1625-0069 Stat/Auth

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From the U.S. Code Online via GPO Access
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[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC4711]

TITLE 16--CONSERVATION
CHAPTER 67--AQUATIC NUISANCE PREVENTION AND CONTROL
SUBCHAPTER II--PREVENTION OF UNINTENTIONAL INTRODUCTIONS OF
NONINDIGENOUS AQUATIC SPECIES
Sec. 4711. Aquatic nuisance species in waters of United States

(a) Great Lakes guidelines
(1) In general
Not later than 6 months after November 29, 1990, 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 November 29, 1990, 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;

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(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 4712(a)(1) of
this title; 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 October 26, 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--

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(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 4712(a)(1) of this title; 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) of this section, 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;

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(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 October 26, 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) of this section 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) of this section.
(e) Periodic review and revision
(1) In general
Not later than 3 years after the date of issuance of guidelines
pursuant to subsection (c) of this section, 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) of this section and the
regulations promulgated under this chapter;
(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) of this section; 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--

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(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) of this section; or
(iii) carry out each of clauses (i) and (ii).
(3) Criteria for effectiveness
Not later than 18 months after October 26, 1996, the Task Force
shall submit to the Secretary criteria for determining the adequacy
and effectiveness of the voluntary guidelines issued under
subsection (c) of this section.
(f) Authority of Secretary
(1) General regulations
If, on the basis of a periodic review conducted under subsection
(e)(1) of this section or a special review conducted under
subsection (e)(2) of this section, the Secretary determines that-(A) the rate of effective compliance (as determined by the
Secretary) with the guidelines issued pursuant to subsection (c)
of this section 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) of this section,
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) of this section;
(ii) make mandatory the requirements included in the
voluntary guidelines issued under subsection (c) of this
section; 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.

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(g) Sanctions
(1) Civil penalties
Any person who violates a regulation promulgated under
subsection (b) or (f) of this section 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) of this section 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 91 of title 46, Appendix, if the owner or operator of that
vessel is in violation of the regulations issued under subsection
(b) or (f) of this section.
(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 this
chapter 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

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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) of this section.
(3) Crude oil tanker ballast facility study
(A) Within 60 days of October 26, 1996,\1\ 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.
--------------------------------------------------------------------------\1\ See Codification note below.
--------------------------------------------------------------------------(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 chapter.
(Pub. L. 101-646, title I, Sec. 1101, Nov. 29, 1990, 104 Stat. 4763;
Pub. L. 102-580, title III, Sec. 302(b)(1), Oct. 31, 1992, 106 Stat.
4839; Pub. L. 102-587, title IV, Sec. 4002, Nov. 4, 1992, 106 Stat.

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5068; Pub. L. 104-332, Sec. 2(b)(2), Oct. 26, 1996, 110 Stat. 4075.)
References in Text
The Federal Water Pollution Control Act, referred to in subsecs.
(b)(2)(C) and (c)(2)(J), is act June 30, 1948, ch. 758, as amended
generally by Pub. L. 92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 816, which
is classified generally to chapter 26 (Sec. 1251 et seq.) of Title 33,
Navigation and Navigable Waters. For complete classification of this Act
to the Code, see Short Title note set out under section 1251 of Title 33
and Tables.
This chapter, referred to in subsecs. (e)(1)(A), (g)(4)(B), and (l),
was in the original ``this Act'' or ``the Act'', which, to reflect the
probable intent of Congress, was translated as reading ``this title''
meaning title I of Pub. L. 101-646, Nov. 29, 1990, 104 Stat. 4761, known
as the Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990, which is classified principally to this chapter. For complete
classification of title I to the Code, see Short Title note set out
below and Tables.
Codification
October 26, 1996, referred to in subsec. (k)(3), was in the original
``the date of enactment of this Act'', which was translated as meaning
the date of enactment of Pub. L. 104-332, which amended this section
generally, to reflect the probable intent of Congress.

Amendments
1996--Pub. L. 104-332 amended section generally, substituting
subsecs. (a) to (l) relating to aquatic nuisance species in waters of
the United States for former subsecs. (a) to (e) relating to aquatic
nuisance species in the Great Lakes.
1992--Subsec. (b)(3). Pub. L. 102-580 and Pub. L. 102-587 made
substantively identical amendments, adding par. (3). Par. (3) is based
on text of Pub. L. 102-587.
Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the
Coast Guard, including the authorities and functions of the Secretary of
Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections 468(b), 551(d),
552(d), and 557 of Title 6, Domestic Security, and the Department of
Homeland Security Reorganization Plan of November 25, 2002, as modified,
set out as a note under section 542 of Title 6.
Section Referred to in Other Sections
This section is referred to in sections 4712, 4741 of this title.

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