U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

49–010 

" ! SENATE 113TH CONGRESS

2d Session 

REPORT 

2014

113–304 

Calendar No. 620 

VESSEL INCIDENTAL DISCHARGE ACT 

R E P O R T 

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION 

ON

S. 2094 

DECEMBER 10, 2014.—Ordered to be printed 


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(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED THIRTEENTH CONGRESS

SECOND SESSION

JOHN D. ROCKEFELLER IV, West Virginia, Chairman 

BARBARA BOXER, California JOHN THUNE, South Dakota 

BILL NELSON, Florida ROGER F. WICKER, Mississippi 

MARIA CANTWELL, Washington ROY BLUNT, Missouri 

MARK PRYOR, Arkansas MARCO RUBIO, Florida 

CLAIRE MCCASKILL, Missouri KELLY AYOTTE, New Hampshire 

AMY KLOBUCHAR , Minnesota DEAN HELLER, Nevada 

MARK BEGICH, Alaska DANIEL COATS, Indiana 

RICHARD BLUMENTHAL, Connecticut TIM SCOTT, South Carolina 

BRIAN SCHATZ, Hawaii TED CRUZ, Texas 

ED MARKEY, Massachusetts DEB FISCHER, Nebraska 

CORY BOOKER, New Jersey RON JOHNSON, Wisconsin 

JOHN WALSH, Montana 

ELLEN DONESKI, Staff Director 

JOHN WILLIAMS, General Counsel 

DAVID SCHWIETERT, Republican Staff Director 

NICK ROSSI, Republican Deputy Staff Director 

REBECCA SEIDEL, Republican General Counsel 


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Calendar No. 620 

113TH CONGRESS REPORT " ! SENATE 2d Session 113–304 

VESSEL INCIDENTAL DISCHARGE ACT 

DECEMBER 10, 2014.—Ordered to be printed 

Mr. ROCKEFELLER, from the Committee on Commerce, Science, and 

Transportation, submitted the following 

R E P O R T 

[To accompany S. 2094] 

The Committee on Commerce, Science, and Transportation, to 

which was referred the bill (S. 2094) 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. 2094, the 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. 


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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 Id. 3 Northwest Envtl. Advocates et al. v. U.S. Envtl. Prot. Agency, 537 F.3d 1006 (9th Cir. 2008). 

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). 

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 Id. Section D, Regulation D-4. 8 Id. Article 9. 

Although the problem of, and 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

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 19904 (NANPCA), and amendments 

thereto by the National Invasive Species Act5 (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. 

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 Sediments6

(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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9 Id. Section D, Regulation D-2. 10 Id. 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. 

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 one colony-forming unit (CFU) of toxicogenic Vibrio cholerae (serotypes O1 and 

O139) per 100 milliliters of ballast water, or less than 1 CFU per 

one 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

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.’’12 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,’’ even though it hasn’t 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. 

Furthermore, no BWMS has yet received type-approval from the 

Coast Guard because the type-approval process has taken longer 


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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.’’). 14Memorandum 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. 15 VGP section 2.2.3.7. 16Memorandum 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. 

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 2015 at the earliest. 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 (1) the vessel has received a 

compliance date extension from the Coast Guard; (2) the vessel is 

not in compliance with the ballast water numeric discharge limit 

under the VGP; and (3) 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

Another example of the conflict and confusion between the two 

regimes is the 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. 

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 also relied upon to enforce the EPA’s conflicting vessel operational requirements under 

the VGP.16

On top of this duplicative, inconsistent, and confusing Federal regime, subjecting vessels to NPDES has also 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. 


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17 CAL. PUB. RES. CODE § 71205.3 (West 2014). 18 CALIFORNIA STATE LANDS COMMISSION, 2014 ASSESSMENT OF THE EFFICACY, AVAILABILITY, AND ENVIRONMENTAL IMPACTS OF BALLAST WATER TREATMENT TECHNOLOGIES FOR USE IN CALI- FORNIA WATERS 32 (Aug. 2014), available at http://www.slc.ca.gov/spec_pub/mfd/ballast_water/ 

Documents/Reports/2014CSLC_BWTechReport_Final-2.pdf. 19WASH. REV. CODE ANN. § 77.120.030 (West 2014) (citation omitted). 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)). 

The State of California has 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: 

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

The States of Oregon and Washington, meanwhile, have adopted 

a number of reporting, record keeping, 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 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

The State of Oregon’s ballast water management statute contains 

similar language regarding technological and practical feasibility.20


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21 Id. 

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. 

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 U.S. in ballast 

water discharges. 

The Vessel Incidental Discharge Act would require the Secretary 

of the department in which the Coast Guard is operating, in consultation with the Administrator of the EPA, 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. 2094 would require the Secretary of the department in which 

the Coast Guard is operating, in consultation with the Administrator of the EPA, 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. 2094 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 


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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

S. 2094, the Vessel Incidental Discharge Act, was introduced by 

Senators Begich, Rubio, Ayotte, Blunt, Boozman, Casey, Cochran, 

Collins, Hirono, Landrieu, McCaskill, Markey, Murkowski, Nelson, 

Pryor, Rockefeller, Schatz, Thune, Toomey, Vitter, Warren, and 

Wicker on March 6, 2014, and referred to the Committee on Commerce, Science, and Transportation. On July 23, 2014, the Committee met in open Executive Session and, by a voice vote, ordered 

S. 2094 reported with three technical amendments offered by Senator Wicker. 

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. 2094—Vessel Incidental Discharge Act 

S. 2094 would amend the environmental standards for some 

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. 2094 would change the procedures for how the United States 

regulates water discharged from certain vessels. The legislation 

would increase the administrative responsibilities of USCG to implement certain laws that govern water discharged from ships and 

require that USCG complete those responsibilities in consultation 

with EPA. Under current law, most of those responsibilities are administered 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 it would still have other 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 couple of years at a cost of $5 million over the 2015–2019 

period, assuming appropriation of the necessary amounts. Those 

additional staff would conduct enforcement actions and review any 

proposals from states for more stringent water discharge standards. 


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Enacting S. 2094 would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. 

S. 2094 contains intergovernmental mandates as defined in the 

Unfunded Mandates Reform Act (UMRA). The bill would preempt 

state and local laws relating to water discharges from vessels by 

establishing a national uniform standard and set of best management practices. CBO estimates that this 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. 

The bill 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 certified 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 USCGcertified technology by a certain date. If the certification process 

under the bill is very similar to the certification process conducted 

under current law, the incremental cost of complying with the 

mandate would be small. However, the incremental cost of the 

mandate could be higher. On balance, CBO expects the cost of the 

private-sector mandate would probably be less than the annual 

threshold established in UMRA ($152 million in 2014, adjusted annually for inflation). 

The CBO staff contacts for this estimate are Sarah Puro (for federal costs), Jon Sperl (for the state and local impact), and Amy Petz 

(for the private-sector impact). The estimate was approved by Theresa Gullo, Deputy Assistant 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. 2094 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. It would 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. 


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PAPERWORK

By replacing myriad Federal and State vessel incidental discharge requirements with a single set of national requirements, S. 

2094 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 of the department in 

which the Coast Guard is operating, in consultation with the Administrator of the EPA, 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. 

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 


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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 would also 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 one 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 one 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 one colonyforming unit of toxicogenic Vibrio cholera (serotypes O1 and O139) 

per 100 milliliters or less than one 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 


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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 paragraph (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 clause (i) 

cannot be implemented before the implementation deadline provided in subsection (b)(3) 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 clause (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 this subsection would apply to a vessel beginning on the date of the first drydocking 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 

this subsection. In issuing regulations under this subsection, 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 


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12 

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 clause (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 ten years 

after the issuance of a revised final rule under subsection (b) and 

every ten 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 

standards 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. 


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13 

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 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 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 typeapproval 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. 


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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 


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15 

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; operate exclusively within 1 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 species; (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. 

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 (c) also would provide that nothing 

in this Act shall be interpreted to apply to a vessel of the Armed 

Forces, as that term is defined in section 101(a) of title 10, United 

States Code. 

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 of 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. 


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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 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) and is in effect on 

the date of enactment of this Act 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 enforce 

a statute or regulation under subsection (b) would be required to 

submit a petition requesting the Secretary to review 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 90 days after the date 

of enactment of this Act. 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. 

Æ 


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