[Senate Report 115-16]
[From the U.S. Government Publishing Office]
Calendar No. 27
115th Congress } { Report
SENATE
1st Session } { 115-16
_______________________________________________________________________
THE COMMERCIAL VESSEL INCIDENTAL DISCHARGE ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 168
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
March 30, 2017.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
69-010 WASHINGTON : 2017
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred fifteenth congress
first session
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida
ROY BLUNT, Missouri MARIA CANTWELL, Washington
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD J. MARKEY, Massachusetts
DEAN HELLER, Nevada CORY A. BOOKER, New Jersey
JIM INHOFE, Oklahoma TOM UDALL, New Mexico
MIKE LEE, Utah GARY PETERS, Michigan
RON JOHNSON, Wisconsin TAMMY BALDWIN, Wisconsin
SHELLEY MOORE CAPITO, West TAMMY DUCKWORTH, Illinois
Virginia
CORY GARDNER, Colorado MARGARETWOODHASSAN,NewHampshire
TODD C. YOUNG, Indiana CATHERINE CORTEZ MASTO, Nevada
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Christopher Day, Democratic Deputy Staff Director
Calendar No. 27
115th Congress } { Report
SENATE
1st Session } { 115-16
======================================================================
THE COMMERCIAL VESSEL INCIDENTAL DISCHARGE ACT
_______
March 30, 2017.--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. 168]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 168) to amend and enhance
certain maritime programs of the Department of Transportation,
having considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
Purpose of the Bill
The purpose of S. 168, the Commercial Vessel Incidental
Discharge Act, 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, including 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, including
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. 125).
\2\Ibid.
\3\Northwest Environmental Advocates et al. v. U.S. Environmental
Protection Agency (EPA), 537 F.3d 1006 (9th Cir. 2008).
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Separately, during the 3 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. Law 101-646, 104 Stat. 4761) (1990).
\5\National Invasive Species Act, (Public Law 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, at http://www.uscg.mil/hq/
cg5/cg522/cg5224/docs/BWM-Treaty.pdf.
\7\Ibid, Section D, Regulation D-4.
\8\International Convention for the Control and Management of
Ships' Ballast Water and Sediments, 2004, at http://www.uscg.mil/hq/
cg5/cg522/cg5224/docs/BWM-Treaty.pdf.
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Most importantly, the 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\ On
September 8, 2017, the Convention will come into effect,
requiring ships in international trade to meet Regulation D-
2.\11\
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\9\Ibid, Section D, Regulation D-2.
\10\Ibid.
\11\MarEx, ``Ballast Water Convention to Enter into Force in
2017,'' The Maritime Executive, September 8, 2016, at http://
www.maritime-executive.com/article/ballast-water-convention-to-enter-
into-force-in-2017.
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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 Regulation D-2 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.\12\ 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,''\13\ 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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\12\33 C.F.R. 151.2025(a)(1) (2013).
\13\Vessel General Permit for Discharges Incidental to the Normal
Operation of Vessels (VGP), December 19, 2013, Section 2.2.3.5.1.1, at
http://www.epa.gov/npdes/pubs/vgp_permit2013.pdf.
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Furthermore, as of February 2017, the Coast Guard has only
approved one BWMS 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.\14\ The VGP took effect for most commercial vessels
on December 19, 2013, while the first BWMS was not type-
approved by the Coast Guard until December 2016.\15\ Additional
systems are likely to be approved shortly, but it will still be
some time before there are suitable systems for all vessels.
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.''\16\
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\14\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.'').
\15\U.S. Coast Guard, ``Ballast Water Management (BWM) Extension
Program Update,'' Marine Safety Information Bulletin, December 2, 2016,
at https://www.uscg.mil/msib/docs/014-16-12-2-2016.PDF.
\16\Memorandum from Cynthia Giles, EPA Assistant Administrator, to
Regional Vessel General Permit Enforcement and Program Directors,
December 27, 2013, 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.\17\ 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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\17\VGP, Section 2.2.3.7, http://www.epa.gov/npdes/pubs/
vgp_permit2013.pdf.
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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.\18\
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\18\``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,'' February 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
Regulation D-2) and requires zero detectable living organisms
greater than 50 micrometers per milliliter of ballast water
discharged.\19\ 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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\19\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.\20\
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\20\California State Lands Commission, 2014 Assessment of the
Efficacy, Availability, and Environmental Impacts of Ballast Water
Treatment Technologies for Use in California Waters, August 2014, at
http://www.slc.ca.gov/specx-0_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.\21\
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\21\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.\22\ Oregon's statute also includes a requirement
that its ballast water standards and procedures be, ``[t]o the
extent practicable . . . consistent with relevant rules adopted
by the States of California and Washington.''\23\ 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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\22\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)).
\23\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.
Despite the wide latitude currently given to States to
establish higher standards under the current regulatory regime,
environmental groups have continued to sue the EPA. In an
October 2015 decision, the U.S. Court of Appeals for the Second
Circuit found that the EPA acted arbitrarily and capriciously
because, among other reasons, it had not considered the
possibility of on-shore treatment facilities for ballast water,
even though none currently exist.\24\ Because of the Second
Circuit decision, the EPA is currently revising its standards
and will likely update the VGP in 2018.
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\24\MarEx, ``Ballast Water Convention to Enter into Force in
2017,'' The Maritime Executive, September 8, 2016, at http://
www.maritime-executive.com/article/ballast-water-convention-to-enter-
into-force-in-2017.
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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 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
national standards and requirements would be vested in the
Secretary and the States.
Summary of Provisions
S. 168 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. 168 would be the IMO Regulation D-2, the most
stringent treatment standard scientifically proven to be
achievable and detectable today. In 2022, the Secretary would
be required to conduct a review to determine whether it is
possible to increase the standard. Thereafter, decennial
feasibility reviews would be required to determine whether
further revisions of the ballast water standard would result in
a reduction in the risk of the introduction of aquatic nuisance
species. States would be allowed to petition for stricter
ballast water and incidental discharge standards. Under the
bill, if the Secretary determines those standards are feasible
and protect the environment, they would become the new national
standard. Enforcement responsibilities would be vested in the
Secretary. States also would be authorized to enter into an
agreement to enforce the standards and requirements established
under the Act.
Legislative History
During the 114th Congress, a provision similar to S. 168,
S. 373, the Vessel Incidental Discharge Act, was reported out
of Committee. It also was reported out of Committee as part of
S. 2829, the Maritime Administration Authorization and
Enhancement Act for Fiscal Year 2017.
A provision similar to S. 168 was also included in the
House of Representatives-passed version of H.R. 4909, the
National Defense Authorization Act (NDAA) of 2017 (section
3604). Forty-one Senators signed a letter to the Armed Services
Chairmen and Ranking Members, asking that the provision be
included in the NDAA conference report. Ultimately, the
provision was not included because it lacked a direct defense
nexus.
This Congress, S. 168, the Commercial Vessel Incidental
Discharge Act, was introduced by Senator Wicker on January 17,
2017, with Senators Casey, Nelson, Rubio, Thune, McCaskill,
Schatz, and Sullivan as cosponsors. On January 24, 2017, the
Committee met in open Executive Session and, by voice vote,
ordered S. 168 to be reported favorably without amendment.
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. 168--Commercial Vessel Incidental Discharge Act
S. 168 would amend the environmental standards for water
that is discharged from ships and would 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. 168 also would change the procedures that the United
States follows to review and regulate 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 the EPA. Under current law, most of those responsibilities
are carried out by the EPA under the Clean Water Act.
Under the bill, the EPA would no longer issue water
discharge permits to vessels. Based on information from the
EPA, CBO estimates that the agency currently spends roughly $1
million per year to implement its share of those
responsibilities under the Clean Water Act. CBO expects that
the USCG would spend a similar amount--$5 million over the
2018-2022 period--upon assuming those responsibilities from the
EPA. Thus, CBO estimates that transferring those
responsibilities would result in no net cost to the federal
government. USCG would issue permits, conduct enforcement
actions, and review proposals from states for more stringent
standards.
Enacting S. 168 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
S. 168 would not increase net direct spending or on-budget
deficits in any of the four consecutive 10-year periods
beginning in 2028.
S. 168 contains intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA). The bill would preempt
state and local laws that regulate ballast water and other
discharges of vessels by establishing a national uniform
standard and set of best management practices. Although it
would limit the application 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. 168 contains no private-sector mandates as defined in
UMRA.
The CBO staff contact for this estimate is Jon Sperl. 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. 168 as reported does not create any new programs or
impose any new regulatory requirements; therefore, it would 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 also would permanently exempt
approximately 120,000 vessels from incidental vessel discharge
rules; thus, it would 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 and would
reduce compliance costs for businesses.
privacy
The bill would 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. 168 would 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 designate the short title of this bill,
as the ``Commercial Vessel Incidental Discharge Act'' and would
provide a table of contents.
Section 2. Definitions.
This section would define terms, including as follows:
``Administrator'' as the Administrator of the EPA; ``aquatic
nuisance species'' as nonindigenous species that threaten
native species or activities dependent on navigable waters;
``ballast water'' as water taken on board a vessel to aid in
stabilizing the vessel; ``ballast water discharge standard'' as
the numerical standard described in sections 151.2030 or
section 151.1511 of title 33 of the Code of Federal Regulations
or established under section 5 of this Act, as applicable;
``geographically limited area'' as an area with a limitation by
size or authorized route or is ecologically homogeneous; and
``Secretary'' as the Secretary of the department in which the
Coast Guard is operating.
Also, this section would define ``discharge incidental to
the normal operation of a commercial vessel'' to mean a
discharge into navigable waters of the United States of any
pollutant associated with the operation of a marine propulsion
system, shipboard maneuvering system, habitability system, or
installed major equipment; any pollutant from an application to
the hull of a vessel; any runoff from the deck, chain locker,
well deck, or fish hold; and any effluent from a marine engine.
It would not include trash, oil or hazardous substances,
sewage, certain types of graywater, or air pollution.
Section 3. Existing ballast water regulations.
This section would preserve the existing regulations issued
pursuant to the Nonindigenous Aquatic Nuisance Prevention and
Control Act of 1990 (16 U.S.C. 4701 et seq.) until they are
superseded by regulation issued under this Act. It also would
provide that the sanctions under that Act would apply to
violations under this Act.
Section 4. Ballast water discharge requirements.
This section would allow ballast water discharge into the
navigable waters of the United States only if the water is
treated using the best available technology and the discharge
is in accordance with any other standards set by the Secretary.
It also would establish certain requirements for vessels
entering the Saint Lawrence River, including a requirement that
such a vessel do a complete ballast water exchange offshore.
This section also would provide several exemptions from
discharge requirements including if the discharge is necessary
to ensure the safety of life at sea. It would prohibit the
Secretary from requiring the installation of a BWMS on a vessel
that carries all its ballast water in sealed tanks or
discharges its ballast water into an on-shore facility. Vessels
would be exempt from ballast water requirements if they
continuously on-load and off-load ballast water, if they
operate in a geographically limited area, or if they meet
several other criteria.
This section would require the Secretary to issue a policy
letter for describing type approval testing methods capable of
measuring the concentration of organisms in ballast water that
are capable of reproduction. In developing the policy letter,
the Secretary would consider a type of approval 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.
Section 5. Review of ballast water discharge standard.
This section would require the Secretary to conduct reviews
not later than January 1, 2022, and every 10 years thereafter,
to determine whether revising the ballast water discharge
standard based on the application of the best available
technology that is economically achievable would result in a
reduction in the risk of the introduction or establishment of
aquatic nuisance species. It would grant the States the right
to petition for a higher national standard and would specify
the requirements for such a petition. This section also would
establish a practicality review for when the Secretary is
considering a higher standard. This section would require the
Secretary to issue a revised ballast water discharge standard
if the standard is determined to be economically achievable and
operationally practicable, and if testing protocols exist that
could assure accurate implementation. It would establish a time
period for vessels to request an extension and would allow a
BWMS to be used for the service life of the equipment, even if
more stringent regulations are later issued.
Section 6. Alternative compliance program.
This section would allow the Secretary to develop an
alternative compliance program for vessels with very small
amounts of ballast water or for vessels near the end of their
service life.
Section 7. Reception facilities.
This section would allow the use of on-shore reception
facilities for the discharge of ballast water and require the
Administrator to determine standards for such facilities.
Section 8. Requirements for discharge incidental to the normal
operation of a vessel.
This section would require the Secretary to establish best
management practices for discharges incidental to the normal
operation of a commercial vessel for commercial vessels greater
than or equal to 79 feet in length. This section would allow
for the existing VGP, with the exception of the State-specific
requirements, to remain in place until the Secretary
establishes best management practices. Vessels under 79 feet in
length and fishing vessels would be excluded from these
requirements, and the existing requirements of the VGP would
cease to apply to those vessels. This section also would
provide criteria for States to petition for revised best
management practices for discharges incidental to the normal
operation of a commercial vessel. If accepted, such best
management practices would become the national standard.
Section 9. Judicial review.
This section would allow an interested person to file a
petition for review of a final regulation in the United States
Court of Appeals for the District of Columbia Circuit. Such an
appeal would be required to be filed within 120 days of the
appearance of the final regulation in the Federal Register,
unless it were solely on grounds that arise after that 120 day
period.
Section 10. State enforcement.
This section would allow the Secretary to enter into an
agreement with a State to authorize the State to enforce this
Act.
Section 11. Effect on State authority.
This section would prohibit States from adopting or
enforcing any State statute or regulation with respect to
incidental vessel discharge or ballast water standards after
the date of enactment of this Act, except as provided in
section 10. The authority of States to regulate any water or
other substance discharged or emitted from a vessel in
preparation for transport of the vessel by land from one body
of water to another body of water would not be affected.
Section 12. Effect on other laws.
This section would describe how this Act interacts with
other relevant statutes. It would require standards developed
under this Act be consistent with international law and
preserve the right of the Secretary of the Interior and the
Secretary of Commerce to administer lands and waters under
those Secretaries' control.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
material is printed in italic, existing law in which no change
is proposed is shown in roman):
NONINDIGENOUS AQUATIC NUISANCE PREVENTION AND CONTROL ACT OF 1990
[Public Law 101-646; 104 Stat. 4761]
SEC. 1205. RELATIONSHIP TO OTHER LAWS.
[16 U.S.C. 4725]
All actions taken by Federal agencies in implementing the
provisions of section 1202 shall be consistent with all
applicable Federal, State, and local environmental laws.
Nothing in this title shall affect the authority of any State
or political subdivision thereof to adopt or enforce control
measures for aquatic nuisance species, or diminish or affect
the jurisdiction of any State over species of fish and
wildlife. Compliance with the control and eradication measures
of any State or political subdivision thereof regarding aquatic
nuisance species shall not relieve any person of the obligation
to comply with the provisions of this subtitle. Ballast water
and discharges incidental to the normal operation of a
commercial vessel (as such terms are defined in the Commercial
Vessel Incidental Discharge Act), shall be regulated pursuant
to such Act.
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