33 U.S.C. § 1905 — Pollution reception facilities

Page 670 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1905 (e) Detention orders; duration of detention; ship- yard option In addition to the penalties prescribed in sec- tion 1908 of this title, a ship required by the MARPOL Protocol to have a certificate— (1) which does not have a valid certificate onboard; or (2) whose condition or whose equipment’s condition does not substantially agree with the particulars of the certificate onboard; shall be detained by order of the Secretary at the port or terminal where the violation is dis- covered until, in the opinion of the Secretary, the ship can proceed to sea without presenting an unreasonable threat of harm to the marine environment or the public health and welfare. The detention order may authorize the ship to proceed to the nearest appropriate available shipyard rather than remaining at the place where the violation was discovered. (f) Ship clearance; refusal or revocation If a ship is under a detention order under this section, the Secretary may refuse or revoke the clearance required by section 60105 of title 46. (g) Review of detention orders; petition; deter- mination by Secretary A person whose ship is subject to a detention order under this section may petition the Sec- retary, in the manner prescribed by regulation, to review the detention order. Upon receipt of a petition under this subsection, the Secretary shall affirm, modify, or withdraw the detention order within the time prescribed by regulation. (h) Compensation for loss or damage A ship unreasonably detained or delayed by the Secretary acting under the authority of this chapter is entitled to compensation for any loss or damage suffered thereby. (Pub. L. 96–478, § 5, Oct. 21, 1980, 94 Stat. 2298; Pub. L. 110–280, § 6, July 21, 2008, 122 Stat. 2614; Pub. L. 115–232, div. C, title XXXV, § 3548(c), Aug. 13, 2018, 132 Stat. 2328.) Editorial Notes AMENDMENTS 2018—Subsec. (f). Pub. L. 115–232 amended subsec. (f) generally. Prior to amendment, subsec. (f) related to refusal or revocation of ship clearance or permits. 2008—Subsec. (a). Pub. L. 110–280, § 6(1), substituted ‘‘Except as provided in section 1903(b)(1) of this title, the Secretary’’ for ‘‘The Secretary’’. Subsec. (b). Pub. L. 110–280, § 6(2), substituted ‘‘Sec- retary or the Administrator under the authority of this chapter.’’ for ‘‘Secretary under the authority of the MARPOL Protocol.’’ Subsec. (e). Pub. L. 110–280, § 6(3), substituted ‘‘envi- ronment or the public health and welfare.’’ for ‘‘envi- ronment.’’ in concluding provisions. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Subsec. (a) of this section effective Oct. 21, 1980, see section 14(b) of Pub. L. 96–478, set out as a note under section 1901 of this title. § 1905. Pollution reception facilities (a) Adequacy; criteria (1) The Secretary, after consultation with the Administrator of the Environmental Protection Agency, shall establish regulations setting cri- teria for determining the adequacy of a port’s or terminal’s reception facilities for mixtures con- taining oil or noxious liquid substances and shall establish procedures whereby a person in charge of a port or terminal may request the Secretary to certify that the port’s or termi- nal’s facilities for receiving the residues and mixtures containing oil or noxious liquid sub- stance from seagoing ships are adequate. (2) The Secretary, after consulting with appro- priate Federal agencies, shall establish regula- tions setting criteria for determining the ade- quacy of reception facilities for garbage at a port or terminal, and stating such additional measures and requirements as are appropriate to ensure such adequacy. Persons in charge of ports and terminals shall provide reception fa- cilities, or ensure that such facilities are avail- able, for receiving garbage in accordance with those regulations. (3) The Secretary and the Administrator, after consulting with appropriate Federal agencies, shall jointly prescribe regulations setting cri- teria for determining the adequacy of reception facilities for receiving ozone depleting sub- stances, equipment containing such substances, and exhaust gas cleaning residues at a port or terminal, and stating any additional measures and requirements as are appropriate to ensure such adequacy. Persons in charge of ports and terminals shall provide reception facilities, or ensure that reception facilities are available, in accordance with those regulations. The Sec- retary and the Administrator may jointly pre- scribe regulations to certify, and may issue cer- tificates to the effect, that a port’s or terminal’s facilities for receiving ozone depleting sub- stances, equipment containing such substances, and exhaust gas cleaning residues from ships are adequate. (b) Traffic considerations In determining the adequacy of reception fa- cilities required by the MARPOL Protocol or the Antarctic Protocol at a port or terminal, and in establishing regulations under subsection (a) of this section, the Secretary or the Adminis- trator may consider, among other things, the number and types of ships or seagoing ships using the port or terminal, including their prin- cipal trades. (c) Certificate; issuance; validity; inspection; re- view of suspension or revocation by Sec- retary (1) If reception facilities of a port or terminal meet the requirements of Annex I and Annex II to the Convention and the regulations pre- scribed under subsection (a)(1), the Secretary shall, after consultation with the Administrator of the Environmental Protection Agency, issue a certificate to that effect to the applicant. (2)(A) Subject to subparagraph (B), if reception facilities of a port or terminal meet the require- ments of Annex V to the Convention and the regulations prescribed under subsection (a)(2), the Secretary may, after consultation with ap- propriate Federal agencies, issue a certificate to that effect to the person in charge of the port or terminal. (B) The Secretary may not issue a certificate attesting to the adequacy of reception facilities Page 671 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1905 under this paragraph unless, prior to the issuance of the certificate, the Secretary con- ducts an inspection of the reception facilities of the port or terminal that is the subject of the certificate. (C) The Secretary may, with respect to certifi- cates issued under this paragraph prior to Octo- ber 19, 1996, prescribe by regulation differing pe- riods of validity for such certificates. (3) A certificate issued under this subsection— (A) is valid for the 5-year period beginning on the date of issuance of the certificate, ex- cept that if— (i) the charge for operation of the port or terminal is transferred to a person or entity other than the person or entity that is the operator on the date of issuance of the cer- tificate— (I) the certificate shall expire on the date that is 30 days after the date of the transfer; and (II) the new operator shall be required to submit an application for a certificate be- fore a certificate may be issued for the port or terminal; or (ii) the certificate is suspended or revoked by the Secretary, the certificate shall cease to be valid; and (B) shall be available for inspection upon the request of the master, other person in charge, or agent of a ship using or intending to use the port or terminal. (4) The suspension or revocation of a certifi- cate issued under this subsection may be ap- pealed to the Secretary and acted on by the Sec- retary in the manner prescribed by regulation. (d) Publication of list of certificated ports or ter- minals (1) The Secretary shall maintain a list of ports or terminals with respect to which a certificate issued under this section— (A) is in effect; or (B) has been revoked or suspended. (2) The Secretary shall make the list referred to in paragraph (1) available to the general pub- lic. (e) Entry; denial (1) Except in the case of force majeure, the Secretary shall deny entry to a seagoing ship re- quired by the Convention or the Antarctic Pro- tocol to retain onboard while at sea, residues and mixtures containing oil or noxious liquid substances, if— (A) the port or terminal is one required by Annexes I and II of the Convention or Article 9 of Annex IV to the Antarctic Protocol or reg- ulations hereunder to have adequate reception facilities; and (B) the port or terminal does not hold a valid certificate issued by the Secretary under this section. (2) The Secretary may deny the entry of a ship to a port or terminal required by the MARPOL Protocol, this chapter, or regulations prescribed under this section relating to the provision of adequate reception facilities for garbage, ozone depleting substances, equipment containing those substances, or exhaust gas cleaning resi- dues, if the port or terminal is not in compli- ance with the MARPOL Protocol, this chapter, or those regulations. (f) Surveys (1) The Secretary and the Administrator are authorized to conduct surveys of existing recep- tion facilities in the United States to determine measures needed to comply with the MARPOL Protocol or the Antarctic Protocol. (2) Not later than 18 months after October 19, 1996, the Secretary shall promulgate regulations that require the operator of each port or ter- minal that is subject to any requirement of the MARPOL Protocol relating to reception facili- ties to post a placard in a location that can eas- ily be seen by port and terminal users. The placard shall state, at a minimum, that a user of a reception facility of the port or terminal should report to the Secretary any inadequacy of the reception facility. (Pub. L. 96–478, § 6, Oct. 21, 1980, 94 Stat. 2299; Pub. L. 100–220, title II, § 2103, Dec. 29, 1987, 101 Stat. 1461; Pub. L. 101–225, title II, § 201(1), Dec. 12, 1989, 103 Stat. 1910; Pub. L. 104–227, title II, § 201(d), Oct. 2, 1996, 110 Stat. 3042; Pub. L. 104–324, title VIII, § 801, Oct. 19, 1996, 110 Stat. 3943; Pub. L. 110–280, § 7, July 21, 2008, 122 Stat. 2614.) Editorial Notes AMENDMENTS 2008—Subsec. (a)(3). Pub. L. 110–280, § 7(1), added par. (3). Subsec. (b). Pub. L. 110–280, § 7(2), inserted ‘‘or the Ad- ministrator’’ after ‘‘Secretary’’. Subsec. (e)(2). Pub. L. 110–280, § 7(3), added par. (2) and struck out former par. (2). Prior to amendment, text read as follows: ‘‘The Secretary may deny the entry of a ship to a port or terminal required by regulations issued under this section to provide adequate reception facilities for garbage if the port or terminal is not in compliance with those regulations.’’ Subsec. (f)(1). Pub. L. 110–280, § 7(4), substituted ‘‘Sec- retary and the Administrator are’’ for ‘‘Secretary is’’. Subsec. (f)(2). Pub. L. 110–280, § 7(5), struck out subpar. (A) designation before ‘‘Not later’’. 1996—Subsec. (b). Pub. L. 104–227, § 201(d)(1), inserted ‘‘or the Antarctic Protocol’’ after ‘‘the MARPOL Pro- tocol’’. Subsec. (c)(2). Pub. L. 104–324, § 801(a)(1), (2), des- ignated existing provisions as subpar. (A), substituted ‘‘Subject to subparagraph (B), if’’ for ‘‘If’’, and added subpars. (B) and (C). Subsec. (c)(3)(A). Pub. L. 104–324, § 801(a)(3), added sub- par. (A) and struck out former subpar. (A) which read as follows: ‘‘is valid until suspended or revoked by the Secretary for cause or because of changed conditions; and’’. Subsec. (d). Pub. L. 104–324, § 801(a)(4), added subsec. (d) and struck out former subsec. (d) which read as fol- lows: ‘‘The Secretary shall periodically cause to be pub- lished in the Federal Register a list of the ports or ter- minals holding a valid certificate issued under this sec- tion.’’ Subsec. (e)(1). Pub. L. 104–227, § 201(d)(2), (3), inserted ‘‘or the Antarctic Protocol’’ after ‘‘the Convention’’ in introductory provisions and inserted ‘‘or Article 9 of Annex IV to the Antarctic Protocol’’ after ‘‘the Con- vention’’ in subpar. (A). Subsec. (f). Pub. L. 104–324, § 801(b), designated exist- ing provisions as par. (1) and added par. (2)(A). Pub. L. 104–227, § 201(d)(4), inserted ‘‘or the Antarctic Protocol’’ after ‘‘the MARPOL Protocol’’. Page 672 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1906 1989—Subsec. (c)(1). Pub. L. 101–225 substituted ‘‘Annex I and Annex II’’ for ‘‘Annex V’’. 1987—Subsec. (a). Pub. L. 100–220, § 2103(a), designated existing provisions as par. (1), substituted ‘‘a port’s or terminal’s reception facilities for mixtures containing oil or noxious liquid substances’’ for ‘‘reception facili- ties of a port or terminal’’, and added par. (2). Subsec. (b). Pub. L. 100–220, § 2103(b), inserted ‘‘and in establishing regulations under subsection (a) of this section,’’ and ‘‘ships or’’. Subsec. (c). Pub. L. 100–220, § 2103(c), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘If, upon inspection, reception facilities of a port or terminal are adequate to meet the requirements of the MARPOL Protocol and the regulations estab- lished hereunder, the Secretary shall, after consulta- tion with the Administrator of the Environmental Pro- tection Agency, issue a certificate to that effect to the applicant. A certificate issued under this subsection— ‘‘(1) is valid until suspended or revoked by the Sec- retary for cause or because of changed conditions; and ‘‘(2) shall be available for inspection upon the re- quest of the master, other person in charge, or agent of a seagoing ship using or intending to use the port or terminal. The suspension or revocation of a certificate issued under this subsection may be appealed to the Secretary and acted on by him in the manner prescribed by regu- lation.’’ Subsec. (e). Pub. L. 100–220, § 2103(d), designated exist- ing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, in subpar. (A), substituted ‘‘Annexes I and II of the Convention’’ for ‘‘the MARPOL Protocol’’, and added par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100–220 effective Dec. 31, 1988, the date on which Annex V to the International Con- vention for the Prevention of Pollution from Ships, 1973, entered into force for the United States, see sec- tion 2002(a) of Pub. L. 100–220, set out as a note under section 1901 of this title. EFFECTIVE DATE Subsecs. (a), (c), and (f) of this section effective Oct. 21, 1980, see section 14(b) of Pub. L. 96–478, set out as a note under section 1901 of this title. § 1906. Incidents involving ships (a) Requirement to report incident The master, person in charge, owner, charterer, manager, or operator of a ship in- volved in an incident shall report the incident in the manner prescribed by Article 8 of the Con- vention in accordance with regulations promul- gated by the Secretary for that purpose. (b) Requirement to report discharge, probable discharge, or presence of oil The master or person in charge of— (1) a ship of United States registry or na- tionality, or operated under the authority of the United States, wherever located; (2) another ship while in the navigable wa- ters of the United States; or (3) a sea port or oil handling facility subject to the jurisdiction of the United States, shall report a discharge, probable discharge, or presence of oil in the manner prescribed by Arti- cle 4 of the International Convention on Oil Pol- lution Preparedness, Response and Cooperation, 1990 (adopted at London, November 30, 1990), in accordance with regulations promulgated by the Secretary for that purpose. (Pub. L. 96–478, § 7, Oct. 21, 1980, 94 Stat. 2300; Pub. L. 102–241, § 39, Dec. 19, 1991, 105 Stat. 2225.) Editorial Notes AMENDMENTS 1991—Pub. L. 102–241 amended section generally. Prior to amendment, section read as follows: ‘‘(a) As soon as he has knowledge of an incident, the master or other person in charge of a ship shall report it to the Secretary in the manner prescribed by Article 8 of the Convention. ‘‘(b) Upon receipt of the report of an incident involv- ing a ship, other than one of United States registry or nationality or one operated under the authority of the United States, the Secretary shall take the action re- quired by Article 8 of the Convention.’’ § 1907. Violations (a) General prohibition; cooperation and enforce- ment; detection and monitoring measures; reports; evidence It is unlawful to act in violation of the MARPOL Protocol, Annex IV to the Antarctic Protocol, this chapter, or the regulations issued thereunder. The Secretary shall cooperate with other parties to the MARPOL Protocol or to the Antarctic Protocol in the detection of violations and in enforcement of the MARPOL Protocol and Annex IV to the Antarctic Protocol. The Secretary shall use all appropriate and practical measures of detection and environmental moni- toring, and shall establish adequate procedures for reporting violations and accumulating evi- dence. (b) Investigations; subpenas: issuance by Sec- retary, enforcement; action by Secretary; in- formation to party Upon receipt of evidence that a violation has occurred, the Secretary shall cause the matter to be investigated. In any investigation under this section the Secretary may issue subpenas to require the attendance of any witness and the production of documents and other evidence. In case of refusal to obey a subpena issued to any person, the Secretary may request the Attorney General to invoke the aid of the appropriate dis- trict court of the United States to compel com- pliance. Upon completion of the investigation, the Secretary shall take the action required by the MARPOL Protocol or the Antarctic Pro- tocol and whatever further action he considers appropriate under the circumstances. If the ini- tial evidence was provided by a party to the MARPOL Protocol or the Antarctic Protocol, the Secretary, acting through the Secretary of State, shall inform that party of the action taken or proposed. (c) Ship inspections; reports to Secretary; addi- tional action (1) This subsection applies to inspections re- lating to possible violations of Annex I or Annex II to the Convention, of Article 3 or Article 4 of Annex IV to the Antarctic Protocol, or of this chapter by any seagoing ship referred to in sec- tion 1902(a)(2) of this title. (2) While at a port or terminal subject to the jurisdiction of the United States, a ship to