U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

49–010 

" ! SENATE 

114TH CONGRESS

1st Session 

REPORT 

2015

114–96 

Calendar No. 171 

VESSEL INCIDENTAL DISCHARGE ACT 

R E P O R T 

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION 

ON

S. 373 

JULY 29, 2015.—Ordered to be printed 


tkelley on DSK3SPTVN1PROD with SENATE REPORTcongress.#13
(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED FOURTEENTH CONGRESS

FIRST SESSION

JOHN THUNE, South Dakota, Chairman 

ROGER F. WICKER, Mississippi BILL NELSON, Florida 

ROY BLUNT, Missouri MARIA CANTWELL, Washington 

MARCO RUBIO, Florida CLAIRE MCCASKILL, Missouri 

KELLY AYOTTE, New Hampshire AMY KLOBUCHAR, Minnesota 

TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut 

DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii 

JERRY MORAN, Kansas ED MARKEY, Massachusetts 

DAN SULLIVAN, Alaska CORY BOOKER, New Jersey 

RON JOHNSON, Wisconsin TOM UDALL, New Mexico 

DEAN HELLER, Nevada JOE MANCHIN, West Virginia 

CORY GARDNER, Colorado GARY PETERS, Michigan 

STEVE DAINES, Montana 

DAVID SCHWIETERT, Staff Director 

NICK ROSSI, Deputy Staff Director 

REBECCA SEIDEL, General Counsel 

KIM LIPSKY, Democratic Staff Director 

CHRISTOPHER DAY, Democratic Deputy Staff Director 

CLINT ODOM, Democratic General Counsel 


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Calendar No. 171 

114TH CONGRESS REPORT " ! SENATE 1st Session 114–96 

VESSEL INCIDENTAL DISCHARGE ACT 

JULY 29, 2015.—Ordered to be printed 

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

Transportation, submitted the following 

R E P O R T 

[To accompany S. 373] 

The Committee on Commerce, Science, and Transportation, to 

which was referred the bill (S. 373) to provide for the establishment of nationally uniform and environmentally sound standards 

governing discharges incidental to the normal operation of a vessel, 

having considered the same, reports favorably thereon with an 

amendment (in the nature of a substitute) and recommends that 

the bill (as amended) do pass. 

PURPOSE OF THE BILL

The purpose of S. 373, the Vessel Incidental Discharge Act, as 

amended, is to provide for the establishment of nationally uniform 

and environmentally sound standards for the regulation of ballast 

water discharges and other discharges that are incidental to the 

normal operation of vessels. 

BACKGROUND AND NEEDS

Ballast water discharged from vessels has been, and continues to 

be, of serious concern as one of several vectors for the introduction 

into ecosystems of aquatic invasive species. One of the best known 

examples of introduction of an aquatic invasive species via ballast 

water is that of the zebra mussel (Dreissena polymorpha). The 

zebra mussel is indigenous to freshwater lakes and rivers in Eastern Europe and Western Asia, but was discovered in North America in Lake St. Clair, which connects Lake Huron and Lake Erie, 

in 1988. It is generally accepted by the scientific community that 

the species arrived there in ballast water discharged by vessels 

coming from European ports. Since arriving in North America, the 


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1 National Pollutant Discharge Elimination System, 38 Fed. Reg. 13528 (May 22, 1973) (to be 

codified at 40 C.F.R. pt. 125). 2 Ibid. 

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

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 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 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 


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8 Ibid, Article 9. 

9 Ibid, Section D, Regulation D-2. 

10 Ibid. 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/ 

vgplpermit2013.pdf. 

ensure foreign-flagged vessels’ compliance with the Convention’s 

treatment and other management requirements.8

Most importantly, the 2004 Convention includes a ballast water 

treatment standard based on the number of living organisms contained in discharged ballast water that is the most stringent standard scientifically proven to be achievable and detectable today. Specifically, Regulation D-2 requires that ballast water discharge contain: (1) less than 10 viable organisms per cubic meter of ballast 

water that are greater than or equal to 50 micrometers in minimum dimension; and (2) less than 10 viable organisms per milliliter of ballast water that are less than 50 micrometers in minimum dimension and greater than or equal to 10 micrometers in 

minimum dimension.9 Regulation D-2 further requires that ballast 

water discharge contain only minimal concentrations of certain 

human health indicator microbes, as follows: (1) less than 1 colonyforming 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

Today, as a result of these independent developments, both the 

Coast Guard and EPA are regulating ballast water under separate, 

inconsistent, and sometimes directly conflicting sets of requirements; the Coast Guard under NANPCA/NISA and the EPA under 

the Clean Water Act and NPDES. While both the Coast Guard and 

the EPA have adopted the Regulation D-2 standard as their treatment standard for ballast water, there is considerable confusion between Federal regulators and among vessel owner/operators over 

how to administer, and properly comply with, the Coast Guard and 

EPA’s separate requirements. 

As an example, both the Coast Guard and EPA require a ballast 

water management system (BWMS) aboard a vessel covered by 

their regulations. On the one hand, the Coast Guard’s regulations 

generally require that a BWMS be type-approved by the Coast 

Guard.11 In the case of a manufacturer whose BWMS has been approved by a foreign regulatory authority pursuant to Convention 

standards, that manufacturer may request a Coast Guard determination that its BWMS qualifies as an Alternate Management 

System (AMS). On the other hand, the EPA’s Vessel General Permit (VGP) requires only that a BWMS ‘‘has been shown to be effective by testing conducted by an independent third party laboratory, 

test facility or test organization.’’ Although a BWMS approved by 

the Coast Guard is deemed by the VGP to comply with its effectiveness requirement, a BWMS may also be tested and found effective 

under the VGP by another ‘‘laboratory, test facility, or test organization,’’12 even though it has not been approved by the Coast 

Guard. Thus a BWMS could end up being installed on a vessel in 


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13See 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. VGP section 2.2.3.7. 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/CGlEPAlMOU.pdf. 

compliance with the VGP, even though it does not (and may never) 

comply with Coast Guard regulations. 

Furthermore, as of March 2015, no BWMS has yet received typeapproval from the Coast Guard because the type-approval process 

has taken longer than expected. Coast Guard regulations allow for 

the extension of compliance deadlines to accommodate delays in 

type-approval, but the EPA’s VGP is vague as to how it will or will 

not apply when Coast Guard has granted a compliance date extension.13 The VGP took effect for most commercial vessels on December 19, 2013, while the first BWMS is not expected to be type-approved by the Coast Guard until sometime toward the end of 2015 

at the earliest. Other questions exist about equipage, such as, are 

vessel owner/operators expected to install VGP-compliant BWMS 

that may or may not later be approved by the Coast Guard? The 

EPA’s only guidance in this regard is that, in cases where the vessel has received a compliance date extension from the Coast Guard, 

the vessel is not in compliance with the ballast water numeric discharge limit under the VGP, and the vessel is otherwise in compliance with the VGP, the EPA will, subject to additional case-by-case 

considerations, ‘‘consider such violations of the VGP ballast water 

numeric discharge limit a low enforcement priority.’’14

Another example of the conflict and confusion between the two 

regimes is the EPA’s VGP requirement of ballast water exchange 

combined with the use of a BWMS for certain vessels that enter 

the Great Lakes after operating outside the U.S. Exclusive Economic Zone.15 This requirement stands in contrast to Coast Guard 

and IMO regulations, which do not require this combination of 

management methods. These inconsistent requirements are certain 

to cause confusion among vessel owner/operators, and particularly 

among owner/operators of foreign-flagged vessels. Some foreign vessel owner/operators have even suggested that this and other Clean 

Water Act requirements seem, to the extent they are inconsistent 

with IMO requirements, like thinly veiled non-tariff barriers to 

trade. 

Challenges abound not only with respect to proper compliance 

with, but also proper enforcement of, these conflicting requirements. Most notable among them is the fact that the Coast Guard 

is both required to enforce its own ballast water management and 

other vessel operational requirements and the EPA’s conflicting 

vessel operational requirements under the VGP.16

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 alVerDate Sep 11 2014 22:39 Jul 30, 2015 Jkt 049010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR096.XXX SR096

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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 California Waters 

(Aug. 2014), available at http://www.slc.ca.gov/speclpub/mfd/ballastlwater/Documents/Reports/ 

2014CSLClBWTechReportlFinal-2.pdf. 19Wash. Rev. Code Ann. 77.120.030 (West 2014). 

ready have promulgated their own ballast water management requirements that also apply to commercial vessels navigating in 

State waters. 

In 2006, the State of California enacted a ballast water treatment standard at the recommendation of the California State 

Lands Commission (CSLC) that requires less than 0.01 living organisms measuring between 10 and 50 micrometers per milliliter of 

ballast water discharged (1000 times the IMO D-2 standard) and 

requires zero detectable living organisms greater than 50 micrometers per milliliter of ballast water discharged.17 However, the 

State has continued to delay implementation of its requirement 

that vessel owner/operators install BWMS that meet these standards because no BWMS are available that meet California’s treatment standards. In the CSLC staff’s words: 

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, 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 minimal risk of introducing nonindigenous species. In developing these standards, the department shall consider the extent to which the requirement is technologically and practically feasible. Where practical and 

appropriate, the standards must be compatible with 

standards set by the United States Coast Guard, the 

Federal Clean Water Act, or the International Maritime Organization.19


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20See Or. Rev. Stat. Ann. 783.635 (West 2014) (providing, in part, that ‘‘[t]he Environmental 

Quality Commission may adopt by rule standards and procedures that the commission considers 

necessary to carry out the provisions of ORS 783.625 to 783.640. The standards and procedures 

must minimize the risk of introducing aquatic invasive species into the waters of this state and 

must be based on the availability of treatment technology. Rules adopted under this subsection 

include, but are not limited to: Standards for the discharge of ballast water into the waters of 

this state and appropriate timelines for the implementation of the standards. In adopting the 

standards, the commission shall consider the extent to which treatment technology is feasible, 

practicable and commercially available, or expected to be available, by the proposed implementation timelines.’’ (emphasis added)). 21 Ibid. 

The State of Oregon’s ballast water management statute contains 

similar language regarding technological and practical feasibility.20

Oregon’s statute also includes a requirement that its ballast water 

standards and procedures be, ‘‘To the extent practicable . . . consistent with relevant rules adopted by the States of California and 

Washington,’’21 but it is unclear how Oregon, or Washington for 

that matter, can reconcile its practicability-based approach to ballast water treatment with that of California, which has taken a 

very different approach. 

In all, 25 States have certified the VGP subject to additional, individual State requirements. The potential compliance challenges 

posed by this situation are staggering. As an example, a commercial vessel owner/operator transiting the full length of the Mississippi River is required to comply not only with applicable Coast 

Guard requirements under NANPCA/NISA and the EPA’s VGP requirements, but also with varying additional VGP permit requirements imposed by the States of Minnesota, Wisconsin, Iowa, Illinois, Missouri, and Arkansas. 

This complicated, inefficient, and confusing patchwork of Federal 

and State requirements will only continue to grow, confusing vessel 

owner/operators seeking in good faith to comply, confounding law 

enforcement authorities, unnecessarily impeding maritime commerce, and, most importantly, diminishing the overall effectiveness 

of U.S. efforts to prevent the introduction of aquatic invasive species. Strong, uniform national standards are necessary to effectively defend against invasive species brought to the United States 

in ballast water. 

The Vessel Incidental Discharge Act would require the Secretary 

of the department in which the Coast Guard is operating (Secretary), in consultation with the Administrator of the EPA (Administrator), to establish and implement enforceable, uniform, national 

standards and requirements for the regulation of ballast water discharges and other discharges incidental to the normal operation of 

vessels. The new standards and requirements would be required to 

be based upon the best available technology economically achievable, and would generally supersede the current jumble of Federal 

and State incidental discharge requirements. Enforcement responsibilities with respect to these uniform standards and requirements 

would be vested in the Secretary and the States. 

SUMMARY OF PROVISIONS

S. 373 would require the Secretary, in consultation with the Administrator, to establish and implement uniform national standards for the regulation of ballast water discharges and other discharges incidental to the normal operation of vessels. The new 

standards would be based upon the best available technology ecoVerDate Sep 11 2014 22:39 Jul 30, 2015 Jkt 049010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\SR096.XXX SR096

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nomically achievable, and would generally supersede the current 

jumble of Federal and State incidental discharge requirements. The 

initial ballast water treatment standard under S. 373 would be the 

IMO D-2 Standard, the most stringent treatment standard scientifically proven to be achievable and detectable today. In 2022, a revised standard would take effect that is 100 times more stringent 

than the initial standard, unless the Secretary and Administrator 

determine the revised standard is not yet feasible, in which case 

the most stringent standard that is feasible would be adopted. If 

a standard more stringent than 100 times the initial standard is 

determined to be feasible, that standard would become the revised 

standard. Thereafter, decennial feasibility reviews would be required to determine whether further revisions of the ballast water 

standard would result in a scientifically demonstrable and substantial reduction in the risk of the introduction of aquatic nuisance 

species. These decennial reviews could also look at other vessel discharges for which standards are established under the Act, to determine if revising those standards would substantially reduce 

their impacts on navigable waters. Enforcement responsibilities 

would be vested in the Secretary. States also would be authorized 

to enforce the standards and requirements established under the 

Act. 

LEGISLATIVE HISTORY

On February 4, 2015, the Oceans, Atmosphere, Fisheries, and 

Coast Guard Subcommittee of the Committee on Commerce, 

Science, and Transportation of the Senate held a hearing on the 

impacts of vessel discharge regulations on the shipping and fishing 

industries. Three representatives from the shipping and charter 

boat industries, as well as a Congressional Research Service specialist in resources and environmental policy, appeared before the 

subcommittee. 

S. 373, the Vessel Incidental Discharge Act, was introduced by 

Senator Rubio on February 4, 2015, with Senator Thune and Senator Nelson as original cosponsors, and referred to the Committee 

on Commerce, Science, and Transportation. The bill is also cosponsored by Senators Vitter, Ayotte, Boozman, Capito, Blunt, 

Manchin, Isakson, Cochran, Shelby, Coons, Cassidy, Wicker, 

McCaskill, Shaheen, Schatz, Sullivan, Casey, Collins, Cornyn, and 

Inhofe. 

On February 26, 2015, the Committee met in open Executive 

Session and, by a voice vote, ordered S. 373 reported with an 

amendment in the nature of a substitute. Changes in the substitute included 2 modified ballast water performance standards 

that will be issued in a final rule; an increase in the amount of 

time afforded manufacturers from 60 days to 1 year to meet new 

testing protocols and earn certification of ballast water treatment 

technology; a refinement to what constitutes a vessel of the armed 

services; and a clarification in the definition of the term ‘‘geographically limited area.’’ The Committee also approved two 

amendments offered by Senator Peters. The first would codify an 

EPA VGP requirement that vessels entering the Great Lakes 

through the St. Lawrence River, after operating outside of the U.S. 

Exclusive Economic Zone, conduct saltwater flushing of all ballast 

water tanks onboard prior to entry. Senator Peters’ second amendVerDate Sep 11 2014 22:39 Jul 30, 2015 Jkt 049010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\SR096.XXX SR096

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ment modified the process by which a State can petition for more 

stringent ballast water standards. 

ESTIMATED COSTS

In accordance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and section 403 of the Congressional Budget 

Act of 1974, the Committee provides the following cost estimate, 

prepared by the Congressional Budget Office: 

S. 373—Vessel Incidental Discharge Act 

S. 373 would amend the environmental standards for water that 

is discharged from ships and permanently exempt certain smaller 

vessels from those standards. Under current law, the United States 

Coast Guard (USCG) and the Environmental Protection Agency 

(EPA) set and enforce those standards. 

S. 373 also would change the procedures for how the United 

States regulates water discharged from certain vessels. The legislation would increase the administrative responsibilities of the USCG 

to implement some of the laws that govern water discharged from 

ships and require that the USCG carry out those responsibilities in 

consultation with EPA. Under current law, most of those responsibilities are carried out by EPA under the Clean Water Act. 

Under the bill, EPA would no longer issue water discharge permits to vessels. However, based on information from EPA, CBO estimates that any cost savings to the agency would be negligible because those activities constitute only a minor share of EPA’s responsibilities under the Clean Water Act. Based on information 

from the USCG, CBO estimates that the Coast Guard would gradually add 15 staff members over the next two years, resulting in a 

cost of $5 million over the 2016–2020 period, assuming appropriation of the necessary amounts. Those additional staff members 

would conduct enforcement actions and review any proposals from 

states for more stringent water discharge standards. 

Enacting S. 373 would not affect direct spending or revenues; 

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

S. 373 contains intergovernmental mandates as defined in the 

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

state and local laws relating to discharges from vessels by establishing a national uniform standard and a set of best management 

practices, but CBO estimates that the preemption would not impose costs on state and local governments. Although it would limit 

the applications of state and local regulations, the bill would impose no duty on state or local governments that would result in additional spending or a loss of revenues. 

S. 373 also would impose a private-sector mandate, as defined in 

UMRA, on manufacturers and importers of certain water treatment 

technology. Those entities would be prohibited from selling such 

technology unless it has been certified by the USCG or by a foreign 

entity and deemed to meet equivalent levels of performance and 

safety. The cost of the mandate would be the cost of obtaining certification and any net loss of income from forgone sales. 

Under current law, manufacturers of water treatment technology 

already need to obtain USCG certification because owners of vessels that use such technology are required to install USCG-certified 

technology by a certain date. If the certification process under the 


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bill was similar to the certification process conducted under current 

law, the incremental cost of complying with the mandate would be 

small. Although the incremental cost of such compliance could be 

greater than that under current law, on balance, CBO expects the 

cost of the private-sector mandate would probably fall below the 

annual threshold established in UMRA ($154 million in 2015, adjusted annually for inflation). 

The CBO staff contacts for this estimate are Martin von 

Gnechten (for federal costs), Jon Sperl (for intergovernmental mandates), and Amy Petz (for private-sector mandates). The estimate 

was approved by H. Samuel Papenfuss, Deputy Assistant Director 

for Budget Analysis. 

REGULATORY IMPACT

In accordance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee provides the following evaluation of the regulatory impact of the legislation, as reported: 

NUMBER OF PERSONS COVERED

S. 373 as reported does not create any new programs or impose 

any new regulatory requirements, and therefore will not subject 

any individuals or businesses to new regulations. It would streamline regulatory compliance for the owners and operators of approximately 70,000 vessels with respect to ballast discharge. It would 

also permanently exempt approximately 120,000 vessels from incidental vessel discharge rules and thus reduce the regulatory burden on the owners and operators of those vessels. 

ECONOMIC IMPACT

Enactment of this legislation is not expected to have any significant adverse impacts on the Nation’s economy. 

PRIVACY

The bill will not impact the personal privacy of individuals. 

PAPERWORK

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

S. 373 will likely reduce paperwork requirements for individuals 

and businesses. 

CONGRESSIONALLY DIRECTED SPENDING

In compliance with paragraph 4(b) of rule XLIV of the Standing 

Rules of the Senate, the Committee provides that no provisions 

contained in the bill, as reported, meet the definition of congressionally directed spending items under the rule. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title; table of contents. 

This section would provide that this Act may be cited as the 

‘‘Vessel Incidental Discharge Act’’. 


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Section 2. Findings; purpose. 

This section would set forth findings of Congress and state that 

the purpose of this Act is to provide for the establishment of nationally uniform and environmentally sound standards for discharges incidental to the normal operation of a vessel in the navigable waters of the United States. 

Section 3. Definitions. 

This section would define the terms ‘‘Administrator,’’ ‘‘aquatic 

nuisance species,’’ ‘‘ballast water,’’ ‘‘ballast water performance 

standard,’’ ‘‘ballast water treatment technology’’ or ‘‘treatment technology,’’ ‘‘biocide,’’ ‘‘discharge incidental to the normal operation of 

a vessel,’’ ‘‘geographically limited area,’’ ‘‘manufacturer,’’ ‘‘Secretary,’’ and ‘‘vessel.’’ 

Section 4. Regulation and enforcement. 

This section would require the Secretary, in consultation with 

the Administrator, to establish and implement enforceable uniform 

national standards for the regulation of discharges incidental to the 

normal operation of a vessel. These standards would be required to 

be based upon the best available technology economically achievable, and generally would supersede any other permitting requirement or prohibition on discharges incidental to the normal operation of a vessel to which the Act would apply, under any other 

provision of law. The Secretary would be required to enforce the 

standards and requirements under the Act, and each State would 

be authorized to enforce the standards and requirements under the 

Act. 

Section 5. Uniform national standards and requirements for the 

regulation of discharges incidental to the normal operation of 

a vessel. 

The existing congressional waiver for such discharges is slated to 

expire on December 18, 2017. 

This section would provide for the establishment and future review and revision of rules regulating discharges incidental to the 

normal operation of a vessel. 

Subsection (a) would provide that the requirements set forth in 

the final rule, Standards for Living Organisms in Ship’s Ballast 

Water in U.S. Waters (77 Fed. Reg. 17254 (March 23, 2012), as corrected at 77 Fed. Reg. 33969 (June 8, 2012)), shall be the management requirements for a ballast water discharge incidental to the 

normal operation of a vessel until the Secretary revises the ballast 

water performance standard under subsection (b) or adopts a more 

stringent State standard. It would require the Secretary to adopt 

a more stringent State ballast water performance standard if the 

Secretary makes a determination in favor of a State petition under 

section 10 of the Act. It also would require the Secretary, in consultation with the Administrator, to issue a final rule governing 

discharges incidental to the normal operation of a vessel other than 

ballast water not later than two years after the date of enactment 

of this Act. 

Subsection (b)(1) would require the Secretary, in consultation 

with the Administrator, to issue a final rule not later than January 

1, 2022, revising the ballast water performance standard under 


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subsection (a) so that a ballast water discharge incidental to the 

normal operation of a vessel will contain: less than 1 organism that 

is living or has not been rendered harmless per 10 cubic meters 

that is 50 or more micrometers in minimum dimension; less than 

1 organism that is living or has not been rendered harmless per 

10 milliliters that is less than 50 micrometers in minimum dimension and more than 10 micrometers in minimum dimension; concentrations of indicator microbes that are less than 1 colony-forming unit of toxicogenic Vibrio cholera (serotypes O1 and O139) per 

100 milliliters or less than 1 colony-forming unit of that microbe 

per gram of wet weight of zoological samples, less than 126 colony 

forming units of Escherichia coli per 100 milliliters, and less than 

33 colony-forming units of intestinal Enterococci per 100 milliliters; 

and concentrations of such additional indicator microbes and of viruses as may be specified in regulations issued by the Secretary, 

in consultation with the Administrator and such other Federal 

agencies as the Secretary and the Administrator deem appropriate. 

Under subsection (b)(2), issuance of a final rule under subsection 

(b)(1) would be subject to a feasibility review. This review would be 

required to be completed by the Secretary, in consultation with the 

Administrator, not less than two years before January 1, 2022, for 

the purpose of determining the feasibility of achieving the required, 

revised ballast water performance standard under this subsection. 

In conducting the feasibility review, the Secretary would be required to consider whether revising the ballast water performance 

standard will result in a scientifically demonstrable and substantial reduction in the risk of introduction or establishment of aquatic 

nuisance species, taking into account the following criteria: 

∑ improvements in the scientific understanding of biological and 

ecological processes that lead to the introduction or establishment 

of aquatic nuisance species; 

∑ improvements in ballast water treatment technology, including: 

the capability of such treatment technology to achieve a revised 

ballast water performance standard; the effectiveness and reliability of such treatment technology in the shipboard environment; 

the compatibility of such treatment technology with the design and 

operation of a vessel by class, type, and size; the commercial availability of such treatment technology; and the safety of such treatment technology; 

∑ improvements in the capabilities to detect, quantify, and assess 

the viability of aquatic nuisance species at the concentrations 

under consideration; 

∑ the impact of ballast water treatment technology on water 

quality; and 

∑ the costs, cost-effectiveness, and impacts of: a revised ballast 

water performance standard on shipping, trade, and other uses of 

the aquatic environment; and of maintaining the existing ballast 

water performance standard, including the potential impacts on 

water-related infrastructure, recreation, propagation of native fish, 

shellfish, and wildlife, and other uses of navigable waters. 

If the Secretary, in consultation with the Administrator, determined on the basis of the feasibility review and after an opportunity for a public hearing that no ballast water treatment techVerDate Sep 11 2014 22:39 Jul 30, 2015 Jkt 049010 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\SR096.XXX SR096

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nology can be certified under section 6 to comply with the revised 

ballast water performance standard under section 5(b)(1), then the 

Secretary would be directed to require the use of the treatment 

technology that achieves the performance levels of the best performing treatment technology available. If the Secretary, in consultation with the Administrator, determined that requirements for 

the best performing treatment technology available under section 

5(b)(2)(c)(i) cannot be implemented before the implementation 

deadline provided in subsection (b)(3) of that section with respect 

to a class of vessels, then the Secretary would be required to extend the implementation deadline for that class of vessels for not 

more than 36 months. If an implementation deadline were extended, the Secretary would be required to recommend action to 

ensure compliance with the extended implementation deadline 

under subsection (b)(2)(c)(ii). 

If the Secretary, in consultation with the Administrator, determined that ballast water treatment technology existed that exceeded the revised ballast water performance standard prescribed in 

subsection (b)(1) with respect to a class of vessels, then the Secretary would be required to revise the ballast water performance 

standard for that class of vessels to incorporate that higher performance standard. If the Secretary, in consultation with the Administrator, determined that ballast water treatment technology 

could be implemented before the implementation deadline under 

subsection (b)(3) with respect to a class of vessels, then the Secretary would be required to accelerate the implementation deadline 

for that class of vessels. If an implementation deadline were accelerated, the Secretary would be required to provide not less than 24 

months’ notice before the deadline took effect. 

Under subsection (b)(3), the revised ballast water performance 

standard required by subsection (b)(1) would apply to a vessel beginning on the date of the first dry docking of the vessel on or after 

January 1, 2022, but not later than December 31, 2024. 

Subsection (b)(4) allows for the Secretary to establish a compliance deadline for compliance by a vessel (or a class, type, or size 

of vessel) with a revised ballast water performance standard under 

subsection (b)(1). In issuing regulations under subsection (b), the 

Secretary would be required to establish a process for an owner or 

operator to submit a petition to the Secretary for an extension of 

a compliance deadline with respect to the vessel of the owner or operator. An extension may be applied for a period not to exceed 18 

months from the date of the applicable deadline and would be renewable for an additional period not to exceed 18 months. In 

issuing a compliance deadline or reviewing a petition for extension 

of a deadline the Secretary would be required to consider, with respect to the ability of the owner or operator to meet a compliance 

deadline, the following factors: 

∑ whether the treatment technology to be installed is available 

in sufficient quantities to meet the deadline; 

∑ whether there is sufficient shipyard or other installation facility capacity; 

∑ whether there is sufficient availability of engineering and design resources; 


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∑ vessel characteristics, such as engine room size, layout, or a 

lack of installed piping; 

∑ electric power generating capacity aboard the vessel; and 

∑ safety of the vessel and crew. 

The Secretary would be required to approve or deny a petition 

for an extension of a compliance deadline submitted by an owner 

or operator. If the Secretary did not approve or deny a petition referred to in subsection (b)(4)(E)(i) on or before the last day of the 

90-day period beginning on the date of the petition, the petition 

would be deemed approved. 

Subsection (c) of this section would require the Secretary, in consultation with the Administrator, to complete a review 10 years 

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

every 10 years thereafter to determine whether further revision of 

the ballast water performance standard would result in a scientifically demonstrable and substantial reduction in the risk of the introduction or establishment of aquatic nuisance species. 

Subsection (c) also would permit the Secretary, in consultation 

with the Administrator, to include in these decennial reviews best 

management practices for discharges other than ballast water 

which are covered by this section. The Secretary would be required 

to initiate a rulemaking to revise one or more best management 

practices for such discharges after a decennial review if the Secretary, in consultation with the Administrator, determined that revising one or more of such practices would substantially reduce the 

impacts on navigable waters of discharges incidental to the normal 

operation of a vessel other than ballast water. In reviewing a ballast water performance standard under this subsection, the Secretary, the Administrator, and the heads of other appropriate Federal agencies as determined by the Secretary, would be required to 

consider the same review criteria required in the feasibility review 

under subsection (b)(2). 

The Secretary would be required to initiate a rulemaking to revise the ballast water performance standard after a decennial review if the Secretary, in consultation with the Administrator, determined that revising the performance standard would result in a 

scientifically demonstrable and substantial reduction in the risk of 

the introduction or establishment of aquatic nuisance species. 

In developing revised standards under subsections (b) and (c), it 

is anticipated that the Secretary will also review whether any exception described under section 7(b) need to be included, removed 

or updated. 

Subsection (d) of this section would require the Secretary, in consultation with the Administrator, to establish a requirement that 

vessels entering the Great Lakes through the St. Lawrence River, 

after operating outside the U.S. Exclusive Economic Zone, to conduct saltwater flushing of all ballast water tanks onboard prior to 

entry. 

Section 6. Treatment technology certification. 

This section would establish the requirements and process for 

the certification of ballast water treatment technology. 

Subsection (a) would provide that, beginning one year after the 

date that the requirements for testing protocols are issued under 


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subsection (i) of this section, no manufacturer of a ballast water 

treatment technology shall sell, offer for sale, or introduce or deliver for introduction into interstate commerce, or import into the 

United States for sale or resale, a ballast water treatment technology for a vessel unless the treatment technology has been certified under this section. 

Subsection (b) would provide that, upon application of a manufacturer, the Secretary shall evaluate a ballast water treatment 

technology with respect to its effectiveness in achieving the current 

ballast water performance standard when installed on a vessel (or 

a class, type, or size of vessel); its compatibility with vessel design 

and operations; its effect on vessel safety; its impact on the environment; its cost-effectiveness; and any other criteria the Secretary 

considers appropriate. If, after such evaluation, the Secretary determined that the treatment technology meets the criteria, then the 

Secretary would be authorized to certify the treatment technology 

for use on a vessel (or a class, type, or size of vessel). This subsection would also require the Secretary to establish, by regulation, 

a process to suspend or revoke a certification that has been issued. 

Subsection (c) would provide that, in certifying a ballast water 

treatment technology under this section, the Secretary, in consultation with the Administrator, would be authorized to impose any 

condition on the subsequent installation, use, or maintenance of 

the technology onboard a vessel as is necessary for: the safety of 

the vessel, the crew of the vessel, and any passengers aboard the 

vessel; the protection of the environment; or the effective operation 

of the technology. Failure of a vessel owner or operator to comply 

with such a condition would be considered a violation of this section. 

Subsection (d) would require the Secretary to allow a vessel on 

which a system is installed and operated to meet a ballast water 

performance standard under this Act to continue to use that system, notwithstanding any revision of a ballast water performance 

standard occurring after the system is installed, until the expiration of the service life of the system as determined by the Secretary, so long as the system is maintained in proper working condition and maintained and used in accordance with the manufacturer’s specifications and any treatment technology certification 

conditions imposed by the Secretary under this section. 

Subsection (e) would require that, if the Secretary approves a 

ballast water treatment technology for certification under subsection (b), the Secretary shall issue a certificate of type-approval 

for the treatment technology to the manufacturer in such form and 

manner as the Secretary determines appropriate. A certificate of 

type-approval would be required to specify each condition imposed 

by the Secretary under subsection (c). A manufacturer that received a certificate of type-approval for the treatment technology 

would be required to provide a copy of the certificate to each owner 

and operator of a vessel on which the technology is installed. 

Subsection (f) would require that an owner or operator who receives a copy of a certificate of type-approval retain a copy of the 

certificate onboard the vessel and make it available for inspection 

at all times while the owner or operator is utilizing the treatment 

technology. 


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Subsection (g) would bar the Secretary from approving a ballast 

water treatment technology if the technology: (1) uses a biocide or 

generates a biocide that is a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act, unless the biocide is registered under that Act or the Secretary, in consultation with Administrator, has approved the use of the biocide in such treatment 

technology; or (2) uses or generates a biocide, the discharge of 

which causes or contributes to a violation of a water quality standard under section 303 of the Federal Water Pollution Control Act. 

Subsection (h) would provide generally that the use of a ballast 

water treatment technology by an owner or operator of a vessel 

shall not satisfy the requirements of this Act unless it has been approved by the Secretary under subsection (b). An owner or operator 

would, however, be permitted to use a ballast water treatment 

technology that has not been certified to comply with the requirements of this section if the technology is being evaluated under the 

Coast Guard Shipboard Technology Evaluation Program, or the 

technology has been certified by a foreign entity and the certification demonstrates performance and safety of the treatment technology equivalent to the requirements of this section, as determined by the Secretary. 

Subsection (i) would require the Administrator, in consultation 

with the Secretary, to issue requirements not later than 180 days 

after the date of enactment of this Act for land-based and shipboard testing protocols or criteria for certifying the performance of 

each ballast water treatment technology under this section and certifying laboratories to evaluate such treatment technologies. 

Section 7. Exemptions. 

Subsection (a) would provide that no permit shall be required or 

prohibition enforced under any other provision of law for, nor shall 

any standards under this Act apply to: (1) a discharge incidental 

to the normal operation of a vessel if the vessel is less than 79 feet 

in length and engaged in commercial service (as defined in section 

2101(5) of title 46, United States Code); (2) a discharge incidental 

to the normal operation of a vessel if the vessel is a fishing vessel, 

including a fish processing vessel and fish tender vessel (as defined 

in section 2101 of title 46, United States Code); (3) a discharge incidental to the normal operation of a vessel if the vessel is a recreational vessel (as defined in section 2101(25) of title 46, United 

States Code); (4) the placement, release, or discharge of equipment, 

devices, or other material from a vessel for the sole purpose of conducting research on the aquatic environment or its natural resources in accordance with generally recognized scientific methods, 

principles, or techniques; (5) any discharge into navigable waters 

from a vessel authorized by an on-scene coordinator in accordance 

with part 300 of title 40, Code of Federal Regulations, or part 153 

of title 33, Code of Federal Regulations; (6) any discharge into navigable waters from a vessel that is necessary to secure the safety 

of the vessel or human life, or to suppress a fire onboard the vessel 

or at a shoreside facility; or (7) a vessel of the armed forces of a 

foreign nation when engaged in noncommercial service. 

Subsection (b) would provide that no permit shall be required or 

prohibition enforced under any other provision of law for, nor shall 

any ballast water performance standards under this Act apply to: 


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(1) a ballast water discharge incidental to the normal operation 

of a vessel determined by the Secretary to: 

∑ operate exclusively within a geographically limited area, unless the Secretary determines that such discharge poses a substantial risk of introduction or establishment of an aquatic nuisance 

species; 

∑ operate exclusively within one Captain of the Port Zone established by the Coast Guard unless the Secretary determines such 

discharge poses a substantial risk of introduction or establishment 

of an aquatic nuisance species; 

∑ operate pursuant to a geographic restriction issued as a condition under section 3309 of title 46, United States Code (or an 

equivalent restriction issued by the country of registration of the 

vessel); or 

∑ continuously take on and discharge ballast water in a flowthrough system that does not introduce aquatic nuisance species 

into navigable waters; 

(2) a ballast water discharge incidental to the normal operation 

of a vessel consisting entirely of water suitable for human consumption; or 

(3) a ballast water discharge incidental to the normal operation 

of a vessel in an alternative compliance program established pursuant to section 8. 

The Committee received testimony from the Lake Carriers’ Association expressing concern with the direction of the Canadian government’s development of ballast water regulations, especially regarding vessels that operate in the Great Lakes and St. Lawrence 

River. The Committee encourages the Coast Guard to monitor 

Transport Canada’s development of ballast water regulations for 

vessels operating in Canadian waters and ports on the Great Lakes 

and St. Lawrence River for consistency with this Act and Coast 

Guard regulations. The Committee also encourages the Coast 

Guard to address the concerns of operators of Canadian laker vessels operating in United States waters and ports with regard to 

Coast Guard implementation of this Act. In defining a ‘‘geographically limited area’’ the Coast Guard should take into consideration 

the bi-national nature of the Great Lakes and St. Lawrence Seaway and the traditional trade patterns of U.S. and Canadian vessels. 

Subsection (c) would provide that no permit shall be required or 

prohibition enforced under any other provision of law for, nor shall 

any ballast water performance standard apply to, a vessel that carries all of its permanent ballast water in sealed tanks that are not 

subject to discharge. 

Subsection (d) would provide that nothing in this Act shall be interpreted to apply to a vessel owned or operated by the Department 

of Defense (other than a time-chartered or voyage-chartered vessel), or a vessel of the Coast Guard, as designated by the Secretary 

of the department in which the Coast Guard is operating. 

Section 8. Alternative compliance program. 

This section would authorize the Secretary, in consultation with 

the Administrator, to promulgate regulations establishing one or 


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more alternative compliance programs for a vessel having a maximum ballast water capacity of less than eight cubic meters and for 

a vessel that is not less than three years from the end of its useful 

life, as determined by the Secretary. Vessels that discharge ballast 

water into a facility for the reception of ballast water that meets 

standards promulgated by the Administrator, in consultation with 

the Secretary, may have an alternate compliance program. Within 

one year after the date of enactment of this Act, the Administrator, 

in consultation with the Secretary, would be required to promulgate standards for the reception of ballast water from a vessel into 

a reception facility and the disposal or treatment of the ballast 

water. 

Section 9. Judicial review. 

This section would allow an interested person to file a petition 

for review of a final regulation promulgated under this Act in the 

United States Court of Appeals for the District of Columbia Circuit. 

Such a petition would be required to be filed not later than 120 

days after the date that notice of the promulgation appears in the 

Federal Register. In the case of a petition that is based solely on 

grounds that arise after the filing deadline has passed, the petitioner would be permitted to file not later than 120 days after the 

date on which the grounds for the petition first arose. 

Section 10. Effect on State authority. 

Subsection (a) of this section would provide generally that no 

State or political subdivision thereof may adopt or enforce any statute or regulation of the State or political subdivision with respect 

to a discharge incidental to the normal operation of a vessel after 

the date of enactment of this Act. 

Notwithstanding the general prohibition of subsection (a), under 

subsection (b) a State or political subdivision thereof would be permitted to adopt or enforce a statute or regulation of the State or 

political subdivision with respect to ballast water discharges incidental to the normal operation of a vessel that specifies a ballast 

water performance standard that is more stringent than the ballast 

water performance standard under section 5(a)(1)(A) if the Secretary, after consultation with the Administrator and any other 

Federal department or agency the Secretary considers appropriate, 

makes a determination that: compliance with any performance 

standard specified in the statute or regulation can in fact be 

achieved and detected; the technology and systems necessary to 

comply with the statute or regulation are commercially available; 

and the statute or regulation is consistent with obligations under 

relevant international treaties or agreements to which the United 

States is a party. 

Under subsection (c), the Governor of a State seeking to adopt or 

enforce a statute or regulation under subsection (b) would be required to submit a petition to the Secretary requesting a review of 

the statute or regulation. This petition would be required to be accompanied by the scientific and technical information on which it 

is based, and be submitted to the Secretary not later than 1 year 

after the date of enactment of this Act, and every 10 years thereafter. The Secretary would be required to make a determination on 


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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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