the standards and regulations promulgated under this section unless such device or equipment is in all material respects substantially the same as a test device or equipment certified under this subsection.

(2)

Upon application of the manufacturer, the Secretary of the department in which the Coast Guard is operating shall so certify a marine sanitation device or marine pollution control device equipment if he determines, in accordance with the provisions of this paragraph, that it meets the appropriate standards and regulations promulgated under this section. The Secretary of the department in which the Coast Guard is operating shall test or require such testing of the device or equipment in accordance with procedures set forth by the Administrator as to standards of performance and for such other purposes as may be appropriate. If the Secretary of the department in which the Coast Guard is operating determines that the device or equipment is satisfactory from the standpoint of safety and any other requirements of maritime law or regulation, and after consideration of the design, installation, operation, material, or other appropriate factors, he shall certify the device or equipment. Any device or equipment manufactured by such manufacturer which is in all material respects substantially the same as the certified test device or equipment shall be deemed to be in conformity with the appropriate standards and regulations established under this section.

(3)

Every manufacturer shall establish and maintain such records, make such reports, and provide such information as the Administrator or the Secretary of the department in which the Coast Guard is operating may reasonably require to enable him to determine whether such manufacturer has acted or is acting in compliance with this section and regulations issued thereunder and shall, upon request of an officer or employee duly designated by the Administrator or the Secretary of the department in which the Coast Guard is operating, permit such officer or employee at reasonable times to have access to and copy such records. All information reported to or otherwise obtained by the Administrator or the Secretary of the Department in which the Coast Guard is operating or their representatives pursuant to this subsection which contains or relates to a trade secret or other matter referred to in section 1905 of title 18 shall be considered confidential for the purpose of that section, except that such information may be disclosed to other officers or employees concerned with carrying out this section. This paragraph shall not apply in the case of the construction of a vessel by an individual for his own use.

(h)

Sale and resale of properly equipped vessels; operability of certified marine sanitation devices

(1)

In general

Subject to paragraph (2), after the effective date of standards and regulations promulgated under this section, it shall be unlawful—

(A)

for the manufacturer of any vessel subject to such standards and regulations to manufacture for sale, to sell or offer for sale, or to distribute for sale or resale any such vessel unless it is equipped with a marine sanitation device and marine pollution control device equipment which is in all material respects substantially the same as the appropriate test device certified pursuant to this section;

(B)

for any person, prior to the sale or delivery of a vessel subject to such standards and regulations to the ultimate purchaser, wrongfully to remove or render inoperative any certified marine sanitation device or element of design of such device or any certified marine pollution control device equipment or element of design of such equipment installed in such vessel;

(C)

for any person to fail or refuse to permit access to or copying of records or to fail to make reports or provide information required under this section; and

(D)

for a vessel subject to such standards and regulations to operate on the navigable waters of the United States, if such vessel is not equipped with an operable marine sanitation device certified pursuant to this section.

(2)

Effect of subsection

(i)

Jurisdiction to restrain violations; contempts

(j)

Penalties

(k)

Enforcement authority

(1)

Administrator

(2)

Secretary

(A)

In general

(B)

Inspections

For purposes of ensuring compliance with this section, the Secretary—

(i)

may carry out an inspection (including the taking of ballast water samples) of any vessel at any time; and

(ii)

shall—

(I)

establish procedures for—

(aa)

reporting violations of this section; and

(bb)

accumulating evidence regarding those violations; and

(II)

use appropriate and practicable measures of detection and environmental monitoring of vessels.

(C)

Detention

The Secretary may detain a vessel if the Secretary—

(i)

has reasonable cause to believe that the vessel—

(I)

has failed to comply with an applicable requirement of this section; or

(II)

is being operated in violation of such a requirement; and

(ii)

the Secretary provides to the owner or operator of the vessel a notice of the intent to detain.

(3)

States

(A)

In general

(B)

Jurisdiction

The appropriate Federal district court shall have jurisdiction with respect to a civil action filed pursuant to subparagraph (A), without regard to the amount in controversy or the citizenship of the parties—

(i)

to enforce the requirements of this section; and

(ii)

to apply appropriate civil penalties under this section or section 1319(d) of this title, as appropriate.

(l)

Boarding and inspection of vessels; execution of warrants and other process

(m)

Enforcement in United States possessions

(n)

Uniform national discharge standards for vessels of Armed Forces

(1)

Applicability

(2)

Determination of discharges required to be controlled by marine pollution control devices

(A)

In general

(B)

Considerations

In making a determination under subparagraph (A), the Administrator and the Secretary of Defense shall take into consideration—

(i)

the nature of the discharge;

(ii)

the environmental effects of the discharge;

(iii)

the practicability of using the marine pollution control device;

(iv)

the effect that installation or use of the marine pollution control device would have on the operation or operational capability of the vessel;

(v)

applicable United States law;

(vi)

applicable international standards; and

(vii)

the economic costs of the installation and use of the marine pollution control device.

(3)

Performance standards for marine pollution control devices

(A)

In general

(B)

Considerations

(C)

Classes, types, and sizes of vessels

The standards promulgated under this paragraph may—

(i)

distinguish among classes, types, and sizes of vessels;

(ii)

distinguish between new and existing vessels; and

(iii)

provide for a waiver of the applicability of the standards as necessary or appropriate to a particular class, type, age, or size of vessel.

(4)

Regulations for use of marine pollution control devices

(5)

Deadlines; effective date

(A)

Determinations

The Administrator and the Secretary of Defense shall—

(i)

make the initial determinations under paragraph (2) not later than 2 years after February 10, 1996; and

(ii)

every 5 years—

(I)

review the determinations; and

(II)

if necessary, revise the determinations based on significant new information.

(B)

Standards

The Administrator and the Secretary of Defense shall—

(i)

promulgate standards of performance for a marine pollution control device under paragraph (3) not later than 2 years after the date of a determination under paragraph (2) that the marine pollution control device is required; and

(ii)

every 5 years—

(I)

review the standards; and

(II)

if necessary, revise the standards, consistent with paragraph (3)(B) and based on significant new information.

(C)

Regulations

(D)

Petition for review

(6)

Effect on other laws

(A)

Prohibition on regulation by States or political subdivisions of States

Beginning on the effective date of—

(i)

a determination under paragraph (2) that it is not reasonable and practicable to require use of a marine pollution control device regarding a particular discharge incidental to the normal operation of a vessel of the Armed Forces; or

(ii)

regulations promulgated by the Secretary of Defense under paragraph (4);

except as provided in paragraph (7), neither a State nor a political subdivision of a State may adopt or enforce any statute or regulation of the State or political subdivision with respect to the discharge or the design, construction, installation, or use of any marine pollution control device required to control discharges from a vessel of the Armed Forces.

(B)

Federal laws

(7)

Establishment of State no-discharge zones

(A)

State prohibition

(i)

In general

After the effective date of—

(I)

(II)

regulations promulgated by the Secretary of Defense under paragraph (4);

if a State determines that the protection and enhancement of the quality of some or all of the waters within the State require greater environmental protection, the State may prohibit 1 or more discharges incidental to the normal operation of a vessel, whether treated or not treated, into the waters. No prohibition shall apply until the Administrator makes the determinations described in subclauses (II) and (III) of subparagraph (B)(i).

(ii)

Documentation

(B)

Prohibition by the Administrator

(i)

In general

Upon application of a State, the Administrator shall by regulation prohibit the discharge from a vessel of 1 or more discharges incidental to the normal operation of a vessel, whether treated or not treated, into the waters covered by the application if the Administrator determines that—

(I)

the protection and enhancement of the quality of the specified waters within the State require a prohibition of the discharge into the waters;

(II)

adequate facilities for the safe and sanitary removal of the discharge incidental to the normal operation of a vessel are reasonably available for the waters to which the prohibition would apply; and

(III)

the prohibition will not have the effect of discriminating against a vessel of the Armed Forces by reason of the ownership or operation by the Federal Government, or the military function, of the vessel.

(ii)

Approval or disapproval

(C)

Applicability to foreign flagged vessels

A prohibition under this paragraph—

(i)

shall not impose any design, construction, manning, or equipment standard on a foreign flagged vessel engaged in innocent passage unless the prohibition implements a generally accepted international rule or standard; and

(ii)

that relates to the prevention, reduction, and control of pollution shall not apply to a foreign flagged vessel engaged in transit passage unless the prohibition implements an applicable international regulation regarding the discharge of oil, oily waste, or any other noxious substance into the waters.

(8)

Prohibition relating to vessels of the Armed Forces

After the effective date of the regulations promulgated by the Secretary of Defense under paragraph (4), it shall be unlawful for any vessel of the Armed Forces subject to the regulations to—

(A)

operate in the navigable waters of the United States or the waters of the contiguous zone, if the vessel is not equipped with any required marine pollution control device meeting standards established under this subsection; or

(B)

discharge overboard any discharge incidental to the normal operation of a vessel in waters with respect to which a prohibition on the discharge has been established under paragraph (7).

(9)

Enforcement

(o)

Management practices for recreational vessels

(1)

Applicability

This subsection applies to any discharge, other than a discharge of sewage, from a recreational vessel that is—

(A)

incidental to the normal operation of the vessel; and

(B)

exempt from permitting requirements under section 1342(r) of this title.

(2)

Determination of discharges subject to management practices

(A)

Determination

(i)

In general

(ii)

Promulgation

(iii)

Management practices

(B)

Considerations

In making a determination under subparagraph (A), the Administrator shall consider—

(i)

the nature of the discharge;

(ii)

the environmental effects of the discharge;

(iii)

the practicability of using a management practice;

(iv)

the effect that the use of a management practice would have on the operation, operational capability, or safety of the vessel;

(v)

applicable Federal and State law;

(vi)

applicable international standards; and

(vii)

the economic costs of the use of the management practice.

(C)

Timing

The Administrator shall—

(i)

make the initial determinations under subparagraph (A) not later than 1 year after July 29, 2008; and

(ii)

every 5 years thereafter—

(I)

review the determinations; and

(II)

if necessary, revise the determinations based on any new information available to the Administrator.

(3)

Performance standards for management practices

(A)

In general

(B)

Considerations

(C)

Classes, types, and sizes of vessels

The standards promulgated under this paragraph may—

(i)

distinguish among classes, types, and sizes of vessels;

(ii)

distinguish between new and existing vessels; and

(iii)

provide for a waiver of the applicability of the standards as necessary or appropriate to a particular class, type, age, or size of vessel.

(D)

Timing

The Administrator shall—

(i)

promulgate standards of performance for a management practice under subparagraph (A) not later than 1 year after the date of a determination under paragraph (2) that the management practice is reasonable and practicable; and

(ii)

every 5 years thereafter—

(I)

review the standards; and

(II)

if necessary, revise the standards, in accordance with subparagraph (B) and based on any new information available to the Administrator.

(4)

Regulations for the use of management practices

(A)

In general

(B)

Regulations

(i)

In general

(ii)

Effective date

(iii)

Consideration of time

(5)

Effect of other laws

(6)

Prohibition relating to recreational vessels

(p)

Uniform national standards for discharges incidental to normal operation of vessels

(1)

Definitions

In this subsection:

(A)

Aquatic nuisance species

The term “aquatic nuisance species” means a nonindigenous species that threatens—

(i)

the diversity or abundance of a native species;

(ii)

the ecological stability of—

(I)

waters of the United States; or

(II)

waters of the contiguous zone; or

(iii)

a commercial, agricultural, aquacultural, or recreational activity that is dependent on—

(I)

waters of the United States; or

(II)

waters of the contiguous zone.

(B)

Ballast water

(i)

In general

The term “ballast water” means any water, suspended matter, and other materials taken onboard a vessel—

(I)

to control or maintain trim, draught, stability, or stresses of the vessel, regardless of the means by which any such water or suspended matter is carried; or

(II)

during the cleaning, maintenance, or other operation of a ballast tank or ballast water management system of the vessel.

(ii)

Exclusion

(C)

Ballast water discharge standard

The term “ballast water discharge standard” means—

(i)

the numerical ballast water discharge standard established by section 151.1511 or 151.2030 of title 33, Code of Federal Regulations (or successor regulations); or

(ii)

if a standard referred to in clause (i) is superseded by a numerical standard of performance under this subsection, that superseding standard.

(D)

Ballast water exchange

The term “ballast water exchange” means the replacement of water in a ballast water tank using 1 of the following methods:

(i)

Flow-through exchange, in which ballast water is flushed out by pumping in midocean water at the bottom of the tank if practicable, and continuously overflowing the tank from the top, until 3 full volumes of water have been changed to minimize the number of original organisms remaining in the tank.

(ii)

Empty and refill exchange, in which ballast water taken on in ports, estuarine waters, or territorial waters is pumped out until the pump loses suction, after which the ballast tank is refilled with midocean water.

(E)

Ballast water management system

The term “ballast water management system” means any marine pollution control device (including all ballast water treatment equipment, ballast tanks, pipes, pumps, and all associated control and monitoring equipment) that processes ballast water—

(i)

to kill, render nonviable, or remove organisms; or

(ii)

to avoid the uptake or discharge of organisms.

(F)

Best available technology economically achievable

The term “best available technology economically achievable” means—

(i)

best available technology economically achievable (within the meaning of section 1311(b)(2)(A) of this title);

(ii)

best available technology (within the meaning of section 1314(b)(2)(B) of this title); and

(iii)

best available technology, as determined in accordance with section 125.3(d)(3) of title 40, Code of Federal Regulations (or successor regulations).

(G)

Best conventional pollutant control technology

The term “best conventional pollutant control technology” means—

(i)

best conventional pollutant control technology (within the meaning of section 1311(b)(2)(E) of this title);

(ii)

best conventional pollutant control technology (within the meaning of section 1314(b)(4) of this title); and

(iii)

best conventional pollutant control technology, as determined in accordance with section 125.3(d)(2) of title 40, Code of Federal Regulations (or successor regulations).

(H)

Best management practice

(i)

In general

The term “best management practice” means a schedule of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of—

(I)

the waters of the United States; or

(II)

the waters of the contiguous zone.

(ii)

Inclusions

The term “best management practice” includes any treatment requirement, operating procedure, or practice to control—

(I)

vessel runoff;

(II)

spillage or leaks;

(III)

sludge or waste disposal; or

(IV)

drainage from raw material storage.

(I)

Best practicable control technology currently available

The term “best practicable control technology currently available” means—

(i)

best practicable control technology currently available (within the meaning of section 1311(b)(1)(A) of this title);

(ii)

best practicable control technology currently available (within the meaning of section 1314(b)(1) of this title); and

(iii)

best practicable control technology currently available, as determined in accordance with section 125.3(d)(1) of title 40, Code of Federal Regulations (or successor regulations).

(J)

Captain of the Port Zone

(K)

Empty ballast tank

The term “empty ballast tank” means a tank that—

(i)

has previously held ballast water that has been drained to the limit of the functional or operational capabilities of the tank (such as loss of suction);

(ii)

is recorded as empty on a vessel log; and

(iii)

contains unpumpable residual ballast water and sediment.

(L)

Great Lakes Commission

(M)

Great Lakes State

The term “Great Lakes State” means any of the States of—

(i)

Illinois;

(ii)

Indiana;

(iii)

Michigan;

(iv)

Minnesota;

(v)

New York;

(vi)

Ohio;

(vii)

Pennsylvania; and

(viii)

Wisconsin.

(N)

Great Lakes System

(O)

Internal waters

(P)

Marine pollution control device

The term “marine pollution control device” means any equipment or management practice (or combination of equipment and a management practice), for installation or use onboard a vessel, that is—

(i)

designed to receive, retain, treat, control, or discharge a discharge incidental to the normal operation of a vessel; and

(ii)

determined by the Administrator and the Secretary to be the most effective equipment or management practice (or combination of equipment and a management practice) to reduce the environmental impacts of the discharge, consistent with the factors for consideration described in paragraphs (4) and (5).

(Q)

Nonindigenous species

(R)

Organism

The term “organism” includes—

(i)

an animal, including fish and fish eggs and larvae;

(ii)

a plant;

(iii)

a pathogen;

(iv)

a microbe;

(v)

a virus;

(vi)

a prokaryote (including any archean or bacterium);

(vii)

a fungus; and

(viii)

a protist.

(S)

Pacific Region

(i)

In general

The term “Pacific Region” means any Federal or State water—

(I)

adjacent to the State of Alaska, California, Hawaii, Oregon, or Washington; and

(II)

extending from shore.

(ii)

Inclusion

(T)

Port or place of destination

(U)

Render nonviable

(V)

Saltwater flush

(i)

In general

The term “saltwater flush” means—

(I)

(aa)

the addition of as much midocean water into each empty ballast tank of a vessel as is safe for the vessel and crew; and

(bb)

the mixing of the flushwater with residual ballast water and sediment through the motion of the vessel; and

(II)

the discharge of that mixed water, such that the resultant residual water remaining in the tank—

(aa)

has the highest salinity possible; and

(bb)

is at least 30 parts per thousand.

(ii)

Multiple sequences

(W)

Secretary

(X)

Small Vessel General Permit

(Y)

Small vessel or fishing vessel

The term “small vessel or fishing vessel” means a vessel that is—

(i)

less than 79 feet in length; or

(ii)

a fishing vessel, fish processing vessel, or fish tender vessel (as those terms are defined in section 2101 of title 46), regardless of the length of the vessel.

(Z)

Vessel General Permit

(2)

Applicability

(A)

In general

Except as provided in subparagraph (B), this subsection applies to—

(i)

any discharge incidental to the normal operation of a vessel; and

(ii)

any discharge incidental to the normal operation of a vessel (such as most graywater) that is commingled with sewage, subject to the conditions that—

(I)

nothing in this subsection prevents a State from regulating sewage discharges; and

(II)

any such commingled discharge shall comply with all applicable requirements of—

(aa)

this subsection; and

(bb)

any law applicable to discharges of sewage.

(B)

Exclusion

This subsection does not apply to any discharge incidental to the normal operation of a vessel—

(i)

from—

(I)

a vessel of the Armed Forces subject to subsection (n);

(II)

a recreational vessel subject to subsection (o);

(III)

a small vessel or fishing vessel, except that this subsection shall apply to any discharge of ballast water from a small vessel or fishing vessel; or

(IV)

a floating craft that is permanently moored to a pier, including a “floating” casino, hotel, restaurant, or bar;

(ii)

of ballast water from a vessel—

(I)

that continuously takes on and discharges ballast water in a flow-through system, if the Administrator determines that system cannot materially contribute to the spread or introduction of an aquatic nuisance species into waters of the United States;

(II)

in the National Defense Reserve Fleet that is scheduled for disposal, if the vessel does not have an operable ballast water management system;

(III)

that discharges ballast water consisting solely of water taken onboard from a public or commercial source that, at the time the water is taken onboard, meets the applicable requirements or permit requirements of the Safe Drinking Water Act (42 U.S.C. 300f et seq.);

(IV)

that carries all permanent ballast water in sealed tanks that are not subject to discharge; or

(V)

that only discharges ballast water into a reception facility; or

(iii)

that results from, or contains material derived from, an activity other than the normal operation of the vessel, such as material resulting from an industrial or manufacturing process onboard the vessel.

(3)

Continuation in effect of existing requirements

(A)

Vessel general permit

(B)

Nonindigenous Aquatic Nuisance Prevention and Control Act regulations

(C)

Repeal on existence of final, effective, and enforceable requirements

(4)

National standards of performance for marine pollution control devices and water quality orders

(A)

Establishment

(i)

In general

(ii)

Concurrence with Secretary

(I)

Request

(II)

Effect of failure to concur

A failure by the Secretary to concur with the Administrator under clause (i) by the date that is 60 days after the date on which the Administrator submits a request for concurrence under subclause (I) shall not prevent the Administrator from promulgating the relevant standard of performance in accordance with the deadline under clause (i), subject to the condition that the Administrator shall include in the administrative record of the promulgation—

(aa)

documentation of the request submitted under subclause (I); and

(bb)

the response of the Administrator to any written objections received from the Secretary relating to the proposed standard of performance during the 60-day period beginning on the date of submission of the request.

(iii)

Consultation with Governors

(I)

In general

The Administrator, in promulgating a standard of performance under clause (i), shall develop the standard of performance—

(aa)

in consultation with interested Governors; and

(bb)

in accordance with the deadlines under that clause.

(II)

Process

(III)

Objection by governors

(aa)

Submission

(bb)

Response

(cc)

Judicial review

(iv)

Procedure

(I)

this paragraph; and

(II)

section 553 of title 5.

(B)

Stringency

(i)

In general

Subject to clause (iii), the standards of performance promulgated under this paragraph shall require—

(I)

with respect to conventional pollutants, toxic pollutants, and nonconventional pollutants (including aquatic nuisance species), the application of the best practicable control technology currently available;

(II)

with respect to conventional pollutants, the application of the best conventional pollutant control technology; and

(III)

with respect to toxic pollutants and nonconventional pollutants (including aquatic nuisance species), the application of the best available technology economically achievable for categories and classes of vessels, which shall result in reasonable progress toward the national goal of eliminating discharges of all pollutants.

(ii)

Best management practices

The Administrator shall require the use of best management practices to control or abate any discharge incidental to the normal operation of a vessel if—

(I)

numeric standards of performance are infeasible under clause (i); or

(II)

the best management practices are reasonably necessary—

(aa)

to achieve the standards of performance; or

(bb)

to carry out the purpose and intent of this subsection.

(iii)

Minimum requirements

Subject to subparagraph (D)(ii)(II), the combination of any equipment or best management practice comprising a marine pollution control device shall not be less stringent than the following provisions of the Vessel General Permit:

(I)

All requirements contained in parts 2.1 and 2.2 (relating to effluent limits and related requirements), including with respect to waters subject to Federal protection, in whole or in part, for conservation purposes.

(II)

All requirements contained in part 5 (relating to vessel class-specific requirements) that concern effluent limits and authorized discharges (within the meaning of that part), including with respect to waters subject to Federal protection, in whole or in part, for conservation purposes.

(C)

Classes, types, and sizes of vessels

The standards promulgated under this paragraph may distinguish—

(i)

among classes, types, and sizes of vessels; and

(ii)

between new vessels and existing vessels.

(D)

Review and revision

(i)

In general

Not less frequently than once every 5 years, the Administrator, in consultation with the Secretary, shall—

(I)

review the standards of performance in effect under this paragraph; and

(II)

if appropriate, revise those standards of performance—

(aa)

in accordance with subparagraphs (A) through (C); and

(bb)

as necessary to establish requirements for any discharge that is subject to regulation under this subsection.

(ii)

Maintaining protectiveness

(I)

In general

(II)

Exceptions

The Administrator may revise a standard of performance to be less stringent than an applicable existing requirement—

(aa)

if information becomes available that—

(AA)

was not reasonably available when the Administrator promulgated the initial standard of performance or comparable requirement of the Vessel General Permit, as applicable (including the subsequent scarcity or unavailability of materials used to control the relevant discharge); and

(BB)

would have justified the application of a less-stringent standard of performance at the time of promulgation; or

(bb)

if the Administrator determines that a material technical mistake or misinterpretation of law occurred when promulgating the existing standard of performance or comparable requirement of the Vessel General Permit, as applicable.

(E)

Best management practices for aquatic nuisance species emergencies and further protection of water quality

(i)

In general

Notwithstanding any other provision of this subsection, the Administrator, in concurrence with the Secretary (subject to clause (ii)), and in consultation with States, may require, by order, the use of an emergency best management practice for any region or category of vessels in any case in which the Administrator determines that such a best management practice—

(I)

is necessary to reduce the reasonably foreseeable risk of introduction or establishment of an aquatic nuisance species; or

(II)

will mitigate the adverse effects of a discharge that contributes to a violation of a water quality requirement under section 1313 of this title, other than a requirement based on the presence of an aquatic nuisance species.

(ii)

Concurrence with Secretary

(I)

Request

(II)

Effect of failure to concur

A failure by the Secretary to concur with the Administrator under clause (i) by the date that is 60 days after the date on which the Administrator submits a request for concurrence under subclause (I) shall not prevent the Administrator from issuing the relevant order, subject to the condition that the Administrator shall include in the administrative record of the issuance—

(aa)

documentation of the request submitted under subclause (I); and

(bb)

the response of the Administrator to any written objections received from the Secretary relating to the proposed order during the 60-day period beginning on the date of submission of the request.

(iii)

Duration

(iv)

Extensions

(5)

Implementation, compliance, and enforcement requirements

(A)

Establishment

(i)

In general

(ii)

Minimum requirements

Subject to subparagraph (C)(ii)(II), the regulations promulgated under this paragraph shall not be less stringent with respect to ensuring, monitoring, and enforcing compliance than—

(I)

the requirements contained in part 3 of the Vessel General Permit (relating to corrective actions);

(II)

the requirements contained in part 4 of the Vessel General Permit (relating to inspections, monitoring, reporting, and recordkeeping), including with respect to waters subject to Federal protection, in whole or in part, for conservation purposes;

(III)

the requirements contained in part 5 of the Vessel General Permit (relating to vessel class-specific requirements) regarding monitoring, inspection, and educational and training requirements (within the meaning of that part), including with respect to waters subject to Federal protection, in whole or in part, for conservation purposes; and

(IV)

any comparable, existing requirements promulgated under the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4701 et seq.) (including section 1101 of that Act (16 U.S.C. 4711) (as in effect on the day before December 4, 2018)) applicable to that discharge.

(iii)

Coordination with States

(iv)

Effective date

In determining the effective date of a regulation promulgated under this paragraph, the Secretary shall take into consideration the period of time necessary—

(I)

to communicate to affected persons the applicability of the regulation; and

(II)

for affected persons reasonably to comply with the regulation.

(v)

Procedure

The Secretary shall promulgate the regulations under this subparagraph in accordance with—

(I)

this paragraph; and

(II)

section 553 of title 5.

(B)

Implementation regulations for marine pollution control devices

(C)

Compliance assurance

(i)

In general

The Secretary shall promulgate requirements (including requirements for vessel owners and operators with respect to inspections, monitoring, reporting, sampling, and recordkeeping) to ensure, monitor, and enforce compliance with—

(I)

the standards of performance promulgated by the Administrator under paragraph (4); and

(II)

the implementation regulations promulgated by the Secretary under subparagraph (B).

(ii)

Maintaining protectiveness

(I)

In general

(II)

Exceptions

The Secretary may revise a requirement under this subparagraph or subparagraph (B) to be less stringent than an applicable existing requirement—

(aa)

in accordance with this subparagraph or subparagraph (B), as applicable;

(bb)

if information becomes available that—

(AA)

the Administrator determines was not reasonably available when the Administrator promulgated the existing requirement of the Vessel General Permit, or that the Secretary determines was not reasonably available when the Secretary promulgated the existing requirement under the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4701 et seq.) or the applicable existing requirement under this subparagraph, as applicable (including subsequent scarcity or unavailability of materials used to control the relevant discharge); and

(BB)

would have justified the application of a less-stringent requirement at the time of promulgation; or

(cc)

if the Administrator determines that a material technical mistake or misinterpretation of law occurred when promulgating an existing requirement of the Vessel General Permit, or if the Secretary determines that a material mistake or misinterpretation of law occurred when promulgating an existing requirement under the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4701 et seq.) or this subsection.

(D)

Data availability

(6)

Additional provisions regarding ballast water

(A)

In general

(B)

Empty ballast tanks

(i)

Requirements

Except as provided in clause (ii), the owner or operator of a vessel with empty ballast tanks bound for a port or place of destination subject to the jurisdiction of the United States shall, prior to arriving at that port or place of destination, conduct a ballast water exchange or saltwater flush—

(I)

not less than 200 nautical miles from any shore for a voyage originating outside the United States or Canadian exclusive economic zone; or

(II)

not less than 50 nautical miles from any shore for a voyage originating within the United States or Canadian exclusive economic zone.

(ii)

Exceptions

Clause (i) shall not apply—

(I)

if the unpumpable residual waters and sediments of an empty ballast tank were subject to treatment, in compliance with applicable requirements, through a type-approved ballast water management system approved by the Secretary;

(II)

except as otherwise required under this subsection, if the unpumpable residual waters and sediments of an empty ballast tank were sourced within—

(aa)

the same port or place of destination; or

(bb)

contiguous portions of a single Captain of the Port Zone;

(III)

if complying with an applicable requirement of clause (i)—

(aa)

would compromise the safety of the vessel; or

(bb)

is otherwise prohibited by any Federal, Canadian, or international law (including regulations) pertaining to vessel safety;

(IV)

if design limitations of the vessel prevent a ballast water exchange or saltwater flush from being conducted in accordance with clause (i); or

(V)

if the vessel is operating exclusively within the internal waters of the United States or Canada.

(C)

Period of use of installed ballast water management systems

(i)

In general

Except as provided in clause (ii), a vessel shall be deemed to be in compliance with a standard of performance for a marine pollution control device that is a ballast water management system if the ballast water management system—

(I)

is maintained in proper working condition, as determined by the Secretary;

(II)

is maintained and used in accordance with manufacturer specifications;

(III)

continues to meet the ballast water discharge standard applicable to the vessel at the time of installation, as determined by the Secretary; and

(IV)

has in effect a valid type-approval certificate issued by the Secretary.

(ii)

Limitation

Clause (i) shall cease to apply with respect to any vessel on, as applicable—

(I)

the expiration of the service life, as determined by the Secretary, of—

(aa)

the ballast water management system; or

(bb)

the vessel;

(II)

the completion of a major conversion (as defined in section 2101 of title 46) of the vessel; or

(III)

a determination by the Secretary that there are other type-approved systems for the vessel or category of vessels, with respect to the use of which the environmental, health, and economic benefits would exceed the costs.

(D)

Review of ballast water management system type-approval testing methods

(i)

Definition of live; living

Notwithstanding any other provision of law (including regulations), for purposes of section 151.1511 of title 33, and part 162 of title 46, Code of Federal Regulations (or successor regulations), the terms “live” and “living” shall not—

(I)

include an organism that has been rendered nonviable; or

(II)

preclude the consideration of any method of measuring the concentration of organisms in ballast water that are capable of reproduction.

(ii)

Draft policy

Not later than 180 days after December 4, 2018, the Secretary, in coordination with the Administrator, shall publish a draft policy letter, based on the best available science, describing type-approval testing methods and protocols for ballast water management systems, if any, that—

(I)

render nonviable organisms in ballast water; and

(II)

may be used in addition to the methods established under subpart 162.060 of title 46, Code of Federal Regulations (or successor regulations)—

(aa)

to measure the concentration of organisms in ballast water that are capable of reproduction;

(bb)

to certify the performance of each ballast water management system under this subsection; and

(cc)

to certify laboratories to evaluate applicable treatment technologies.

(iii)

Public comment

(iv)

Final policy

(I)

In general

(II)

Method of evaluation

(III)

Revisions

(v)

Factors for consideration

In developing a policy letter under this subparagraph, the Secretary, in coordination with the Administrator—

(I)

shall take into consideration a testing method that uses organism grow-out and most probable number statistical analysis to determine the concentration of organisms in ballast water that are capable of reproduction; and

(II)

shall not take into consideration a testing method that relies on a staining method that measures the concentration of—

(aa)

organisms greater than or equal to 10 micrometers; and

(bb)

organisms less than or equal to 50 micrometers.

(E)

Intergovernmental response framework

(i)

In general

(ii)

Ballast discharge risk response

The Administrator, in coordination with the Secretary and taking into consideration information from the National Ballast Information Clearinghouse developed under section 1102(f) of the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4712(f)), shall establish a risk assessment and response framework using ballast water discharge data and aquatic nuisance species monitoring data for the purposes of—

(I)

identifying and tracking populations of aquatic invasive species;

(II)

evaluating the risk of any aquatic nuisance species population tracked under subclause (I) establishing and spreading in waters of the United States or waters of the contiguous zone; and

(III)

establishing emergency best management practices that may be deployed rapidly, in a local or regional manner, to respond to emerging aquatic nuisance species threats.

(7)

Petitions by Governors for review

(A)

In general

The Governor of a State (or a designee) may submit to the Administrator or the Secretary a petition—

(i)

to issue an order under paragraph (4)(E); or

(ii)

to review any standard of performance, regulation, or policy promulgated under paragraph (4), (5), or (6), respectively, if there exists new information that could reasonably result in a change to—

(I)

the standard of performance, regulation, or policy; or

(II)

a determination on which the standard of performance, regulation, or policy was based.

(B)

Inclusion

(C)

Determination

(i)

Timing

The Administrator or the Secretary, as applicable, shall grant or deny—

(I)

a petition under subparagraph (A)(i) by not later than the date that is 180 days after the date on which the petition is submitted; and

(II)

a petition under subparagraph (A)(ii) by not later than the date that is 1 year after the date on which the petition is submitted.

(ii)

Effect of grant

If the Administrator or the Secretary determines under clause (i) to grant a petition—

(I)

in the case of a petition under subparagraph (A)(i), the Administrator shall immediately issue the relevant order under paragraph (4)(E); or

(II)

in the case of a petition under subparagraph (A)(ii), the Administrator or Secretary shall publish in the Federal Register, by not later than 30 days after the date of that determination, a notice of proposed rulemaking to revise the relevant standard, requirement, regulation, or policy under paragraph (4), (5), or (6), as applicable.

(iii)

Notice of denial

(iv)

Review

A determination by the Administrator or the Secretary under clause (i) to deny a petition shall be—

(I)

considered to be a final agency action; and

(II)

subject to judicial review in accordance with section 1369 of this title, subject to clause (v).

(v)

Exceptions

(I)

Venue

(II)

Deadline for filing

(8)

Prohibition

(A)

In general

It shall be unlawful for any person to violate—

(i)

a provision of the Vessel General Permit in force and effect under paragraph (3)(A);

(ii)

a regulation promulgated pursuant to section 1101 of the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4711) (as in effect on the day before December 4, 2018) in force and effect under paragraph (3)(B); or

(iii)

an applicable requirement or regulation under this subsection.

(B)

Compliance with regulations

Effective beginning on the effective date of a regulation promulgated under paragraph (4), (5), (6), or (10), as applicable, it shall be unlawful for the owner or operator of a vessel subject to the regulation—

(i)

to discharge any discharge incidental to the normal operation of the vessel into waters of the United States or waters of the contiguous zone, except in compliance with the regulation; or

(ii)

to operate in waters of the United States or waters of the contiguous zone, if the vessel is not equipped with a required marine pollution control device that complies with the requirements established under this subsection, unless—

(I)

the owner or operator of the vessel denotes in an entry in the official logbook of the vessel that the equipment was not operational; and

(II)

either—

(aa)

the applicable discharge was avoided; or

(bb)

an alternate compliance option approved by the Secretary as meeting the applicable standard was employed.

(C)

Affirmative defense

No person shall be found to be in violation of this paragraph if—

(i)

the violation was in the interest of ensuring the safety of life at sea, as determined by the Secretary; and

(ii)

the applicable emergency circumstance was not the result of negligence or malfeasance on the part of—

(I)

the owner or operator of the vessel;

(II)

the master of the vessel; or

(III)

the person in charge of the vessel.

(D)

Treatment

(E)

In rem liability

(F)

Revocation of clearance

(9)

Effect on other laws

(A)

State authority

(i)

In general

(ii)

Identical or lesser State laws

Clause (i) shall not apply to any law, regulation, or other requirement of a State, political subdivision of a State, or interstate agency in effect on or after December 4, 2018—

(I)

that is identical to a Federal requirement under this subsection applicable to the relevant discharge; or

(II)

compliance with which would be achieved concurrently in achieving compliance with a Federal requirement under this subsection applicable to the relevant discharge.

(iii)

State enforcement of Federal requirements

(iv)

Exception for certain fees

(I)

In general

(II)

Maximum amount

(aa)

In general

Except as provided in item (bb), a State may assess a fee for activities under this clause equal to not more than $1,000 against the owner or operator of a vessel that—

(AA)

has operated outside of that State; and

(BB)

arrives at a port or place of destination in the State (excluding movement entirely within a single port or place of destination).

(bb)

Vessels engaged in coastwise trade

(III)

Adjustment for inflation

(aa)

In general

(bb)

Effect of subclause

(cc)

Applicability

(v)

Alaska graywater

(vi)

Preservation of authority

(B)

Established regimes

Except as expressly provided in this subsection, nothing in this subsection affects the applicability to a vessel of any other provision of Federal law, including—

(i)

this section;

(ii)

section 1321 of this title;

(iii)

the Act to Prevent Pollution from Ships (33 U.S.C. 1901 et seq.); and

(iv)

title X of the Coast Guard Authorization Act of 2010 (33 U.S.C. 3801 et seq.).

(C)

Permitting

Effective beginning on December 4, 2018—

(i)

the Small Vessel General Permit is repealed; and

(ii)

the Administrator, or a State in the case of a permit program approved under section 1342 of this title, shall not require, or in any way modify, a permit under that section for—

(I)

any discharge that is subject to regulation under this subsection;

(II)

any discharge incidental to the normal operation of a vessel from a small vessel or fishing vessel, regardless of whether that discharge is subject to regulation under this subsection; or

(III)

any discharge described in paragraph (2)(B)(ii).

(D)

No effect on civil or criminal actions

Nothing in this subsection, or any standard, regulation, or requirement established under this subsection, modifies or otherwise affects, preempts, or displaces—

(i)

any cause of action; or

(ii)

any provision of Federal or State law establishing a remedy for civil relief or criminal penalty.

(E)

No effect on certain secretarial authority

(F)

No limitation on State inspection authority

(10)

Additional regional requirements

(A)

Minimum Great Lakes System requirements

(i)

In general

Except as provided in clause (ii), the owner or operator of a vessel entering the St. Lawrence Seaway through the mouth of the St. Lawrence River shall conduct a complete ballast water exchange or saltwater flush—

(I)

not less than 200 nautical miles from any shore for a voyage originating outside the United States or Canadian exclusive economic zone; or

(II)

not less than 50 nautical miles from any shore for a voyage originating within the United States or Canadian exclusive economic zone.

(ii)

Exceptions

Clause (i) shall not apply to a vessel if—

(I)

complying with an applicable requirement of clause (i)—

(aa)

would compromise the safety of the vessel; or

(bb)

is otherwise prohibited by any Federal, Canadian, or international law (including regulations) pertaining to vessel safety;

(II)

design limitations of the vessel prevent a ballast water exchange from being conducted in accordance with an applicable requirement of clause (i);

(III)

the vessel—

(aa)

is certified by the Secretary as having no residual ballast water or sediments onboard; or

(bb)

retains all ballast water while in waters subject to the requirement; or

(IV)

empty ballast tanks on the vessel are sealed and certified by the Secretary in a manner that ensures that—

(aa)

no discharge or uptake occurs; and

(bb)

any subsequent discharge of ballast water is subject to the requirement.

(B)

Enhanced Great Lakes System requirements

(i)

Petitions by Governors for proposed enhanced standards and requirements

(I)

In general

The Governor of a Great Lakes State (or a State employee designee) may submit a petition in accordance with subclause (II) to propose that other Governors of Great Lakes States endorse an enhanced standard of performance or other requirement with respect to any discharge that—

(aa)

is subject to regulation under this subsection; and

(bb)

occurs within the Great Lakes System.

(II)

Submission

A Governor shall submit a petition under subclause (I), in writing, to—

(aa)

the Executive Director of the Great Lakes Commission, in such manner as may be prescribed by the Great Lakes Commission;

(bb)

the Governor of each other Great Lakes State; and

(cc)

the Director of the Great Lakes National Program Office established by section 1268(b) of this title.

(III)

Preliminary assessment by Great Lakes Commission

(aa)

In general

(bb)

Provisions

The preliminary assessment developed by the Great Lakes Commission under item (aa)—

(AA)

may be developed in consultation with relevant experts and stakeholders;

(BB)

may be narrative in nature;

(CC)

may include the preliminary views, if any, of the Great Lakes Commission on the propriety of the proposed enhanced standard of performance or other requirement;

(DD)

shall be submitted, in writing, to the Governor of each Great Lakes State and the Director of the Great Lakes National Program Office and published on the internet website of the Great Lakes National Program Office; and

(EE)

except as provided in clause (iii), shall not be taken into consideration, or provide a basis for review, by the Administrator or the Secretary for purposes of that clause.

(ii)

Proposed enhanced standards and requirements

(I)

Publication in Federal Register

(aa)

Request by Governor

Not earlier than the date that is 90 days after the date on which the Executive Director of the Great Lakes Commission receives from a Governor of a Great Lakes State a petition under clause (i)(II)(aa), the Governor may request the Director of the Great Lakes National Program Office to publish, for a period requested by the Governor of not less than 30 days, and the Director shall so publish, in the Federal Register for public comment—

(AA)

a copy of the petition; and

(BB)

if applicable as of the date of publication, any preliminary assessment of the Great Lakes Commission developed under clause (i)(III) relating to the petition.

(bb)

Review of public comments

(cc)

No response required

(dd)

Purpose

(ee)

Effect of petition

(II)

Coordination to develop proposed standard or requirement

(III)

Requirements

A proposed standard of performance or other requirement under subclause (II)—

(aa)

shall be developed—

(AA)

in consultation with representatives from the Federal and provincial governments of Canada;

(BB)

after notice and opportunity for public comment on the petition published under subclause (I); and

(CC)

taking into consideration the preliminary assessment, if any, of the Great Lakes Commission under clause (i)(III);

(bb)

shall be specifically endorsed in writing by—

(AA)

the Governor of each Great Lakes State, if the proposed standard or requirement would impose any additional equipment requirement on a vessel; or

(BB)

not fewer than 5 Governors of Great Lakes States, if the proposed standard or requirement would not impose any additional equipment requirement on a vessel; and

(cc)

in the case of a proposed requirement to prohibit 1 or more types of discharge regulated under this subsection, whether treated or not treated, into waters within the Great Lakes System, shall not apply outside the waters of the Great Lakes States of the Governors endorsing the proposed requirement under item (bb).

(iii)

Promulgation by Administrator and Secretary

(I)

Submission

(aa)

In general

(bb)

Inclusion

Each submission under item (aa) shall include an explanation regarding why the applicable standard of performance or other requirement is—

(AA)

at least as stringent as a comparable standard of performance or other requirement under this subsection;

(BB)

in accordance with maritime safety; and

(CC)

in accordance with applicable maritime and navigation laws and regulations.

(cc)

Withdrawal

(AA)

In general

(BB)

Effect on Federal review

(dd)

Dissenting opinions

(II)

Joint notice

On receipt of a proposed standard of performance or other requirement under subclause (I), the Administrator and the Secretary shall publish in the Federal Register a joint notice that, at minimum—

(aa)

states that the proposed standard or requirement is publicly available; and

(bb)

provides an opportunity for public comment regarding the proposed standard or requirement during the 90-day period beginning on the date of receipt by the Administrator and the Secretary of the proposed standard or requirement.

(III)

Review

(aa)

In general

As soon as practicable after the date of publication of a joint notice under subclause (II)—

(AA)

the Administrator shall commence a review of each proposed standard of performance or other requirement covered by the notice to determine whether that standard or requirement is at least as stringent as comparable standards and requirements under this subsection; and

(BB)

the Secretary shall commence a review of each proposed standard of performance or other requirement covered by the notice to determine whether that standard or requirement is in accordance with maritime safety and applicable maritime and navigation laws and regulations.

(bb)

Consultation

In carrying out item (aa), the Administrator and the Secretary—

(AA)

shall consult with the Governor of each Great Lakes State and representatives from the Federal and provincial governments of Canada;

(BB)

shall take into consideration any relevant data or public comments received under subclause (II)(bb); and

(CC)

shall not take into consideration any preliminary assessment by the Great Lakes Commission under clause (i)(III), or any dissenting opinion under subclause (I)(dd), except to the extent that such an assessment or opinion is relevant to the criteria for the applicable determination under item (aa).

(IV)

Approval or disapproval

Not later than 180 days after the date of receipt of each proposed standard of performance or other requirement under subclause (I), the Administrator and the Secretary shall—

(aa)

determine, as applicable, whether each proposed standard or other requirement satisfies the criteria under subclause (III)(aa);

(bb)

approve each proposed standard or other requirement, unless the Administrator or the Secretary, as applicable, determines under item (aa) that the proposed standard or other requirement does not satisfy the criteria under subclause (III)(aa); and

(cc)

submit to the Governor of each Great Lakes State, and publish in the Federal Register, a notice of the determination under item (aa).

(V)

Action on disapproval

(aa)

Rationale and recommendations

If the Administrator and the Secretary disapprove a proposed standard of performance or other requirement under subclause (IV)(bb), the notices under subclause (IV)(cc) shall include—

(AA)

a description of the reasons why the standard or requirement is, as applicable, less stringent than a comparable standard or requirement under this subsection, inconsistent with maritime safety, or inconsistent with applicable maritime and navigation laws and regulations; and

(BB)

any recommendations regarding changes the Governors of the Great Lakes States could make to conform the disapproved portion of the standard or requirement to the requirements of this subparagraph.

(bb)

Review

(VI)

Action on approval

On approval by the Administrator and the Secretary of a proposed standard of performance or other requirement under subclause (IV)(bb)—

(aa)

the Administrator shall establish, by regulation, the proposed standard or requirement within the Great Lakes System in lieu of any comparable standard or other requirement promulgated under paragraph (4); and

(bb)

the Secretary shall establish, by regulation, any requirements necessary to implement, ensure compliance with, and enforce the standard or requirement under item (aa), or to apply the proposed requirement, within the Great Lakes System in lieu of any comparable requirement promulgated under paragraph (5).

(VII)

No judicial review for certain actions

(VIII)

Great Lakes Compact

(IX)

Authorization of appropriations

(C)

Minimum Pacific Region requirements

(i)

Definition of commercial vessel

In this subparagraph, the term “commercial vessel” means a vessel operating between—

(I)

2 ports or places of destination within the Pacific Region; or

(II)

a port or place of destination within the Pacific Region and a port or place of destination on the Pacific Coast of Canada or Mexico north of parallel 20 degrees north latitude, inclusive of the Gulf of California.

(ii)

Ballast water exchange

(I)

In general

(II)

Exemptions

Subclause (I) shall not apply to a commercial vessel—

(aa)

using, in compliance with applicable requirements, a type-approved ballast water management system approved by the Secretary; or

(bb)

voyaging—

(AA)

between or to a port or place of destination in the State of Washington, if the ballast water to be discharged from the commercial vessel originated solely from waters located between the parallel 46 degrees north latitude, including the internal waters of the Columbia River, and the internal waters of Canada south of parallel 50 degrees north latitude, including the waters of the Strait of Georgia and the Strait of Juan de Fuca;

(BB)

between ports or places of destination in the State of Oregon, if the ballast water to be discharged from the commercial vessel originated solely from waters located between the parallel 40 degrees north latitude and the parallel 50 degrees north latitude;

(CC)

between ports or places of destination in the State of California within the San Francisco Bay area east of the Golden Gate Bridge, including the Port of Stockton and the Port of Sacramento, if the ballast water to be discharged from the commercial vessel originated solely from ports or places within that area;

(DD)

between the Port of Los Angeles, the Port of Long Beach, and the El Segundo offshore marine oil terminal, if the ballast water to be discharged from the commercial vessel originated solely from the Port of Los Angeles, the Port of Long Beach, or the El Segundo offshore marine oil terminal;

(EE)

between a port or place of destination in the State of Alaska within a single Captain of the Port Zone;

(FF)

between ports or places of destination in different counties of the State of Hawaii, if the vessel may conduct a complete ballast water exchange in waters that are more than 10 nautical miles from shore and at least 200 meters deep; or

(GG)

between ports or places of destination within the same county of the State of Hawaii, if the vessel does not transit outside State marine waters during the voyage.

(iii)

Low-salinity ballast water

(I)

In general

Except as provided in subclause (II) and clause (iv), the owner or operator of a commercial vessel that transports ballast water sourced from waters with a measured salinity of less than 18 parts per thousand and voyages to a Pacific Region port or place of destination with a measured salinity of less than 18 parts per thousand shall conduct a complete ballast water exchange—

(aa)

not less than 50 nautical miles from shore, if the ballast water was sourced from a Pacific Region port or place of destination; or

(bb)

more than 200 nautical miles from shore, if the ballast water was not sourced from a Pacific Region port or place of destination.

(II)

Exception

Subclause (I) shall not apply to a commercial vessel voyaging to a port or place of destination in the Pacific Region that is using, in compliance with applicable requirements, a type-approved ballast water management system approved by the Secretary to achieve standards of performance of—

(aa)

less than 1 organism per 10 cubic meters, if that organism—

(AA)

is living, or has not been rendered nonviable; and

(BB)

is 50 or more micrometers in minimum dimension;

(bb)

less than 1 organism per 10 milliliters, if that organism—

(AA)

is living, or has not been rendered nonviable; and

(BB)

is more than 10, but less than 50, micrometers in minimum dimension;

(cc)

concentrations of indicator microbes that are less than—

(AA)

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;

(BB)

126 colony-forming units of escherichia coli per 100 milliliters; and

(CC)

33 colony-forming units of intestinal enterococci per 100 milliliters; and

(dd)

concentrations of such additional indicator microbes and viruses as may be specified in the standards of performance established by the Administrator under paragraph (4).

(iv)

General exceptions

The requirements of clauses (ii) and (iii) shall not apply to a commercial vessel if—

(I)

complying with the requirement would compromise the safety of the commercial vessel;

(II)

design limitations of the commercial vessel prevent a ballast water exchange from being conducted in accordance with clause (ii) or (iii), as applicable;

(III)

the commercial vessel—

(aa)

is certified by the Secretary as having no residual ballast water or sediments onboard; or

(bb)

retains all ballast water while in waters subject to those requirements; or

(IV)

empty ballast tanks on the commercial vessel are sealed and certified by the Secretary in a manner that ensures that—

(aa)

no discharge or uptake occurs; and

(bb)

any subsequent discharge of ballast water is subject to those requirements.

(D)

Establishment of State no-discharge zones

(i)

State prohibition

(ii)

Applicability

(iii)

Prohibition by Administrator

(I)

Determination

On application of a State, the Administrator, in concurrence with the Secretary (subject to subclause (II)), shall, by regulation, prohibit the discharge from a vessel of 1 or more discharges subject to regulation under this subsection, whether treated or not treated, into the waters covered by the application if the Administrator determines that—

(aa)

prohibition of the discharge would protect and enhance the quality of the specified waters within the State;

(bb)

adequate facilities for the safe and sanitary removal and treatment of the discharge are reasonably available for the water and all vessels to which the prohibition would apply;

(cc)

the discharge can be safely collected and stored until a vessel reaches a discharge facility or other location; and

(dd)

in the case of an application for the prohibition of discharges of ballast water in a port (or in any other location where cargo, passengers, or fuel are loaded and unloaded)—

(AA)

the adequate facilities described in item (bb) are reasonably available for commercial vessels, after considering, at a minimum, water depth, dock size, pumpout facility capacity and flow rate, availability of year-round operations, proximity to navigation routes, and the ratio of pumpout facilities to the population and discharge capacity of commercial vessels operating in those waters; and

(BB)

the prohibition will not unreasonably interfere with the safe loading and unloading of cargo, passengers, or fuel.

(II)

Concurrence with Secretary

(aa)

Request

(bb)

Effect of failure to concur

A failure by the Secretary to concur with the Administrator under subclause (I) by the date that is 60 days after the date on which the Administrator submits a request for concurrence under item (aa) shall not prevent the Administrator from prohibiting the relevant discharge in accordance with subclause (III), subject to the condition that the Administrator shall include in the administrative record of the promulgation—

(AA)

documentation of the request submitted under item (aa); and

(BB)

(III)

Timing

(E)

Maintenance in effect of more-stringent standards

(June 30, 1948, ch. 758, title III, § 312, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 871; amended Pub. L. 95–217, § 59, Dec. 27, 1977, 91 Stat. 1596; Pub. L. 96–88, title V, § 509(b), Oct. 17, 1979, 93 Stat. 695; Pub. L. 100–4, title III, § 311, Feb. 4, 1987, 101 Stat. 42; Pub. L. 104–106, div. A, title III, § 325(b)–(c)(2), Feb. 10, 1996, 110 Stat. 254–259; Pub. L. 110–288, § 4, July 29, 2008, 122 Stat. 2650; Pub. L. 115–282, title IX, § 903(a)(1), (b), (c)(1), Dec. 4, 2018, 132 Stat. 4324, 4354, 4355.)

cite as: 33 USC 1322

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