U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

69–010 

" ! SENATE 115TH CONGRESS

1st Session 

REPORT

2017

115–16 

Calendar No. 27 

THE COMMERCIAL VESSEL INCIDENTAL 

DISCHARGE ACT 

R E P O R T 

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION 

ON

S. 168 

MARCH 30, 2017.—Ordered to be printed 


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(II) 

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 Virginia TAMMY DUCKWORTH, Illinois 

CORY GARDNER, Colorado MARGARET WOOD HASSAN, New Hampshire 

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 


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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 


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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). 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). 

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. 

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

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 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 


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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. 9 Ibid, Section D, Regulation D-2. 

10 Ibid. 11MarEx, ‘‘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-toenter-into-force-in-2017. 12 33 C.F.R. §151.2025(a)(1) (2013). 

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

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 D2.11

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 


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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/vgplpermit2013.pdf. 14See 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. 16Memorandum 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. 17 VGP, Section 2.2.3.7, http://www.epa.gov/npdes/pubs/vgplpermit2013.pdf. 

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. 

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

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. 

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 


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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/CGlEPAlMOU.pdf. 19 Cal. Pub. Res. Code 71205.3 (West 2014). 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/specZlpub/mfd/ballastlwater/Documents/Reports/ 

2014CSLClBWTechReportlFinal-2.pdf. 

other vessel operational requirements and the EPA’s conflicting 

vessel operational requirements under the VGP.18

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: 

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

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 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 miniVerDate Sep 11 2014 06:17 Mar 31, 2017 Jkt 069010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6969 E:\HR\OC\SR016.XXX SR016

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21Wash. Rev. Code Ann. 77.120.030 (West 2014). 22See 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. 24MarEx, ‘‘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-toenter-into-force-in-2017. 

mal 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

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. 

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. 

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 

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cies. 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. 


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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. 


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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’’ 


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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 secVerDate Sep 11 2014 06:17 Mar 31, 2017 Jkt 069010 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR016.XXX SR016

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tion 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 


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12 

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. 

Æ 


lotter on DSK5VPTVN1PROD with REPORTS