II 

112TH CONGRESS 

2D SESSION S. 3570 

To provide for the establishment of nationally uniform and environmentally 

sound standards governing discharges incidental to the normal operation 

of a vessel in the navigable waters of the United States. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 19, 2012 

Mr. RUBIO introduced the following bill; which was read twice and referred 

to the Committee on Commerce, Science, and Transportation 

A BILL 

To provide for the establishment of nationally uniform and 

environmentally sound standards governing discharges 

incidental to the normal operation of a vessel in the 

navigable waters of the United States. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Vessel Incidental Discharge Act’’. 

6 (b) TABLE OF CONTENTS.—The table of contents of 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings; purpose. 

Sec. 3. Definitions. 


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Sec. 4. Regulation and enforcement. 

Sec. 5. Uniform vessel incidental discharge standards. 

Sec. 6. Treatment technology certification. 

Sec. 7. Exemptions. 

Sec. 8. Alternative compliance program. 

Sec. 9. Judicial review. 

Sec. 10. Effect on State authority. 

Sec. 11. Application with other statutes. 

1 SEC. 2. FINDINGS; PURPOSE. 

2 (a) FINDINGS.—Congress makes the following find3 ings: 

4 (1) Beginning with enactment of the Act to 

5 Prevent Pollution from Ships in 1980 (22 U.S.C. 

6 1901 et seq.), the United States Coast Guard has 

7 been the principal Federal authority charged with 

8 administering, enforcing, and prescribing regulations 

9 relating to the discharge of pollutants from vessels 

10 engaged in maritime commerce and transportation. 

11 (2) The Coast Guard estimates there are ap12 proximately 12,700,000 State-registered recreational 

13 vessels, 78,000 commercial fishing vessels, and 

14 57,000 freight and tank barges operating in United 

15 States waters. 

16 (3) From 1973 to 2005, certain discharges inci17 dental to the normal operation of a vessel were ex18 empted by regulation from otherwise applicable per19 mitting requirements. 

20 (4) Over the 32 years during which this regu21 latory exemption was in effect, Congress enacted 


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1 statutes on a number of occasions dealing with the 

2 regulation of discharges incidental to the normal op3 eration of a vessel, including— 

4 (A) the Act to Prevent Pollution from 

5 Ships (33 U.S.C. 1901 et seq.) in 1980; 

6 (B) the Nonindigenous Aquatic Nuisance 

7 Prevention and Control Act of 1990 (16 U.S.C. 

8 4701 et seq.); 

9 (C) the National Invasive Species Act of 

10 1996 (110 Stat. 4073); 

11 (D) section 415 of the Coast Guard Au12 thorization Act of 1998 (112 Stat. 3434) and 

13 section 623 of the Coast Guard and Maritime 

14 Transportation Act of 2004 (33 U.S.C. 1901 

15 note), which established interim and permanent 

16 requirements, respectively, for the regulation of 

17 incidental vessel discharges of certain bulk 

18 cargo residue; 

19 (E) title XIV of division B of Appendix D 

20 of the Consolidated Appropriations Act, 2001 

21 (114 Stat. 2763), which prohibited or limited 

22 certain vessel discharges in certain areas of 

23 Alaska; 

24 (F) section 204 of the Maritime Transpor25 tation Security Act of 2002 (33 U.S.C. 1902a), 


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1 which established requirements for the regula2 tion of incidental vessel discharges of agricul3 tural cargo residue material in the form of hold 

4 washings; and 

5 (G) title X of the Coast Guard Authoriza6 tion Act of 2010 (33 U.S.C. 3801 et seq.), 

7 which provided for the implementation of the 

8 International Convention on the Control of 

9 Harmful Anti-Fouling Systems on Ships, 2001. 

10 (b) PURPOSE.—The purpose of this Act is to provide 

11 for the establishment of nationally uniform and environ12 mentally sound standards for discharges incidental to the 

13 normal operation of a vessel in the navigable waters of 

14 the United States. 

15 SEC. 3. DEFINITIONS. 

16 In this Act: 

17 (1) ADMINISTRATOR.—The term ‘‘Adminis18 trator’’ means the Administrator of the Environ19 mental Protection Agency. 

20 (2) AQUATIC NUISANCE SPECIES.—The term 

21 ‘‘aquatic nuisance species’’ means a nonindigenous 

22 species (including a pathogen) that threatens the di23 versity or abundance of native species or the ecologi24 cal stability of navigable waters or commercial, agriVerDate Mar 15 2010 00:19 Sep 25, 2012 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3570.IS S3570

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1 cultural, aquacultural, or recreational activities de2 pendent on such waters. 

3 (3) BALLAST WATER.— 

4 (A) IN GENERAL.—The term ‘‘ballast 

5 water’’ means any water, including any sedi6 ment suspended in such water, taken aboard a 

7 vessel— 

8 (i) to control trim, list, draught, sta9 bility, or stresses of the vessel; or 

10 (ii) during the cleaning, maintenance, 

11 or other operation of a ballast water treat12 ment technology of the vessel. 

13 (B) EXCLUSIONS.—The term ‘‘ballast 

14 water’’ does not include any pollutant that is 

15 added to water described in subparagraph (A) 

16 that is not directly related to the operation of 

17 a properly functioning ballast water treatment 

18 technology under this Act. 

19 (4) BALLAST WATER PERFORMANCE STAND20 ARD.—The term ‘‘ballast water performance stand21 ard’’ means the numerical ballast water performance 

22 standard set forth in Regulation D–2 of the Inter23 national Convention for the Control and Manage24 ment of Ships’ Ballast Water and Sediments, adopt25 ed on February 13, 2004, or a revised numerical 


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1 ballast water performance standard established 

2 under section 5. 

3 (5) BALLAST WATER TREATMENT TECHNOLOGY

4 OR TREATMENT TECHNOLOGY.—The term ‘‘ballast 

5 water treatment technology’’ or ‘‘treatment tech6 nology’’ means any mechanical, physical, chemical, 

7 or biological process used, alone or in combination, 

8 to remove, render harmless, or avoid the uptake or 

9 discharge of aquatic nuisance species within ballast 

10 water. 

11 (6) BIOCIDE.—The term ‘‘biocide’’ means a 

12 substance or organism, including a virus or fungus, 

13 that is introduced into or produced by a ballast 

14 water treatment technology to reduce or eliminate 

15 aquatic nuisance species as part of the process used 

16 to comply with a ballast water performance standard 

17 under this Act. 

18 (7) DISCHARGE INCIDENTAL TO THE NORMAL

19 OPERATION OF A VESSEL.— 

20 (A) IN GENERAL.—The term ‘‘discharge 

21 incidental to the normal operation of a vessel’’ 

22 means— 

23 (i) a discharge into navigable waters 

24 from a vessel of— 


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1 (I)(aa) ballast water, graywater, 

2 bilge water, cooling water, oil water 

3 separator effluent, anti-fouling hull 

4 coating leachate, boiler or economizer 

5 blowdown, byproducts from cathodic 

6 protection, controllable pitch propeller 

7 and thruster hydraulic fluid, distilla8 tion and reverse osmosis brine, eleva9 tor pit effluent, firemain system efflu10 ent, freshwater layup effluent, gas 

11 turbine wash water, motor gasoline 

12 and compensating effluent, refrigera13 tion and air condensate effluent, sea14 water pumping biofouling prevention 

15 substances, boat engine wet exhaust, 

16 sonar dome effluent, exhaust gas 

17 scrubber washwater, or stern tube 

18 packing gland effluent; or 

19 (bb) any other pollutant associ20 ated with the operation of a marine 

21 propulsion system, shipboard maneu22 vering system, habitability system, or 

23 installed major equipment, or from a 

24 protective, preservative, or absorptive 

25 application to the hull of a vessel; 


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1 (II) weather deck runoff, deck 

2 wash, aqueous film forming foam ef3 fluent, chain locker effluent, non-oily 

4 machinery wastewater, underwater 

5 ship husbandry effluent, welldeck ef6 fluent, or fish hold and fish hold 

7 cleaning effluent; or 

8 (III) any effluent from a properly 

9 functioning marine engine; or 

10 (ii) a discharge of a pollutant into 

11 navigable waters in connection with the 

12 testing, maintenance, or repair of a sys13 tem, equipment, or engine described in 

14 subclause (I)(bb) or (III) of clause (i) 

15 whenever the vessel is waterborne. 

16 (B) EXCLUSIONS.—The term ‘‘discharge 

17 incidental to the normal operation of a vessel’’ 

18 does not include— 

19 (i) a discharge into navigable waters 

20 from a vessel of— 

21 (I) rubbish, trash, garbage, incin22 erator ash, or other such material dis23 charged overboard; 

24 (II) oil or a hazardous substance 

25 as those terms are defined in section 


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1 311 of the Federal Water Pollution 

2 Control Act (33 U.S.C. 1321); 

3 (III) sewage as defined in section 

4 312(a) of the Federal Water Pollution 

5 Control Act (33 U.S.C. 1322(a)); or 

6 (IV) graywater referred to in sec7 tion 312(a) of the Federal Water Pol8 lution Control Act (33 U.S.C. 

9 1322(a)); 

10 (ii) an emission of an air pollutant re11 sulting from the operation onboard a vessel 

12 of a vessel propulsion system, motor driven 

13 equipment, or incinerator; or 

14 (iii) a discharge into navigable waters 

15 from a vessel when the vessel is operating 

16 in a capacity other than as a means of 

17 transportation on water. 

18 (8) GEOGRAPHICALLY LIMITED AREA.—The 

19 term ‘‘geographically limited area’’ means an area— 

20 (A) with a physical limitation that prevents 

21 a vessel from operating outside the area, as de22 termined by the Secretary; or 

23 (B) that is ecologically homogeneous, as 

24 determined by the Secretary, in consultation 


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1 with the heads of other Federal departments or 

2 agencies as the Secretary considers appropriate. 

3 (9) MANUFACTURER.—The term ‘‘manufac4 turer’’ means a person engaged in the manufacture, 

5 assemblage, or importation of ballast water treat6 ment technology. 

7 (10) SECRETARY.—The term ‘‘Secretary’’ 

8 means the Secretary of the Department in which the 

9 Coast Guard is operating. 

10 (11) VESSEL.—The term ‘‘vessel’’ means every 

11 description of watercraft or other artificial contriv12 ance used, or practically or otherwise capable of 

13 being used, as a means of transportation on water. 

14 SEC. 4. REGULATION AND ENFORCEMENT. 

15 (a) IN GENERAL.—The Secretary, in consultation 

16 with the Administrator, shall establish and implement en17 forceable uniform national standards for the regulation of 

18 discharges incidental to the normal operation of a vessel. 

19 The standards shall— 

20 (1) be based upon the best available technology 

21 economically achievable; and 

22 (2) supersede any permitting requirement or 

23 prohibition on discharges incidental to the normal 

24 operation of a vessel under any other provision of 

25 law. 


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1 (b) ADMINISTRATION AND ENFORCEMENT.—The 

2 Secretary shall enforce the standards and requirements 

3 under this Act. Each State may enforce the standards and 

4 requirements under this Act. 

5 SEC. 5. UNIFORM VESSEL INCIDENTAL DISCHARGE STAND6 ARDS. 

7 (a) INITIAL VESSEL INCIDENTAL DISCHARGE

8 STANDARDS.— 

9 (1) INITIAL BALLAST WATER PERFORMANCE

10 STANDARD.— 

11 (A) IN GENERAL.—Not later than 180 

12 days after the date of enactment of this Act, 

13 the Secretary, in consultation with the Adminis14 trator, shall issue a final rule for the regulation 

15 of ballast water discharges incidental to the 

16 normal operation of a vessel. 

17 (B) PROPOSED RULE.—For the purposes 

18 of chapter 5 of title 5, United States Code, the 

19 notice of proposed rulemaking published by the 

20 Coast Guard pursuant to the requirements of 

21 chapter 5 of title 5, United States Code, on Au22 gust 28, 2009 (74 Fed. Reg. 44632; relating to 

23 standards for living organisms in ships’ ballast 

24 water discharged in U.S. waters), shall serve as 


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1 a proposed rule for the purpose of issuing the 

2 final rule under subparagraph (A). 

3 (C) INITIAL PERFORMANCE STANDARD

4 COMPLIANCE DEADLINES.— 

5 (i) IN GENERAL.—An owner or oper6 ator shall comply with the performance 

7 standard established under this subpara8 graph (A) on or before the deadline that 

9 applies to the commercial vessel of the 

10 owner or operator, as specified in clause 

11 (ii). 

12 (ii) DEADLINES.—The deadlines for 

13 compliance with the performance standard 

14 established under subparagraph (A) are as 

15 follows: 

16 (I) For an existing commercial 

17 vessel with a ballast water capacity of 

18 less than 1,500 cubic meters, the date 

19 of the first drydocking of the vessel 

20 after January 1, 2016. 

21 (II) For an existing commercial 

22 vessel with a ballast water capacity of 

23 at least 1,500 cubic meters but not 

24 more than 5,000 cubic meters, the 


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1 date of the first drydocking of the ves2 sel after January 1, 2014. 

3 (III) For an existing commercial 

4 vessel with a ballast water capacity of 

5 greater than 5,000 cubic meters, the 

6 date of the first drydocking of the ves7 sel after January 1, 2016. 

8 (iii) PROCESSES FOR GRANTING EX9 TENSIONS.—In issuing regulations under 

10 this paragraph, the Secretary shall estab11 lish a process for an owner or operator to 

12 submit a petition to the Secretary for an 

13 extension of a compliance deadline with re14 spect to the commercial vessel of the owner 

15 or operator. 

16 (iv) PERIOD OF EXTENSIONS.—An ex17 tension issued under clause (iii) shall— 

18 (I) apply for a period of not to 

19 exceed 18 months; and 

20 (II) be renewable for an addi21 tional period of not to exceed 18 

22 months. 

23 (v) FACTORS.—In issuing a compli24 ance deadline or reviewing a petition under 

25 this subparagraph, the Secretary shall conVerDate Mar 15 2010 00:19 Sep 25, 2012 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S3570.IS S3570

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1 sider, with respect to the ability of an 

2 owner or operator to meet a compliance 

3 deadline, the following factors: 

4 (I) Whether the treatment tech5 nology to be installed is available in 

6 sufficient quantities to meet the com7 pliance deadline. 

8 (II) Whether there is sufficient 

9 shipyard or other installation facility 

10 capacity. 

11 (III) Whether there is sufficient 

12 availability of engineering and design 

13 resources. 

14 (IV) Vessel characteristics, such 

15 as engine room size, layout, or a lack 

16 of installed piping. 

17 (V) Electric power generating ca18 pacity aboard the vessel. 

19 (VI) Safety of the vessel and 

20 crew. 

21 (vi) CONSIDERATION OF PETITIONS.— 

22 (I) DETERMINATIONS.—The Sec23 retary shall approve or deny a petition 

24 for an extension of a compliance deadVerDate Mar 15 2010 00:19 Sep 25, 2012 Jkt 019200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S3570.IS S3570

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1 line submitted by an owner or oper2 ator under this subparagraph. 

3 (II) DEADLINE.—If the Sec4 retary does not approve or deny a pe5 tition referred to in subclause (I) on 

6 or before the last day of the 90-day 

7 period beginning on the date of sub8 mission of the petition, the petition 

9 shall be deemed approved. 

10 (vii) REGULATIONS.—In issuing regu11 lations under subparagraph (A), the Sec12 retary shall include— 

13 (I) a compliance schedule that 

14 sets forth the deadlines specified in 

15 clause (ii); and 

16 (II) the process for requesting an 

17 extension of such deadlines. 

18 (2) INITIAL STANDARD FOR DISCHARGES

19 OTHER THAN BALLAST WATER.—Not later than 2 

20 years after the date of enactment of this Act, the 

21 Secretary, in consultation with the Administrator, 

22 shall issue a final rule establishing best management 

23 practices for discharges incidental to the normal op24 eration of a vessel other than ballast water. 


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1 (b) REVISED BALLAST WATER PERFORMANCE

2 STANDARD; 8-YEAR REVIEW.— 

3 (1) IN GENERAL.—Subject to the feasibility re4 view under paragraph (2), not later than January 1, 

5 2020, the Secretary, in consultation with the Admin6 istrator, shall issue a final rule revising the ballast 

7 water performance standard under subsection (a)(1) 

8 so that a ballast water discharge incidental to the 

9 normal operation of a vessel will contain— 

10 (A) less than 1 living organism per 10 

11 cubic meters that is 50 or more micrometers in 

12 minimum dimension; 

13 (B) less than 1 living organism per 10 mil14 liliters that is less than 50 micrometers in min15 imum dimension and more than 10 micrometers 

16 in minimum dimension; 

17 (C) concentrations of indicator microbes 

18 that are less than— 

19 (i) 1 colony-forming unit of 

20 toxicogenic Vibrio cholera (serotypes O1 

21 and O139) per 100 milliliters or less than 

22 1 colony-forming unit of that microbe per 

23 gram of wet weight of zoological samples; 

24 (ii) 126 colony-forming units of esch25 erichia coli per 100 milliliters; and 


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1 (iii) 33 colony-forming units of intes2 tinal enterococci per 100 milliliters; and 

3 (D) concentrations of such additional indi4 cator microbes and of viruses as may be speci5 fied in regulations issued by the Secretary in 

6 consultation with the Administrator and such 

7 other Federal agencies as the Secretary and the 

8 Administrator deem appropriate. 

9 (2) FEASIBILITY REVIEW.— 

10 (A) IN GENERAL.—Not less than 2 years 

11 before January 1, 2020, the Secretary, in con12 sultation with the Administrator, shall complete 

13 a review to determine the feasibility of achiev14 ing the revised ballast water performance stand15 ard under paragraph (1). 

16 (B) CRITERIA FOR REVIEW OF BALLAST

17 WATER STANDARD.—In conducting a review 

18 under subparagraph (A), the Secretary shall 

19 consider whether revising the ballast water per20 formance standard will result in a scientifically 

21 demonstrable and substantial reduction in the 

22 risk of introduction or establishment of aquatic 

23 nuisance species, taking into account— 

24 (i) improvements in the scientific un25 derstanding of biological and ecological 


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1 processes that lead to the introduction or 

2 establishment of aquatic nuisance species; 

3 (ii) improvements in ballast water 

4 treatment technology, including— 

5 (I) the capability of such treat6 ment technology to achieve a revised 

7 ballast water performance standard; 

8 (II) the effectiveness and reli9 ability of such treatment technology in 

10 the shipboard environment; 

11 (III) the compatibility of such 

12 treatment technology with the design 

13 and operation of a vessel by class, 

14 type, and size; 

15 (IV) the commercial availability 

16 of such treatment technology; and 

17 (V) the safety of such treatment 

18 technology; 

19 (iii) improvements in the capabilities 

20 to detect, quantify, and assess the viability 

21 of aquatic nuisance species at the con22 centrations under consideration; 

23 (iv) the impact of ballast water treat24 ment technology on water quality; and 


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1 (v) the costs, cost-effectiveness, and 

2 impacts of— 

3 (I) a revised ballast water per4 formance standard, including the po5 tential impacts on shipping, trade, 

6 and other uses of the aquatic environ7 ment; and 

8 (II) maintaining the existing bal9 last water performance standard, in10 cluding the potential impacts on 

11 water-related infrastructure, recre12 ation, propagation of native fish, 

13 shellfish, and wildlife, and other uses 

14 of navigable waters. 

15 (C) LOWER PERFORMANCE STANDARD.— 

16 (i) IN GENERAL.—If the Secretary, in 

17 consultation with the Administrator, deter18 mines on the basis of the feasibility review 

19 and after an opportunity for a public hear20 ing that no ballast water treatment tech21 nology can be certified under section 6 to 

22 comply with the revised ballast water per23 formance standard under paragraph (1), 

24 the Secretary shall require the use of the 

25 treatment technology that achieves the perVerDate Mar 15 2010 00:19 Sep 25, 2012 Jkt 019200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S3570.IS S3570

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1 formance levels of the best treatment tech2 nology available. 

3 (ii) IMPLEMENTATION DEADLINE.—If 

4 the Secretary, in consultation with the Ad5 ministrator, determines that the treatment 

6 technology under clause (i) cannot be im7 plemented before the implementation dead8 line under paragraph (3) with respect to a 

9 class of vessels, the Secretary shall extend 

10 the implementation deadline for that class 

11 of vessels for not more than 24 months. 

12 (iii) COMPLIANCE.—If the implemen13 tation deadline under paragraph (3) is ex14 tended, the Secretary shall recommend ac15 tion to ensure compliance with the ex16 tended implementation deadline under 

17 clause (ii). 

18 (D) COMPLIANCE DEADLINES.— 

19 (i) IN GENERAL.—The Secretary may 

20 establish a compliance deadline for compli21 ance with a revised standard under this 

22 subsection on the Secretary’s own initiative 

23 or in response to a petition submitted by 

24 an owner or operator. 


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1 (ii) PROCESSES FOR GRANTING EX2 TENSIONS.—In issuing regulations under 

3 this subsection, the Secretary shall estab4 lish— 

5 (I) a process for the Secretary, in 

6 consultation with the Administrator, 

7 to issue a compliance deadline for a 

8 commercial vessel (or class, type, or 

9 size of vessel); and 

10 (II) a process for an owner or op11 erator to submit a petition to the Sec12 retary for an extension of a compli13 ance deadline with respect to the com14 mercial vessel of the owner or oper15 ator. 

16 (iii) PERIOD OF EXTENSIONS.—An ex17 tension issued under clause (ii)(II) shall— 

18 (I) apply for a period of not to 

19 exceed 18 months; and 

20 (II) be renewable for an addi21 tional period of not to exceed 18 

22 months. 

23 (iv) FACTORS.—In issuing a compli24 ance deadline or reviewing a petition under 

25 this subparagraph, the Secretary shall conVerDate Mar 15 2010 00:19 Sep 25, 2012 Jkt 019200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\S3570.IS S3570

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1 sider, with respect to the ability of an 

2 owner or operator to meet a compliance 

3 deadline, the following factors: 

4 (I) Whether the treatment tech5 nology to be installed is available in 

6 sufficient quantities to meet the com7 pliance deadline. 

8 (II) Whether there is sufficient 

9 shipyard or other installation facility 

10 capacity. 

11 (III) Whether there is sufficient 

12 availability of engineering and design 

13 resources. 

14 (IV) Vessel characteristics, such 

15 as engine room size, layout, or a lack 

16 of installed piping. 

17 (V) Electric power generating ca18 pacity aboard the vessel. 

19 (VI) Safety of the vessel and 

20 crew. 

21 (v) CONSIDERATION OF PETITIONS.— 

22 (I) DETERMINATIONS.—The Sec23 retary shall approve or deny a petition 

24 for an extension of a compliance deadVerDate Mar 15 2010 00:19 Sep 25, 2012 Jkt 019200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\S3570.IS S3570

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1 line submitted by an owner or oper2 ator under this subparagraph. 

3 (II) DEADLINE.—If the Sec4 retary does not approve or deny a pe5 tition referred to in subclause (I) on 

6 or before the last day of the 90-day 

7 period beginning on the date of sub8 mission of the petition, the petition 

9 shall be deemed approved. 

10 (3) IMPLEMENTATION.—The revised ballast 

11 water performance standard under paragraph (1) 

12 shall apply to a vessel beginning on the date of the 

13 first drydocking of the vessel on or after January 1, 

14 2020, but not later than December 31, 2022. 

15 (c) FUTURE REVISIONS OF VESSEL INCIDENTAL

16 DISCHARGE STANDARDS; DECENNIAL REVIEWS.— 

17 (1) REVISED BALLAST WATER PERFORMANCE

18 STANDARDS.—Not earlier than 10 years after the 

19 issuance of a final rule under subsection (b) and 

20 every 10 years thereafter, the Secretary, in consulta21 tion with the Administrator shall complete a review 

22 to determine whether further revision of the ballast 

23 water performance standard would result in a sci24 entifically demonstrable and substantial reduction in 


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1 the risk of the introduction or establishment of 

2 aquatic nuisance species. 

3 (2) REVISED STANDARDS FOR DISCHARGES

4 OTHER THAN BALLAST WATER.—The Secretary, in 

5 consultation with the Administrator, may include in 

6 the decennial review under this subsection national 

7 standards for discharges covered by subsection 

8 (a)(2). The Secretary shall initiate a rulemaking to 

9 revise one or more national standards for such dis10 charges after a decennial review if the Secretary, in 

11 consultation with the Administrator, determines that 

12 revising one or more of such standards would sub13 stantially reduce the impacts on navigable waters of 

14 discharges incidental to the normal operation of a 

15 vessel other than ballast water. 

16 (3) CONSIDERATIONS.—In conducting a review 

17 under paragraph (1), the Secretary, the Adminis18 trator, and the heads of other appropriate Federal 

19 agencies as determined by the Secretary, shall con20 sider the criteria under section 5(b)(2)(B). 

21 (4) SPECIAL RULE.—The Administrator may 

22 not issue a revised performance standard pursuant 

23 to this subsection unless the revised performance 

24 standard is at least 2 orders of magnitude more 


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1 stringent than the performance standard in effect on 

2 the date that the review is completed. 

3 SEC. 6. TREATMENT TECHNOLOGY CERTIFICATION. 

4 (a) CERTIFICATION REQUIRED.—Beginning 60 days 

5 after the date that the requirements for testing protocols 

6 are issued under subsection (i), no manufacturer of a bal7 last water treatment technology shall sell, offer for sale, 

8 or introduce or deliver for introduction into interstate 

9 commerce, or import into the United States for sale or 

10 resale, a ballast water treatment technology for a vessel 

11 unless the treatment technology has been certified under 

12 this section. 

13 (b) CERTIFICATION PROCESS.— 

14 (1) EVALUATION.—Upon application of a man15 ufacturer, the Secretary shall evaluate a ballast 

16 water treatment technology with respect to— 

17 (A) the effectiveness of the treatment tech18 nology in achieving the current ballast water 

19 performance standard when installed on a ves20 sel (or a class, type, or size of vessel); 

21 (B) the compatibility with vessel design 

22 and operations; 

23 (C) the effect of the treatment technology 

24 on vessel safety; 

25 (D) the impact on the environment; 


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1 (E) the cost effectiveness; and 

2 (F) any other criteria the Secretary con3 siders appropriate. 

4 (2) APPROVAL.—If after an evaluation under 

5 paragraph (1) the Secretary determines that the 

6 treatment technology meets the criteria, the Sec7 retary may certify the treatment technology for use 

8 on a vessel (or a class, type, or size of vessel). 

9 (3) SUSPENSION AND REVOCATION.—The Sec10 retary shall establish, by regulation, a process to 

11 suspend or revoke a certification issued under this 

12 section. 

13 (c) CERTIFICATION CONDITIONS.— 

14 (1) IMPOSITION OF CONDITIONS.—In certifying 

15 a ballast water treatment technology under this sec16 tion, the Secretary, in consultation with the Admin17 istrator, may impose any condition on the subse18 quent installation, use, or maintenance of the treat19 ment technology onboard a vessel as is necessary 

20 for— 

21 (A) the safety of the vessel, the crew of the 

22 vessel, and any passengers aboard the vessel; 

23 (B) the protection of the environment; or 

24 (C) the effective operation of the treatment 

25 technology. 


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1 (2) FAILURE TO COMPLY.—The failure of an 

2 owner or operator to comply with a condition im3 posed under paragraph (1) shall be considered a vio4 lation of this section. 

5 (d) PERIOD FOR USE OF INSTALLED TREATMENT

6 EQUIPMENT.—Notwithstanding anything to the contrary 

7 in this Act or any other provision of law, the Secretary 

8 shall allow a vessel on which a system is installed and op9 erated to meet a ballast water performance standard 

10 under this Act to continue to use that system, notwith11 standing any revision of a ballast water performance 

12 standard occurring after the system is ordered or installed 

13 until the expiration of the service life of the system, as 

14 determined by the Secretary, so long as the system— 

15 (1) is maintained in proper working condition; 

16 and 

17 (2) is maintained and used in accordance with 

18 the manufacturer’s specifications and any treatment 

19 technology certification conditions imposed by the 

20 Secretary under this section. 

21 (e) CERTIFICATES OF TYPE APPROVAL FOR THE

22 TREATMENT TECHNOLOGY.— 

23 (1) ISSUANCE.—If the Secretary approves a 

24 ballast water treatment technology for certification 

25 under subsection (b), the Secretary shall issue a cerVerDate Mar 15 2010 00:19 Sep 25, 2012 Jkt 019200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\S3570.IS S3570

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1 tificate of type approval for the treatment technology 

2 to the manufacturer in such form and manner as the 

3 Secretary determines appropriate. 

4 (2) CERTIFICATION CONDITIONS.—A certificate 

5 of type approval issued under paragraph (1) shall 

6 specify each condition imposed by the Secretary 

7 under subsection (c). 

8 (3) OWNERS AND OPERATORS.—A manufac9 turer that receives a certificate of type approval for 

10 the treatment technology under this subsection shall 

11 provide a copy of the certificate to each owner and 

12 operator of a vessel on which the treatment tech13 nology is installed. 

14 (f) INSPECTIONS.—An owner or operator who re15 ceives a copy of a certificate under subsection (e)(3) shall 

16 retain a copy of the certificate onboard the vessel and 

17 make the copy of the certificate available for inspection 

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

19 treatment technology. 

20 (g) BIOCIDES.—The Secretary may not approve a 

21 ballast water treatment technology under subsection (b) 

22 if— 

23 (1) it uses a biocide or generates a biocide that 

24 is a pesticide, as defined in section 2 of the Federal 

25 Insecticide, Fungicide, and Rodenticide Act (7 


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1 U.S.C. 136), unless the biocide is registered under 

2 that Act or the Secretary, in consultation with Ad3 ministrator, has approved the use of the biocide in 

4 such treatment technology; or 

5 (2) it uses or generates a biocide the discharge 

6 of which causes or contributes to a violation of a 

7 water quality standard under section 303 of the 

8 Federal Water Pollution Control Act (33 U.S.C. 

9 1313). 

10 (h) PROHIBITION.— 

11 (1) IN GENERAL.—Except as provided in para12 graph (2), the use of a ballast water treatment tech13 nology by an owner or operator of a vessel shall not 

14 satisfy the requirements of this Act unless it has 

15 been approved by the Secretary under subsection 

16 (b). 

17 (2) EXCEPTIONS.— 

18 (A) COAST GUARD SHIPBOARD TECH19 NOLOGY EVALUATION PROGRAM.—An owner or 

20 operator may use a ballast water treatment 

21 technology that has not been certified by the 

22 Secretary to comply with the requirements of 

23 this section if the technology is being evaluated 

24 under the Coast Guard Shipboard Technology 

25 Evaluation Program. 


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1 (B) BALLAST WATER TREATMENT TECH2 NOLOGIES CERTIFIED BY FOREIGN ENTITIES.— 

3 An owner or operator may use a ballast water 

4 treatment technology that has not been certified 

5 by the Secretary to comply with the require6 ments of this section if the technology has been 

7 certified by a foreign entity and the certification 

8 demonstrates performance and safety of the 

9 treatment technology equivalent to the require10 ments of this section, as determined by the Sec11 retary. 

12 (i) TESTING PROTOCOLS.—Not later than 180 days 

13 after the date of enactment of this Act, the Administrator, 

14 in consultation with the Secretary, shall issue require15 ments for land-based and shipboard testing protocols or 

16 criteria for— 

17 (1) certifying the performance of each ballast 

18 water treatment technology under this section; and 

19 (2) certifying laboratories to evaluate such 

20 treatment technologies. 

21 SEC. 7. EXEMPTIONS. 

22 (a) IN GENERAL.—No permit shall be required or 

23 prohibition enforced under any other provision of law for, 

24 nor shall any vessel incidental discharge standards under 

25 this Act apply to— 


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1 (1) a discharge incidental to the normal oper2 ation of a vessel if the vessel is less than 79 feet in 

3 length and engaged in commercial service (as de4 fined in section 2101(5) of title 46, United States 

5 Code); 

6 (2) a discharge incidental to the normal oper7 ation of a vessel if the vessel is a fishing vessel (as 

8 defined in section 2101 (11a) of title 46, United 

9 States Code); 

10 (3) a discharge incidental to the normal oper11 ation of a vessel if the vessel is a recreational vessel 

12 (as defined in section 2101(25) of title 46, United 

13 States Code); 

14 (4) the placement, release, or discharge of 

15 equipment, devices, or other material from a vessel 

16 for the sole purpose of conducting research on the 

17 aquatic environment or its natural resources in ac18 cordance with generally recognized scientific meth19 ods, principles, or techniques; 

20 (5) any discharge into navigable waters from a 

21 vessel authorized by an on-scene coordinator in ac22 cordance with part 300 of title 40, Code of Federal 

23 Regulations, or part 153 of title 33, Code of Federal 

24 Regulations; 


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1 (6) any discharge into navigable waters from a 

2 vessel that is necessary to secure the safety of the 

3 vessel or human life, or to suppress a fire onboard 

4 the vessel or at a shoreside facility; or 

5 (7) a vessel of the armed forces of a foreign na6 tion when engaged in noncommercial service. 

7 (b) BALLAST WATER DISCHARGES.—No permit shall 

8 be required or prohibition enforced under any other provi9 sion of law for, nor shall any ballast water performance 

10 standards under this Act apply to— 

11 (1) a ballast water discharge incidental to the 

12 normal operation of a vessel determined by the Sec13 retary to— 

14 (A) operate exclusively within a geographi15 cally limited area; 

16 (B) take up and discharge ballast water 

17 exclusively within 1 Captain of the Port Zone 

18 established by the Coast Guard unless the Sec19 retary determines such discharge poses a sub20 stantial risk of introduction or establishment of 

21 an aquatic nuisance species; 

22 (C) operate pursuant to a geographic re23 striction issued as a condition under section 

24 3309 of title 46, United States Code, or an 


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1 equivalent restriction issued by the country of 

2 registration of the vessel; or 

3 (D) continuously take on and discharge 

4 ballast water in a flow-through system that 

5 does not introduce aquatic nuisance species into 

6 navigable waters; 

7 (2) a ballast water discharge incidental to the 

8 normal operation of a vessel consisting entirely of 

9 water suitable for human consumption; or 

10 (3) a ballast water discharge incidental to the 

11 normal operation of a vessel in an alternative com12 pliance program established pursuant to section (8). 

13 (c) VESSELS WITH PERMANENT BALLAST WATER.— 

14 No permit shall be required or prohibition enforced under 

15 any other provision of law for, nor shall any ballast water 

16 performance standard under this Act apply to a vessel that 

17 carries all of its permanent ballast water in sealed tanks 

18 that are not subject to discharge. 

19 (d) VESSELS OF THE ARMED FORCES.—Nothing in 

20 this Act shall be interpreted to apply to a vessel of the 

21 Armed Forces, as defined in section 101(a) of title 10, 

22 United States Code. 

23 SEC. 8. ALTERNATIVE COMPLIANCE PROGRAM. 

24 (a) IN GENERAL.—The Secretary, in consultation 

25 with the Administrator, may promulgate regulations esVerDate Mar 15 2010 00:19 Sep 25, 2012 Jkt 019200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\S3570.IS S3570

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1 tablishing one or more compliance programs as an alter2 native to ballast water discharge regulations issued under 

3 section 5 for a vessel that— 

4 (1) has a maximum ballast water capacity of 

5 less than 8 cubic meters; 

6 (2) is less than 3 years from the end of the use7 ful life of the vessel, as determined by the Secretary; 

8 or 

9 (3) discharges ballast water into a facility for 

10 the reception of ballast water that meets standards 

11 promulgated by the Administrator, in consultation 

12 with the Secretary. 

13 (b) PROMULGATION OF FACILITY STANDARDS.—Not 

14 later than 1 year after the date of enactment of this Act, 

15 the Administrator, in consultation with the Secretary, 

16 shall promulgate standards for— 

17 (1) the reception of ballast water from a vessel 

18 into a reception facility; and 

19 (2) the disposal or treatment of the ballast 

20 water under paragraph (1). 

21 SEC. 9. JUDICIAL REVIEW. 

22 (a) IN GENERAL.—An interested person may file a 

23 petition for review of a final regulation promulgated under 

24 this Act in the United States Court of Appeals for the 

25 District of Columbia Circuit. 


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1 (b) DEADLINE.—A petition shall be filed not later 

2 than 120 days after the date that notice of the promulga3 tion appears in the Federal Register. 

4 (c) EXCEPTION.—Notwithstanding subsection (b), a 

5 petition that is based solely on grounds that arise after 

6 the deadline to file a petition under subsection (b) has 

7 passed may be filed not later than 120 days after the date 

8 that the grounds first arise. 

9 SEC. 10. EFFECT ON STATE AUTHORITY. 

10 No State or political subdivision thereof may adopt 

11 or enforce any statute or regulation of the State or polit12 ical subdivision with respect to a discharge incidental to 

13 the normal operation of a vessel after the date of enact14 ment of this Act. 

15 SEC. 11. APPLICATION WITH OTHER STATUTES. 

16 Notwithstanding any other provision of law, this Act 

17 shall be the exclusive statutory authority for regulation by 

18 the Federal Government of discharges incidental to the 

19 normal operation of a vessel to which this Act applies. Any 

20 regulation in effect on the date immediately preceding the 

21 effective date of this Act which is repealed or superseded 

22 by this Act shall be deemed to be a regulation issued pur23 suant to the authority of this Act and shall remain in full 


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1 force and effect unless or until superseded by new regula2 tions issued thereunder. 

Æ 


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