StatA

§ 4711

TITLE 16—CONSERVATION

bodies of water within the drainage basin of
such lakes and connecting channels.
(8) ‘‘Great Lakes region’’ means the 8 States
that border on the Great Lakes;
(9) ‘‘Indian tribe’’ means any Indian tribe,
band, nation, or other organized group or community, including any Alaska Native village
or regional corporation (as defined in or established pursuant to the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.)) that is
recognized as eligible for the special programs
and services provided by the United States to
Indians because of their status as Indians;
(10) ‘‘interstate organization’’ means an entity—
(A) established by—
(i) an interstate compact that is approved by Congress;
(ii) a Federal statute; or
(iii) a treaty or other international
agreement with respect to which the
United States is a party; and
(B)(i) that represents 2 or more—
(I) States or political subdivisions thereof; or
(II) Indian tribes; or
(ii) that represents—
(I) 1 or more States or political subdivisions thereof; and
(II) 1 or more Indian tribes; or
(iii) that represents the Federal Government and 1 or more foreign governments;
and
(C) has jurisdiction over, serves as forum
for coordinating, or otherwise has a role or
responsibility for the management of, any
land or other natural resource;
(11) ‘‘nonindigenous species’’ means any species or other viable biological material that
enters an ecosystem beyond its historic range,
including any such organism transferred from
one country into another;
(12) ‘‘Secretary’’ means the Secretary of the
department in which the Coast Guard is operating;
(13) ‘‘Task Force’’ means the Aquatic Nuisance Species Task Force established under
section 4721 of this title;
(14) ‘‘territorial sea’’ means the belt of the
sea measured from the baseline of the United
States determined in accordance with international law, as set forth in Presidential Proclamation Number 5928, dated December 27,
1988;
(15) ‘‘Under Secretary’’ means the Under
Secretary of Commerce for Oceans and Atmosphere;
(16) ‘‘waters of the United States’’ means the
navigable waters and the territorial sea of the
United States; and
(17) ‘‘unintentional introduction’’ means an
introduction of nonindigenous species that occurs as the result of activities other than the
purposeful or intentional introduction of the
species involved, such as the transport of nonindigenous species in ballast or in water used
to transport fish, mollusks or crustaceans for
aquaculture or other purposes.
(Pub. L. 101–646, title I, § 1003, Nov. 29, 1990, 104
Stat. 4762; Pub. L. 102–580, title III, § 302(b)(2),

Page 2322

Oct. 31, 1992, 106 Stat. 4839; Pub. L. 104–332,
§ 2(a)(2), (h)(1), (3), Oct. 26, 1996, 110 Stat. 4074,
4091.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this 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 under
section 4701 of this title and Tables.
Proclamation Number 5030, referred to in par. (5), is
set out under section 1453 of this title.
The Alaska Native Claims Settlement Act, referred
to in par. (9), is Pub. L. 92–203, Dec. 18, 1971, 85 Stat. 688,
as amended, which is classified generally to chapter 33
(§ 1601 et seq.) of Title 43, Public Lands. For complete
classification of this Act to the Code, see Short Title
note set out under section 1601 of Title 43 and Tables.
Presidential Proclamation Number 5928, referred to
in par. (14), is set out under section 1331 of Title 43.
AMENDMENTS
1996—Pub. L. 104–332, § 2(h)(1), (3), made technical
amendment to Pub. L. 101–646, § 1003, which enacted this
section.
Par. (1). Pub. L. 104–332, § 2(a)(2)(A), redesignated par.
(2) as (1) and struck out former par. (1) which read as
follows: ‘‘ ‘appropriate Committees’ means the Committee on Public Works and Transportation and the Committee on Merchant Marine and Fisheries in the House
of Representatives and the Committee on Environment
and Public Works and Committee on Commerce,
Science, and Transportation in the Senate; and’’.
Par. (2). Pub. L. 104–332, § 2(a)(2)(B), substituted ‘‘ ‘Assistant Secretary’ means’’ for ‘‘ ‘assistant Secretary’
means’’.
Pub. L. 104–332, § 2(a)(2)(A), redesignated par. (3) as (2).
Former par. (2) redesignated (1).
Pars. (3) to (7). Pub. L. 104–332, § 2(a)(2)(A), redesignated pars. (4) to (8) as (3) to (7), respectively. Former
par. (3) redesignated (2).
Par. (8). Pub. L. 104–332, § 2(a)(2)(D), added par. (8).
Pub. L. 104–332, § 2(a)(2)(A), redesignated par. (8) as (7).
Pars. (9), (10). Pub. L. 104–332, § 2(a)(2)(D), added pars.
(9) and (10).
Pub. L. 104–332, § 2(a)(2)(C), redesignated pars. (9) and
(10) as (11) and (12), respectively.
Pars. (11) to (17). Pub. L. 104–332, § 2(a)(2)(C), redesignated pars. (9) to (15) as (11) to (17), respectively.
1992—Par. (1). Pub. L. 102–580 inserted ‘‘the Committee on Public Works and Transportation and’’ after
‘‘means’’.
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.

SUBCHAPTER
II—PREVENTION
OF
UNINTENTIONAL INTRODUCTIONS OF NONINDIGENOUS AQUATIC SPECIES
§ 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

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TITLE 16—CONSERVATION

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;
(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

§ 4711

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—
(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 meth-

§ 4711

TITLE 16—CONSERVATION
ods, 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;
(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 meas-

Page 2324

ures 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—
(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

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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.
(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 60105
of title 46, 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

§ 4711

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
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
1 See

Codification note below.

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TITLE 16—CONSERVATION

the Under Secretary of Commerce for Oceans
and Atmosphere, affected shoreside ballast
water facility operators, affected crude oil
tanker operators, and interested parties, shall
initiate a study of the effectiveness of existing
shoreside ballast water facilities used by crude
oil tankers in the coastwise trade off Alaska
in preventing the introduction of nonindigenous aquatic species into the waters off Alaska, as well as the cost and feasibility of modifying such facilities to improve such effectiveness.
(B) The study required under subparagraph
(A) shall be submitted to the Congress by no
later than October 1, 1997.
(l) Non-discrimination
The Secretary shall ensure that vessels registered outside of the United States do not receive more favorable treatment than vessels registered in the United States when the Secretary
performs studies, reviews compliance, determines effectiveness, establishes requirements,
or performs any other responsibilities under this
chapter.
(Pub. L. 101–646, title I, § 1101, Nov. 29, 1990, 104
Stat. 4763; Pub. L. 102–580, title III, § 302(b)(1),
Oct. 31, 1992, 106 Stat. 4839; Pub. L. 102–587, title
IV, § 4002, Nov. 4, 1992, 106 Stat. 5068; Pub. L.
104–332, § 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, § 2, Oct. 18,
1972, 86 Stat. 816, which is classified generally to chapter 26 (§ 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
In subsec. (g)(3), ‘‘section 60105 of title 46’’ substituted
for ‘‘section 4197 of the Revised Statutes (46 U.S.C. App.
91)’’ on authority of Pub. L. 109–304, § 18(c), Oct. 6, 2006,
120 Stat. 1709, which Act enacted section 60105 of Title
46, Shipping.
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

Page 2326

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.

§ 4712. National ballast water management information
(a) Studies on introduction of aquatic nuisance
species by vessels
(1) Ballast exchange study
The Task Force, in cooperation with the
Secretary, shall conduct a study—
(A) to assess the environmental effects of
ballast water exchange on the diversity and
abundance of native species in receiving estuarine, marine, and fresh waters of the
United States; and
(B) to identify areas within the waters of
the United States and the exclusive economic zone, if any, where the exchange of
ballast water does not pose a threat of infestation or spread of aquatic nuisance species
in the Great Lakes and other waters of the
United States.
(2) Biological study
The Task Force, in cooperation with the
Secretary, shall conduct a study to determine
whether aquatic nuisance species threaten the
ecological characteristics and economic uses
of Lake Champlain and other waters of the
United States other than the Great Lakes.
(3) Shipping study
The Secretary shall conduct a study to determine the need for controls on vessels entering waters of the United States, other than
the Great Lakes, to minimize the risk of unintentional introduction and dispersal of aquatic
nuisance species in those waters. The study
shall include an examination of—
(A) the degree to which shipping may be a
major pathway of transmission of aquatic
nuisance species in those waters;
(B) possible alternatives for controlling introduction of those species through shipping;
and
(C) the feasibility of implementing regional versus national control measures.
(b) Ecological and ballast water discharge surveys
(1) Ecological surveys
(A) In general
The Task Force, in cooperation with the
Secretary, shall conduct ecological surveys
of the Chesapeake Bay, San Francisco Bay,
and Honolulu Harbor and, as necessary, of
other estuaries of national significance and
other waters that the Task Force determines—
(i) to be highly susceptible to invasion
by aquatic nuisance species resulting from
ballast water operations and other operations of vessels; and
(ii) to require further study.
(B) Requirements for surveys
In conducting the surveys under this paragraph, the Task Force shall, with respect to
each such survey—