[Senate Report 114-96]
[From the U.S. Government Publishing Office]
Calendar No. 171
114th Congress } { Report
SENATE
1st Session } { 114-96
_______________________________________________________________________
VESSEL INCIDENTAL DISCHARGE ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 373
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
July 29, 2015.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
49-010 WASHINGTON : 2015
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred fourteenth congress
first session
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida
ROY BLUNT, Missouri MARIA CANTWELL, Washington
MARCO RUBIO, Florida CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas ED MARKEY, Massachusetts
DAN SULLIVAN, Alaska CORY BOOKER, New Jersey
RON JOHNSON, Wisconsin TOM UDALL, New Mexico
DEAN HELLER, Nevada JOE MANCHIN, West Virginia
CORY GARDNER, Colorado GARY PETERS, Michigan
STEVE DAINES, Montana
David Schwietert, Staff Director
Nick Rossi, Deputy Staff Director
Rebecca Seidel, General Counsel
Kim Lipsky, Democratic Staff Director
Christopher Day, Democratic Deputy Staff Director
Clint Odom, Democratic General Counsel
Calendar No. 171
114th Congress } { Report
SENATE
1st Session } { 114-96
======================================================================
VESSEL INCIDENTAL DISCHARGE ACT
_______
July 29, 2015.--Ordered to be printed
_______
Mr. Thune, from the Committee on Commerce, Science, and Transportation,
submitted the following
R E P O R T
[To accompany S. 373]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 373) to provide for the
establishment of nationally uniform and environmentally sound
standards governing discharges incidental to the normal
operation of a vessel, having considered the same, reports
favorably thereon with an amendment (in the nature of a
substitute) and recommends that the bill (as amended) do pass.
Purpose of the Bill
The purpose of S. 373, the Vessel Incidental Discharge Act,
as amended, is to provide for the establishment of nationally
uniform and environmentally sound standards for the regulation
of ballast water discharges and other discharges that are
incidental to the normal operation of vessels.
Background and Needs
Ballast water discharged from vessels has been, and
continues to be, of serious concern as one of several vectors
for the introduction into ecosystems of aquatic invasive
species. One of the best known examples of introduction of an
aquatic invasive species via ballast water is that of the zebra
mussel (Dreissena polymorpha). The zebra mussel is indigenous
to freshwater lakes and rivers in Eastern Europe and Western
Asia, but was discovered in North America in Lake St. Clair,
which connects Lake Huron and Lake Erie, in 1988. It is
generally accepted by the scientific community that the species
arrived there in ballast water discharged by vessels coming
from European ports. Since arriving in North America, the zebra
mussel has spread throughout and beyond the Great Lakes. The
introduction of this nonindigenous filter-feeder has
drastically altered ecosystems in the Great Lakes and
elsewhere.
Although the problem of, and potential solution to,
introduction of invasive species through ballast water are
clear, the laws and regulations that govern ballast water
management and the management of other discharges incidental to
the normal operation of vessels could hardly be more confusing.
Currently these incidental discharges are regulated by a
patchwork of Federal and State laws and regulations. In 1973,
when the Environmental Protection Agency (EPA) first
implemented the National Pollutant Discharge Elimination System
(NPDES) pursuant to section 402 of the Clean Water Act, it
excluded discharges incidental to the normal operation of a
vessel from the permitting requirement for the discharge of
pollutants by point sources under NPDES.\1\ At the time, the
EPA reasoned that the exclusion was warranted because ``this
type of discharge generally causes little pollution and
exclusion of vessel wastes from the permit requirements will
reduce administrative costs drastically.''\2\ This exemption
remained in place until 2005, when the 9th Circuit Court of
Appeals upheld a Federal district court ruling that the EPA's
32-year-old regulatory exclusion of vessel discharges from
NPDES was ultra vires to the Clean Water Act.\3\
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\1\National Pollutant Discharge Elimination System, 38 Fed. Reg.
13528 (May 22, 1973) (to be codified at 40 C.F.R. pt. 125).
\2\Ibid.
\3\Northwest Envtl. Advocates et al. v. U.S. Envtl. Prot. Agency,
537 F.3d 1006 (9th Cir. 2008).
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Separately, during the three decades in which the NPDES
vessel exclusion was in place, Congress responded to growing
concerns about zebra mussels and other aquatic invasive species
in the United States by enacting the Nonindigenous Aquatic
Nuisance Prevention and Control Act of 1990\4\ (NANPCA), and
amendments thereto by the National Invasive Species Act\5\
(NISA) in 1996. NANPCA/NISA requires the Coast Guard, in
coordination with the EPA and other relevant Federal agencies,
to establish and administer a ballast water management program
to prevent introduction and dispersal of nonindigenous species
into the waters of the United States.
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\4\Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990, Pub. L. No. 101-646, 104 Stat. 4761 (1990).
\5\National Invasive Species Act, Pub. L. No. 104-332, 110 Stat.
4073 (1996).
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Also prior to the overturn of the EPA's regulatory
exclusion of vessels from NPDES, the Coast Guard in 2004, with
the State Department, led the U.S. Delegation to the
International Maritime Organization (IMO) Diplomatic Conference
on Ballast Water Management for Ships, at which the
International Convention for the Control and Management of
Ships' Ballast Water and Sediments\6\ (Convention) was adopted.
The Convention includes provisions for the experimental testing
of prototype ballast water treatment systems on operating
vessels that is largely based on the Coast Guard's own
Shipboard Technology Evaluation Program, implemented in January
2004.\7\ It also contains a provision advanced by the U.S.
Delegation for the sampling of ballast water discharged by
ships as a port state control activity, in order to help port
states ensure foreign-flagged vessels' compliance with the
Convention's treatment and other management requirements.\8\
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\6\International Convention for the Control and Management of
Ships' Ballast Water and Sediments, 2004, available at http://
www.uscg.mil/hq/cg5/cg522/cg5224/docs/BWM-Treaty.pdf.
\7\Ibid, Section D, Regulation D-4.
\8\Ibid, Article 9.
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Most importantly, the 2004 Convention includes a ballast
water treatment standard based on the number of living
organisms contained in discharged ballast water that is the
most stringent standard scientifically proven to be achievable
and detectable today. Specifically, Regulation D-2 requires
that ballast water discharge contain: (1) less than 10 viable
organisms per cubic meter of ballast water that are greater
than or equal to 50 micrometers in minimum dimension; and (2)
less than 10 viable organisms per milliliter of ballast water
that are less than 50 micrometers in minimum dimension and
greater than or equal to 10 micrometers in minimum
dimension.\9\ Regulation D-2 further requires that ballast
water discharge contain only minimal concentrations of certain
human health indicator microbes, as follows: (1) less than 1
colony-forming unit (CFU) of toxicogenic Vibrio cholerae
(serotypes O1 and O139) per 100 milliliters of ballast water,
or less than 1 CFU per 1 gram (wet weight) of zooplankton
samples; (2) less than 250 CFUs of Escherichia coli per 100
milliliters of ballast water; and (3) less than 100 CFUs of
intestinal Enterococci per 100 milliliters of ballast
water.\10\
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\9\Ibid, Section D, Regulation D-2.
\10\Ibid.
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Today, as a result of these independent developments, both
the Coast Guard and EPA are regulating ballast water under
separate, inconsistent, and sometimes directly conflicting sets
of requirements; the Coast Guard under NANPCA/NISA and the EPA
under the Clean Water Act and NPDES. While both the Coast Guard
and the EPA have adopted the Regulation D-2 standard as their
treatment standard for ballast water, there is considerable
confusion between Federal regulators and among vessel owner/
operators over how to administer, and properly comply with, the
Coast Guard and EPA's separate requirements.
As an example, both the Coast Guard and EPA require a
ballast water management system (BWMS) aboard a vessel covered
by their regulations. On the one hand, the Coast Guard's
regulations generally require that a BWMS be type-approved by
the Coast Guard.\11\ In the case of a manufacturer whose BWMS
has been approved by a foreign regulatory authority pursuant to
Convention standards, that manufacturer may request a Coast
Guard determination that its BWMS qualifies as an Alternate
Management System (AMS). On the other hand, the EPA's Vessel
General Permit (VGP) requires only that a BWMS ``has been shown
to be effective by testing conducted by an independent third
party laboratory, test facility or test organization.''
Although a BWMS approved by the Coast Guard is deemed by the
VGP to comply with its effectiveness requirement, a BWMS may
also be tested and found effective under the VGP by another
``laboratory, test facility, or test organization,''\12\ even
though it has not been approved by the Coast Guard. Thus a BWMS
could end up being installed on a vessel in compliance with the
VGP, even though it does not (and may never) comply with Coast
Guard regulations.
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\11\33 C.F.R. 151.2025(a)(1) (2013).
\12\Vessel General Permit for Discharges Incidental to the Normal
Operation of Vessels (December 19, 2013) (VGP), Section 2.2.3.5.1.1,
available at http://www.epa.gov/npdes/pubs/vgp_permit2013.pdf.
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Furthermore, as of March 2015, no BWMS has yet received
type-approval from the Coast Guard because the type-approval
process has taken longer than expected. Coast Guard regulations
allow for the extension of compliance deadlines to accommodate
delays in type-approval, but the EPA's VGP is vague as to how
it will or will not apply when Coast Guard has granted a
compliance date extension.\13\ The VGP took effect for most
commercial vessels on December 19, 2013, while the first BWMS
is not expected to be type-approved by the Coast Guard until
sometime toward the end of 2015 at the earliest. Other
questions exist about equipage, such as, are vessel owner/
operators expected to install VGP-compliant BWMS that may or
may not later be approved by the Coast Guard? The EPA's only
guidance in this regard is that, in cases where the vessel has
received a compliance date extension from the Coast Guard, the
vessel is not in compliance with the ballast water numeric
discharge limit under the VGP, and the vessel is otherwise in
compliance with the VGP, the EPA will, subject to additional
case-by-case considerations, ``consider such violations of the
VGP ballast water numeric discharge limit a low enforcement
priority.''\14\
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\13\See id. Section 1.9.1 (stating only that ``Regarding
implementation dates of the limits found in Part 2.2.3.5 of the VGP,
EPA advises that where the U.S. Coast Guard has granted or denied an
extension request pursuant to 33 CFR 151.2036, that information will be
considered by EPA, but is not binding on EPA.'').
\14\Memorandum from Cynthia Giles, EPA Assistant Administrator, to
Regional Vessel General Permit Enforcement and Program Directors (Dec.
27, 2013), available at http://www2.epa.gov/sites/production/files/
2013-12/documents/vesselgeneralpermit-erp.pdf. VGP section 2.2.3.7.
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Another example of the conflict and confusion between the
two regimes is the EPA's VGP requirement of ballast water
exchange combined with the use of a BWMS for certain vessels
that enter the Great Lakes after operating outside the U.S.
Exclusive Economic Zone.\15\ This requirement stands in
contrast to Coast Guard and IMO regulations, which do not
require this combination of management methods. These
inconsistent requirements are certain to cause confusion among
vessel owner/operators, and particularly among owner/operators
of foreign-flagged vessels. Some foreign vessel owner/operators
have even suggested that this and other Clean Water Act
requirements seem, to the extent they are inconsistent with IMO
requirements, like thinly veiled non-tariff barriers to trade.
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\15\VGP section 2.2.3.7.
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Challenges abound not only with respect to proper
compliance with, but also proper enforcement of, these
conflicting requirements. Most notable among them is the fact
that the Coast Guard is both required to enforce its own
ballast water management and other vessel operational
requirements and the EPA's conflicting vessel operational
requirements under the VGP.\16\
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\16\Memorandum of Understanding between the U.S. Environmental
Protection Agency, Office of Enforcement and Compliance Assurance, and
the U.S. Coast Guard, Office of Marine Safety, Security and
Stewardship, for Collaboration on Compliance Assistance, Compliance
Monitoring, and Enforcement of Vessel General Permit Requirements on
Vessels (Feb. 11, 2011), http://www.uscg.mil/hq/cgcvc/cvc1/general/vgp/
CG_EPA_MOU.pdf.
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On top of this duplicative, inconsistent, and confusing
Federal regime, subjecting vessels to NPDES also has opened the
door for States to establish their own varying standards and
requirements for vessel incidental discharges. The States of
California, Michigan, Minnesota, Ohio, Oregon, and Washington
are among those that already have promulgated their own ballast
water management requirements that also apply to commercial
vessels navigating in State waters.
In 2006, the State of California enacted a ballast water
treatment standard at the recommendation of the California
State Lands Commission (CSLC) that requires less than 0.01
living organisms measuring between 10 and 50 micrometers per
milliliter of ballast water discharged (1000 times the IMO D-2
standard) and requires zero detectable living organisms greater
than 50 micrometers per milliliter of ballast water
discharged.\17\ However, the State has continued to delay
implementation of its requirement that vessel owner/operators
install BWMS that meet these standards because no BWMS are
available that meet California's treatment standards. In the
CSLC staff's words:
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\17\Cal. Pub. Res. Code 71205.3 (West 2014).
More specifically, shipboard ballast water treatment
systems cannot be considered available to meet the
California performance standards because: 1) no ballast
water treatment system has demonstrated efficacy for
all of the California performance standards based on
the best available data; 2) there are no suitable
methods/technology to analyze ballast water samples to
determine treatment system efficacy for some of the
California performance standards; and 3) a lack of
sampling/compliance protocols precludes the ability of
the Commission to make a conclusive determination about
the availability of shipboard ballast water treatment
systems to meet the California performance
standards.\18\
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\18\California State Lands Commission, 2014 Assessment of the
Efficacy, Availability, and Environmental Impacts of Ballast Water
Treatment Technologies for Use in California Waters (Aug. 2014),
available at http://www.slc.ca.gov/spec_pub/mfd/ballast_water/
Documents/Reports/2014CSLC_BWTechReport_Final-2.pdf.
The States of Oregon and Washington, meanwhile, have
adopted a number of reporting, recordkeeping, and inspection
requirements, as well as certain ballast water open sea
exchange measures, but neither State has yet imposed a
treatment standard under State law, as California has done. The
State of Washington's Ballast Water Management statute requires
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that the Washington Department of Fish and Wildlife:
shall adopt by rule standards for the discharge of
ballast water into the waters of the state and their
implementation timelines. The standards are intended to
ensure that the discharge of ballast water poses
minimal risk of introducing nonindigenous species. In
developing these standards, the department shall
consider the extent to which the requirement is
technologically and practically feasible. Where
practical and appropriate, the standards must be
compatible with standards set by the United States
Coast Guard, the Federal Clean Water Act, or the
International Maritime Organization.\19\
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\19\Wash. Rev. Code Ann. 77.120.030 (West 2014).
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The State of Oregon's ballast water management statute
contains similar language regarding technological and practical
feasibility.\20\ Oregon's statute also includes a requirement
that its ballast water standards and procedures be, ``To the
extent practicable . . . consistent with relevant rules adopted
by the States of California and Washington,''\21\ but it is
unclear how Oregon, or Washington for that matter, can
reconcile its practicability-based approach to ballast water
treatment with that of California, which has taken a very
different approach.
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\20\See Or. Rev. Stat. Ann. 783.635 (West 2014) (providing, in
part, that ``[t]he Environmental Quality Commission may adopt by rule
standards and procedures that the commission considers necessary to
carry out the provisions of ORS 783.625 to 783.640. The standards and
procedures must minimize the risk of introducing aquatic invasive
species into the waters of this state and must be based on the
availability of treatment technology. Rules adopted under this
subsection include, but are not limited to: Standards for the discharge
of ballast water into the waters of this state and appropriate
timelines for the implementation of the standards. In adopting the
standards, the commission shall consider the extent to which treatment
technology is feasible, practicable and commercially available, or
expected to be available, by the proposed implementation timelines.''
(emphasis added)).
\21\Ibid.
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In all, 25 States have certified the VGP subject to
additional, individual State requirements. The potential
compliance challenges posed by this situation are staggering.
As an example, a commercial vessel owner/operator transiting
the full length of the Mississippi River is required to comply
not only with applicable Coast Guard requirements under NANPCA/
NISA and the EPA's VGP requirements, but also with varying
additional VGP permit requirements imposed by the States of
Minnesota, Wisconsin, Iowa, Illinois, Missouri, and Arkansas.
This complicated, inefficient, and confusing patchwork of
Federal and State requirements will only continue to grow,
confusing vessel owner/operators seeking in good faith to
comply, confounding law enforcement authorities, unnecessarily
impeding maritime commerce, and, most importantly, diminishing
the overall effectiveness of U.S. efforts to prevent the
introduction of aquatic invasive species. Strong, uniform
national standards are necessary to effectively defend against
invasive species brought to the United States in ballast water.
The Vessel Incidental Discharge Act would require the
Secretary of the department in which the Coast Guard is
operating (Secretary), in consultation with the Administrator
of the EPA (Administrator), to establish and implement
enforceable, uniform, national standards and requirements for
the regulation of ballast water discharges and other discharges
incidental to the normal operation of vessels. The new
standards and requirements would be required to be based upon
the best available technology economically achievable, and
would generally supersede the current jumble of Federal and
State incidental discharge requirements. Enforcement
responsibilities with respect to these uniform standards and
requirements would be vested in the Secretary and the States.
Summary of Provisions
S. 373 would require the Secretary, in consultation with
the Administrator, to establish and implement uniform national
standards for the regulation of ballast water discharges and
other discharges incidental to the normal operation of vessels.
The new standards would be based upon the best available
technology economically achievable, and would generally
supersede the current jumble of Federal and State incidental
discharge requirements. The initial ballast water treatment
standard under S. 373 would be the IMO D-2 Standard, the most
stringent treatment standard scientifically proven to be
achievable and detectable today. In 2022, a revised standard
would take effect that is 100 times more stringent than the
initial standard, unless the Secretary and Administrator
determine the revised standard is not yet feasible, in which
case the most stringent standard that is feasible would be
adopted. If a standard more stringent than 100 times the
initial standard is determined to be feasible, that standard
would become the revised standard. Thereafter, decennial
feasibility reviews would be required to determine whether
further revisions of the ballast water standard would result in
a scientifically demonstrable and substantial reduction in the
risk of the introduction of aquatic nuisance species. These
decennial reviews could also look at other vessel discharges
for which standards are established under the Act, to determine
if revising those standards would substantially reduce their
impacts on navigable waters. Enforcement responsibilities would
be vested in the Secretary. States also would be authorized to
enforce the standards and requirements established under the
Act.
Legislative History
On February 4, 2015, the Oceans, Atmosphere, Fisheries, and
Coast Guard Subcommittee of the Committee on Commerce, Science,
and Transportation of the Senate held a hearing on the impacts
of vessel discharge regulations on the shipping and fishing
industries. Three representatives from the shipping and charter
boat industries, as well as a Congressional Research Service
specialist in resources and environmental policy, appeared
before the subcommittee.
S. 373, the Vessel Incidental Discharge Act, was introduced
by Senator Rubio on February 4, 2015, with Senator Thune and
Senator Nelson as original cosponsors, and referred to the
Committee on Commerce, Science, and Transportation. The bill is
also cosponsored by Senators Vitter, Ayotte, Boozman, Capito,
Blunt, Manchin, Isakson, Cochran, Shelby, Coons, Cassidy,
Wicker, McCaskill, Shaheen, Schatz, Sullivan, Casey, Collins,
Cornyn, and Inhofe.
On February 26, 2015, the Committee met in open Executive
Session and, by a voice vote, ordered S. 373 reported with an
amendment in the nature of a substitute. Changes in the
substitute included 2 modified ballast water performance
standards that will be issued in a final rule; an increase in
the amount of time afforded manufacturers from 60 days to 1
year to meet new testing protocols and earn certification of
ballast water treatment technology; a refinement to what
constitutes a vessel of the armed services; and a clarification
in the definition of the term ``geographically limited area.''
The Committee also approved two amendments offered by Senator
Peters. The first would codify an EPA VGP requirement that
vessels entering the Great Lakes through the St. Lawrence
River, after operating outside of the U.S. Exclusive Economic
Zone, conduct saltwater flushing of all ballast water tanks
onboard prior to entry. Senator Peters' second amendment
modified the process by which a State can petition for more
stringent ballast water standards.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 373--Vessel Incidental Discharge Act
S. 373 would amend the environmental standards for water
that is discharged from ships and permanently exempt certain
smaller vessels from those standards. Under current law, the
United States Coast Guard (USCG) and the Environmental
Protection Agency (EPA) set and enforce those standards.
S. 373 also would change the procedures for how the United
States regulates water discharged from certain vessels. The
legislation would increase the administrative responsibilities
of the USCG to implement some of the laws that govern water
discharged from ships and require that the USCG carry out those
responsibilities in consultation with EPA. Under current law,
most of those responsibilities are carried out by EPA under the
Clean Water Act.
Under the bill, EPA would no longer issue water discharge
permits to vessels. However, based on information from EPA, CBO
estimates that any cost savings to the agency would be
negligible because those activities constitute only a minor
share of EPA's responsibilities under the Clean Water Act.
Based on information from the USCG, CBO estimates that the
Coast Guard would gradually add 15 staff members over the next
two years, resulting in a cost of $5 million over the 2016-2020
period, assuming appropriation of the necessary amounts. Those
additional staff members would conduct enforcement actions and
review any proposals from states for more stringent water
discharge standards.
Enacting S. 373 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
S. 373 contains intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA). The bill would preempt
state and local laws relating to discharges from vessels by
establishing a national uniform standard and a set of best
management practices, but CBO estimates that the preemption
would not impose costs on state and local governments. Although
it would limit the applications of state and local regulations,
the bill would impose no duty on state or local governments
that would result in additional spending or a loss of revenues.
S. 373 also would impose a private-sector mandate, as
defined in UMRA, on manufacturers and importers of certain
water treatment technology. Those entities would be prohibited
from selling such technology unless it has been certified by
the USCG or by a foreign entity and deemed to meet equivalent
levels of performance and safety. The cost of the mandate would
be the cost of obtaining certification and any net loss of
income from forgone sales.
Under current law, manufacturers of water treatment
technology already need to obtain USCG certification because
owners of vessels that use such technology are required to
install USCG-certified technology by a certain date. If the
certification process under the bill was similar to the
certification process conducted under current law, the
incremental cost of complying with the mandate would be small.
Although the incremental cost of such compliance could be
greater than that under current law, on balance, CBO expects
the cost of the private-sector mandate would probably fall
below the annual threshold established in UMRA ($154 million in
2015, adjusted annually for inflation).
The CBO staff contacts for this estimate are Martin von
Gnechten (for federal costs), Jon Sperl (for intergovernmental
mandates), and Amy Petz (for private-sector mandates). The
estimate was approved by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
number of persons covered
S. 373 as reported does not create any new programs or
impose any new regulatory requirements, and therefore will not
subject any individuals or businesses to new regulations. It
would streamline regulatory compliance for the owners and
operators of approximately 70,000 vessels with respect to
ballast discharge. It would also permanently exempt
approximately 120,000 vessels from incidental vessel discharge
rules and thus reduce the regulatory burden on the owners and
operators of those vessels.
economic impact
Enactment of this legislation is not expected to have any
significant adverse impacts on the Nation's economy.
privacy
The bill will not impact the personal privacy of
individuals.
paperwork
By replacing myriad Federal and State vessel incidental
discharge requirements with a single set of national
requirements, S. 373 will likely reduce paperwork requirements
for individuals and businesses.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title; table of contents.
This section would provide that this Act may be cited as
the ``Vessel Incidental Discharge Act''.
Section 2. Findings; purpose.
This section would set forth findings of Congress and state
that the purpose of this Act is to provide for the
establishment of nationally uniform and environmentally sound
standards for discharges incidental to the normal operation of
a vessel in the navigable waters of the United States.
Section 3. Definitions.
This section would define the terms ``Administrator,''
``aquatic nuisance species,'' ``ballast water,'' ``ballast
water performance standard,'' ``ballast water treatment
technology'' or ``treatment technology,'' ``biocide,''
``discharge incidental to the normal operation of a vessel,''
``geographically limited area,'' ``manufacturer,''
``Secretary,'' and ``vessel.''
Section 4. Regulation and enforcement.
This section would require the Secretary, in consultation
with the Administrator, to establish and implement enforceable
uniform national standards for the regulation of discharges
incidental to the normal operation of a vessel. These standards
would be required to be based upon the best available
technology economically achievable, and generally would
supersede any other permitting requirement or prohibition on
discharges incidental to the normal operation of a vessel to
which the Act would apply, under any other provision of law.
The Secretary would be required to enforce the standards and
requirements under the Act, and each State would be authorized
to enforce the standards and requirements under the Act.
Section 5. Uniform national standards and requirements for the
regulation of discharges incidental to the normal operation of
a vessel.
The existing congressional waiver for such discharges is
slated to expire on December 18, 2017.
This section would provide for the establishment and future
review and revision of rules regulating discharges incidental
to the normal operation of a vessel.
Subsection (a) would provide that the requirements set
forth in the final rule, Standards for Living Organisms in
Ship's Ballast Water in U.S. Waters (77 Fed. Reg. 17254 (March
23, 2012), as corrected at 77 Fed. Reg. 33969 (June 8, 2012)),
shall be the management requirements for a ballast water
discharge incidental to the normal operation of a vessel until
the Secretary revises the ballast water performance standard
under subsection (b) or adopts a more stringent State standard.
It would require the Secretary to adopt a more stringent State
ballast water performance standard if the Secretary makes a
determination in favor of a State petition under section 10 of
the Act. It also would require the Secretary, in consultation
with the Administrator, to issue a final rule governing
discharges incidental to the normal operation of a vessel other
than ballast water not later than two years after the date of
enactment of this Act.
Subsection (b)(1) would require the Secretary, in
consultation with the Administrator, to issue a final rule not
later than January 1, 2022, revising the ballast water
performance standard under subsection (a) so that a ballast
water discharge incidental to the normal operation of a vessel
will contain: less than 1 organism that is living or has not
been rendered harmless per 10 cubic meters that is 50 or more
micrometers in minimum dimension; less than 1 organism that is
living or has not been rendered harmless per 10 milliliters
that is less than 50 micrometers in minimum dimension and more
than 10 micrometers in minimum dimension; concentrations of
indicator microbes that are less than 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, less than 126
colony forming units of Escherichia coli per 100 milliliters,
and less than 33 colony-forming units of intestinal Enterococci
per 100 milliliters; and concentrations of such additional
indicator microbes and of viruses as may be specified in
regulations issued by the Secretary, in consultation with the
Administrator and such other Federal agencies as the Secretary
and the Administrator deem appropriate.
Under subsection (b)(2), issuance of a final rule under
subsection (b)(1) would be subject to a feasibility review.
This review would be required to be completed by the Secretary,
in consultation with the Administrator, not less than two years
before January 1, 2022, for the purpose of determining the
feasibility of achieving the required, revised ballast water
performance standard under this subsection. In conducting the
feasibility review, the Secretary would be required to consider
whether revising the ballast water performance standard will
result in a scientifically demonstrable and substantial
reduction in the risk of introduction or establishment of
aquatic nuisance species, taking into account the following
criteria:
improvements in the scientific understanding of
biological and ecological processes that lead to the
introduction or establishment of aquatic nuisance species;
improvements in ballast water treatment
technology, including: the capability of such treatment
technology to achieve a revised ballast water performance
standard; the effectiveness and reliability of such treatment
technology in the shipboard environment; the compatibility of
such treatment technology with the design and operation of a
vessel by class, type, and size; the commercial availability of
such treatment technology; and the safety of such treatment
technology;
improvements in the capabilities to detect,
quantify, and assess the viability of aquatic nuisance species
at the concentrations under consideration;
the impact of ballast water treatment technology
on water quality; and
the costs, cost-effectiveness, and impacts of: a
revised ballast water performance standard on shipping, trade,
and other uses of the aquatic environment; and of maintaining
the existing ballast water performance standard, including the
potential impacts on water-related infrastructure, recreation,
propagation of native fish, shellfish, and wildlife, and other
uses of navigable waters.
If the Secretary, in consultation with the Administrator,
determined on the basis of the feasibility review and after an
opportunity for a public hearing that no ballast water
treatment technology can be certified under section 6 to comply
with the revised ballast water performance standard under
section 5(b)(1), then the Secretary would be directed to
require the use of the treatment technology that achieves the
performance levels of the best performing treatment technology
available. If the Secretary, in consultation with the
Administrator, determined that requirements for the best
performing treatment technology available under section
5(b)(2)(c)(i) cannot be implemented before the implementation
deadline provided in subsection (b)(3) of that section with
respect to a class of vessels, then the Secretary would be
required to extend the implementation deadline for that class
of vessels for not more than 36 months. If an implementation
deadline were extended, the Secretary would be required to
recommend action to ensure compliance with the extended
implementation deadline under subsection (b)(2)(c)(ii).
If the Secretary, in consultation with the Administrator,
determined that ballast water treatment technology existed that
exceeded the revised ballast water performance standard
prescribed in subsection (b)(1) with respect to a class of
vessels, then the Secretary would be required to revise the
ballast water performance standard for that class of vessels to
incorporate that higher performance standard. If the Secretary,
in consultation with the Administrator, determined that ballast
water treatment technology could be implemented before the
implementation deadline under subsection (b)(3) with respect to
a class of vessels, then the Secretary would be required to
accelerate the implementation deadline for that class of
vessels. If an implementation deadline were accelerated, the
Secretary would be required to provide not less than 24 months'
notice before the deadline took effect.
Under subsection (b)(3), the revised ballast water
performance standard required by subsection (b)(1) would apply
to a vessel beginning on the date of the first dry docking of
the vessel on or after January 1, 2022, but not later than
December 31, 2024.
Subsection (b)(4) allows for the Secretary to establish a
compliance deadline for compliance by a vessel (or a class,
type, or size of vessel) with a revised ballast water
performance standard under subsection (b)(1). In issuing
regulations under subsection (b), the Secretary would be
required to establish a process for an owner or operator to
submit a petition to the Secretary for an extension of a
compliance deadline with respect to the vessel of the owner or
operator. An extension may be applied for a period not to
exceed 18 months from the date of the applicable deadline and
would be renewable for an additional period not to exceed 18
months. In issuing a compliance deadline or reviewing a
petition for extension of a deadline the Secretary would be
required to consider, with respect to the ability of the owner
or operator to meet a compliance deadline, the following
factors:
whether the treatment technology to be installed
is available in sufficient quantities to meet the deadline;
whether there is sufficient shipyard or other
installation facility capacity;
whether there is sufficient availability of
engineering and design resources;
vessel characteristics, such as engine room size,
layout, or a lack of installed piping;
electric power generating capacity aboard the
vessel; and
safety of the vessel and crew.
The Secretary would be required to approve or deny a
petition for an extension of a compliance deadline submitted by
an owner or operator. If the Secretary did not approve or deny
a petition referred to in subsection (b)(4)(E)(i) on or before
the last day of the 90-day period beginning on the date of the
petition, the petition would be deemed approved.
Subsection (c) of this section would require the Secretary,
in consultation with the Administrator, to complete a review 10
years after the issuance of a revised final rule under
subsection (b) and every 10 years thereafter to determine
whether further revision of the ballast water performance
standard would result in a scientifically demonstrable and
substantial reduction in the risk of the introduction or
establishment of aquatic nuisance species.
Subsection (c) also would permit the Secretary, in
consultation with the Administrator, to include in these
decennial reviews best management practices for discharges
other than ballast water which are covered by this section. The
Secretary would be required to initiate a rulemaking to revise
one or more best management practices for such discharges after
a decennial review if the Secretary, in consultation with the
Administrator, determined that revising one or more of such
practices would substantially reduce the impacts on navigable
waters of discharges incidental to the normal operation of a
vessel other than ballast water. In reviewing a ballast water
performance standard under this subsection, the Secretary, the
Administrator, and the heads of other appropriate Federal
agencies as determined by the Secretary, would be required to
consider the same review criteria required in the feasibility
review under subsection (b)(2).
The Secretary would be required to initiate a rulemaking to
revise the ballast water performance standard after a decennial
review if the Secretary, in consultation with the
Administrator, determined that revising the performance
standard would result in a scientifically demonstrable and
substantial reduction in the risk of the introduction or
establishment of aquatic nuisance species.
In developing revised standards under subsections (b) and
(c), it is anticipated that the Secretary will also review
whether any exception described under section 7(b) need to be
included, removed or updated.
Subsection (d) of this section would require the Secretary,
in consultation with the Administrator, to establish a
requirement that vessels entering the Great Lakes through the
St. Lawrence River, after operating outside the U.S. Exclusive
Economic Zone, to conduct saltwater flushing of all ballast
water tanks onboard prior to entry.
Section 6. Treatment technology certification.
This section would establish the requirements and process
for the certification of ballast water treatment technology.
Subsection (a) would provide that, beginning one year after
the date that the requirements for testing protocols are issued
under subsection (i) of this section, no manufacturer of a
ballast water treatment technology shall sell, offer for sale,
or introduce or deliver for introduction into interstate
commerce, or import into the United States for sale or resale,
a ballast water treatment technology for a vessel unless the
treatment technology has been certified under this section.
Subsection (b) would provide that, upon application of a
manufacturer, the Secretary shall evaluate a ballast water
treatment technology with respect to its effectiveness in
achieving the current ballast water performance standard when
installed on a vessel (or a class, type, or size of vessel);
its compatibility with vessel design and operations; its effect
on vessel safety; its impact on the environment; its cost-
effectiveness; and any other criteria the Secretary considers
appropriate. If, after such evaluation, the Secretary
determined that the treatment technology meets the criteria,
then the Secretary would be authorized to certify the treatment
technology for use on a vessel (or a class, type, or size of
vessel). This subsection would also require the Secretary to
establish, by regulation, a process to suspend or revoke a
certification that has been issued.
Subsection (c) would provide that, in certifying a ballast
water treatment technology under this section, the Secretary,
in consultation with the Administrator, would be authorized to
impose any condition on the subsequent installation, use, or
maintenance of the technology onboard a vessel as is necessary
for: the safety of the vessel, the crew of the vessel, and any
passengers aboard the vessel; the protection of the
environment; or the effective operation of the technology.
Failure of a vessel owner or operator to comply with such a
condition would be considered a violation of this section.
Subsection (d) would require the Secretary to allow a
vessel on which a system is installed and operated to meet a
ballast water performance standard under this Act to continue
to use that system, notwithstanding any revision of a ballast
water performance standard occurring after the system is
installed, until the expiration of the service life of the
system as determined by the Secretary, so long as the system is
maintained in proper working condition and maintained and used
in accordance with the manufacturer's specifications and any
treatment technology certification conditions imposed by the
Secretary under this section.
Subsection (e) would require that, if the Secretary
approves a ballast water treatment technology for certification
under subsection (b), the Secretary shall issue a certificate
of type-approval for the treatment technology to the
manufacturer in such form and manner as the Secretary
determines appropriate. A certificate of type-approval would be
required to specify each condition imposed by the Secretary
under subsection (c). A manufacturer that received a
certificate of type-approval for the treatment technology would
be required to provide a copy of the certificate to each owner
and operator of a vessel on which the technology is installed.
Subsection (f) would require that an owner or operator who
receives a copy of a certificate of type-approval retain a copy
of the certificate onboard the vessel and make it available for
inspection at all times while the owner or operator is
utilizing the treatment technology.
Subsection (g) would bar the Secretary from approving a
ballast water treatment technology if the technology: (1) uses
a biocide or generates a biocide that is a pesticide under the
Federal Insecticide, Fungicide, and Rodenticide Act, unless the
biocide is registered under that Act or the Secretary, in
consultation with Administrator, has approved the use of the
biocide in such treatment technology; or (2) uses or generates
a biocide, the discharge of which causes or contributes to a
violation of a water quality standard under section 303 of the
Federal Water Pollution Control Act.
Subsection (h) would provide generally that the use of a
ballast water treatment technology by an owner or operator of a
vessel shall not satisfy the requirements of this Act unless it
has been approved by the Secretary under subsection (b). An
owner or operator would, however, be permitted to use a ballast
water treatment technology that has not been certified to
comply with the requirements of this section if the technology
is being evaluated under the Coast Guard Shipboard Technology
Evaluation Program, or the technology has been certified by a
foreign entity and the certification demonstrates performance
and safety of the treatment technology equivalent to the
requirements of this section, as determined by the Secretary.
Subsection (i) would require the Administrator, in
consultation with the Secretary, to issue requirements not
later than 180 days after the date of enactment of this Act for
land-based and shipboard testing protocols or criteria for
certifying the performance of each ballast water treatment
technology under this section and certifying laboratories to
evaluate such treatment technologies.
Section 7. Exemptions.
Subsection (a) would provide that no permit shall be
required or prohibition enforced under any other provision of
law for, nor shall any standards under this Act apply to: (1) a
discharge incidental to the normal operation of a vessel if the
vessel is less than 79 feet in length and engaged in commercial
service (as defined in section 2101(5) of title 46, United
States Code); (2) a discharge incidental to the normal
operation of a vessel if the vessel is a fishing vessel,
including a fish processing vessel and fish tender vessel (as
defined in section 2101 of title 46, United States Code); (3) a
discharge incidental to the normal operation of a vessel if the
vessel is a recreational vessel (as defined in section 2101(25)
of title 46, United States Code); (4) the placement, release,
or discharge of equipment, devices, or other material from a
vessel for the sole purpose of conducting research on the
aquatic environment or its natural resources in accordance with
generally recognized scientific methods, principles, or
techniques; (5) any discharge into navigable waters from a
vessel authorized by an on-scene coordinator in accordance with
part 300 of title 40, Code of Federal Regulations, or part 153
of title 33, Code of Federal Regulations; (6) any discharge
into navigable waters from a vessel that is necessary to secure
the safety of the vessel or human life, or to suppress a fire
onboard the vessel or at a shoreside facility; or (7) a vessel
of the armed forces of a foreign nation when engaged in
noncommercial service.
Subsection (b) would provide that no permit shall be
required or prohibition enforced under any other provision of
law for, nor shall any ballast water performance standards
under this Act apply to:
(1) a ballast water discharge incidental to the normal
operation of a vessel determined by the Secretary to:
operate exclusively within a geographically
limited area, unless the Secretary determines that such
discharge poses a substantial risk of introduction or
establishment of an aquatic nuisance species;
operate exclusively within one Captain of the
Port Zone established by the Coast Guard unless the Secretary
determines such discharge poses a substantial risk of
introduction or establishment of an aquatic nuisance species;
operate pursuant to a geographic restriction
issued as a condition under section 3309 of title 46, United
States Code (or an equivalent restriction issued by the country
of registration of the vessel); or
continuously take on and discharge ballast water
in a flow-through system that does not introduce aquatic
nuisance species into navigable waters;
(2) a ballast water discharge incidental to the normal
operation of a vessel consisting entirely of water suitable for
human consumption; or
(3) a ballast water discharge incidental to the normal
operation of a vessel in an alternative compliance program
established pursuant to section 8.
The Committee received testimony from the Lake Carriers'
Association expressing concern with the direction of the
Canadian government's development of ballast water regulations,
especially regarding vessels that operate in the Great Lakes
and St. Lawrence River. The Committee encourages the Coast
Guard to monitor Transport Canada's development of ballast
water regulations for vessels operating in Canadian waters and
ports on the Great Lakes and St. Lawrence River for consistency
with this Act and Coast Guard regulations. The Committee also
encourages the Coast Guard to address the concerns of operators
of Canadian laker vessels operating in United States waters and
ports with regard to Coast Guard implementation of this Act. In
defining a ``geographically limited area'' the Coast Guard
should take into consideration the bi-national nature of the
Great Lakes and St. Lawrence Seaway and the traditional trade
patterns of U.S. and Canadian vessels.
Subsection (c) would provide that no permit shall be
required or prohibition enforced under any other provision of
law for, nor shall any ballast water performance standard apply
to, a vessel that carries all of its permanent ballast water in
sealed tanks that are not subject to discharge.
Subsection (d) would provide that nothing in this Act shall
be interpreted to apply to a vessel owned or operated by the
Department of Defense (other than a time-chartered or voyage-
chartered vessel), or a vessel of the Coast Guard, as
designated by the Secretary of the department in which the
Coast Guard is operating.
Section 8. Alternative compliance program.
This section would authorize the Secretary, in consultation
with the Administrator, to promulgate regulations establishing
one or more alternative compliance programs for a vessel having
a maximum ballast water capacity of less than eight cubic
meters and for a vessel that is not less than three years from
the end of its useful life, as determined by the Secretary.
Vessels that discharge ballast water into a facility for the
reception of ballast water that meets standards promulgated by
the Administrator, in consultation with the Secretary, may have
an alternate compliance program. Within one year after the date
of enactment of this Act, the Administrator, in consultation
with the Secretary, would be required to promulgate standards
for the reception of ballast water from a vessel into a
reception facility and the disposal or treatment of the ballast
water.
Section 9. Judicial review.
This section would allow an interested person to file a
petition for review of a final regulation promulgated under
this Act in the United States Court of Appeals for the District
of Columbia Circuit. Such a petition would be required to be
filed not later than 120 days after the date that notice of the
promulgation appears in the Federal Register. In the case of a
petition that is based solely on grounds that arise after the
filing deadline has passed, the petitioner would be permitted
to file not later than 120 days after the date on which the
grounds for the petition first arose.
Section 10. Effect on State authority.
Subsection (a) of this section would provide generally that
no State or political subdivision thereof may adopt or enforce
any statute or regulation of the State or political subdivision
with respect to a discharge incidental to the normal operation
of a vessel after the date of enactment of this Act.
Notwithstanding the general prohibition of subsection (a),
under subsection (b) a State or political subdivision thereof
would be permitted to adopt or enforce a statute or regulation
of the State or political subdivision with respect to ballast
water discharges incidental to the normal operation of a vessel
that specifies a ballast water performance standard that is
more stringent than the ballast water performance standard
under section 5(a)(1)(A) if the Secretary, after consultation
with the Administrator and any other Federal department or
agency the Secretary considers appropriate, makes a
determination that: compliance with any performance standard
specified in the statute or regulation can in fact be achieved
and detected; the technology and systems necessary to comply
with the statute or regulation are commercially available; and
the statute or regulation is consistent with obligations under
relevant international treaties or agreements to which the
United States is a party.
Under subsection (c), the Governor of a State seeking to
adopt or enforce a statute or regulation under subsection (b)
would be required to submit a petition to the Secretary
requesting a review of the statute or regulation. This petition
would be required to be accompanied by the scientific and
technical information on which it is based, and be submitted to
the Secretary not later than 1 year after the date of enactment
of this Act, and every 10 years thereafter. The Secretary would
be required to make a determination on any such petition not
later than 90 days after the date on which the petition is
received.
Section 11. Application with other statutes.
This section would provide that, notwithstanding any other
provision of law, this Act shall be the exclusive statutory
authority for regulation by the Federal Government of
discharges incidental to the normal operation of a vessel to
which this Act applies.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
bill as reported would make no change to existing law.
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