Download:
pdf |
pdf§ 1321c
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
of cooperative arrangements under subsection
(c) and ensure the participation of tribal governments in such arrangements. There are authorized to be appropriated to the Commandant
$500,000 for each of fiscal years 2010 through 2014
to be used to carry out this section.
(Pub. L. 111–281, title VII, § 706, Oct. 15, 2010, 124
Stat. 2983.)
CODIFICATION
Section was enacted as part of the Coast Guard Authorization Act of 2010, and not as part of the Federal
Water Pollution Control Act which comprises this
chapter.
§ 1321c. International efforts on enforcement
The Secretary of the department in which the
Coast Guard is operating, in consultation with
the heads of other appropriate Federal agencies,
shall ensure that the Coast Guard pursues
stronger enforcement in the International Maritime Organization of agreements related to oil
discharges, including joint enforcement operations, training, and stronger compliance mechanisms.
(Pub. L. 111–281, title VII, § 709, Oct. 15, 2010, 124
Stat. 2986.)
CODIFICATION
Section was enacted as part of the Coast Guard Authorization Act of 2010, and not as part of the Federal
Water Pollution Control Act which comprises this
chapter.
§ 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 ex-
Page 476
cept 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 des-
Page 477
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
ignated 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
§ 1322
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
The provisions of this section and the standards and regulations promulgated hereunder
apply to vessels owned and operated by the
United States unless the Secretary of Defense
finds that compliance would not be in the interest of national security. With respect to vessels
owned and operated by the Department of Defense, regulations under the last sentence of
subsection (b)(1) of this section and certifications under subsection (g)(2) of this section
shall be promulgated and issued by the Secretary of Defense.
(e) Pre-promulgation consultation
Before the standards and regulations under
this section are promulgated, the Administrator
and the Secretary of the department in which
the Coast Guard is operating shall consult with
the Secretary of State; the Secretary of Health
and Human Services; the Secretary of Defense;
the Secretary of the Treasury; the Secretary of
Commerce; other interested Federal agencies;
and the States and industries interested; and
otherwise comply with the requirements of section 553 of title 5.
(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.
§ 1322
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
(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.
Page 478
(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
Nothing in this subsection requires certification of a marine pollution control device for
use on any vessel of the Armed Forces.
(i) Jurisdiction to restrain violations; contempts
The district courts of the United States shall
have jurisdictions to restrain violations of sub-
Page 479
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
section (g)(1) of this section and subsections
(h)(1) through (3) of this section. Actions to restrain such violations shall be brought by, and
in, the name of the United States. In case of
contumacy or refusal to obey a subpena served
upon any person under this subsection, the district court of the United States for any district
in which such person is found or resides or
transacts business, upon application by the
United States and after notice to such person,
shall have jurisdiction to issue an order requiring such person to appear and give testimony or
to appear and produce documents, and any failure to obey such order of the court may be punished by such court as a contempt thereof.
(j) Penalties
Any person who violates subsection (g)(1),
clause (1) or (2) of subsection (h), or subsection
(n)(8) shall be liable to a civil penalty of not
more than $5,000 for each violation. Any person
who violates clause (4) of subsection (h) of this
section or any regulation issued pursuant to this
section shall be liable to a civil penalty of not
more than $2,000 for each violation. Each violation shall be a separate offense. The Secretary
of the department in which the Coast Guard is
operating may assess and compromise any such
penalty. No penalty shall be assessed until the
person charged shall have been given notice and
an opportunity for a hearing on such charge. In
determining the amount of the penalty, or the
amount agreed upon in compromise, the gravity
of the violation, and the demonstrated good
faith of the person charged in attempting to
achieve rapid compliance, after notification of a
violation, shall be considered by said Secretary.
(k) Enforcement authority
(1) Administrator
This section shall be enforced by the Administrator, to the extent provided in section 1319
of this title.
(2) Secretary
(A) In general
This section shall be enforced by the Secretary of the department in which the Coast
Guard is operating, who may use, by agreement, with or without reimbursement, law
enforcement officers or other personnel and
facilities of the Administrator, other Federal agencies, or the States to carry out the
provisions of this section.
(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—
§ 1322
(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
This section may be enforced by a State or
political subdivision of a State (including
the attorney general of a State), including
by filing a civil action in an appropriate
Federal district court to enforce any violation of subsection (p).
(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
Anyone authorized by the Secretary of the department in which the Coast Guard is operating
to enforce the provisions of this section may, except as to public vessels, (1) board and inspect
any vessel upon the navigable waters of the
United States and (2) execute any warrant or
other process issued by an officer or court of
competent jurisdiction.
(m) Enforcement in United States possessions
In the case of Guam and the Trust Territory of
the Pacific Islands, actions arising under this
section may be brought in the district court of
Guam, and in the case of the Virgin Islands such
actions may be brought in the district court of
the Virgin Islands. In the case of American
Samoa and the Trust Territory of the Pacific Islands, such actions may be brought in the District Court of the United States for the District
of Hawaii and such court shall have jurisdiction
of such actions. In the case of the Canal Zone,
such actions may be brought in the District
Court for the District of the Canal Zone.
(n) Uniform national discharge standards for
vessels of Armed Forces
(1) Applicability
This subsection shall apply to vessels of the
Armed Forces and discharges, other than sewage, incidental to the normal operation of a
vessel of the Armed Forces, unless the Secretary of Defense finds that compliance with
this subsection would not be in the national
security interests of the United States.
(2) Determination of discharges required to be
controlled by marine pollution control devices
(A) In general
The Administrator and the Secretary of
Defense, after consultation with the Sec-
§ 1322
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
retary of the department in which the Coast
Guard is operating, the Secretary of Commerce, and interested States, shall jointly
determine the discharges incidental to the
normal operation of a vessel of the Armed
Forces for which it is reasonable and practicable to require use of a marine pollution
control device to mitigate adverse impacts
on the marine environment. Notwithstanding subsection (a)(1) of section 553 of title 5,
the Administrator and the Secretary of Defense shall promulgate the determinations
in accordance with such section. The Secretary of Defense shall require the use of a
marine pollution control device on board a
vessel of the Armed Forces in any case in
which it is determined that the use of such
a device is reasonable and practicable.
(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
For each discharge for which a marine pollution control device is determined to be required under paragraph (2), the Administrator and the Secretary of Defense, in consultation with the Secretary of the department in which the Coast Guard is operating,
the Secretary of State, the Secretary of
Commerce, other interested Federal agencies, and interested States, shall jointly promulgate Federal standards of performance
for each marine pollution control device required with respect to the discharge. Notwithstanding subsection (a)(1) of section 553
of title 5, the Administrator and the Secretary of Defense shall promulgate the
standards in accordance with such section.
(B) Considerations
In promulgating standards under this
paragraph, the Administrator and the Secretary of Defense shall take into consideration the matters set forth in paragraph
(2)(B).
(C) Classes, types, and sizes of vessels
The standards promulgated under this
paragraph may—
(i) distinguish among classes, types, and
sizes of vessels;
Page 480
(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
The Secretary of Defense, after consultation
with the Administrator and the Secretary of
the department in which the Coast Guard is
operating, shall promulgate such regulations
governing the design, construction, installation, and use of marine pollution control devices on board vessels of the Armed Forces as
are necessary to achieve the standards promulgated under paragraph (3).
(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
The Secretary of Defense shall promulgate
regulations with respect to a marine pollution control device under paragraph (4) as
soon as practicable after the Administrator
and the Secretary of Defense promulgate
standards with respect to the device under
paragraph (3), but not later than 1 year after
the Administrator and the Secretary of Defense promulgate the standards. The regulations promulgated by the Secretary of Defense under paragraph (4) shall become effective upon promulgation unless another effective date is specified in the regulations.
(D) Petition for review
The Governor of any State may submit a
petition requesting that the Secretary of Defense and the Administrator review a determination under paragraph (2) or a standard
under paragraph (3), if there is significant
new information, not considered previously,
that could reasonably result in a change to
the particular determination or standard
after consideration of the matters set forth
Page 481
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
in paragraph (2)(B). The petition shall be accompanied by the scientific and technical information on which the petition is based.
The Administrator and the Secretary of Defense shall grant or deny the petition not
later than 2 years after the date of receipt of
the petition.
(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
This subsection shall not affect the application of section 1321 of this title to discharges incidental to the normal operation
of a vessel.
(7) Establishment of State no-discharge zones
(A) State prohibition
(i) In general
After 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);
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
To the extent that a prohibition under
this paragraph would apply to vessels of
the Armed Forces and not to other types
of vessels, the State shall document the
technical or environmental basis for the
distinction.
(B) Prohibition by the Administrator
(i) In general
Upon application of a State, the Administrator shall by regulation prohibit the
§ 1322
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
The Administrator shall approve or disapprove an application submitted under
clause (i) not later than 90 days after the
date on which the application is submitted
to the Administrator. Notwithstanding
clause (i)(II), the Administrator shall not
disapprove an application for the sole reason that there are not adequate facilities
to remove any discharge incidental to the
normal operation of a vessel from vessels
of the Armed Forces.
(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
This subsection shall be enforceable, as provided in subsections (j) and (k), against any
§ 1322
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
agency of the United States responsible for
vessels of the Armed Forces notwithstanding
any immunity asserted by the agency.
(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
The Administrator, in consultation with
the Secretary of the department in which
the Coast Guard is operating, the Secretary of Commerce, and interested
States, shall determine the discharges incidental to the normal operation of a recreational vessel for which it is reasonable
and practicable to develop management
practices to mitigate adverse impacts on
the waters of the United States.
(ii) Promulgation
The Administrator shall promulgate the
determinations under clause (i) in accordance with section 553 of title 5.
(iii) Management practices
The Administrator shall develop management practices for recreational vessels
in any case in which the Administrator determines that the use of those practices is
reasonable and practicable.
(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.
Page 482
(3) Performance standards for management
practices
(A) In general
For each discharge for which a management practice is developed under paragraph
(2), the Administrator, in consultation with
the Secretary of the department in which
the Coast Guard is operating, the Secretary
of Commerce, other interested Federal agencies, and interested States, shall promulgate, in accordance with section 553 of title
5, Federal standards of performance for each
management practice required with respect
to the discharge.
(B) Considerations
In promulgating standards under this
paragraph, the Administrator shall take into
account the considerations described in
paragraph (2)(B).
(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
The Secretary of the department in which
the Coast Guard is operating shall promulgate such regulations governing the design,
construction, installation, and use of management practices for recreational vessels as
are necessary to meet the standards of performance promulgated under paragraph (3).
(B) Regulations
(i) In general
The Secretary shall promulgate the regulations under this paragraph as soon as
practicable after the Administrator promulgates standards with respect to the
practice under paragraph (3), but not later
than 1 year after the date on which the Administrator promulgates the standards.
(ii) Effective date
The regulations promulgated by the Secretary under this paragraph shall be effec-
Page 483
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
tive upon promulgation unless another effective date is specified in the regulations.
(iii) Consideration of time
In determining the effective date of a
regulation promulgated under this paragraph, the Secretary shall consider the period of time necessary to communicate the
existence of the regulation to persons affected by the regulation.
(5) Effect of other laws
This subsection shall not affect the application of section 1321 of this title to discharges
incidental to the normal operation of a recreational vessel.
(6) Prohibition relating to recreational vessels
After the effective date of the regulations
promulgated by the Secretary of the department in which the Coast Guard is operating
under paragraph (4), the owner or operator of
a recreational vessel shall neither operate in
nor discharge any discharge incidental to the
normal operation of the vessel into, the waters
of the United States or the waters of the contiguous zone, if the owner or operator of the
vessel is not using any applicable management
practice meeting standards established under
this subsection.
(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
The term ‘‘ballast water’’ does not include any substance that is added to the
water described in clause (i) that is directly related to the operation of a properly functioning ballast water management system.
§ 1322
(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).
§ 1322
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
(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
The term ‘‘Captain of the Port Zone’’
means a Captain of the Port Zone established by the Secretary pursuant to sections
92, 93, and 633 1 of title 14.
(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
The term ‘‘Great Lakes Commission’’
means the Great Lakes Commission established by article IV A of the Great Lakes
Compact 2 to which Congress granted consent in the Act of July 24, 1968 (Public Law
90–419; 82 Stat. 414).
(M) Great Lakes State
The term ‘‘Great Lakes State’’ means any
of the States of—
(i) Illinois;
(ii) Indiana;
(iii) Michigan;
(iv) Minnesota;
1 See
2 So
pact’’.
References in Text note below.
in original. Probably should be ‘‘Great Lakes Basin Com-
Page 484
(v) New York;
(vi) Ohio;
(vii) Pennsylvania; and
(viii) Wisconsin.
(N) Great Lakes System
The term ‘‘Great Lakes System’’ has the
meaning given the term in section 1268(a)(3)
of this title.
(O) Internal waters
The term ‘‘internal waters’’ has the meaning given the term in section 2.24 of title 33,
Code of Federal Regulations (or a successor
regulation).
(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
The term ‘‘nonindigenous species’’ means
an organism of a species that enters an ecosystem beyond the historic range of the 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
The term ‘‘Pacific Region’’ includes the
entire exclusive economic zone (as defined
in section 2701 of this title) adjacent to
each State described in clause (i)(I).
(T) Port or place of destination
The term ‘‘port or place of destination’’
means a port or place to which a vessel is
bound to anchor or moor.
(U) Render nonviable
The term ‘‘render nonviable’’, with respect
to an organism in ballast water, means the
Page 485
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
action of a ballast water management system that renders the organism permanently
incapable of reproduction following treatment.
(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
For purposes of clause (i), a saltwater
flush may require more than 1 fill-mixempty sequence, particularly if only small
quantities of water can be safely taken onboard a vessel at 1 time.
(W) Secretary
The term ‘‘Secretary’’ means the Secretary of the department in which the Coast
Guard is operating.
(X) Small Vessel General Permit
The term ‘‘Small Vessel General Permit’’
means the permit that is the subject of the
notice of final permit issuance entitled
‘‘Final National Pollutant Discharge Elimination System (NPDES) Small Vessel General Permit for Discharges Incidental to the
Normal Operation of Vessels Less Than 79
Feet’’ (79 Fed. Reg. 53702 (September 10,
2014)).
(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
The term ‘‘Vessel General Permit’’ means
the permit that is the subject of the notice
of final permit issuance entitled ‘‘Final National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges
Incidental to the Normal Operation of a Vessel’’ (78 Fed. Reg. 21938 (April 12, 2013)).
(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—
§ 1322
(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
Notwithstanding the expiration date of the
Vessel General Permit or any other provision of law, all provisions of the Vessel General Permit shall remain in force and effect,
and shall not be modified, until the applicable date described in subparagraph (C).
(B) Nonindigenous Aquatic Nuisance Prevention and Control Act regulations
Notwithstanding section 903(a)(2)(A) of the
Vessel Incidental Discharge Act of 2018, all
§ 1322
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
regulations promulgated by the Secretary
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), including the regulations contained in subparts C
and D of part 151 of title 33, Code of Federal
Regulations, and subpart 162.060 of part 162
of title 46, Code of Federal Regulations (as in
effect on the day before December 4, 2018),
shall remain in force and effect until the applicable date described in subparagraph (C).
(C) Repeal on existence of final, effective,
and enforceable requirements
Effective beginning on the date on which
the requirements promulgated by the Secretary under subparagraphs (A), (B), and (C)
of paragraph (5) with respect to every discharge incidental to the normal operation of
a vessel that is subject to regulation under
this subsection are final, effective, and enforceable, the requirements of the Vessel
General Permit and the regulations described in subparagraph (B) shall have no
force or effect.
(4) National standards of performance for marine pollution control devices and water
quality orders
(A) Establishment
(i) In general
Not later than 2 years after December 4,
2018, the Administrator, in concurrence
with the Secretary (subject to clause (ii)),
and in consultation with interested Governors (subject to clause (iii)), shall promulgate Federal standards of performance
for marine pollution control devices for
each type of discharge incidental to the
normal operation of a vessel that is subject to regulation under this subsection.
(ii) Concurrence with Secretary
(I) Request
The Administrator shall submit to the
Secretary a request for written concurrence with respect to a proposed standard of performance under clause (i).
(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.
Page 486
(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
The Administrator shall develop a
process for soliciting input from interested Governors, including information
sharing relevant to such process, to
allow interested Governors to inform the
development of standards of performance
under clause (i).
(III) Objection by governors
(aa) Submission
An interested Governor that objects
to a proposed standard of performance
under clause (i) may submit to the Administrator in writing a detailed objection to the proposed standard of performance, describing the scientific,
technical, or operational factors that
form the basis of the objection.
(bb) Response
Before finalizing a standard of performance under clause (i) that is subject to an objection under item (aa)
from 1 or more interested Governors,
the Administrator shall provide a written response to each interested Governor that submitted an objection
under that item that details the scientific, technical, or operational factors that form the basis for that standard of performance.
(cc) Judicial review
A response of the Administrator
under item (bb) shall not be subject to
judicial review.
(iv) Procedure
The Administrator shall promulgate the
standards of performance under this subparagraph in accordance with—
(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 (includ-
Page 487
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
ing 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
Except as provided in subclause (II),
the Administrator shall not revise a
§ 1322
standard of performance under this subsection to be less stringent than an applicable existing requirement.
(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
The Administrator shall submit to the
Secretary a request for written concurrence with respect to an order under
clause (i).
(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
§ 1322
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
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
An order issued by the Administrator
under clause (i) shall expire not later than
the date that is 4 years after the date of issuance.
(iv) Extensions
The Administrator may reissue an order
under clause (i) for such subsequent periods of not longer than 4 years as the Administrator determines to be appropriate.
(5) Implementation, compliance, and enforcement requirements
(A) Establishment
(i) In general
As soon as practicable, but not later
than 2 years, after the date on which the
Administrator promulgates any new or revised standard of performance under paragraph (4) with respect to a discharge, the
Secretary, in consultation with States,
shall promulgate the regulations required
under this paragraph with respect to that
discharge.
(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.
Page 488
(iii) Coordination with States
The Secretary, in coordination with the
Governors of the States, shall develop,
publish, and periodically update inspection, monitoring, data management, and
enforcement procedures for the enforcement by States of Federal standards and
requirements under this subsection.
(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
The Secretary shall promulgate such regulations governing the design, construction,
testing, approval, installation, and use of
marine pollution control devices as are necessary to ensure compliance with the standards of performance promulgated under
paragraph (4).
(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
Except as provided in subclause (II),
the Secretary shall not revise a requirement under this subparagraph or subparagraph (B) to be less stringent with
respect to ensuring, monitoring, or enforcing compliance than an applicable
existing requirement.
(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
Page 489
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
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
Beginning not later than 1 year after December 4, 2018, the Secretary shall provide to
the Governor of a State, on request by the
Governor, access to Automated Identification System arrival data for inbound vessels
to specific ports or places of destination in
the State.
(6) Additional provisions regarding ballast
water
(A) In general
In addition to the other applicable requirements of this subsection, the requirements
of this paragraph shall apply with respect to
any discharge incidental to the normal operation of a vessel that is a discharge of ballast water.
(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—
§ 1322
(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.
§ 1322
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
(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
The Secretary shall provide a period of
not more than 60 days for public comment
regarding the draft policy letter published
under clause (ii).
(iv) Final policy
(I) In general
Not later than 1 year after December 4,
2018, the Secretary, in coordination with
the Administrator, shall publish a final
policy letter describing type-approval
testing methods, if any, for ballast water
management systems that render nonviable organisms in ballast water.
(II) Method of evaluation
The ballast water management systems under subclause (I) shall be evaluated by measuring the concentration of
organisms in ballast water that are capable of reproduction based on the best
available science that may be used in addition to the methods established under
subpart 162.060 of title 46, Code of Federal Regulations (or successor regulations).
(III) Revisions
The Secretary shall revise the final
policy letter under subclause (I) in any
case in which the Secretary, in coordination with the Administrator, determines
Page 490
that additional testing methods are capable of measuring the concentration of
organisms in ballast water that have not
been rendered nonviable.
(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
The Secretary, in consultation with the
Administrator and acting in coordination
with, or through, the Aquatic Nuisance
Species Task Force established by section
1201(a) of the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990
(16 U.S.C. 4721(a)), shall establish a framework for Federal and intergovernmental
response to aquatic nuisance species risks
from discharges from vessels subject to
ballast water and incidental discharge
compliance requirements under this subsection,
including
the
introduction,
spread, and establishment of aquatic nuisance species populations.
(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—
Page 491
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
(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
A petition under subparagraph (A) shall include a description of any applicable scientific or technical information that forms
the basis of the petition.
(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
If the Administrator or the Secretary determines under clause (i) to deny a petition, the Administrator or Secretary shall
publish in the Federal Register, by not
later than 30 days after the date of that determination, a detailed explanation of the
scientific, technical, or operational factors
that form the basis of the determination.
(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
Notwithstanding section 1369(b) of this
title, a petition for review of a deter-
§ 1322
mination by the Administrator or the
Secretary under clause (i) to deny a petition submitted by the Governor of a
State under subparagraph (A) may be
filed in any United States district court
of competent jurisdiction.
(II) Deadline for filing
Notwithstanding section 1369(b) of this
title, a petition for review of a determination by the Administrator or the
Secretary under clause (i) shall be filed
by not later than 180 days after the date
on which the justification for the determination is published in the Federal
Register under clause (iii).
(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
§ 1322
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
(III) the person in charge of the vessel.
(D) Treatment
Each day of continuing violation of an applicable requirement of this subsection shall
constitute a separate offense.
(E) In rem liability
A vessel operated in violation of this subsection is liable in rem for any civil penalty
assessed for the violation.
(F) Revocation of clearance
The Secretary shall withhold or revoke
the clearance of a vessel required under section 60105 of title 46 if the owner or operator
of the vessel is in violation of this subsection.
(9) Effect on other laws
(A) State authority
(i) In general
Except as provided in clauses (ii)
through (v) and paragraph (10), effective
beginning on the date on which the requirements promulgated by the Secretary
under subparagraphs (A), (B), and (C) of
paragraph (5) with respect to every discharge incidental to the normal operation
of a vessel that is subject to regulation
under this subsection are final, effective,
and enforceable, no State, political subdivision of a State, or interstate agency
may adopt or enforce any law, regulation,
or other requirement of the State, political subdivision, or interstate agency with
respect to any such discharge.
(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
A State may enforce any standard of performance or other Federal requirement of
this subsection in accordance with subsection (k) or other applicable Federal authority.
(iv) Exception for certain fees
(I) In general
Subject to subclauses (II) and (III), a
State that assesses any fee pursuant to
any State or Federal law relating to the
regulation of a discharge incidental to
the normal operation of a vessel before
December 4, 2018, may assess or retain a
fee to cover the costs of administration,
inspection, monitoring, and enforcement
activities by the State to achieve com-
Page 492
pliance with the applicable requirements
of this subsection.
(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
A State may assess against the
owner or operator of a vessel registered
in accordance with applicable Federal
law and lawfully engaged in the coastwise trade not more than $5,000 in fees
under this clause per vessel during a
calendar year.
(III) Adjustment for inflation
(aa) In general
A State may adjust the amount of a
fee authorized under this clause not
more frequently than once every 5
years to reflect the percentage by
which the Consumer Price Index for
All Urban Consumers published by the
Department of Labor for the month of
October immediately preceding the
date of adjustment exceeds the Consumer Price Index for All Urban Consumers published by the Department of
Labor for the month of October that
immediately precedes the date that is
5 years before the date of adjustment.
(bb) Effect of subclause
Nothing in this subclause prevents a
State from adjusting a fee in effect before December 4, 2018, to the applicable
maximum amount under subclause (II).
(cc) Applicability
This subclause applies only to increases in fees to amounts greater than
the applicable maximum amount under
subclause (II).
(v) Alaska graywater
Clause (i) shall not apply with respect to
any discharge of graywater (as defined in
section 1414 of the Consolidated Appropriations Act, 2001 (Public Law 106–554; 114
Stat. 2763A–323)) from a passenger vessel
(as defined in section 2101 of title 46) in the
State of Alaska (including all waters in
the Alexander Archipelago) carrying 50 or
more passengers.
(vi) Preservation of authority
Nothing in this subsection preempts any
State law, public initiative, referendum,
regulation, requirement, or other State action, except as expressly provided in this
subsection.
Page 493
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
(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
Nothing in this subsection affects the authority of the Secretary of Commerce or the
Secretary of the Interior to administer any
land or waters under the administrative control of the Secretary of Commerce or the
Secretary of the Interior, respectively.
(F) No limitation on State inspection authority
Nothing in this subsection limits the authority of a State to inspect a vessel pursuant to paragraph (5)(A)(iii) in order to monitor compliance with an applicable requirement of this section.
(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—
§ 1322
(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.
§ 1322
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
(III) Preliminary assessment by Great
Lakes Commission
(aa) In general
After the date of receipt of a petition
under subclause (II)(aa), the Great
Lakes Commission (acting through the
Great Lakes Panel on Aquatic Nuisance Species, to the maximum extent
practicable) may develop a preliminary
assessment regarding each enhanced
standard of performance or other requirement described in the petition.
(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
On receipt of a written request of a
Governor of a Great Lakes State, the
Director of the Great Lakes National
Program Office shall make available
all public comments received in response to the notice under item (aa).
(cc) No response required
Notwithstanding any other provision
of law, a Governor of a Great Lakes
Page 494
State or the Director of the Great
Lakes National Program Office shall
not be required to provide a response
to any comment received in response
to the publication of a petition or preliminary assessment under item (aa).
(dd) Purpose
Any public comments received in response to the publication of a petition
or preliminary assessment under item
(aa) shall be used solely for the purpose
of providing information and feedback
to the Governor of each Great Lakes
State regarding the decision to endorse
the proposed standard or requirement.
(ee) Effect of petition
A proposed standard or requirement
developed under subclause (II) may differ from the proposed standard or requirement described in a petition published under item (aa).
(II) Coordination to develop proposed
standard or requirement
After the expiration of the public comment period for the petition under subclause (I), any interested Governor of a
Great Lakes State may work in coordination with the Great Lakes Commission
to develop a proposed standard of performance or other requirement applicable to a discharge referred to in the petition.
(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).
Page 495
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
(iii) Promulgation by Administrator and
Secretary
(I) Submission
(aa) In general
The Governors endorsing a proposed
standard or requirement under clause
(ii)(III)(bb) may jointly submit to the
Administrator and the Secretary for
approval each proposed standard of
performance or other requirement developed and endorsed pursuant to
clause (ii).
(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
The Governor of any Great Lakes
State that endorses a proposed
standard
or
requirement
under
clause (ii)(III)(bb) may withdraw the
endorsement by not later than the
date that is 90 days after the date on
which the Administrator and the
Secretary
receive
the
proposed
standard or requirement.
(BB) Effect on Federal review
If, after the withdrawal of an endorsement under subitem (AA), the
proposed standard or requirement
does not have the applicable number
of
endorsements
under
clause
(ii)(III)(bb), the Administrator and
the Secretary shall terminate the review under this clause.
(dd) Dissenting opinions
The Governor of a Great Lakes State
that does not endorse a proposed
standard or requirement under clause
(ii)(III)(bb) may submit to the Administrator and the Secretary any dissenting opinions of the Governor.
(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-
§ 1322
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).
§ 1322
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
(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
Disapproval of a proposed standard
or requirement by the Administrator
and the Secretary under this subparagraph shall be considered to be a final
agency action subject to judicial review under section 1369 of this title.
(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
An action or inaction of a Governor of
a Great Lakes State or the Great Lakes
Commission under this subparagraph
shall not be subject to judicial review.
(VIII) Great Lakes Compact
Nothing in this subsection limits, alters, or amends the Great Lakes Compact 2 to which Congress granted consent
in the Act of July 24, 1968 (Public Law
90–419; 82 Stat. 414).
(IX) Authorization of appropriations
There is authorized to be appropriated
to
the
Great
Lakes
Commission
$5,000,000, to be available until expended.
Page 496
(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
Except as provided in subclause (II)
and clause (iv), the owner or operator of
a commercial vessel shall conduct a
complete ballast water exchange in waters more than 50 nautical miles from
shore.
(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;
Page 497
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
(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
§ 1322
(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
Subject to clause (ii), after the effective
date of regulations promulgated by the
Secretary under paragraph (5), if any 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 types of discharge
regulated under this subsection, whether
treated or not treated, into such waters.
(ii) Applicability
A prohibition by a State under clause (i)
shall not apply until the date on which the
Administrator makes the applicable determinations described in clause (iii).
(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
§ 1322
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
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
The Administrator shall submit to
the Secretary a request for written
concurrence with respect to a prohibition under subclause (I).
(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) 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) Timing
The Administrator shall approve or
disapprove an application submitted
under subclause (I) by not later than 90
days after the date on which the application is submitted to the Administrator.
(E) Maintenance in effect of more-stringent
standards
In any case in which a requirement established under this paragraph is more stringent or environmentally protective than a
comparable requirement established under
Page 498
paragraph (4), (5), or (6), the more-stringent
or more-protective requirement shall control.
(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.)
REFERENCES IN TEXT
For definition of Canal Zone, referred to in subsecs.
(a)(4) and (m), see section 3602(b) of Title 22, Foreign
Relations and Intercourse.
Sections 92, 93, and 633 of title 14, referred to in subsec. (p)(1)(J), were redesignated sections 501, 504, and
503, respectively, of title 14 by Pub. L. 115–282, title I,
§ 105(b), Dec. 4, 2018, 132 Stat. 4200, and references to sections 92, 93, and 633 of title 14 deemed to refer to such
redesignated sections, see section 123(b)(1) of Pub. L.
115–282, set out as a References to Sections of Title 14
as Redesignated by Pub. L. 115–282 note preceding section 101 of Title 14, Coast Guard.
The Act of July 24, 1968, referred to in subsec.
(p)(1)(L), (10)(B)(iii)(VIII), is Pub. L. 90–419, July 24,
1968, 82 Stat. 414, which is not classified to the Code.
The Safe Drinking Water Act, referred to in subsec.
(p)(2)(B)(ii)(III), is title XIV of act July 1, 1944, as added
Dec. 16, 1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660, which
is classified generally to subchapter XII (§ 300f et seq.)
of chapter 6A of Title 42, The Public Health and Welfare. For complete classification of this Act to the
Code, see Short Title note set out under section 201 of
Title 42 and Tables.
Section 903(a)(2)(A) of the Vessel Incidental Discharge Act of 2018, referred to in subsec. (p)(3)(B), is
section 903(a)(2)(A) of title IX of Pub. L. 115–282, Dec. 4,
2018, 132 Stat. 4354, which repealed section 4711 of Title
16, Conservation, and provisions set out as a note under
section 1342 of this title.
The Nonindigenous Aquatic Nuisance Prevention and
Control Act of 1990, referred to in subsec. (p)(3)(B),
(5)(A)(ii)(IV), (C)(ii)(II)(bb)(AA), (cc), is title I of Pub.
L. 101–646, Nov. 29, 1990, 104 Stat. 4761, which is classified principally to chapter 67 (§ 4701 et seq.) of Title 16,
Conservation. Section 1101 of the Act (as in effect on
the day before December 4, 2018), means section 1101 of
the Act, which was classified to section 4711 of Title 16,
prior to repeal by Pub. L. 115–282, title IX,
§ 903(a)(2)(A)(i), Dec. 4, 2018, 132 Stat. 4354. For complete
classification of this Act to the Code, see Short Title
note set out under section 4701 of Title 16 and Tables.
Section 1414 of the Consolidated Appropriations Act,
2001 (Public Law 106–554; 114 Stat. 2763A–323), referred to
in subsec. (p)(9)(A)(v), probably means section 1414 of
title XIV of div. B of H.R. 5666 of the 106th Congress, as
enacted into law by section 1(a)(4) of Pub. L. 106–554,
Dec. 21, 2000, 114 Stat. 2763, 2763A–322, which is set out
in a note under section 1901 of this title.
The Act to Prevent Pollution from Ships, referred to
in subsec. (p)(9)(B)(iii), is Pub. L. 96–478, Oct. 21, 1980, 94
Stat. 2297, which is classified principally to chapter 33
(§ 1901 et seq.) of this title. For complete classification
of this Act to the Code, see Short Title note set out
under section 1901 of this title and Tables.
The Coast Guard Authorization Act of 2010, referred
to in subsec. (p)(9)(B)(iv), is Pub. L. 111–281, Oct. 15,
2010, 124 Stat. 2905. Title X of the Act is classified principally to chapter 51 (§ 3801 et seq.) of this title. For
complete classification of this Act to the Code, see
Tables.
AMENDMENTS
2018—Pub. L. 115–282, § 903(b)(1), substituted ‘‘Marine
sanitation devices; discharges incidental to the normal
Page 499
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
operation of vessels’’ for ‘‘Marine sanitation devices’’
in section catchline.
Subsec. (a). Pub. L. 115–282, § 903(b)(1), inserted heading and substituted ‘‘In’’ for ‘‘For the purpose of’’ in introductory provisions.
Subsec. (a)(7). Pub. L. 115–282, § 903(b)(2)(A), substituted ‘‘devices, marine pollution control device
equipment, or vessels’’ for ‘‘devices or of vessels’’.
Subsec. (a)(13). Pub. L. 115–282, § 903(b)(2)(B), inserted
‘‘, except as provided in subsection (p),’’ after ‘‘means’’
in introductory provisions.
Subsec. (g)(1). Pub. L. 115–282, § 903(b)(3)(A), (B), inserted ‘‘or marine pollution control device equipment’’
after ‘‘marine sanitation device’’ in two places and ‘‘or
equipment’’ after ‘‘such device’’ and ‘‘test device’’.
Subsec. (g)(2). Pub. L. 115–282, § 903(b)(3)(A), (C), inserted ‘‘or marine pollution control device equipment’’
after ‘‘marine sanitation device’’ and ‘‘or equipment’’
after ‘‘the device’’, ‘‘Any device’’, and ‘‘certified test
device’’ wherever appearing.
Subsec. (h). Pub. L. 115–282, § 903(b)(4)(D), inserted
heading.
Subsec. (h)(1). Pub. L. 115–282, § 903(b)(4)(C), (D), designated existing provisions as par. (1), inserted heading,
substituted ‘‘Subject to paragraph (2), after’’ for
‘‘After’’, redesignated former pars. (1) to (4) as subpars.
(A) to (D), respectively, of par. (1), and realigned margins.
Pub. L. 115–282, § 903(b)(4)(A), inserted ‘‘and marine
pollution control device equipment’’ after ‘‘marine
sanitation device’’.
Subsec. (h)(2). Pub. L. 115–282, § 903(b)(4)(E), added par.
(2). Former par. (2) redesignated subpar. (B) of subsec.
(h)(1).
Pub. L. 115–282, § 903(b)(4)(B), inserted ‘‘or any certified marine pollution control device equipment or element of design of such equipment’’ after ‘‘such device’’.
Subsec. (h)(3), (4). Pub. L. 115–282, § 903(b)(4)(C), redesignated pars. (3) and (4) as subpars. (C) and (D), respectively, of subsec. (h)(1).
Subsec. (k). Pub. L. 115–282, § 903(c), designated first
sentence of existing provisions as par. (2)(A), substituted ‘‘This’’ for ‘‘The provisions of this’’ and ‘‘operating, who may use, by agreement’’ for ‘‘operating and
he may utilize by agreement’’ in par. (2)(A) as redesignated, inserted headings for subsec. (k), par. (2), and
par. (2)(A), added pars. (1), (2)(B), (2)(C), and (3), and
struck out former second sentence which read as follows: ‘‘The provisions of this section may also be enforced by a State.’’
Subsec. (p). Pub. L. 115–282, § 903(a)(1), added subsec.
(p).
2008—Subsec. (o). Pub. L. 110–288 added subsec. (o).
1996—Subsec. (a)(8). Pub. L. 104–106, § 325(c)(1)(A), substituted ‘‘corporation, association, or agency of the
United States,’’ for ‘‘corporation, or association,’’.
Subsec. (a)(12) to (14). Pub. L. 104–106, § 325(c)(1)(B),
(C), added pars. (12) to (14).
Subsec. (j). Pub. L. 104–106, § 325(c)(2), substituted
‘‘subsection (g)(1), clause (1) or (2) of subsection (h), or
subsection (n)(8) shall be liable’’ for ‘‘subsection (g)(1)
of this section or clause (1) or (2) of subsection (h) of
this section shall be liable’’.
Subsec. (n). Pub. L. 104–106, § 325(b), added subsec. (n).
1987—Subsec. (f)(1). Pub. L. 100–4, § 311(a), designated
existing provision as subpar. (A), substituted ‘‘Except
as provided in subparagraph (B), after’’ for ‘‘After’’, and
added subpar. (B).
Subsec. (k). Pub. L. 100–4, § 311(b), inserted at end
‘‘The provisions of this section may also be enforced by
a State.’’
1977—Subsec. (a)(6). Pub. L. 95–217, § 59(a), inserted
‘‘except that, with respect to commercial vessels on the
Great Lakes, such term shall include graywater’’ after
‘‘receive or retain body wastes’’.
Subsec. (a)(10), (11). Pub. L. 95–217, § 59(b), added pars.
(10) and (11).
Subsec. (b)(1). Pub. L. 95–217, § 59(c), inserted references to standards established under subsec. (c)(1)(B)
of this section and to standards promulgated under subsec. (c) of this section.
§ 1322
Subsec. (c)(1). Pub. L. 95–217, § 59(d), designated existing provisions as subpar. (A) and added subpar. (B).
Subsec. (f)(4). Pub. L. 95–217, § 59(e), designated existing provisions as subpar. (A) and added subpar. (B).
CHANGE OF NAME
‘‘Secretary of Health and Human Services’’ substituted for ‘‘Secretary of Health, Education, and Welfare’’ in subsec. (e) pursuant to section 509(b) of Pub. L.
96–88 which is classified to section 3508(b) of Title 20,
Education.
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.
TERMINATION OF TRUST TERRITORY OF THE PACIFIC
ISLANDS
For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title
48, Territories and Insular Possessions.
TERMINATION OF UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF THE CANAL ZONE
For termination of the United States District Court
for the District of the Canal Zone at end of the ‘‘transition period’’, being the 30-month period beginning Oct.
1, 1979, and ending midnight Mar. 31, 1982, see Paragraph 5 of Article XI of the Panama Canal Treaty of
1977 and sections 2101 and 2201 to 2203 of Pub. L. 96–70,
title II, Sept. 27, 1979, 93 Stat. 493, formerly classified to
sections 3831 and 3841 to 3843, respectively, of Title 22,
Foreign Relations and Intercourse.
PURPOSES OF 2018 AMENDMENT; FINDINGS
Pub. L. 115–282, title IX, § 902, Dec. 4, 2018, 132 Stat.
4322, provided that:
‘‘(a) PURPOSES.—The purposes of this title [see Short
Title of 2018 Amendment note set out under section 1251
of this title] are—
‘‘(1) to provide for the establishment of uniform, environmentally sound standards and requirements for
the management of discharges incidental to the normal operation of a vessel;
‘‘(2) to charge the Environmental Protection Agency with primary responsibility for establishing standards relating to the discharge of pollutants from vessels;
‘‘(3) to charge the Coast Guard with primary responsibility for prescribing, administering, and enforcing regulations, consistent with the discharge
standards established by the Environmental Protection Agency, for the design, construction, installation, and operation of the equipment and management practices required onboard vessels; and
‘‘(4) to preserve the flexibility of States, political
subdivisions, and certain regions with respect to the
administration and enforcement of standards relating
to the discharge of pollutants from vessels engaged in
maritime commerce and transportation.
‘‘(b) FINDINGS.—Congress finds that—
‘‘(1) the Environmental Protection Agency is the
principal Federal authority charged under the Federal Water Pollution Control Act (33 U.S.C. 1251 et
seq.) with regulating through the issuance of permits
for the discharge of pollutants into the navigable waters of the United States;
‘‘(2) the Coast Guard is the principal Federal authority charged with administering, enforcing, and
prescribing regulations relating to the discharge of
pollutants from vessels; and
‘‘(3) during the period of 1973 to 2010—
§ 1322
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
‘‘(A) the Environmental Protection Agency promulgated regulations exempting certain discharges
incidental to the normal operation of vessels from
otherwise applicable permitting requirements of
the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.); and
‘‘(B) Congress enacted laws on numerous occasions governing the regulation of discharges incidental to the normal operation of vessels, including—
‘‘(i) the Act to Prevent Pollution from Ships (33
U.S.C. 1901 et seq.);
‘‘(ii) the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4701 et
seq.);
‘‘(iii) the National Invasive Species Act of 1996
(16 U.S.C. 4701 note; Public Law 104–332) [see Short
Title of 1996 Amendment note set out under section 4701 of this title];
‘‘(iv) section 415 of the Coast Guard Authorization Act of 1998 (Public Law 105–383; 112 Stat. 3434)
and section 623 of the Coast Guard and Maritime
Transportation Act of 2004 (33 U.S.C. 1901 note;
Public Law 108–293), which established interim
and permanent requirements, respectively, for
the regulation of vessel discharges of certain bulk
cargo residue;
‘‘(v) title XIV of division B of Appendix D of the
Consolidated Appropriations Act, 2001 (Public
Law 106–554; 114 Stat. 2763A–315) [33 U.S.C. 1901
note], which prohibited or limited certain vessel
discharges in certain areas of Alaska;
‘‘(vi) section 204 of the Maritime Transportation
Security Act of 2002 (33 U.S.C. 1902a), which established requirements for the regulation of vessel
discharges of agricultural cargo residue material
in the form of hold washings; and
‘‘(vii) title X of the Coast Guard Authorization
Act of 2010 (33 U.S.C. 3801 et seq.), which provided
for the implementation of the International Convention on the Control of Harmful Anti-Fouling
Systems on Ships, 2001.’’
PURPOSE OF 1996 AMENDMENT
Pub. L. 104–106, div. A, title III, § 325(a), Feb. 10, 1996,
110 Stat. 254, provided that: ‘‘The purposes of this section [amending this section and section 1362 of this
title and enacting provisions set out as a note below]
are to—
‘‘(1) enhance the operational flexibility of vessels of
the Armed Forces domestically and internationally;
‘‘(2) stimulate the development of innovative vessel
pollution control technology; and
‘‘(3) advance the development by the United States
Navy of environmentally sound ships.’’
COOPERATION IN NATIONAL DISCHARGE STANDARDS
DEVELOPMENT
Pub. L. 104–106, div. A, title III, § 325(d), Feb. 10, 1996,
110 Stat. 259, provided that: ‘‘The Administrator of the
Environmental Protection Agency and the Secretary of
Defense may, by mutual agreement, with or without reimbursement, provide for the use of information, reports, personnel, or other resources of the Environmental Protection Agency or the Department of Defense to carry out section 312(n) of the Federal Water
Pollution Control Act [33 U.S.C. 1322(n)] (as added by
subsection (b)), including the use of the resources—
‘‘(1) to determine—
‘‘(A) the nature and environmental effect of discharges incidental to the normal operation of a vessel of the Armed Forces;
‘‘(B) the practicability of using marine pollution
control devices on vessels of the Armed Forces; and
‘‘(C) the effect that installation or use of marine
pollution control devices on vessels of the Armed
Forces would have on the operation or operational
capability of the vessels; and
‘‘(2) to establish performance standards for marine
pollution control devices on vessels of the Armed
Forces.’’
Page 500
CLEAN VESSELS
Pub. L. 102–587, title V, subtitle F, Nov. 4, 1992, 106
Stat. 5086, as amended by Pub. L. 109–59, title X, § 10131,
Aug. 10, 2005, 119 Stat. 1931, provided that:
‘‘SEC. 5601. SHORT TITLE.
‘‘This subtitle may be cited as the ‘Clean Vessel Act
of 1992’.
‘‘SEC. 5602. FINDINGS; PURPOSE.
‘‘(a) FINDINGS.—The Congress finds the following:
‘‘(1) The discharge of untreated sewage by vessels is
prohibited under Federal law in all areas within the
navigable waters of the United States.
‘‘(2) The discharge of treated sewage by vessels is
prohibited under either Federal or State law in many
of the United States bodies of water where recreational boaters operate.
‘‘(3) There is currently an inadequate number of
pumpout stations for type III marine sanitation devices where recreational vessels normally operate.
‘‘(4) Sewage discharged by recreational vessels because of an inadequate number of pumpout stations is
a substantial contributor to localized degradation of
water quality in the United States.
‘‘(b) PURPOSE.—The purpose of this subtitle is to provide funds to States for the construction, renovation,
operation, and maintenance of pumpout stations and
waste reception facilities.
‘‘SEC. 5603. DETERMINATION AND PLAN REGARDING STATE MARINE SANITATION DEVICE
PUMPOUT STATION NEEDS.
‘‘(a) SURVEY.—Within 3 months after the notification
under section 5605(b), each coastal State shall conduct
a survey to determine—
‘‘(1) the number and location of all operational
pumpout stations and waste reception facilities at
public and private marinas, mooring areas, docks,
and other boating access facilities within the coastal
zone of the State; and
‘‘(2) the number of recreational vessels in the coastal waters of the State with type III marine sanitation
devices or portable toilets, and the areas of those
coastal waters where those vessels congregate.
‘‘(b) PLAN.—Within 6 months after the notification
under section 5605(b), and based on the survey conducted under subsection (a), each coastal State shall—
‘‘(1) develop and submit to the Secretary of the Interior a plan for any construction or renovation of
pumpout stations and waste reception facilities that
are necessary to ensure that, based on the guidance
issued under section 5605(a), there are pumpout stations and waste reception facilities in the State that
are adequate and reasonably available to meet the
needs of recreational vessels using the coastal waters
of the State; and
‘‘(2) submit to the Secretary of the Interior with
that plan a list of all stations and facilities in the
coastal zone of the State which are operational on
the date of submittal.
‘‘(c) PLAN APPROVAL.—
‘‘(1) IN GENERAL.—Not later than 60 days after a
plan is submitted by a State under subsection (b), the
Secretary of the Interior shall approve or disapprove
the plan, based on—
‘‘(A) the adequacy of the survey conducted by the
State under subsection (a); and
‘‘(B) the ability of the plan, based on the guidance
issued under section 5605(a), to meet the construction and renovation needs of the recreational vessels identified in the survey.
‘‘(2) NOTIFICATION OF STATE; MODIFICATION.—The
Secretary of the Interior shall promptly notify the
affected Governor of the approval or disapproval of a
plan. If a plan is disapproved, the Secretary of the Interior shall recommend necessary modifications and
return the plan to the affected Governor.
‘‘(3) RESUBMITTAL.—Not later than 60 days after receiving a plan returned by the Secretary of the Inte-
Page 501
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
rior, the Governor shall make the appropriate
changes and resubmit the plan.
‘‘(d) INDICATION OF STATIONS AND FACILITIES ON NOAA
CHARTS.—
‘‘(1) IN GENERAL.—The Under Secretary of Commerce for Oceans and Atmosphere shall indicate, on
charts published by the National Oceanic and Atmospheric Administration for the use of operators of recreational vessels, the locations of pumpout stations
and waste reception facilities.
‘‘(2) NOTIFICATION OF NOAA.—
‘‘(A) LISTS OF STATIONS AND FACILITIES.—The Secretary of the Interior shall transmit to the Under
Secretary of Commerce for Oceans and Atmosphere
each list of operational stations and facilities submitted by a State under subsection (b)(2), by not
later than 30 days after the date of receipt of that
list.
‘‘(B) COMPLETION OF PROJECT.—The Director of
the United States Fish and Wildlife Service shall
notify the Under Secretary of the location of each
station or facility at which a construction or renovation project is completed by a State with
amounts made available under the Act of August 9,
1950 (16 U.S.C. 777a et seq. [16 U.S.C. 777 et seq.]), as
amended by this subtitle, by not later than 30 days
after the date of notification by a State of the completion of the project.
‘‘SEC. 5604. FUNDING.
‘‘(a) TRANSFER.—[Amended section 777c of Title 16,
Conservation.]
‘‘(b) ACCESS INCREASE.—[Amended section 777g of
Title 16, Conservation.]
‘‘(c) GRANT PROGRAM.—
‘‘(1) MATCHING GRANTS.—The Secretary of the Interior may obligate an amount not to exceed the
amount made available under section 4(b)(2) of the
Act of August 9, 1950 (16 U.S.C. 777c(b)(2) [now 16
U.S.C. 777c(b)(3)], as amended by this Act), to make
grants to—
‘‘(A) coastal States to pay not more than 75 percent of the cost to a coastal State of—
‘‘(i) conducting a survey under section 5603(a);
‘‘(ii) developing and submitting a plan and accompanying list under section 5603(b);
‘‘(iii) constructing and renovating pumpout stations and waste reception facilities; and
‘‘(iv) conducting a program to educate recreational boaters about the problem of human
body waste discharges from vessels and inform
them of the location of pumpout stations and
waste reception facilities.
‘‘(B) inland States, which can demonstrate to the
Secretary of the Interior that there are an inadequate number of pumpout stations and waste reception facilities to meet the needs of recreational
vessels in the waters of that State, to pay 75 percent of the cost to that State of—
‘‘(i) constructing and renovating pumpout stations and waste reception facilities in the inland
State; and
‘‘(ii) conducting a program to educate recreational boaters about the problem of human
body waste discharges from vessels and inform
them of the location of pumpout stations and
waste reception facilities.
‘‘(2) PRIORITY.—In awarding grants under this subsection, the Secretary of the Interior shall give priority consideration to grant applications that—
‘‘(A) provide for public/private partnership efforts
to develop and operate pumpout stations and waste
reception facilities; and
‘‘(B) propose innovative ways to increase the
availability and use of pumpout stations and waste
reception facilities.
‘‘(d) DISCLAIMER.—Nothing in this subtitle shall be interpreted to preclude a State from carrying out the
provisions of this subtitle with funds other than those
described in this section.
§ 1322
‘‘SEC. 5605. GUIDANCE AND NOTIFICATION.
‘‘(a) ISSUANCE OF GUIDANCE.—Not later than 3 months
after the date of the enactment of this subtitle [Nov. 4,
1992], the Secretary of the Interior shall, after consulting with the Administrator of the Environmental Protection Agency, the Under Secretary of Commerce for
Oceans and Atmosphere, and the Commandant of the
Coast Guard, issue for public comment pumpout station and waste reception facility guidance. The Secretary of the Interior shall finalize the guidance not
later than 6 months after the date of enactment of this
subtitle. The guidance shall include—
‘‘(1) guidance regarding the types of pumpout stations and waste reception facilities that may be appropriate for construction, renovation, operation, or
maintenance with amounts available under the Act of
August 9, 1950 (16 U.S.C. 777a et seq. [16 U.S.C. 777 et
seq.]), as amended by this subtitle, and appropriate
location of the stations and facilities within a marina
or boatyard;
‘‘(2) guidance defining what constitutes adequate
and reasonably available pumpout stations and waste
reception facilities in boating areas;
‘‘(3) guidance on appropriate methods for disposal
of vessel sewage from pumpout stations and waste reception facilities;
‘‘(4) guidance on appropriate connector fittings to
facilitate the sanitary and expeditious discharge of
sewage from vessels;
‘‘(5) guidance on the waters most likely to be affected by the discharge of sewage from vessels; and
‘‘(6) other information that is considered necessary
to promote the establishment of pumpout facilities
to reduce sewage discharges from vessels and to protect United States waters.
‘‘(b) NOTIFICATION.—Not later than one month after
the guidance issued under subsection (a) is finalized,
the Secretary of the Interior shall provide notification
in writing to the fish and wildlife, water pollution control, and coastal zone management authorities of each
State, of—
‘‘(1) the availability of amounts under the Act of
August 9, 1950 (16 U.S.C. 777a et seq. [16 U.S.C. 777 et
seq.]) to implement the Clean Vessel Act of 1992; and
‘‘(2) the guidance developed under subsection (a).
‘‘SEC. 5606. EFFECT ON STATE FUNDING ELIGIBILITY.
‘‘This subtitle shall not be construed or applied to
jeopardize any funds available to a coastal State under
the Act of August 9, 1950 (16 U.S.C. 777a et seq. [16
U.S.C. 777 et seq.]), if the coastal State is, in good faith,
pursuing a survey and plan designed to meet the purposes of this subtitle.
‘‘SEC. 5607. APPLICABILITY.
‘‘The requirements of section 5603 shall not apply to
a coastal State if within six months after the date of
enactment of this subtitle [Nov. 4, 1992] the Secretary
of the Interior certifies that—
‘‘(1) the State has developed and is implementing a
plan that will ensure that there will be pumpout stations and waste reception facilities adequate to meet
the needs of recreational vessels in the coastal waters
of the State; or
‘‘(2) existing pumpout stations and waste reception
facilities in the coastal waters of the State are adequate to meet those needs.
‘‘SEC. 5608. DEFINITIONS.
‘‘For the purposes of this subtitle the term:
‘‘(1) ‘coastal State’—
‘‘(A) means a State of the United States in, or
bordering on the Atlantic, Pacific, or Arctic Ocean;
the Gulf of Mexico; Long Island Sound; or one or
more of the Great Lakes;
‘‘(B) includes Puerto Rico, the Virgin Islands,
Guam, the Commonwealth of the Northern Mariana
Islands, and American Samoa; and
‘‘(C) does not include a State for which the ratio
of the number of recreational vessels in the State
§ 1323
TITLE 33—NAVIGATION AND NAVIGABLE WATERS
numbered under chapter 123 of title 46, United
States Code, to number of miles of shoreline (as
that term is defined in section 926.2(d) of title 15,
Code of Federal Regulations, as in effect on January 1, 1991), is less than one.
‘‘(2) ‘coastal waters’ means—
‘‘(A) in the Great Lakes area, the waters within
the territorial jurisdiction of the United States
consisting of the Great Lakes, their connecting waters, harbors, roadsteads, and estuary-type areas
such as bays, shallows, and marshes; and
‘‘(B) in other areas, those waters, adjacent to the
shorelines, which contain a measurable percentage
of sea water, including sounds, bay, lagoons, bayous, ponds, and estuaries.
‘‘(3) ‘coastal zone’ has the same meaning that term
has in section 304(1) of the Coastal Zone Management
Act of 1972 (16 U.S.C. 1453(1));
‘‘(4) ‘inland State’ means a State which is not a
coastal state;
‘‘(5) ‘type III marine sanitation device’ means any
equipment for installation on board a vessel which is
specifically designed to receive, retain, and discharge
human body wastes;
‘‘(6) ‘pumpout station’ means a facility that pumps
or receives human body wastes out of type III marine
sanitation devices installed on board vessels;
‘‘(7) ‘recreational vessel’ means a vessel—
‘‘(A) manufactured for operation, or operated, primarily for pleasure; or
‘‘(B) leased, rented, or chartered to another for
the latter’s pleasure; and
‘‘(8) ‘waste reception facility’ means a facility specifically designed to receive wastes from portable
toilets carried on vessels, and does not include
lavatories.’’
CONTIGUOUS ZONE OF UNITED STATES
For extension of contiguous zone of United States,
see Proc. No. 7219, set out as a note under section 1331
of Title 43, Public Lands.
§ 1323. Federal facilities pollution control
(a) Compliance with pollution control requirements by Federal entities
Each department, agency, or instrumentality
of the executive, legislative, and judicial
branches of the Federal Government (1) having
jurisdiction over any property or facility, or (2)
engaged in any activity resulting, or which may
result, in the discharge or runoff of pollutants,
and each officer, agent, or employee thereof in
the performance of his official duties, shall be
subject to, and comply with, all Federal, State,
interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water
pollution in the same manner, and to the same
extent as any nongovernmental entity including
the payment of reasonable service charges. The
preceding sentence shall apply (A) to any requirement whether substantive or procedural
(including any recordkeeping or reporting requirement, any requirement respecting permits
and any other requirement, whatsoever), (B) to
the exercise of any Federal, State, or local administrative authority, and (C) to any process
and sanction, whether enforced in Federal,
State, or local courts or in any other manner.
This subsection shall apply notwithstanding any
immunity of such agencies, officers, agents, or
employees under any law or rule of law. Nothing
in this section shall be construed to prevent any
department, agency, or instrumentality of the
Federal Government, or any officer, agent, or
Page 502
employee thereof in the performance of his official duties, from removing to the appropriate
Federal district court any proceeding to which
the department, agency, or instrumentality or
officer, agent, or employee thereof is subject
pursuant to this section, and any such proceeding may be removed in accordance with section
1441 et seq. of title 28. No officer, agent, or employee of the United States shall be personally
liable for any civil penalty arising from the performance of his official duties, for which he is
not otherwise liable, and the United States shall
be liable only for those civil penalties arising
under Federal law or imposed by a State or local
court to enforce an order or the process of such
court. The President may exempt any effluent
source of any department, agency, or instrumentality in the executive branch from compliance
with any such a requirement if he determines it
to be in the paramount interest of the United
States to do so; except that no exemption may
be granted from the requirements of section 1316
or 1317 of this title. No such exemptions shall be
granted due to lack of appropriation unless the
President shall have specifically requested such
appropriation as a part of the budgetary process
and the Congress shall have failed to make
available such requested appropriation. Any exemption shall be for a period not in excess of one
year, but additional exemptions may be granted
for periods of not to exceed one year upon the
President’s making a new determination. The
President shall report each January to the Congress all exemptions from the requirements of
this section granted during the preceding calendar year, together with his reason for granting such exemption. In addition to any such exemption of a particular effluent source, the
President may, if he determines it to be in the
paramount interest of the United States to do
so, issue regulations exempting from compliance
with the requirements of this section any weaponry, equipment, aircraft, vessels, vehicles, or
other classes or categories of property, and access to such property, which are owned or operated by the Armed Forces of the United States
(including the Coast Guard) or by the National
Guard of any State and which are uniquely military in nature. The President shall reconsider
the need for such regulations at three-year intervals.
(b) Cooperation with Federal entities and limitation on facility construction
(1) The Administrator shall coordinate with
the head of each department, agency, or instrumentality of the Federal Government having jurisdiction over any property or facility utilizing
federally owned wastewater facilities to develop
a program of cooperation for utilizing wastewater control systems utilizing those innovative
treatment processes and techniques for which
guidelines have been promulgated under section
1314(d)(3) of this title. Such program shall include an inventory of property and facilities
which could utilize such processes and techniques.
(2) Construction shall not be initiated for facilities for treatment of wastewater at any Federal property or facility after September 30,
1979, if alternative methods for wastewater
| File Type | application/pdf |
| File Title | D:\OLRC\DATA\PRINT\2018SU~1\OUTPUT\PCC\FOLIOS\USC33.19 |
| Author | DADuPont |
| File Modified | 2022-04-11 |
| File Created | 2021-07-27 |