§ 4711. Aquatic nuisance species in waters of United States
(a)
Great Lakes guidelines
(1)
In general
Not later than 6 months after November 29, 1990, the Secretary shall issue voluntary guidelines to prevent the introduction and spread of aquatic nuisance species into the Great Lakes through the exchange of ballast water of vessels prior to entering those waters.
(b)
Regulations
(1)
In general
Not later than 2 years after November 29, 1990, the Secretary, in consultation with the Task Force, shall issue regulations to prevent the introduction and spread of aquatic nuisance species into the Great Lakes through the ballast water of vessels.
(2)
Content of regulations
The regulations issued under this subsection shall—
(A)
apply to all vessels equipped with ballast water tanks that enter a United States port on the Great Lakes after operating on the waters beyond the exclusive economic zone;
(B)
require a vessel to—
(i)
carry out exchange of ballast water on the waters beyond the exclusive economic zone prior to entry into any port within the Great Lakes;
(C)
not affect or supersede any requirements or prohibitions pertaining to the discharge of ballast water into waters of the United States under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.);
(E)
prohibit the operation of a vessel in the Great Lakes if the master of the vessel has not certified to the Secretary or the Secretary’s designee by not later than the departure of that vessel from the first lock in the St. Lawrence Seaway that the vessel has complied with the requirements of the regulations;
(3)
Additional regulations
In addition to promulgating regulations under paragraph (1), the Secretary, in consultation with the Task Force, shall, not later than November 4, 1994, issue regulations to prevent the introduction and spread of aquatic nuisance species into the Great Lakes through ballast water carried on vessels that enter a United States port on the Hudson River north of the George Washington Bridge.
(c)
Voluntary national guidelines
(1)
In general
Not later than 1 year after October 26, 1996, and after providing notice and an opportunity for public comment, the Secretary shall issue voluntary guidelines to prevent the introduction and spread of nonindigenous species in waters of the United States by ballast water operations and other operations of vessels equipped with ballast water tanks.
(2)
Content of guidelines
The voluntary guidelines issued under this subsection shall—
(A)
ensure to the maximum extent practicable that aquatic nuisance species are not discharged into waters of the United States from vessels;
(B)
apply to all vessels equipped with ballast water tanks that operate in waters of the United States;
(D)
direct a vessel that is carrying ballast water into waters of the United States after operating beyond the exclusive economic zone to—
(i)
carry out the exchange of ballast water of the vessel in waters beyond the exclusive economic zone;
(ii)
exchange the ballast water of the vessel in other waters where the exchange does not pose a threat of infestation or spread of nonindigenous species in waters of the United States, as recommended by the Task Force under section
4712
(a)(1) of this title; or
(iii)
use environmentally sound alternative ballast water management methods, including modification of the vessel ballast water tanks and intake systems, if the Secretary determines that such alternative methods are at least as effective as ballast water exchange in preventing and controlling infestations of aquatic nuisance species;
(E)
direct vessels to carry out management practices that the Secretary determines to be necessary to reduce the probability of unintentional nonindigenous species transfer resulting from—
(F)
provide for the keeping of records that shall be submitted to the Secretary, as prescribed by the guidelines, and that shall be maintained on board each vessel and made available for inspection, upon request of the Secretary and in a manner consistent with subsection (i) of this section, in order to enable the Secretary to determine compliance with the guidelines, including—
(J)
not affect or supersede any requirements or prohibitions pertaining to the discharge of ballast water into waters of the United States under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.); and
(K)
provide an exemption from ballast water exchange requirements to passenger vessels with operating ballast water systems that are equipped with treatment systems designed to kill aquatic organisms in ballast water, unless the Secretary determines that such treatment systems are less effective than ballast water exchange at reducing the risk of transfers of invasive species in the ballast water of passenger vessels; and
(d)
Report to Congress
Not sooner than 24 months after the date of issuance of guidelines pursuant to subsection (c) of this section and not later than 30 months after such date, and after consultation with interested and affected persons, the Secretary shall prepare and submit to Congress a report containing the information required pursuant to paragraphs (1) and (2) of subsection (e) of this section.
(e)
Periodic review and revision
(1)
In general
Not later than 3 years after the date of issuance of guidelines pursuant to subsection (c) of this section, and not less frequently than every 3 years thereafter, the Secretary shall, in accordance with criteria developed by the Task Force under paragraph (3)—
(A)
assess the compliance by vessels with the voluntary guidelines issued under subsection (c) of this section and the regulations promulgated under this chapter;
(2)
Special review and revision
Not later than 90 days after the Task Force makes a request to the Secretary for a special review and revision for coastal and inland waterways designated by the Task Force, the Secretary shall—
(f)
Authority of Secretary
(1)
General regulations
If, on the basis of a periodic review conducted under subsection (e)(1) of this section or a special review conducted under subsection (e)(2) of this section, the Secretary determines that—
(A)
the rate of effective compliance (as determined by the Secretary) with the guidelines issued pursuant to subsection (c) of this section is inadequate; or
(B)
the reporting by vessels pursuant to those guidelines is not adequate for the Secretary to assess the compliance with those guidelines and provide a rate of compliance of vessels, including the assessment of the rate of compliance of vessels under subsection (e)(2) of this section,
the Secretary shall promptly promulgate regulations that meet the requirements of paragraph (2).
(2)
Requirements for regulations
The regulations promulgated by the Secretary under paragraph (1)—
(3)
International regulations
The Secretary shall revise regulations promulgated under this subsection to the extent required to make such regulations consistent with the treatment of a particular matter in any international agreement, agreed to by the United States, governing management of the transfer of nonindigenous aquatic species by vessel.
(g)
Sanctions
(1)
Civil penalties
Any person who violates a regulation promulgated under subsection (b) or (f) of this section shall be liable for a civil penalty in an amount not to exceed $25,000. Each day of a continuing violation constitutes a separate violation. A vessel operated in violation of the regulations is liable in rem for any civil penalty assessed under this subsection for that violation.
(2)
Criminal penalties
Any person who knowingly violates the regulations promulgated under subsection (b) or (f) of this section is guilty of a class C felony.
(h)
Coordination with other agencies
In carrying out the programs under this section, the Secretary is encouraged to use, to the maximum extent practicable, the expertise, facilities, members, or personnel of established agencies and organizations that have routine contact with vessels, including the Animal and Plant Health Inspection Service of the Department of Agriculture, the National Cargo Bureau, port administrations, and ship pilots’ associations.
(i)
Consultation with Canada, Mexico, and other foreign governments
In developing the guidelines issued and regulations promulgated under this section, the Secretary is encouraged to consult with the Government of Canada, the Government of Mexico, and any other government of a foreign country that the Secretary, in consultation with the Task Force, determines to be necessary to develop and implement an effective international program for preventing the unintentional introduction and spread of nonindigenous species.
(j)
International cooperation
The Secretary, in cooperation with the International Maritime Organization of the United Nations and the Commission on Environmental Cooperation established pursuant to the North American Free Trade Agreement, is encouraged to enter into negotiations with the governments of foreign countries to develop and implement an effective international program for preventing the unintentional introduction and spread of nonindigenous species.
(k)
Safety exemption
(1)
Master discretion
The master of a vessel is not required to conduct a ballast water exchange if the master decides that the exchange would threaten the safety or stability of the vessel, its crew, or its passengers because of adverse weather, vessel architectural design, equipment failure, or any other extraordinary conditions.
(2)
Other requirements
(3)
Crude oil tanker ballast facility study
(A)
Within 60 days of October 26, 1996,[1] the Secretary of the department in which the Coast Guard is operating, in consultation with the Under Secretary of Commerce for Oceans and Atmosphere, affected shoreside ballast water facility operators, affected crude oil tanker operators, and interested parties, shall initiate a study of the effectiveness of existing shoreside ballast water facilities used by crude oil tankers in the coastwise trade off Alaska in preventing the introduction of nonindigenous aquatic species into the waters off Alaska, as well as the cost and feasibility of modifying such facilities to improve such effectiveness.
(l)
Non-discrimination
The Secretary shall ensure that vessels registered outside of the United States do not receive more favorable treatment than vessels registered in the United States when the Secretary performs studies, reviews compliance, determines effectiveness, establishes requirements, or performs any other responsibilities under this chapter.
[1] See Codification note below.