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[Senate Report 114-96]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 171
114th Congress   }                                     {        Report
                                 SENATE
 1st Session     }                                     {        114-96

_______________________________________________________________________

                                     

                                                     

                    VESSEL INCIDENTAL DISCHARGE ACT

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                 S. 373

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 July 29, 2015.--Ordered to be printed
                 
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

49-010                         WASHINGTON : 2015 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                    one hundred fourteenth congress
                             first session

                   JOHN THUNE, South Dakota, Chairman
 ROGER F. WICKER, Mississippi         BILL NELSON, Florida
 ROY BLUNT, Missouri                  MARIA CANTWELL, Washington
 MARCO RUBIO, Florida                 CLAIRE McCASKILL, Missouri
 KELLY AYOTTE, New Hampshire          AMY KLOBUCHAR, Minnesota
 TED CRUZ, Texas                      RICHARD BLUMENTHAL, Connecticut
 DEB FISCHER, Nebraska                BRIAN SCHATZ, Hawaii
 JERRY MORAN, Kansas                  ED MARKEY, Massachusetts
 DAN SULLIVAN, Alaska                 CORY BOOKER, New Jersey
 RON JOHNSON, Wisconsin               TOM UDALL, New Mexico
 DEAN HELLER, Nevada                  JOE MANCHIN, West Virginia
 CORY GARDNER, Colorado               GARY PETERS, Michigan
 STEVE DAINES, Montana
                    David Schwietert, Staff Director
                   Nick Rossi, Deputy Staff Director
                    Rebecca Seidel, General Counsel
                 Kim Lipsky, Democratic Staff Director
           Christopher Day, Democratic Deputy Staff Director
                 Clint Odom, Democratic General Counsel
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                                                      Calendar No. 171
114th Congress   }                                     {        Report
                                 SENATE
 1st Session     }                                     {        114-96

======================================================================

 
                    VESSEL INCIDENTAL DISCHARGE ACT

                                _______
                                

                 July 29, 2015.--Ordered to be printed

                                _______
                                

Mr. Thune, from the Committee on Commerce, Science, and Transportation, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 373]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 373) to provide for the 
establishment of nationally uniform and environmentally sound 
standards governing discharges incidental to the normal 
operation of a vessel, having considered the same, reports 
favorably thereon with an amendment (in the nature of a 
substitute) and recommends that the bill (as amended) do pass.

                          Purpose of the Bill

    The purpose of S. 373, the Vessel Incidental Discharge Act, 
as amended, is to provide for the establishment of nationally 
uniform and environmentally sound standards for the regulation 
of ballast water discharges and other discharges that are 
incidental to the normal operation of vessels.

                          Background and Needs

    Ballast water discharged from vessels has been, and 
continues to be, of serious concern as one of several vectors 
for the introduction into ecosystems of aquatic invasive 
species. One of the best known examples of introduction of an 
aquatic invasive species via ballast water is that of the zebra 
mussel (Dreissena polymorpha). The zebra mussel is indigenous 
to freshwater lakes and rivers in Eastern Europe and Western 
Asia, but was discovered in North America in Lake St. Clair, 
which connects Lake Huron and Lake Erie, in 1988. It is 
generally accepted by the scientific community that the species 
arrived there in ballast water discharged by vessels coming 
from European ports. Since arriving in North America, the zebra 
mussel has spread throughout and beyond the Great Lakes. The 
introduction of this nonindigenous filter-feeder has 
drastically altered ecosystems in the Great Lakes and 
elsewhere.
    Although the problem of, and potential solution to, 
introduction of invasive species through ballast water are 
clear, the laws and regulations that govern ballast water 
management and the management of other discharges incidental to 
the normal operation of vessels could hardly be more confusing. 
Currently these incidental discharges are regulated by a 
patchwork of Federal and State laws and regulations. In 1973, 
when the Environmental Protection Agency (EPA) first 
implemented the National Pollutant Discharge Elimination System 
(NPDES) pursuant to section 402 of the Clean Water Act, it 
excluded discharges incidental to the normal operation of a 
vessel from the permitting requirement for the discharge of 
pollutants by point sources under NPDES.\1\ At the time, the 
EPA reasoned that the exclusion was warranted because ``this 
type of discharge generally causes little pollution and 
exclusion of vessel wastes from the permit requirements will 
reduce administrative costs drastically.''\2\ This exemption 
remained in place until 2005, when the 9th Circuit Court of 
Appeals upheld a Federal district court ruling that the EPA's 
32-year-old regulatory exclusion of vessel discharges from 
NPDES was  ultra vires to the Clean Water Act.\3\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    Separately, during the three decades in which the NPDES 
vessel exclusion was in place, Congress responded to growing 
concerns about zebra mussels and other aquatic invasive species 
in the United States by enacting the Nonindigenous Aquatic 
Nuisance Prevention and Control Act of 1990\4\ (NANPCA), and 
amendments thereto by the National Invasive Species Act\5\ 
(NISA) in 1996. NANPCA/NISA requires the Coast Guard, in 
coordination with the EPA and other relevant Federal agencies, 
to establish and administer a ballast water management program 
to prevent introduction and dispersal of nonindigenous species 
into the waters of the United States.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    Also prior to the overturn of the EPA's regulatory 
exclusion of vessels from NPDES, the Coast Guard in 2004, with 
the State Department, led the U.S. Delegation to the 
International Maritime Organization (IMO) Diplomatic Conference 
on Ballast Water Management for Ships, at which the 
International Convention for the Control and Management of 
Ships' Ballast Water and Sediments\6\ (Convention) was adopted. 
The Convention includes provisions for the experimental testing 
of prototype ballast water treatment systems on operating 
vessels that is largely based on the Coast Guard's own 
Shipboard Technology Evaluation Program, implemented in January 
2004.\7\ It also contains a provision advanced by the U.S. 
Delegation for the sampling of ballast water discharged by 
ships as a port state control activity, in order to help port 
states ensure foreign-flagged vessels' compliance with the 
Convention's treatment and other management requirements.\8\
---------------------------------------------------------------------------
    \6\International Convention for the Control and Management of 
Ships' Ballast Water and Sediments, 2004, available at http://
www.uscg.mil/hq/cg5/cg522/cg5224/docs/BWM-Treaty.pdf.
    \7\Ibid, Section D, Regulation D-4.
    \8\Ibid, Article 9.
---------------------------------------------------------------------------
    Most importantly, the 2004 Convention includes a ballast 
water treatment standard based on the number of living 
organisms contained in discharged ballast water that is the 
most stringent standard scientifically proven to be achievable 
and detectable today. Specifically, Regulation D-2 requires 
that ballast water discharge contain: (1) less than 10 viable 
organisms per cubic meter of ballast water that are greater 
than or equal to 50 micrometers in minimum dimension; and (2) 
less than 10 viable organisms per milliliter of ballast water 
that are less than 50 micrometers in minimum dimension and 
greater than or equal to 10 micrometers in minimum 
dimension.\9\ Regulation D-2 further requires that ballast 
water discharge contain only minimal concentrations of certain 
human health indicator microbes, as follows: (1) less than 1 
colony-forming unit (CFU) of toxicogenic Vibrio cholerae 
(serotypes O1 and O139) per 100 milliliters of ballast water, 
or less than 1 CFU per 1 gram (wet weight) of zooplankton 
samples; (2) less than 250 CFUs of Escherichia coli per 100 
milliliters of ballast water; and (3) less than 100 CFUs of 
intestinal Enterococci per 100 milliliters of ballast 
water.\10\
---------------------------------------------------------------------------
    \9\Ibid, Section D, Regulation D-2.
    \10\Ibid.
---------------------------------------------------------------------------
    Today, as a result of these independent developments, both 
the Coast Guard and EPA are regulating ballast water under 
separate, inconsistent, and sometimes directly conflicting sets 
of requirements; the Coast Guard under NANPCA/NISA and the EPA 
under the Clean Water Act and NPDES. While both the Coast Guard 
and the EPA have adopted the Regulation D-2 standard as their 
treatment standard for ballast water, there is considerable 
confusion between Federal regulators and among vessel owner/
operators over how to administer, and properly comply with, the 
Coast Guard and EPA's separate requirements.
    As an example, both the Coast Guard and EPA require a 
ballast water management system (BWMS) aboard a vessel covered 
by their regulations. On the one hand, the Coast Guard's 
regulations generally require that a BWMS be type-approved by 
the Coast Guard.\11\ In the case of a manufacturer whose BWMS 
has been approved by a foreign regulatory authority pursuant to 
Convention standards, that manufacturer may request a Coast 
Guard determination that its BWMS qualifies as an Alternate 
Management System (AMS). On the other hand, the EPA's Vessel 
General Permit (VGP) requires only that a BWMS ``has been shown 
to be effective by testing conducted by an independent third 
party laboratory, test facility or test organization.'' 
Although a BWMS approved by the Coast Guard is deemed by the 
VGP to comply with its effectiveness requirement, a BWMS may 
also be tested and found effective under the VGP by another 
``laboratory, test facility, or test organization,''\12\ even 
though it has not been approved by the Coast Guard. Thus a BWMS 
could end up being installed on a vessel in compliance with the 
VGP, even though it does not (and may never) comply with Coast 
Guard regulations.
---------------------------------------------------------------------------
    \11\33 C.F.R. 151.2025(a)(1) (2013).
    \12\Vessel General Permit for Discharges Incidental to the Normal 
Operation of Vessels (December 19, 2013) (VGP), Section 2.2.3.5.1.1, 
available at http://www.epa.gov/npdes/pubs/vgp_permit2013.pdf.
---------------------------------------------------------------------------
    Furthermore, as of March 2015, no BWMS has yet received 
type-approval from the Coast Guard because the type-approval 
process has taken longer than expected. Coast Guard regulations 
allow for the extension of compliance deadlines to accommodate 
delays in type-approval, but the EPA's VGP is vague as to how 
it will or will not apply when Coast Guard has granted a 
compliance date extension.\13\ The VGP took effect for most 
commercial vessels on December 19, 2013, while the first BWMS 
is not expected to be type-approved by the Coast Guard until 
sometime toward the end of 2015 at the earliest. Other 
questions exist about equipage, such as, are vessel owner/
operators expected to install VGP-compliant BWMS that may or 
may not later be approved by the Coast Guard? The EPA's only 
guidance in this regard is that, in cases where the vessel has 
received a compliance date extension from the Coast Guard, the 
vessel is not in compliance with the ballast water numeric 
discharge limit under the VGP, and the vessel is otherwise in 
compliance with the VGP, the EPA will, subject to additional 
case-by-case considerations, ``consider such violations of the 
VGP ballast water numeric discharge limit a low enforcement 
priority.''\14\
---------------------------------------------------------------------------
    \13\See id. Section 1.9.1 (stating only that ``Regarding 
implementation dates of the limits found in Part 2.2.3.5 of the VGP, 
EPA advises that where the U.S. Coast Guard has granted or denied an 
extension request pursuant to 33 CFR 151.2036, that information will be 
considered by EPA, but is not binding on EPA.'').
    \14\Memorandum from Cynthia Giles, EPA Assistant Administrator, to 
Regional Vessel General Permit Enforcement and Program Directors (Dec. 
27, 2013), available at http://www2.epa.gov/sites/production/files/
2013-12/documents/vesselgeneralpermit-erp.pdf. VGP section 2.2.3.7.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \15\VGP section 2.2.3.7.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \16\Memorandum of Understanding between the U.S. Environmental 
Protection Agency, Office of Enforcement and Compliance Assurance, and 
the U.S. Coast Guard, Office of Marine Safety, Security and 
Stewardship, for Collaboration on Compliance Assistance, Compliance 
Monitoring, and Enforcement of Vessel General Permit Requirements on 
Vessels (Feb. 11, 2011), http://www.uscg.mil/hq/cgcvc/cvc1/general/vgp/
CG_EPA_MOU.pdf.
---------------------------------------------------------------------------
    On top of this duplicative, inconsistent, and confusing 
Federal regime, subjecting vessels to NPDES also has opened the 
door for States to establish their own varying standards and 
requirements for vessel incidental discharges. The States of 
California, Michigan, Minnesota, Ohio, Oregon, and Washington 
are among those that already have promulgated their own ballast 
water management requirements that also apply to commercial 
vessels navigating in State waters.
    In 2006, the State of California enacted a ballast water 
treatment standard at the recommendation of the California 
State Lands Commission (CSLC) that requires less than 0.01 
living organisms measuring between 10 and 50 micrometers per 
milliliter of ballast water discharged (1000 times the IMO D-2 
standard) and requires zero detectable living organisms greater 
than 50 micrometers per milliliter of ballast water 
discharged.\17\ However, the State has continued to delay 
implementation of its requirement that vessel owner/operators 
install BWMS that meet these standards because no BWMS are 
available that meet California's treatment standards. In the 
CSLC staff's words:
---------------------------------------------------------------------------
    \17\Cal. Pub. Res. Code 71205.3 (West 2014).

        More specifically, shipboard ballast water treatment 
        systems cannot be considered available to meet the 
        California performance standards because: 1) no ballast 
        water treatment system has demonstrated efficacy for 
        all of the California performance standards based on 
        the best available data; 2) there are no suitable 
        methods/technology to analyze ballast water samples to 
        determine treatment system efficacy for some of the 
        California performance standards; and 3) a lack of 
        sampling/compliance protocols precludes the ability of 
        the Commission to make a conclusive determination about 
        the availability of shipboard ballast water treatment 
        systems to meet the California performance 
        standards.\18\
---------------------------------------------------------------------------
    \18\California State Lands Commission, 2014 Assessment of the 
Efficacy, Availability, and Environmental Impacts of Ballast Water 
Treatment Technologies for Use in California Waters (Aug. 2014), 
available at http://www.slc.ca.gov/spec_pub/mfd/ballast_water/
Documents/Reports/2014CSLC_BWTechReport_Final-2.pdf.

    The States of Oregon and Washington, meanwhile, have 
adopted a number of reporting, recordkeeping, and inspection 
requirements, as well as certain ballast water open sea 
exchange measures, but neither State has yet imposed a 
treatment standard under State law, as California has done. The 
State of Washington's Ballast Water Management statute requires 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \19\Wash. Rev. Code Ann. 77.120.030 (West 2014).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
    \20\See Or. Rev. Stat. Ann. 783.635 (West 2014) (providing, in 
part, that ``[t]he Environmental Quality Commission may adopt by rule 
standards and procedures that the commission considers necessary to 
carry out the provisions of ORS 783.625 to 783.640. The standards and 
procedures must minimize the risk of introducing aquatic invasive 
species into the waters of this state and must be based on the 
availability of treatment technology. Rules adopted under this 
subsection include, but are not limited to: Standards for the discharge 
of ballast water into the waters of this state and appropriate 
timelines for the implementation of the standards. In adopting the 
standards, the commission shall consider the extent to which treatment 
technology is feasible, practicable and commercially available, or 
expected to be available, by the proposed implementation timelines.'' 
(emphasis added)).
    \21\Ibid.
---------------------------------------------------------------------------
    In all, 25 States have certified the VGP subject to 
additional, individual State requirements. The potential 
compliance challenges posed by this situation are staggering. 
As an example, a commercial vessel owner/operator transiting 
the full length of the Mississippi River is required to comply 
not only with applicable Coast Guard requirements under NANPCA/
NISA and the EPA's VGP requirements, but also with varying 
additional VGP permit requirements imposed by the States of 
Minnesota, Wisconsin, Iowa, Illinois, Missouri, and Arkansas.
    This complicated, inefficient, and confusing patchwork of 
Federal and State requirements will only continue to grow, 
confusing vessel owner/operators seeking in good faith to 
comply, confounding law enforcement authorities, unnecessarily 
impeding maritime commerce, and, most importantly, diminishing 
the overall effectiveness of U.S. efforts to prevent the 
introduction of aquatic invasive species. Strong, uniform 
national standards are necessary to effectively defend against 
invasive species brought to the United States in ballast water.
    The Vessel Incidental Discharge Act would require the 
Secretary of the department in which the Coast Guard is 
operating (Secretary), in consultation with the Administrator 
of the EPA (Administrator), to establish and implement 
enforceable, uniform, national standards and requirements for 
the regulation of ballast water discharges and other discharges 
incidental to the normal operation of vessels. The new 
standards and requirements would be required to be based upon 
the best available technology economically achievable, and 
would generally supersede the current jumble of Federal and 
State incidental discharge requirements. Enforcement 
responsibilities with respect to these uniform standards and 
requirements would be vested in the Secretary and the States.

                         Summary of Provisions

    S. 373 would require the Secretary, in consultation with 
the Administrator, to establish and implement uniform national 
standards for the regulation of ballast water discharges and 
other discharges incidental to the normal operation of vessels. 
The new standards would be based upon the best available 
technology economically achievable, and would generally 
supersede the current jumble of Federal and State incidental 
discharge requirements. The initial ballast water treatment 
standard under S. 373 would be the IMO D-2 Standard, the most 
stringent treatment standard scientifically proven to be 
achievable and detectable today. In 2022, a revised standard 
would take effect that is 100 times more stringent than the 
initial standard, unless the Secretary and Administrator 
determine the revised standard is not yet feasible, in which 
case the most stringent standard that is feasible would be 
adopted. If a standard more stringent than 100 times the 
initial standard is determined to be feasible, that standard 
would become the revised standard. Thereafter, decennial 
feasibility reviews would be required to determine whether 
further revisions of the ballast water standard would result in 
a scientifically demonstrable and substantial reduction in the 
risk of the introduction of aquatic nuisance species. These 
decennial reviews could also look at other vessel discharges 
for which standards are established under the Act, to determine 
if revising those standards would substantially reduce their 
impacts on navigable waters. Enforcement responsibilities would 
be vested in the Secretary. States also would be authorized to 
enforce the standards and requirements established under the 
Act.

                          Legislative History

    On February 4, 2015, the Oceans, Atmosphere, Fisheries, and 
Coast Guard Subcommittee of the Committee on Commerce, Science, 
and Transportation of the Senate held a hearing on the impacts 
of vessel discharge regulations on the shipping and fishing 
industries. Three representatives from the shipping and charter 
boat industries, as well as a Congressional Research Service 
specialist in resources and environmental policy, appeared 
before the subcommittee.
    S. 373, the Vessel Incidental Discharge Act, was introduced 
by Senator Rubio on February 4, 2015, with Senator Thune and 
Senator Nelson as original cosponsors, and referred to the 
Committee on Commerce, Science, and Transportation. The bill is 
also cosponsored by Senators Vitter, Ayotte, Boozman, Capito, 
Blunt, Manchin, Isakson, Cochran, Shelby, Coons, Cassidy, 
Wicker, McCaskill, Shaheen, Schatz, Sullivan, Casey, Collins, 
Cornyn, and Inhofe.
    On February 26, 2015, the Committee met in open Executive 
Session and, by a voice vote, ordered S. 373 reported with an 
amendment in the nature of a substitute. Changes in the 
substitute included 2 modified ballast water performance 
standards that will be issued in a final rule; an increase in 
the amount of time afforded manufacturers from 60 days to 1 
year to meet new testing protocols and earn certification of 
ballast water treatment technology; a refinement to what 
constitutes a vessel of the armed services; and a clarification 
in the definition of the term ``geographically limited area.'' 
The Committee also approved two amendments offered by Senator 
Peters. The first would codify an EPA VGP requirement that 
vessels entering the Great Lakes through the St. Lawrence 
River, after operating outside of the U.S. Exclusive Economic 
Zone, conduct saltwater flushing of all ballast water tanks 
onboard prior to entry. Senator Peters' second amendment 
modified the process by which a State can petition for more 
stringent ballast water standards.

                            Estimated Costs

    In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

S. 373--Vessel Incidental Discharge Act

    S. 373 would amend the environmental standards for water 
that is discharged from ships and permanently exempt certain 
smaller vessels from those standards. Under current law, the 
United States Coast Guard (USCG) and the Environmental 
Protection Agency (EPA) set and enforce those standards.
    S. 373 also would change the procedures for how the United 
States regulates water discharged from certain vessels. The 
legislation would increase the administrative responsibilities 
of the USCG to implement some of the laws that govern water 
discharged from ships and require that the USCG carry out those 
responsibilities in consultation with EPA. Under current law, 
most of those responsibilities are carried out by EPA under the 
Clean Water Act.
    Under the bill, EPA would no longer issue water discharge 
permits to vessels. However, based on information from EPA, CBO 
estimates that any cost savings to the agency would be 
negligible because those activities constitute only a minor 
share of EPA's responsibilities under the Clean Water Act. 
Based on information from the USCG, CBO estimates that the 
Coast Guard would gradually add 15 staff members over the next 
two years, resulting in a cost of $5 million over the 2016-2020 
period, assuming appropriation of the necessary amounts. Those 
additional staff members would conduct enforcement actions and 
review any proposals from states for more stringent water 
discharge standards.
    Enacting S. 373 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    S. 373 contains intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA). The bill would preempt 
state and local laws relating to discharges from vessels by 
establishing a national uniform standard and a set of best 
management practices, but CBO estimates that the preemption 
would not impose costs on state and local governments. Although 
it would limit the applications of state and local regulations, 
the bill would impose no duty on state or local governments 
that would result in additional spending or a loss of revenues.
    S. 373 also would impose a private-sector mandate, as 
defined in UMRA, on manufacturers and importers of certain 
water treatment technology. Those entities would be prohibited 
from selling such technology unless it has been certified by 
the USCG or by a foreign entity and deemed to meet equivalent 
levels of performance and safety. The cost of the mandate would 
be the cost of obtaining certification and any net loss of 
income from forgone sales.
    Under current law, manufacturers of water treatment 
technology already need to obtain USCG certification because 
owners of vessels that use such technology are required to 
install USCG-certified technology by a certain date. If the 
certification process under the bill was similar to the 
certification process conducted under current law, the 
incremental cost of complying with the mandate would be small. 
Although the incremental cost of such compliance could be 
greater than that under current law, on balance, CBO expects 
the cost of the private-sector mandate would probably fall 
below the annual threshold established in UMRA ($154 million in 
2015, adjusted annually for inflation).
    The CBO staff contacts for this estimate are Martin von 
Gnechten (for federal costs), Jon Sperl (for intergovernmental 
mandates), and Amy Petz (for private-sector mandates). The 
estimate was approved by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

                           Regulatory Impact

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       number of persons covered

    S. 373 as reported does not create any new programs or 
impose any new regulatory requirements, and therefore will not 
subject any individuals or businesses to new regulations. It 
would streamline regulatory compliance for the owners and 
operators of approximately 70,000 vessels with respect to 
ballast discharge. It would also permanently exempt 
approximately 120,000 vessels from incidental vessel discharge 
rules and thus reduce the regulatory burden on the owners and 
operators of those vessels.

                            economic impact

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

                                privacy

    The bill will not impact the personal privacy of 
individuals.

                               paperwork

    By replacing myriad Federal and State vessel incidental 
discharge requirements with a single set of national 
requirements, S. 373 will likely reduce paperwork requirements 
for individuals and businesses.

                   Congressionally Directed Spending

    In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis

Section 1. Short title; table of contents.

    This section would provide that this Act may be cited as 
the ``Vessel Incidental Discharge Act''.

Section 2. Findings; purpose.

    This section would set forth findings of Congress and state 
that the purpose of this Act is to provide for the 
establishment of nationally uniform and environmentally sound 
standards for discharges incidental to the normal operation of 
a vessel in the navigable waters of the United States.

Section 3. Definitions.

    This section would define the terms ``Administrator,'' 
``aquatic nuisance species,'' ``ballast water,'' ``ballast 
water performance standard,'' ``ballast water treatment 
technology'' or ``treatment technology,'' ``biocide,'' 
``discharge incidental to the normal operation of a vessel,'' 
``geographically limited area,'' ``manufacturer,'' 
``Secretary,'' and ``vessel.''

Section 4. Regulation and enforcement.

    This section would require the Secretary, in consultation 
with the Administrator, to establish and implement enforceable 
uniform national standards for the regulation of discharges 
incidental to the normal operation of a vessel. These standards 
would be required to be based upon the best available 
technology economically achievable, and generally would 
supersede any other permitting requirement or prohibition on 
discharges incidental to the normal operation of a vessel to 
which the Act would apply, under any other provision of law. 
The Secretary would be required to enforce the standards and 
requirements under the Act, and each State would be authorized 
to enforce the standards and requirements under the Act.

Section 5. Uniform national standards and requirements for the 
        regulation of discharges incidental to the normal operation of 
        a vessel.

    The existing congressional waiver for such discharges is 
slated to expire on December 18, 2017.
    This section would provide for the establishment and future 
review and revision of rules regulating discharges incidental 
to the normal operation of a vessel.
    Subsection (a) would provide that the requirements set 
forth in the final rule, Standards for Living Organisms in 
Ship's Ballast Water in U.S. Waters (77 Fed. Reg. 17254 (March 
23, 2012), as corrected at 77 Fed. Reg. 33969 (June 8, 2012)), 
shall be the management requirements for a ballast water 
discharge incidental to the normal operation of a vessel until 
the Secretary revises the ballast water performance standard 
under subsection (b) or adopts a more stringent State standard. 
It would require the Secretary to adopt a more stringent State 
ballast water performance standard if the Secretary makes a 
determination in favor of a State petition under section 10 of 
the Act. It also would require the Secretary, in consultation 
with the Administrator, to issue a final rule governing 
discharges incidental to the normal operation of a vessel other 
than ballast water not later than two years after the date of 
enactment of this Act.
    Subsection (b)(1) would require the Secretary, in 
consultation with the Administrator, to issue a final rule not 
later than January 1, 2022, revising the ballast water 
performance standard under subsection (a) so that a ballast 
water discharge incidental to the normal operation of a vessel 
will contain: less than 1 organism that is living or has not 
been rendered harmless per 10 cubic meters that is 50 or more 
micrometers in minimum dimension; less than 1 organism that is 
living or has not been rendered harmless per 10 milliliters 
that is less than 50 micrometers in minimum dimension and more 
than 10 micrometers in minimum dimension; concentrations of 
indicator microbes that are less than 1 colony-forming unit of 
toxicogenic Vibrio cholera (serotypes O1 and O139) per 100 
milliliters or less than 1 colony-forming unit of that microbe 
per gram of wet weight of zoological samples, less than 126 
colony forming units of Escherichia coli per 100 milliliters, 
and less than 33 colony-forming units of intestinal Enterococci 
per 100 milliliters; and concentrations of such additional 
indicator microbes and of viruses as may be specified in 
regulations issued by the Secretary, in consultation with the 
Administrator and such other Federal agencies as the Secretary 
and the Administrator deem appropriate.
    Under subsection (b)(2), issuance of a final rule under 
subsection (b)(1) would be subject to a feasibility review. 
This review would be required to be completed by the Secretary, 
in consultation with the Administrator, not less than two years 
before January 1, 2022, for the purpose of determining the 
feasibility of achieving the required, revised ballast water 
performance standard under this subsection. In conducting the 
feasibility review, the Secretary would be required to consider 
whether revising the ballast water performance standard will 
result in a scientifically demonstrable and substantial 
reduction in the risk of introduction or establishment of 
aquatic nuisance species, taking into account the following 
criteria:

     improvements in the scientific understanding of 
biological and ecological processes that lead to the 
introduction or establishment of aquatic nuisance species;

     improvements in ballast water treatment 
technology, including: the capability of such treatment 
technology to achieve a revised ballast water performance 
standard; the effectiveness and reliability of such treatment 
technology in the shipboard environment; the compatibility of 
such treatment technology with the design and operation of a 
vessel by class, type, and size; the commercial availability of 
such treatment technology; and the safety of such treatment 
technology;

     improvements in the capabilities to detect, 
quantify, and assess the viability of aquatic nuisance species 
at the concentrations under consideration;

     the impact of ballast water treatment technology 
on water quality; and

     the costs, cost-effectiveness, and impacts of: a 
revised ballast water performance standard on shipping, trade, 
and other uses of the aquatic environment; and of maintaining 
the existing ballast water performance standard, including the 
potential impacts on water-related infrastructure, recreation, 
propagation of native fish, shellfish, and wildlife, and other 
uses of navigable waters.

    If the Secretary, in consultation with the Administrator, 
determined on the basis of the feasibility review and after an 
opportunity for a public hearing that no ballast water 
treatment technology can be certified under section 6 to comply 
with the revised ballast water performance standard under 
section 5(b)(1), then the Secretary would be directed to 
require the use of the treatment technology that achieves the 
performance levels of the best performing treatment technology 
available. If the Secretary, in consultation with the 
Administrator, determined that requirements for the best 
performing treatment technology available under section 
5(b)(2)(c)(i) cannot be implemented before the implementation 
deadline provided in subsection (b)(3) of that section with 
respect to a class of vessels, then the Secretary would be 
required to extend the implementation deadline for that class 
of vessels for not more than 36 months. If an implementation 
deadline were extended, the Secretary would be required to 
recommend action to ensure compliance with the extended 
implementation deadline under subsection (b)(2)(c)(ii).
    If the Secretary, in consultation with the Administrator, 
determined that ballast water treatment technology existed that 
exceeded the revised ballast water performance standard 
prescribed in subsection (b)(1) with respect to a class of 
vessels, then the Secretary would be required to revise the 
ballast water performance standard for that class of vessels to 
incorporate that higher performance standard. If the Secretary, 
in consultation with the Administrator, determined that ballast 
water treatment technology could be implemented before the 
implementation deadline under subsection (b)(3) with respect to 
a class of vessels, then the Secretary would be required to 
accelerate the implementation deadline for that class of 
vessels. If an implementation deadline were accelerated, the 
Secretary would be required to provide not less than 24 months' 
notice before the deadline took effect.
    Under subsection (b)(3), the revised ballast water 
performance standard required by subsection (b)(1) would apply 
to a vessel beginning on the date of the first dry docking of 
the vessel on or after January 1, 2022, but not later than 
December 31, 2024.
    Subsection (b)(4) allows for the Secretary to establish a 
compliance deadline for compliance by a vessel (or a class, 
type, or size of vessel) with a revised ballast water 
performance standard under subsection (b)(1). In issuing 
regulations under subsection (b), the Secretary would be 
required to establish a process for an owner or operator to 
submit a petition to the Secretary for an extension of a 
compliance deadline with respect to the vessel of the owner or 
operator. An extension may be applied for a period not to 
exceed 18 months from the date of the applicable deadline and 
would be renewable for an additional period not to exceed 18 
months. In issuing a compliance deadline or reviewing a 
petition for extension of a deadline the Secretary would be 
required to consider, with respect to the ability of the owner 
or operator to meet a compliance deadline, the following 
factors:

     whether the treatment technology to be installed 
is available in sufficient quantities to meet the deadline;

     whether there is sufficient shipyard or other 
installation facility capacity;

     whether there is sufficient availability of 
engineering and design resources;

     vessel characteristics, such as engine room size, 
layout, or a lack of installed piping;

     electric power generating capacity aboard the 
vessel; and

     safety of the vessel and crew.

    The Secretary would be required to approve or deny a 
petition for an extension of a compliance deadline submitted by 
an owner or operator. If the Secretary did not approve or deny 
a petition referred to in subsection (b)(4)(E)(i) on or before 
the last day of the 90-day period beginning on the date of the 
petition, the petition would be deemed approved.
    Subsection (c) of this section would require the Secretary, 
in consultation with the Administrator, to complete a review 10 
years after the issuance of a revised final rule under 
subsection (b) and every 10 years thereafter to determine 
whether further revision of the ballast water performance 
standard would result in a scientifically demonstrable and 
substantial reduction in the risk of the introduction or 
establishment of aquatic nuisance species.
    Subsection (c) also would permit the Secretary, in 
consultation with the Administrator, to include in these 
decennial reviews best management practices for discharges 
other than ballast water which are covered by this section. The 
Secretary would be required to initiate a rulemaking to revise 
one or more best management practices for such discharges after 
a decennial review if the Secretary, in consultation with the 
Administrator, determined that revising one or more of such 
practices would substantially reduce the impacts on navigable 
waters of discharges incidental to the normal operation of a 
vessel other than ballast water. In reviewing a ballast water 
performance standard under this subsection, the Secretary, the 
Administrator, and the heads of other appropriate Federal 
agencies as determined by the Secretary, would be required to 
consider the same review criteria required in the feasibility 
review under subsection (b)(2).
    The Secretary would be required to initiate a rulemaking to 
revise the ballast water performance standard after a decennial 
review if the Secretary, in consultation with the 
Administrator, determined that revising the performance 
standard would result in a scientifically demonstrable and 
substantial reduction in the risk of the introduction or 
establishment of aquatic nuisance species.
    In developing revised standards under subsections (b) and 
(c), it is anticipated that the Secretary will also review 
whether any exception described under section 7(b) need to be 
included, removed or updated.
    Subsection (d) of this section would require the Secretary, 
in consultation with the Administrator, to establish a 
requirement that vessels entering the Great Lakes through the 
St. Lawrence River, after operating outside the U.S. Exclusive 
Economic Zone, to conduct saltwater flushing of all ballast 
water tanks onboard prior to entry.

Section 6. Treatment technology certification.

    This section would establish the requirements and process 
for the certification of ballast water treatment technology.
    Subsection (a) would provide that, beginning one year after 
the date that the requirements for testing protocols are issued 
under subsection (i) of this section, no manufacturer of a 
ballast water treatment technology shall sell, offer for sale, 
or introduce or deliver for introduction into interstate 
commerce, or import into the United States for sale or resale, 
a ballast water treatment technology for a vessel unless the 
treatment technology has been certified under this section.
    Subsection (b) would provide that, upon application of a 
manufacturer, the Secretary shall evaluate a ballast water 
treatment technology with respect to its effectiveness in 
achieving the current ballast water performance standard when 
installed on a vessel (or a class, type, or size of vessel); 
its compatibility with vessel design and operations; its effect 
on vessel safety; its impact on the environment; its cost-
effectiveness; and any other criteria the Secretary considers 
appropriate. If, after such evaluation, the Secretary 
determined that the treatment technology meets the criteria, 
then the Secretary would be authorized to certify the treatment 
technology for use on a vessel (or a class, type, or size of 
vessel). This subsection would also require the Secretary to 
establish, by regulation, a process to suspend or revoke a 
certification that has been issued.
    Subsection (c) would provide that, in certifying a ballast 
water treatment technology under this section, the Secretary, 
in consultation with the Administrator, would be authorized to 
impose any condition on the subsequent installation, use, or 
maintenance of the technology onboard a vessel as is necessary 
for: the safety of the vessel, the crew of the vessel, and any 
passengers aboard the vessel; the protection of the 
environment; or the effective operation of the technology. 
Failure of a vessel owner or operator to comply with such a 
condition would be considered a violation of this section.
    Subsection (d) would require the Secretary to allow a 
vessel on which a system is installed and operated to meet a 
ballast water performance standard under this Act to continue 
to use that system, notwithstanding any revision of a ballast 
water performance standard occurring after the system is 
installed, until the expiration of the service life of the 
system as determined by the Secretary, so long as the system is 
maintained in proper working condition and maintained and used 
in accordance with the manufacturer's specifications and any 
treatment technology certification conditions imposed by the 
Secretary under this section.
    Subsection (e) would require that, if the Secretary 
approves a ballast water treatment technology for certification 
under subsection (b), the Secretary shall issue a certificate 
of type-approval for the treatment technology to the 
manufacturer in such form and manner as the Secretary 
determines appropriate. A certificate of type-approval would be 
required to specify each condition imposed by the Secretary 
under subsection (c). A manufacturer that received a 
certificate of type-approval for the treatment technology would 
be required to provide a copy of the certificate to each owner 
and operator of a vessel on which the technology is installed.
    Subsection (f) would require that an owner or operator who 
receives a copy of a certificate of type-approval retain a copy 
of the certificate onboard the vessel and make it available for 
inspection at all times while the owner or operator is 
utilizing the treatment technology.
    Subsection (g) would bar the Secretary from approving a 
ballast water treatment technology if the technology: (1) uses 
a biocide or generates a biocide that is a pesticide under the 
Federal Insecticide, Fungicide, and Rodenticide Act, unless the 
biocide is registered under that Act or the Secretary, in 
consultation with Administrator, has approved the use of the 
biocide in such treatment technology; or (2) uses or generates 
a biocide, the discharge of which causes or contributes to a 
violation of a water quality standard under section 303 of the 
Federal Water Pollution Control Act.
    Subsection (h) would provide generally that the use of a 
ballast water treatment technology by an owner or operator of a 
vessel shall not satisfy the requirements of this Act unless it 
has been approved by the Secretary under subsection (b). An 
owner or operator would, however, be permitted to use a ballast 
water treatment technology that has not been certified to 
comply with the requirements of this section if the technology 
is being evaluated under the Coast Guard Shipboard Technology 
Evaluation Program, or the technology has been certified by a 
foreign entity and the certification demonstrates performance 
and safety of the treatment technology equivalent to the 
requirements of this section, as determined by the Secretary.
    Subsection (i) would require the Administrator, in 
consultation with the Secretary, to issue requirements not 
later than 180 days after the date of enactment of this Act for 
land-based and shipboard testing protocols or criteria for 
certifying the performance of each ballast water treatment 
technology under this section and certifying laboratories to 
evaluate such treatment technologies.

Section 7. Exemptions.

    Subsection (a) would provide that no permit shall be 
required or prohibition enforced under any other provision of 
law for, nor shall any standards under this Act apply to: (1) a 
discharge incidental to the normal operation of a vessel if the 
vessel is less than 79 feet in length and engaged in commercial 
service (as defined in section 2101(5) of title 46, United 
States Code); (2) a discharge incidental to the normal 
operation of a vessel if the vessel is a fishing vessel, 
including a fish processing vessel and fish tender vessel (as 
defined in section 2101 of title 46, United States Code); (3) a 
discharge incidental to the normal operation of a vessel if the 
vessel is a recreational vessel (as defined in section 2101(25) 
of title 46, United States Code); (4) the placement, release, 
or discharge of equipment, devices, or other material from a 
vessel for the sole purpose of conducting research on the 
aquatic environment or its natural resources in accordance with 
generally recognized scientific methods, principles, or 
techniques; (5) any discharge into navigable waters from a 
vessel authorized by an on-scene coordinator in accordance with 
part 300 of title 40, Code of Federal Regulations, or part 153 
of title 33, Code of Federal Regulations; (6) any discharge 
into navigable waters from a vessel that is necessary to secure 
the safety of the vessel or human life, or to suppress a fire 
onboard the vessel or at a shoreside facility; or (7) a vessel 
of the armed forces of a foreign nation when engaged in 
noncommercial service.
    Subsection (b) would provide that no permit shall be 
required or prohibition enforced under any other provision of 
law for, nor shall any ballast water performance standards 
under this Act apply to:

    (1) a ballast water discharge incidental to the normal 
operation of a vessel determined by the Secretary to:

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

       operate exclusively within one Captain of the 
Port Zone established by the Coast Guard unless the Secretary 
determines such discharge poses a substantial risk of 
introduction or establishment of an aquatic nuisance species;

       operate pursuant to a geographic restriction 
issued as a condition under section 3309 of title 46, United 
States Code (or an equivalent restriction issued by the country 
of registration of the vessel); or

       continuously take on and discharge ballast water 
in a flow-through system that does not introduce aquatic 
nuisance species into navigable waters;

    (2) a ballast water discharge incidental to the normal 
operation of a vessel consisting entirely of water suitable for 
human consumption; or

    (3) a ballast water discharge incidental to the normal 
operation of a vessel in an alternative compliance program 
established pursuant to section 8.

    The Committee received testimony from the Lake Carriers' 
Association expressing concern with the direction of the 
Canadian government's development of ballast water regulations, 
especially regarding vessels that operate in the Great Lakes 
and St. Lawrence River. The Committee encourages the Coast 
Guard to monitor Transport Canada's development of ballast 
water regulations for vessels operating in Canadian waters and 
ports on the Great Lakes and St. Lawrence River for consistency 
with this Act and Coast Guard regulations. The Committee also 
encourages the Coast Guard to address the concerns of operators 
of Canadian laker vessels operating in United States waters and 
ports with regard to Coast Guard implementation of this Act. In 
defining a ``geographically limited area'' the Coast Guard 
should take into consideration the bi-national nature of the 
Great Lakes and St. Lawrence Seaway and the traditional trade 
patterns of U.S. and Canadian vessels.
    Subsection (c) would provide that no permit shall be 
required or prohibition enforced under any other provision of 
law for, nor shall any ballast water performance standard apply 
to, a vessel that carries all of its permanent ballast water in 
sealed tanks that are not subject to discharge.
    Subsection (d) would provide that nothing in this Act shall 
be interpreted to apply to a vessel owned or operated by the 
Department of Defense (other than a time-chartered or voyage-
chartered vessel), or a vessel of the Coast Guard, as 
designated by the Secretary of the department in which the 
Coast Guard is operating.

Section 8. Alternative compliance program.

    This section would authorize the Secretary, in consultation 
with the Administrator, to promulgate regulations establishing 
one or more alternative compliance programs for a vessel having 
a maximum ballast water capacity of less than eight cubic 
meters and for a vessel that is not less than three years from 
the end of its useful life, as determined by the Secretary. 
Vessels that discharge ballast water into a facility for the 
reception of ballast water that meets standards promulgated by 
the Administrator, in consultation with the Secretary, may have 
an alternate compliance program. Within one year after the date 
of enactment of this Act, the Administrator, in consultation 
with the Secretary, would be required to promulgate standards 
for the reception of ballast water from a vessel into a 
reception facility and the disposal or treatment of the ballast 
water.

Section 9. Judicial review.

    This section would allow an interested person to file a 
petition for review of a final regulation promulgated under 
this Act in the United States Court of Appeals for the District 
of Columbia Circuit. Such a petition would be required to be 
filed not later than 120 days after the date that notice of the 
promulgation appears in the Federal Register. In the case of a 
petition that is based solely on grounds that arise after the 
filing deadline has passed, the petitioner would be permitted 
to file not later than 120 days after the date on which the 
grounds for the petition first arose.

Section 10. Effect on State authority.

    Subsection (a) of this section would provide generally that 
no State or political subdivision thereof may adopt or enforce 
any statute or regulation of the State or political subdivision 
with respect to a discharge incidental to the normal operation 
of a vessel after the date of enactment of this Act.
    Notwithstanding the general prohibition of subsection (a), 
under subsection (b) a State or political subdivision thereof 
would be permitted to adopt or enforce a statute or regulation 
of the State or political subdivision with respect to ballast 
water discharges incidental to the normal operation of a vessel 
that specifies a ballast water performance standard that is 
more stringent than the ballast water performance standard 
under section 5(a)(1)(A) if the Secretary, after consultation 
with the Administrator and any other Federal department or 
agency the Secretary considers appropriate, makes a 
determination that: compliance with any performance standard 
specified in the statute or regulation can in fact be achieved 
and detected; the technology and systems necessary to comply 
with the statute or regulation are commercially available; and 
the statute or regulation is consistent with obligations under 
relevant international treaties or agreements to which the 
United States is a party.
    Under subsection (c), the Governor of a State seeking to 
adopt or enforce a statute or regulation under subsection (b) 
would be required to submit a petition to the Secretary 
requesting a review of the statute or regulation. This petition 
would be required to be accompanied by the scientific and 
technical information on which it is based, and be submitted to 
the Secretary not later than 1 year after the date of enactment 
of this Act, and every 10 years thereafter. The Secretary would 
be required to make a determination on any such petition not 
later than 90 days after the date on which the petition is 
received.

Section 11. Application with other statutes.

    This section would provide that, notwithstanding any other 
provision of law, this Act shall be the exclusive statutory 
authority for regulation by the Federal Government of 
discharges incidental to the normal operation of a vessel to 
which this Act applies.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
bill as reported would make no change to existing law.

                                  [all]
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