33 U.S.C. § 1322 — Marine sanitation devices; discharges in-

Page 520 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1321c Editorial Notes CODIFICATION Section was enacted as part of the Coast Guard Au- thorization Act of 2010, and not as part of the Federal Water Pollution Control Act which comprises this chapter. § 1321c. International efforts on enforcement The Secretary of the department in which the Coast Guard is operating, in consultation with the heads of other appropriate Federal agencies, shall ensure that the Coast Guard pursues stronger enforcement in the International Mari- time Organization of agreements related to oil discharges, including joint enforcement oper- ations, training, and stronger compliance mech- anisms. (Pub. L. 111–281, title VII, § 709, Oct. 15, 2010, 124 Stat. 2986.) Editorial Notes CODIFICATION Section was enacted as part of the Coast Guard Au- thorization Act of 2010, and not as part of the Federal Water Pollution Control Act which comprises this chapter. § 1322. Marine sanitation devices; discharges in- cidental to the normal operation of vessels (a) Definitions In this section, the term— (1) ‘‘new vessel’’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on the navigable waters, the construction of which is initiated after pro- mulgation of standards and regulations under this section; (2) ‘‘existing vessel’’ includes every descrip- tion of watercraft or other artificial contriv- ance used, or capable of being used, as a means of transportation on the navigable waters, the construction of which is initiated before pro- mulgation of standards and regulations under this section; (3) ‘‘public vessel’’ means a vessel owned or bareboat chartered and operated by the United States, by a State or political subdivision thereof, or by a foreign nation, except when such vessel is engaged in commerce; (4) ‘‘United States’’ includes the States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, Amer- ican Samoa, the Canal Zone, and the Trust Territory of the Pacific Islands; (5) ‘‘marine sanitation device’’ includes any equipment for installation on board a vessel which is designed to receive, retain, treat, or discharge sewage, and any process to treat such sewage; (6) ‘‘sewage’’ means human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes ex- cept that, with respect to commercial vessels on the Great Lakes, such term shall include graywater; (7) ‘‘manufacturer’’ means any person en- gaged in the manufacturing, assembling, or importation of marine sanitation devices, ma- rine pollution control device equipment, or vessels subject to standards and regulations promulgated under this section; (8) ‘‘person’’ means an individual, partner- ship, firm, corporation, association, or agency of the United States, but does not include an individual on board a public vessel; (9) ‘‘discharge’’ includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping; (10) ‘‘commercial vessels’’ means those ves- sels used in the business of transporting prop- erty for compensation or hire, or in trans- porting property in the business of the owner, lessee, or operator of the vessel; (11) ‘‘graywater’’ means galley, bath, and shower water; (12) ‘‘discharge incidental to the normal op- eration of a vessel’’— (A) means a discharge, including— (i) graywater, bilge water, cooling water, weather deck runoff, ballast water, oil water separator effluent, and any other pollutant discharge from the operation of a marine propulsion system, shipboard ma- neuvering system, crew habitability sys- tem, or installed major equipment, such as an aircraft carrier elevator or a catapult, or from a protective, preservative, or ab- sorptive application to the hull of the ves- sel; and (ii) a discharge in connection with the testing, maintenance, and repair of a sys- tem described in clause (i) whenever the vessel is waterborne; and (B) does not include— (i) a discharge of rubbish, trash, garbage, or other such material discharged over- board; (ii) an air emission resulting from the operation of a vessel propulsion system, motor driven equipment, or incinerator; or (iii) a discharge that is not covered by part 122.3 of title 40, Code of Federal Regu- lations (as in effect on February 10, 1996); (13) ‘‘marine pollution control device’’ means, except as provided in subsection (p), any equipment or management practice, for installation or use on board a vessel of the Armed Forces, that is— (A) designed to receive, retain, treat, con- trol, or discharge a discharge incidental to the normal operation of a vessel; and (B) determined by the Administrator and the Secretary of Defense to be the most ef- fective equipment or management practice to reduce the environmental impacts of the discharge consistent with the considerations set forth in subsection (n)(2)(B); and (14) ‘‘vessel of the Armed Forces’’ means— (A) any vessel owned or operated by the Department of Defense, other than a time or voyage chartered vessel; and (B) any vessel owned or operated by the Department of Transportation that is des- ignated by the Secretary of the department in which the Coast Guard is operating as a vessel equivalent to a vessel described in subparagraph (A). Page 521 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 (b) Federal standards of performance (1) As soon as possible, after October 18, 1972, and subject to the provisions of section 1254(j) of this title, the Administrator, after consultation with the Secretary of the department in which the Coast Guard is operating, after giving appro- priate consideration to the economic costs in- volved, and within the limits of available tech- nology, shall promulgate Federal standards of performance for marine sanitation devices (hereafter in this section referred to as ‘‘stand- ards’’) which shall be designed to prevent the discharge of untreated or inadequately treated sewage into or upon the navigable waters from new vessels and existing vessels, except vessels not equipped with installed toilet facilities. Such standards and standards established under subsection (c)(1)(B) of this section shall be con- sistent with maritime safety and the marine and navigation laws and regulations and shall be co- ordinated with the regulations issued under this subsection by the Secretary of the department in which the Coast Guard is operating. The Sec- retary of the department in which the Coast Guard is operating shall promulgate regula- tions, which are consistent with standards pro- mulgated under this subsection and subsection (c) of this section and with maritime safety and the marine and navigation laws and regulations governing the design, construction, installation, and operation of any marine sanitation device on board such vessels. (2) Any existing vessel equipped with a marine sanitation device on the date of promulgation of initial standards and regulations under this sec- tion, which device is in compliance with such initial standards and regulations, shall be deemed in compliance with this section until such time as the device is replaced or is found not to be in compliance with such initial stand- ards and regulations. (c) Initial standards; effective dates; revision; waiver (1)(A) Initial standards and regulations under this section shall become effective for new ves- sels two years after promulgation; and for exist- ing vessels five years after promulgation. Revi- sions of standards and regulations shall be effec- tive upon promulgation, unless another effective date is specified, except that no revision shall take effect before the effective date of the standard or regulation being revised. (B) The Administrator shall, with respect to commercial vessels on the Great Lakes, estab- lish standards which require at a minimum the equivalent of secondary treatment as defined under section 1314(d) of this title. Such stand- ards and regulations shall take effect for exist- ing vessels after such time as the Administrator determines to be reasonable for the upgrading of marine sanitation devices to attain such stand- ard. (2) The Secretary of the department in which the Coast Guard is operating with regard to his regulatory authority established by this section, after consultation with the Administrator, may distinguish among classes, type, and sizes of ves- sels as well as between new and existing vessels, and may waive applicability of standards and regulations as necessary or appropriate for such classes, types, and sizes of vessels (including ex- isting vessels equipped with marine sanitation devices on the date of promulgation of the ini- tial standards required by this section), and, upon application, for individual vessels. (d) Vessels owned and operated by the United States The provisions of this section and the stand- ards and regulations promulgated hereunder apply to vessels owned and operated by the United States unless the Secretary of Defense finds that compliance would not be in the inter- est of national security. With respect to vessels owned and operated by the Department of De- fense, regulations under the last sentence of subsection (b)(1) of this section and certifi- cations under subsection (g)(2) of this section shall be promulgated and issued by the Sec- retary of Defense. (e) Pre-promulgation consultation Before the standards and regulations under this section are promulgated, the Administrator and the Secretary of the department in which the Coast Guard is operating shall consult with the Secretary of State; the Secretary of Health and Human Services; the Secretary of Defense; the Secretary of the Treasury; the Secretary of Commerce; other interested Federal agencies; and the States and industries interested; and otherwise comply with the requirements of sec- tion 553 of title 5. (f) Regulation by States or political subdivisions thereof; complete prohibition upon discharge of sewage (1)(A) Except as provided in subparagraph (B), after the effective date of the initial standards and regulations promulgated under this section, no State or political subdivision thereof shall adopt or enforce any statute or regulation of such State or political subdivision with respect to the design, manufacture, or installation or use of any marine sanitation device on any ves- sel subject to the provisions of this section. (B) A State may adopt and enforce a statute or regulation with respect to the design, manufac- ture, or installation or use of any marine sanita- tion device on a houseboat, if such statute or regulation is more stringent than the standards and regulations promulgated under this section. For purposes of this paragraph, the term ‘‘houseboat’’ means a vessel which, for a period of time determined by the State in which the vessel is located, is used primarily as a residence and is not used primarily as a means of trans- portation. (2) If, after promulgation of the initial stand- ards and regulations and prior to their effective date, a vessel is equipped with a marine sanita- tion device in compliance with such standards and regulations and the installation and oper- ation of such device is in accordance with such standards and regulations, such standards and regulations shall, for the purposes of paragraph (1) of this subsection, become effective with re- spect to such vessel on the date of such compli- ance. (3) After the effective date of the initial stand- ards and regulations promulgated under this section, if any State determines that the protec- Page 522 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 tion and enhancement of the quality of some or all of the waters within such State require greater environmental protection, such State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters, except that no such prohibi- tion shall apply until the Administrator deter- mines that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for such water to which such prohibition would apply. Upon application of the State, the Adminis- trator shall make such determination within 90 days of the date of such application. (4)(A) If the Administrator determines upon application by a State that the protection and enhancement of the quality of specified waters within such State requires such a prohibition, he shall by regulation completely prohibit the discharge from a vessel of any sewage (whether treated or not) into such waters. (B) Upon application by a State, the Adminis- trator shall, by regulation, establish a drinking water intake zone in any waters within such State and prohibit the discharge of sewage from vessels within that zone. (g) Sales limited to certified devices; certification of test device; recordkeeping; reports (1) No manufacturer of a marine sanitation de- vice or marine pollution control device equip- ment shall sell, offer for sale, or introduce or de- liver for introduction in interstate commerce, or import into the United States for sale or resale any marine sanitation device or marine pollu- tion control device equipment manufactured after the effective date of the standards and reg- ulations promulgated under this section unless such device or equipment is in all material re- spects substantially the same as a test device or equipment certified under this subsection. (2) Upon application of the manufacturer, the Secretary of the department in which the Coast Guard is operating shall so certify a marine sanitation device or marine pollution control device equipment if he determines, in accord- ance with the provisions of this paragraph, that it meets the appropriate standards and regula- tions promulgated under this section. The Sec- retary of the department in which the Coast Guard is operating shall test or require such testing of the device or equipment in accordance with procedures set forth by the Administrator as to standards of performance and for such other purposes as may be appropriate. If the Secretary of the department in which the Coast Guard is operating determines that the device or equipment is satisfactory from the standpoint of safety and any other requirements of maritime law or regulation, and after consideration of the design, installation, operation, material, or other appropriate factors, he shall certify the device or equipment. Any device or equipment manufactured by such manufacturer which is in all material respects substantially the same as the certified test device or equipment shall be deemed to be in conformity with the appropriate standards and regulations established under this section. (3) Every manufacturer shall establish and maintain such records, make such reports, and provide such information as the Administrator or the Secretary of the department in which the Coast Guard is operating may reasonably re- quire to enable him to determine whether such manufacturer has acted or is acting in compli- ance with this section and regulations issued thereunder and shall, upon request of an officer or employee duly designated by the Adminis- trator or the Secretary of the department in which the Coast Guard is operating, permit such officer or employee at reasonable times to have access to and copy such records. All information reported to or otherwise obtained by the Admin- istrator or the Secretary of the Department in which the Coast Guard is operating or their rep- resentatives pursuant to this subsection which contains or relates to a trade secret or other matter referred to in section 1905 of title 18 shall be considered confidential for the purpose of that section, except that such information may be disclosed to other officers or employees con- cerned with carrying out this section. This para- graph shall not apply in the case of the con- struction of a vessel by an individual for his own use. (h) Sale and resale of properly equipped vessels; operability of certified marine sanitation de- vices (1) In general Subject to paragraph (2), after the effective date of standards and regulations promulgated under this section, it shall be unlawful— (A) for the manufacturer of any vessel sub- ject to such standards and regulations to manufacture for sale, to sell or offer for sale, or to distribute for sale or resale any such vessel unless it is equipped with a marine sanitation device and marine pollution con- trol device equipment which is in all mate- rial respects substantially the same as the appropriate test device certified pursuant to this section; (B) for any person, prior to the sale or de- livery of a vessel subject to such standards and regulations to the ultimate purchaser, wrongfully to remove or render inoperative any certified marine sanitation device or element of design of such device or any cer- tified marine pollution control device equip- ment or element of design of such equipment installed in such vessel; (C) for any person to fail or refuse to per- mit access to or copying of records or to fail to make reports or provide information re- quired under this section; and (D) for a vessel subject to such standards and regulations to operate on the navigable waters of the United States, if such vessel is not equipped with an operable marine sani- tation device certified pursuant to this sec- tion. (2) Effect of subsection Nothing in this subsection requires certifi- cation of a marine pollution control device for use on any vessel of the Armed Forces. (i) Jurisdiction to restrain violations; contempts The district courts of the United States shall have jurisdictions to restrain violations of sub- section (g)(1) of this section and subsections Page 523 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 (h)(1) through (3) of this section. Actions to re- strain such violations shall be brought by, and in, the name of the United States. In case of contumacy or refusal to obey a subpena served upon any person under this subsection, the dis- trict court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requir- ing such person to appear and give testimony or to appear and produce documents, and any fail- ure to obey such order of the court may be pun- ished by such court as a contempt thereof. (j) Penalties Any person who violates subsection (g)(1), clause (1) or (2) of subsection (h), or subsection (n)(8) shall be liable to a civil penalty of not more than $5,000 for each violation. Any person who violates clause (4) of subsection (h) of this section or any regulation issued pursuant to this section shall be liable to a civil penalty of not more than $2,000 for each violation. Each viola- tion shall be a separate offense. The Secretary of the department in which the Coast Guard is operating may assess and compromise any such penalty. No penalty shall be assessed until the person charged shall have been given notice and an opportunity for a hearing on such charge. In determining the amount of the penalty, or the amount agreed upon in compromise, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance, after notification of a violation, shall be considered by said Secretary. (k) Enforcement authority (1) Administrator This section shall be enforced by the Admin- istrator, to the extent provided in section 1319 of this title. (2) Secretary (A) In general This section shall be enforced by the Sec- retary of the department in which the Coast Guard is operating, who may use, by agree- ment, with or without reimbursement, law enforcement officers or other personnel and facilities of the Administrator, other Fed- eral agencies, or the States to carry out the provisions of this section. (B) Inspections For purposes of ensuring compliance with this section, the Secretary— (i) may carry out an inspection (includ- ing the taking of ballast water samples) of any vessel at any time; and (ii) shall— (I) establish procedures for— (aa) reporting violations of this sec- tion; and (bb) accumulating evidence regard- ing those violations; and (II) use appropriate and practicable measures of detection and environ- mental monitoring of vessels. (C) Detention The Secretary may detain a vessel if the Secretary— (i) has reasonable cause to believe that the vessel— (I) has failed to comply with an appli- cable requirement of this section; or (II) is being operated in violation of such a requirement; and (ii) the Secretary provides to the owner or operator of the vessel a notice of the in- tent to detain. (3) States (A) In general This section may be enforced by a State or political subdivision of a State (including the attorney general of a State), including by filing a civil action in an appropriate Federal district court to enforce any viola- tion of subsection (p). (B) Jurisdiction The appropriate Federal district court shall have jurisdiction with respect to a civil action filed pursuant to subparagraph (A), without regard to the amount in controversy or the citizenship of the parties— (i) to enforce the requirements of this section; and (ii) to apply appropriate civil penalties under this section or section 1319(d) of this title, as appropriate. (l) Boarding and inspection of vessels; execution of warrants and other process Anyone authorized by the Secretary of the de- partment in which the Coast Guard is operating to enforce the provisions of this section may, ex- cept as to public vessels, (1) board and inspect any vessel upon the navigable waters of the United States and (2) execute any warrant or other process issued by an officer or court of competent jurisdiction. (m) Enforcement in United States possessions In the case of Guam and the Trust Territory of the Pacific Islands, actions arising under this section may be brought in the district court of Guam, and in the case of the Virgin Islands such actions may be brought in the district court of the Virgin Islands. In the case of American Samoa and the Trust Territory of the Pacific Is- lands, such actions may be brought in the Dis- trict Court of the United States for the District of Hawaii and such court shall have jurisdiction of such actions. In the case of the Canal Zone, such actions may be brought in the District Court for the District of the Canal Zone. (n) Uniform national discharge standards for vessels of Armed Forces (1) Applicability This subsection shall apply to vessels of the Armed Forces and discharges, other than sew- age, incidental to the normal operation of a vessel of the Armed Forces, unless the Sec- retary of Defense finds that compliance with this subsection would not be in the national security interests of the United States. (2) Determination of discharges required to be controlled by marine pollution control de- vices (A) In general The Administrator and the Secretary of Defense, after consultation with the Sec- Page 524 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 retary of the department in which the Coast Guard is operating, the Secretary of Com- merce, and interested States, shall jointly determine the discharges incidental to the normal operation of a vessel of the Armed Forces for which it is reasonable and prac- ticable to require use of a marine pollution control device to mitigate adverse impacts on the marine environment. Notwith- standing subsection (a)(1) of section 553 of title 5, the Administrator and the Secretary of Defense shall promulgate the determina- tions in accordance with such section. The Secretary of Defense shall require the use of a marine pollution control device on board a vessel of the Armed Forces in any case in which it is determined that the use of such a device is reasonable and practicable. (B) Considerations In making a determination under subpara- graph (A), the Administrator and the Sec- retary of Defense shall take into consider- ation— (i) the nature of the discharge; (ii) the environmental effects of the dis- charge; (iii) the practicability of using the ma- rine pollution control device; (iv) the effect that installation or use of the marine pollution control device would have on the operation or operational capa- bility of the vessel; (v) applicable United States law; (vi) applicable international standards; and (vii) the economic costs of the installa- tion and use of the marine pollution con- trol device. (3) Performance standards for marine pollu- tion control devices (A) In general For each discharge for which a marine pol- lution control device is determined to be re- quired under paragraph (2), the Adminis- trator and the Secretary of Defense, in con- sultation with the Secretary of the depart- ment in which the Coast Guard is operating, the Secretary of State, the Secretary of Commerce, other interested Federal agen- cies, and interested States, shall jointly pro- mulgate Federal standards of performance for each marine pollution control device re- quired with respect to the discharge. Not- withstanding subsection (a)(1) of section 553 of title 5, the Administrator and the Sec- retary of Defense shall promulgate the standards in accordance with such section. (B) Considerations In promulgating standards under this paragraph, the Administrator and the Sec- retary of Defense shall take into consider- ation the matters set forth in paragraph (2)(B). (C) Classes, types, and sizes of vessels The standards promulgated under this paragraph may— (i) distinguish among classes, types, and sizes of vessels; (ii) distinguish between new and existing vessels; and (iii) provide for a waiver of the applica- bility of the standards as necessary or ap- propriate to a particular class, type, age, or size of vessel. (4) Regulations for use of marine pollution con- trol devices The Secretary of Defense, after consultation with the Administrator and the Secretary of the department in which the Coast Guard is operating, shall promulgate such regulations governing the design, construction, installa- tion, and use of marine pollution control de- vices on board vessels of the Armed Forces as are necessary to achieve the standards pro- mulgated under paragraph (3). (5) Deadlines; effective date (A) Determinations The Administrator and the Secretary of Defense shall— (i) make the initial determinations under paragraph (2) not later than 2 years after February 10, 1996; and (ii) every 5 years— (I) review the determinations; and (II) if necessary, revise the determina- tions based on significant new informa- tion. (B) Standards The Administrator and the Secretary of Defense shall— (i) promulgate standards of performance for a marine pollution control device under paragraph (3) not later than 2 years after the date of a determination under paragraph (2) that the marine pollution control device is required; and (ii) every 5 years— (I) review the standards; and (II) if necessary, revise the standards, consistent with paragraph (3)(B) and based on significant new information. (C) Regulations The Secretary of Defense shall promulgate regulations with respect to a marine pollu- tion control device under paragraph (4) as soon as practicable after the Administrator and the Secretary of Defense promulgate standards with respect to the device under paragraph (3), but not later than 1 year after the Administrator and the Secretary of De- fense promulgate the standards. The regula- tions promulgated by the Secretary of De- fense under paragraph (4) shall become effec- tive upon promulgation unless another effec- tive date is specified in the regulations. (D) Petition for review The Governor of any State may submit a petition requesting that the Secretary of De- fense and the Administrator review a deter- mination under paragraph (2) or a standard under paragraph (3), if there is significant new information, not considered previously, that could reasonably result in a change to the particular determination or standard after consideration of the matters set forth Page 525 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 in paragraph (2)(B). The petition shall be ac- companied by the scientific and technical in- formation on which the petition is based. The Administrator and the Secretary of De- fense shall grant or deny the petition not later than 2 years after the date of receipt of the petition. (6) Effect on other laws (A) Prohibition on regulation by States or po- litical subdivisions of States Beginning on the effective date of— (i) a determination under paragraph (2) that it is not reasonable and practicable to require use of a marine pollution control device regarding a particular discharge in- cidental to the normal operation of a ves- sel of the Armed Forces; or (ii) regulations promulgated by the Sec- retary of Defense under paragraph (4); except as provided in paragraph (7), neither a State nor a political subdivision of a State may adopt or enforce any statute or regula- tion of the State or political subdivision with respect to the discharge or the design, construction, installation, or use of any ma- rine pollution control device required to control discharges from a vessel of the Armed Forces. (B) Federal laws This subsection shall not affect the appli- cation of section 1321 of this title to dis- charges incidental to the normal operation of a vessel. (7) Establishment of State no-discharge zones (A) State prohibition (i) In general After the effective date of— (I) a determination under paragraph (2) that it is not reasonable and practicable to require use of a marine pollution con- trol device regarding a particular dis- charge incidental to the normal oper- ation of a vessel of the Armed Forces; or (II) regulations promulgated by the Secretary of Defense under paragraph (4); if a State determines that the protection and enhancement of the quality of some or all of the waters within the State require greater environmental protection, the State may prohibit 1 or more discharges incidental to the normal operation of a vessel, whether treated or not treated, into the waters. No prohibition shall apply until the Administrator makes the deter- minations described in subclauses (II) and (III) of subparagraph (B)(i). (ii) Documentation To the extent that a prohibition under this paragraph would apply to vessels of the Armed Forces and not to other types of vessels, the State shall document the technical or environmental basis for the distinction. (B) Prohibition by the Administrator (i) In general Upon application of a State, the Admin- istrator shall by regulation prohibit the discharge from a vessel of 1 or more dis- charges incidental to the normal operation of a vessel, whether treated or not treated, into the waters covered by the application if the Administrator determines that— (I) the protection and enhancement of the quality of the specified waters with- in the State require a prohibition of the discharge into the waters; (II) adequate facilities for the safe and sanitary removal of the discharge inci- dental to the normal operation of a ves- sel are reasonably available for the wa- ters to which the prohibition would apply; and (III) the prohibition will not have the effect of discriminating against a vessel of the Armed Forces by reason of the ownership or operation by the Federal Government, or the military function, of the vessel. (ii) Approval or disapproval The Administrator shall approve or dis- approve an application submitted under clause (i) not later than 90 days after the date on which the application is submitted to the Administrator. Notwithstanding clause (i)(II), the Administrator shall not disapprove an application for the sole rea- son that there are not adequate facilities to remove any discharge incidental to the normal operation of a vessel from vessels of the Armed Forces. (C) Applicability to foreign flagged vessels A prohibition under this paragraph— (i) shall not impose any design, construc- tion, manning, or equipment standard on a foreign flagged vessel engaged in innocent passage unless the prohibition implements a generally accepted international rule or standard; and (ii) that relates to the prevention, reduc- tion, and control of pollution shall not apply to a foreign flagged vessel engaged in transit passage unless the prohibition implements an applicable international regulation regarding the discharge of oil, oily waste, or any other noxious substance into the waters. (8) Prohibition relating to vessels of the Armed Forces After the effective date of the regulations promulgated by the Secretary of Defense under paragraph (4), it shall be unlawful for any vessel of the Armed Forces subject to the regulations to— (A) operate in the navigable waters of the United States or the waters of the contig- uous zone, if the vessel is not equipped with any required marine pollution control device meeting standards established under this subsection; or (B) discharge overboard any discharge in- cidental to the normal operation of a vessel in waters with respect to which a prohibi- tion on the discharge has been established under paragraph (7). (9) Enforcement This subsection shall be enforceable, as pro- vided in subsections (j) and (k), against any Page 526 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 agency of the United States responsible for vessels of the Armed Forces notwithstanding any immunity asserted by the agency. (o) Management practices for recreational ves- sels (1) Applicability This subsection applies to any discharge, other than a discharge of sewage, from a rec- reational vessel that is— (A) incidental to the normal operation of the vessel; and (B) exempt from permitting requirements under section 1342(r) of this title. (2) Determination of discharges subject to management practices (A) Determination (i) In general The Administrator, in consultation with the Secretary of the department in which the Coast Guard is operating, the Sec- retary of Commerce, and interested States, shall determine the discharges in- cidental to the normal operation of a rec- reational vessel for which it is reasonable and practicable to develop management practices to mitigate adverse impacts on the waters of the United States. (ii) Promulgation The Administrator shall promulgate the determinations under clause (i) in accord- ance with section 553 of title 5. (iii) Management practices The Administrator shall develop man- agement practices for recreational vessels in any case in which the Administrator de- termines that the use of those practices is reasonable and practicable. (B) Considerations In making a determination under subpara- graph (A), the Administrator shall con- sider— (i) the nature of the discharge; (ii) the environmental effects of the dis- charge; (iii) the practicability of using a man- agement practice; (iv) the effect that the use of a manage- ment practice would have on the oper- ation, operational capability, or safety of the vessel; (v) applicable Federal and State law; (vi) applicable international standards; and (vii) the economic costs of the use of the management practice. (C) Timing The Administrator shall— (i) make the initial determinations under subparagraph (A) not later than 1 year after July 29, 2008; and (ii) every 5 years thereafter— (I) review the determinations; and (II) if necessary, revise the determina- tions based on any new information available to the Administrator. (3) Performance standards for management practices (A) In general For each discharge for which a manage- ment practice is developed under paragraph (2), the Administrator, in consultation with the Secretary of the department in which the Coast Guard is operating, the Secretary of Commerce, other interested Federal agen- cies, and interested States, shall promul- gate, in accordance with section 553 of title 5, Federal standards of performance for each management practice required with respect to the discharge. (B) Considerations In promulgating standards under this paragraph, the Administrator shall take into account the considerations described in paragraph (2)(B). (C) Classes, types, and sizes of vessels The standards promulgated under this paragraph may— (i) distinguish among classes, types, and sizes of vessels; (ii) distinguish between new and existing vessels; and (iii) provide for a waiver of the applica- bility of the standards as necessary or ap- propriate to a particular class, type, age, or size of vessel. (D) Timing The Administrator shall— (i) promulgate standards of performance for a management practice under subpara- graph (A) not later than 1 year after the date of a determination under paragraph (2) that the management practice is rea- sonable and practicable; and (ii) every 5 years thereafter— (I) review the standards; and (II) if necessary, revise the standards, in accordance with subparagraph (B) and based on any new information available to the Administrator. (4) Regulations for the use of management practices (A) In general The Secretary of the department in which the Coast Guard is operating shall promul- gate such regulations governing the design, construction, installation, and use of man- agement practices for recreational vessels as are necessary to meet the standards of per- formance promulgated under paragraph (3). (B) Regulations (i) In general The Secretary shall promulgate the reg- ulations under this paragraph as soon as practicable after the Administrator pro- mulgates standards with respect to the practice under paragraph (3), but not later than 1 year after the date on which the Ad- ministrator promulgates the standards. (ii) Effective date The regulations promulgated by the Sec- retary under this paragraph shall be effec- Page 527 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 tive upon promulgation unless another ef- fective date is specified in the regulations. (iii) Consideration of time In determining the effective date of a regulation promulgated under this para- graph, the Secretary shall consider the pe- riod of time necessary to communicate the existence of the regulation to persons af- fected by the regulation. (5) Effect of other laws This subsection shall not affect the applica- tion of section 1321 of this title to discharges incidental to the normal operation of a rec- reational vessel. (6) Prohibition relating to recreational vessels After the effective date of the regulations promulgated by the Secretary of the depart- ment in which the Coast Guard is operating under paragraph (4), the owner or operator of a recreational vessel shall neither operate in nor discharge any discharge incidental to the normal operation of the vessel into, the waters of the United States or the waters of the con- tiguous zone, if the owner or operator of the vessel is not using any applicable management practice meeting standards established under this subsection. (p) Uniform national standards for discharges in- cidental to normal operation of vessels (1) Definitions In this subsection: (A) Aquatic nuisance species The term ‘‘aquatic nuisance species’’ means a nonindigenous species that threat- ens— (i) the diversity or abundance of a native species; (ii) the ecological stability of— (I) waters of the United States; or (II) waters of the contiguous zone; or (iii) a commercial, agricultural, aquacultural, or recreational activity that is dependent on— (I) waters of the United States; or (II) waters of the contiguous zone. (B) Ballast water (i) In general The term ‘‘ballast water’’ means any water, suspended matter, and other mate- rials taken onboard a vessel— (I) to control or maintain trim, draught, stability, or stresses of the ves- sel, regardless of the means by which any such water or suspended matter is carried; or (II) during the cleaning, maintenance, or other operation of a ballast tank or ballast water management system of the vessel. (ii) Exclusion The term ‘‘ballast water’’ does not in- clude any substance that is added to the water described in clause (i) that is di- rectly related to the operation of a prop- erly functioning ballast water manage- ment system. (C) Ballast water discharge standard The term ‘‘ballast water discharge stand- ard’’ means— (i) the numerical ballast water discharge standard established by section 151.1511 or 151.2030 of title 33, Code of Federal Regula- tions (or successor regulations); or (ii) if a standard referred to in clause (i) is superseded by a numerical standard of performance under this subsection, that superseding standard. (D) Ballast water exchange The term ‘‘ballast water exchange’’ means the replacement of water in a ballast water tank using 1 of the following methods: (i) Flow-through exchange, in which bal- last water is flushed out by pumping in midocean water at the bottom of the tank if practicable, and continuously over- flowing the tank from the top, until 3 full volumes of water have been changed to minimize the number of original orga- nisms remaining in the tank. (ii) Empty and refill exchange, in which ballast water taken on in ports, estuarine waters, or territorial waters is pumped out until the pump loses suction, after which the ballast tank is refilled with midocean water. (E) Ballast water management system The term ‘‘ballast water management sys- tem’’ means any marine pollution control device (including all ballast water treatment equipment, ballast tanks, pipes, pumps, and all associated control and monitoring equip- ment) that processes ballast water— (i) to kill, render nonviable, or remove organisms; or (ii) to avoid the uptake or discharge of organisms. (F) Best available technology economically achievable The term ‘‘best available technology eco- nomically achievable’’ means— (i) best available technology economi- cally achievable (within the meaning of section 1311(b)(2)(A) of this title); (ii) best available technology (within the meaning of section 1314(b)(2)(B) of this title); and (iii) best available technology, as deter- mined in accordance with section 125.3(d)(3) of title 40, Code of Federal Regu- lations (or successor regulations). (G) Best conventional pollutant control tech- nology The term ‘‘best conventional pollutant control technology’’ means— (i) best conventional pollutant control technology (within the meaning of section 1311(b)(2)(E) of this title); (ii) best conventional pollutant control technology (within the meaning of section 1314(b)(4) of this title); and (iii) best conventional pollutant control technology, as determined in accordance with section 125.3(d)(2) of title 40, Code of Federal Regulations (or successor regula- tions). Page 528 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 1 See References in Text note below. 2 So in original. Probably should be ‘‘Great Lakes Basin Com- pact’’. (H) Best management practice (i) In general The term ‘‘best management practice’’ means a schedule of activities, prohibi- tions of practices, maintenance proce- dures, and other management practices to prevent or reduce the pollution of— (I) the waters of the United States; or (II) the waters of the contiguous zone. (ii) Inclusions The term ‘‘best management practice’’ includes any treatment requirement, oper- ating procedure, or practice to control— (I) vessel runoff; (II) spillage or leaks; (III) sludge or waste disposal; or (IV) drainage from raw material stor- age. (I) Best practicable control technology cur- rently available The term ‘‘best practicable control tech- nology currently available’’ means— (i) best practicable control technology currently available (within the meaning of section 1311(b)(1)(A) of this title); (ii) best practicable control technology currently available (within the meaning of section 1314(b)(1) of this title); and (iii) best practicable control technology currently available, as determined in ac- cordance with section 125.3(d)(1) of title 40, Code of Federal Regulations (or successor regulations). (J) Captain of the Port Zone The term ‘‘Captain of the Port Zone’’ means a Captain of the Port Zone estab- lished by the Secretary pursuant to sections 92, 93, and 633 1 of title 14. (K) Empty ballast tank The term ‘‘empty ballast tank’’ means a tank that— (i) has previously held ballast water that has been drained to the limit of the func- tional or operational capabilities of the tank (such as loss of suction); (ii) is recorded as empty on a vessel log; and (iii) contains unpumpable residual bal- last water and sediment. (L) Great Lakes Commission The term ‘‘Great Lakes Commission’’ means the Great Lakes Commission estab- lished by article IV A of the Great Lakes Compact 2 to which Congress granted con- sent in the Act of July 24, 1968 (Public Law 90–419; 82 Stat. 414). (M) Great Lakes State The term ‘‘Great Lakes State’’ means any of the States of— (i) Illinois; (ii) Indiana; (iii) Michigan; (iv) Minnesota; (v) New York; (vi) Ohio; (vii) Pennsylvania; and (viii) Wisconsin. (N) Great Lakes System The term ‘‘Great Lakes System’’ has the meaning given the term in section 1268(a)(3) of this title. (O) Internal waters The term ‘‘internal waters’’ has the mean- ing given the term in section 2.24 of title 33, Code of Federal Regulations (or a successor regulation). (P) Marine pollution control device The term ‘‘marine pollution control de- vice’’ means any equipment or management practice (or combination of equipment and a management practice), for installation or use onboard a vessel, that is— (i) designed to receive, retain, treat, con- trol, or discharge a discharge incidental to the normal operation of a vessel; and (ii) determined by the Administrator and the Secretary to be the most effective equipment or management practice (or combination of equipment and a manage- ment practice) to reduce the environ- mental impacts of the discharge, con- sistent with the factors for consideration described in paragraphs (4) and (5). (Q) Nonindigenous species The term ‘‘nonindigenous species’’ means an organism of a species that enters an eco- system beyond the historic range of the spe- cies. (R) Organism The term ‘‘organism’’ includes— (i) an animal, including fish and fish eggs and larvae; (ii) a plant; (iii) a pathogen; (iv) a microbe; (v) a virus; (vi) a prokaryote (including any archean or bacterium); (vii) a fungus; and (viii) a protist. (S) Pacific Region (i) In general The term ‘‘Pacific Region’’ means any Federal or State water— (I) adjacent to the State of Alaska, California, Hawaii, Oregon, or Wash- ington; and (II) extending from shore. (ii) Inclusion The term ‘‘Pacific Region’’ includes the entire exclusive economic zone (as defined in section 2701 of this title) adjacent to each State described in clause (i)(I). (T) Port or place of destination The term ‘‘port or place of destination’’ means a port or place to which a vessel is bound to anchor or moor. (U) Render nonviable The term ‘‘render nonviable’’, with respect to an organism in ballast water, means the Page 529 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 action of a ballast water management sys- tem that renders the organism permanently incapable of reproduction following treat- ment. (V) Saltwater flush (i) In general The term ‘‘saltwater flush’’ means— (I)(aa) the addition of as much midocean water into each empty ballast tank of a vessel as is safe for the vessel and crew; and (bb) the mixing of the flushwater with residual ballast water and sediment through the motion of the vessel; and (II) the discharge of that mixed water, such that the resultant residual water remaining in the tank— (aa) has the highest salinity possible; and (bb) is at least 30 parts per thousand. (ii) Multiple sequences For purposes of clause (i), a saltwater flush may require more than 1 fill-mix- empty sequence, particularly if only small quantities of water can be safely taken on- board a vessel at 1 time. (W) Secretary The term ‘‘Secretary’’ means the Sec- retary of the department in which the Coast Guard is operating. (X) Small Vessel General Permit The term ‘‘Small Vessel General Permit’’ means the permit that is the subject of the notice of final permit issuance entitled ‘‘Final National Pollutant Discharge Elimi- nation System (NPDES) Small Vessel Gen- eral Permit for Discharges Incidental to the Normal Operation of Vessels Less Than 79 Feet’’ (79 Fed. Reg. 53702 (September 10, 2014)). (Y) Small vessel or fishing vessel The term ‘‘small vessel or fishing vessel’’ means a vessel that is— (i) less than 79 feet in length; or (ii) a fishing vessel, fish processing ves- sel, or fish tender vessel (as those terms are defined in section 2101 of title 46), re- gardless of the length of the vessel. (Z) Vessel General Permit The term ‘‘Vessel General Permit’’ means the permit that is the subject of the notice of final permit issuance entitled ‘‘Final Na- tional Pollutant Discharge Elimination Sys- tem (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Ves- sel’’ (78 Fed. Reg. 21938 (April 12, 2013)). (2) Applicability (A) In general Except as provided in subparagraph (B), this subsection applies to— (i) any discharge incidental to the nor- mal operation of a vessel; and (ii) any discharge incidental to the nor- mal operation of a vessel (such as most graywater) that is commingled with sew- age, subject to the conditions that— (I) nothing in this subsection prevents a State from regulating sewage dis- charges; and (II) any such commingled discharge shall comply with all applicable require- ments of— (aa) this subsection; and (bb) any law applicable to discharges of sewage. (B) Exclusion This subsection does not apply to any dis- charge incidental to the normal operation of a vessel— (i) from— (I) a vessel of the Armed Forces sub- ject to subsection (n); (II) a recreational vessel subject to subsection (o); (III) a small vessel or fishing vessel, except that this subsection shall apply to any discharge of ballast water from a small vessel or fishing vessel; or (IV) a floating craft that is perma- nently moored to a pier, including a ‘‘floating’’ casino, hotel, restaurant, or bar; (ii) of ballast water from a vessel— (I) that continuously takes on and dis- charges ballast water in a flow-through system, if the Administrator determines that system cannot materially con- tribute to the spread or introduction of an aquatic nuisance species into waters of the United States; (II) in the National Defense Reserve Fleet that is scheduled for disposal, if the vessel does not have an operable bal- last water management system; (III) that discharges ballast water con- sisting solely of water taken onboard from a public or commercial source that, at the time the water is taken onboard, meets the applicable requirements or permit requirements of the Safe Drink- ing Water Act (42 U.S.C. 300f et seq.); (IV) that carries all permanent ballast water in sealed tanks that are not sub- ject to discharge; or (V) that only discharges ballast water into a reception facility; or (iii) that results from, or contains mate- rial derived from, an activity other than the normal operation of the vessel, such as material resulting from an industrial or manufacturing process onboard the vessel. (3) Continuation in effect of existing require- ments (A) Vessel general permit Notwithstanding the expiration date of the Vessel General Permit or any other provi- sion of law, all provisions of the Vessel Gen- eral Permit shall remain in force and effect, and shall not be modified, until the applica- ble date described in subparagraph (C). (B) Nonindigenous Aquatic Nuisance Preven- tion and Control Act regulations Notwithstanding section 903(a)(2)(A) of the Vessel Incidental Discharge Act of 2018, all Page 530 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 regulations promulgated by the Secretary pursuant to section 1101 of the Nonindige- nous Aquatic Nuisance Prevention and Con- trol Act of 1990 (16 U.S.C. 4711) (as in effect on the day before December 4, 2018), includ- ing the regulations contained in subparts C and D of part 151 of title 33, Code of Federal Regulations, and subpart 162.060 of part 162 of title 46, Code of Federal Regulations (as in effect on the day before December 4, 2018), shall remain in force and effect until the ap- plicable date described in subparagraph (C). (C) Repeal on existence of final, effective, and enforceable requirements Effective beginning on the date on which the requirements promulgated by the Sec- retary under subparagraphs (A), (B), and (C) of paragraph (5) with respect to every dis- charge incidental to the normal operation of a vessel that is subject to regulation under this subsection are final, effective, and en- forceable, the requirements of the Vessel General Permit and the regulations de- scribed in subparagraph (B) shall have no force or effect. (4) National standards of performance for ma- rine pollution control devices and water quality orders (A) Establishment (i) In general Not later than 2 years after December 4, 2018, the Administrator, in concurrence with the Secretary (subject to clause (ii)), and in consultation with interested Gov- ernors (subject to clause (iii)), shall pro- mulgate Federal standards of performance for marine pollution control devices for each type of discharge incidental to the normal operation of a vessel that is sub- ject to regulation under this subsection. (ii) Concurrence with Secretary (I) Request The Administrator shall submit to the Secretary a request for written concur- rence with respect to a proposed stand- ard of performance under clause (i). (II) Effect of failure to concur A failure by the Secretary to concur with the Administrator under clause (i) by the date that is 60 days after the date on which the Administrator submits a request for concurrence under subclause (I) shall not prevent the Administrator from promulgating the relevant standard of performance in accordance with the deadline under clause (i), subject to the condition that the Administrator shall include in the administrative record of the promulgation— (aa) documentation of the request submitted under subclause (I); and (bb) the response of the Adminis- trator to any written objections re- ceived from the Secretary relating to the proposed standard of performance during the 60-day period beginning on the date of submission of the request. (iii) Consultation with Governors (I) In general The Administrator, in promulgating a standard of performance under clause (i), shall develop the standard of perform- ance— (aa) in consultation with interested Governors; and (bb) in accordance with the deadlines under that clause. (II) Process The Administrator shall develop a process for soliciting input from inter- ested Governors, including information sharing relevant to such process, to allow interested Governors to inform the development of standards of performance under clause (i). (III) Objection by governors (aa) Submission An interested Governor that objects to a proposed standard of performance under clause (i) may submit to the Ad- ministrator in writing a detailed objec- tion to the proposed standard of per- formance, describing the scientific, technical, or operational factors that form the basis of the objection. (bb) Response Before finalizing a standard of per- formance under clause (i) that is sub- ject to an objection under item (aa) from 1 or more interested Governors, the Administrator shall provide a writ- ten response to each interested Gov- ernor that submitted an objection under that item that details the sci- entific, technical, or operational fac- tors that form the basis for that stand- ard of performance. (cc) Judicial review A response of the Administrator under item (bb) shall not be subject to judicial review. (iv) Procedure The Administrator shall promulgate the standards of performance under this sub- paragraph in accordance with— (I) this paragraph; and (II) section 553 of title 5. (B) Stringency (i) In general Subject to clause (iii), the standards of performance promulgated under this para- graph shall require— (I) with respect to conventional pollut- ants, toxic pollutants, and nonconven- tional pollutants (including aquatic nui- sance species), the application of the best practicable control technology cur- rently available; (II) with respect to conventional pol- lutants, the application of the best con- ventional pollutant control technology; and (III) with respect to toxic pollutants and nonconventional pollutants (includ- Page 531 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 ing aquatic nuisance species), the appli- cation of the best available technology economically achievable for categories and classes of vessels, which shall result in reasonable progress toward the na- tional goal of eliminating discharges of all pollutants. (ii) Best management practices The Administrator shall require the use of best management practices to control or abate any discharge incidental to the normal operation of a vessel if— (I) numeric standards of performance are infeasible under clause (i); or (II) the best management practices are reasonably necessary— (aa) to achieve the standards of per- formance; or (bb) to carry out the purpose and in- tent of this subsection. (iii) Minimum requirements Subject to subparagraph (D)(ii)(II), the combination of any equipment or best management practice comprising a marine pollution control device shall not be less stringent than the following provisions of the Vessel General Permit: (I) All requirements contained in parts 2.1 and 2.2 (relating to effluent limits and related requirements), including with re- spect to waters subject to Federal pro- tection, in whole or in part, for conserva- tion purposes. (II) All requirements contained in part 5 (relating to vessel class-specific re- quirements) that concern effluent limits and authorized discharges (within the meaning of that part), including with re- spect to waters subject to Federal pro- tection, in whole or in part, for conserva- tion purposes. (C) Classes, types, and sizes of vessels The standards promulgated under this paragraph may distinguish— (i) among classes, types, and sizes of ves- sels; and (ii) between new vessels and existing ves- sels. (D) Review and revision (i) In general Not less frequently than once every 5 years, the Administrator, in consultation with the Secretary, shall— (I) review the standards of performance in effect under this paragraph; and (II) if appropriate, revise those stand- ards of performance— (aa) in accordance with subpara- graphs (A) through (C); and (bb) as necessary to establish re- quirements for any discharge that is subject to regulation under this sub- section. (ii) Maintaining protectiveness (I) In general Except as provided in subclause (II), the Administrator shall not revise a standard of performance under this sub- section to be less stringent than an ap- plicable existing requirement. (II) Exceptions The Administrator may revise a stand- ard of performance to be less stringent than an applicable existing require- ment— (aa) if information becomes available that— (AA) was not reasonably available when the Administrator promulgated the initial standard of performance or comparable requirement of the Vessel General Permit, as applicable (including the subsequent scarcity or unavailability of materials used to control the relevant discharge); and (BB) would have justified the appli- cation of a less-stringent standard of performance at the time of promul- gation; or (bb) if the Administrator determines that a material technical mistake or misinterpretation of law occurred when promulgating the existing stand- ard of performance or comparable re- quirement of the Vessel General Per- mit, as applicable. (E) Best management practices for aquatic nuisance species emergencies and fur- ther protection of water quality (i) In general Notwithstanding any other provision of this subsection, the Administrator, in con- currence with the Secretary (subject to clause (ii)), and in consultation with States, may require, by order, the use of an emergency best management practice for any region or category of vessels in any case in which the Administrator deter- mines that such a best management prac- tice— (I) is necessary to reduce the reason- ably foreseeable risk of introduction or establishment of an aquatic nuisance species; or (II) will mitigate the adverse effects of a discharge that contributes to a viola- tion of a water quality requirement under section 1313 of this title, other than a requirement based on the pres- ence of an aquatic nuisance species. (ii) Concurrence with Secretary (I) Request The Administrator shall submit to the Secretary a request for written concur- rence with respect to an order under clause (i). (II) Effect of failure to concur A failure by the Secretary to concur with the Administrator under clause (i) by the date that is 60 days after the date on which the Administrator submits a request for concurrence under subclause (I) shall not prevent the Administrator from issuing the relevant order, subject Page 532 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 to the condition that the Administrator shall include in the administrative record of the issuance— (aa) documentation of the request submitted under subclause (I); and (bb) the response of the Adminis- trator to any written objections re- ceived from the Secretary relating to the proposed order during the 60-day period beginning on the date of sub- mission of the request. (iii) Duration An order issued by the Administrator under clause (i) shall expire not later than the date that is 4 years after the date of issuance. (iv) Extensions The Administrator may reissue an order under clause (i) for such subsequent peri- ods of not longer than 4 years as the Ad- ministrator determines to be appropriate. (5) Implementation, compliance, and enforce- ment requirements (A) Establishment (i) In general As soon as practicable, but not later than 2 years, after the date on which the Administrator promulgates any new or re- vised standard of performance under para- graph (4) with respect to a discharge, the Secretary, in consultation with States, shall promulgate the regulations required under this paragraph with respect to that discharge. (ii) Minimum requirements Subject to subparagraph (C)(ii)(II), the regulations promulgated under this para- graph shall not be less stringent with re- spect to ensuring, monitoring, and enforc- ing compliance than— (I) the requirements contained in part 3 of the Vessel General Permit (relating to corrective actions); (II) the requirements contained in part 4 of the Vessel General Permit (relating to inspections, monitoring, reporting, and recordkeeping), including with re- spect to waters subject to Federal pro- tection, in whole or in part, for conserva- tion purposes; (III) the requirements contained in part 5 of the Vessel General Permit (re- lating to vessel class-specific require- ments) regarding monitoring, inspection, and educational and training require- ments (within the meaning of that part), including with respect to waters subject to Federal protection, in whole or in part, for conservation purposes; and (IV) any comparable, existing require- ments promulgated under the Nonindige- nous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4701 et seq.) (including section 1101 of that Act (16 U.S.C. 4711) (as in effect on the day be- fore December 4, 2018)) applicable to that discharge. (iii) Coordination with States The Secretary, in coordination with the Governors of the States, shall develop, publish, and periodically update inspec- tion, monitoring, data management, and enforcement procedures for the enforce- ment by States of Federal standards and requirements under this subsection. (iv) Effective date In determining the effective date of a regulation promulgated under this para- graph, the Secretary shall take into con- sideration the period of time necessary— (I) to communicate to affected persons the applicability of the regulation; and (II) for affected persons reasonably to comply with the regulation. (v) Procedure The Secretary shall promulgate the reg- ulations under this subparagraph in ac- cordance with— (I) this paragraph; and (II) section 553 of title 5. (B) Implementation regulations for marine pollution control devices The Secretary shall promulgate such regu- lations governing the design, construction, testing, approval, installation, and use of marine pollution control devices as are nec- essary to ensure compliance with the stand- ards of performance promulgated under paragraph (4). (C) Compliance assurance (i) In general The Secretary shall promulgate require- ments (including requirements for vessel owners and operators with respect to in- spections, monitoring, reporting, sam- pling, and recordkeeping) to ensure, mon- itor, and enforce compliance with— (I) the standards of performance pro- mulgated by the Administrator under paragraph (4); and (II) the implementation regulations promulgated by the Secretary under sub- paragraph (B). (ii) Maintaining protectiveness (I) In general Except as provided in subclause (II), the Secretary shall not revise a require- ment under this subparagraph or sub- paragraph (B) to be less stringent with respect to ensuring, monitoring, or en- forcing compliance than an applicable existing requirement. (II) Exceptions The Secretary may revise a require- ment under this subparagraph or sub- paragraph (B) to be less stringent than an applicable existing requirement— (aa) in accordance with this subpara- graph or subparagraph (B), as applica- ble; (bb) if information becomes available that— (AA) the Administrator determines was not reasonably available when Page 533 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 the Administrator promulgated the existing requirement of the Vessel General Permit, or that the Sec- retary determines was not reason- ably available when the Secretary promulgated the existing require- ment under the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4701 et seq.) or the applicable existing re- quirement under this subparagraph, as applicable (including subsequent scarcity or unavailability of mate- rials used to control the relevant dis- charge); and (BB) would have justified the appli- cation of a less-stringent require- ment at the time of promulgation; or (cc) if the Administrator determines that a material technical mistake or misinterpretation of law occurred when promulgating an existing re- quirement of the Vessel General Per- mit, or if the Secretary determines that a material mistake or misinter- pretation of law occurred when pro- mulgating an existing requirement under the Nonindigenous Aquatic Nui- sance Prevention and Control Act of 1990 (16 U.S.C. 4701 et seq.) or this sub- section. (D) Data availability Beginning not later than 1 year after De- cember 4, 2018, the Secretary shall provide to the Governor of a State, on request by the Governor, access to Automated Identifica- tion System arrival data for inbound vessels to specific ports or places of destination in the State. (6) Additional provisions regarding ballast water (A) In general In addition to the other applicable require- ments of this subsection, the requirements of this paragraph shall apply with respect to any discharge incidental to the normal oper- ation of a vessel that is a discharge of bal- last water. (B) Empty ballast tanks (i) Requirements Except as provided in clause (ii), the owner or operator of a vessel with empty ballast tanks bound for a port or place of destination subject to the jurisdiction of the United States shall, prior to arriving at that port or place of destination, con- duct a ballast water exchange or saltwater flush— (I) not less than 200 nautical miles from any shore for a voyage originating outside the United States or Canadian exclusive economic zone; or (II) not less than 50 nautical miles from any shore for a voyage originating within the United States or Canadian ex- clusive economic zone. (ii) Exceptions Clause (i) shall not apply— (I) if the unpumpable residual waters and sediments of an empty ballast tank were subject to treatment, in compliance with applicable requirements, through a type-approved ballast water manage- ment system approved by the Secretary; (II) except as otherwise required under this subsection, if the unpumpable resid- ual waters and sediments of an empty ballast tank were sourced within— (aa) the same port or place of des- tination; or (bb) contiguous portions of a single Captain of the Port Zone; (III) if complying with an applicable requirement of clause (i)— (aa) would compromise the safety of the vessel; or (bb) is otherwise prohibited by any Federal, Canadian, or international law (including regulations) pertaining to vessel safety; (IV) if design limitations of the vessel prevent a ballast water exchange or salt- water flush from being conducted in ac- cordance with clause (i); or (V) if the vessel is operating exclu- sively within the internal waters of the United States or Canada. (C) Period of use of installed ballast water management systems (i) In general Except as provided in clause (ii), a vessel shall be deemed to be in compliance with a standard of performance for a marine pollution control device that is a ballast water management system if the ballast water management system— (I) is maintained in proper working condition, as determined by the Sec- retary; (II) is maintained and used in accord- ance with manufacturer specifications; (III) continues to meet the ballast water discharge standard applicable to the vessel at the time of installation, as determined by the Secretary; and (IV) has in effect a valid type-approval certificate issued by the Secretary. (ii) Limitation Clause (i) shall cease to apply with re- spect to any vessel on, as applicable— (I) the expiration of the service life, as determined by the Secretary, of— (aa) the ballast water management system; or (bb) the vessel; (II) the completion of a major conver- sion (as defined in section 2101 of title 46) of the vessel; or (III) a determination by the Secretary that there are other type-approved sys- tems for the vessel or category of ves- sels, with respect to the use of which the environmental, health, and economic benefits would exceed the costs. Page 534 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 (D) Review of ballast water management sys- tem type-approval testing methods (i) Definition of live; living Notwithstanding any other provision of law (including regulations), for purposes of section 151.1511 of title 33, and part 162 of title 46, Code of Federal Regulations (or successor regulations), the terms ‘‘live’’ and ‘‘living’’ shall not— (I) include an organism that has been rendered nonviable; or (II) preclude the consideration of any method of measuring the concentration of organisms in ballast water that are capable of reproduction. (ii) Draft policy Not later than 180 days after December 4, 2018, the Secretary, in coordination with the Administrator, shall publish a draft policy letter, based on the best available science, describing type-approval testing methods and protocols for ballast water management systems, if any, that— (I) render nonviable organisms in bal- last water; and (II) may be used in addition to the methods established under subpart 162.060 of title 46, Code of Federal Regu- lations (or successor regulations)— (aa) to measure the concentration of organisms in ballast water that are ca- pable of reproduction; (bb) to certify the performance of each ballast water management sys- tem under this subsection; and (cc) to certify laboratories to evalu- ate applicable treatment technologies. (iii) Public comment The Secretary shall provide a period of not more than 60 days for public comment regarding the draft policy letter published under clause (ii). (iv) Final policy (I) In general Not later than 1 year after December 4, 2018, the Secretary, in coordination with the Administrator, shall publish a final policy letter describing type-approval testing methods, if any, for ballast water management systems that render non- viable organisms in ballast water. (II) Method of evaluation The ballast water management sys- tems under subclause (I) shall be evalu- ated by measuring the concentration of organisms in ballast water that are capa- ble of reproduction based on the best available science that may be used in ad- dition to the methods established under subpart 162.060 of title 46, Code of Fed- eral Regulations (or successor regula- tions). (III) Revisions The Secretary shall revise the final policy letter under subclause (I) in any case in which the Secretary, in coordina- tion with the Administrator, determines that additional testing methods are ca- pable of measuring the concentration of organisms in ballast water that have not been rendered nonviable. (v) Factors for consideration In developing a policy letter under this subparagraph, the Secretary, in coordina- tion with the Administrator— (I) shall take into consideration a test- ing method that uses organism grow-out and most probable number statistical analysis to determine the concentration of organisms in ballast water that are capable of reproduction; and (II) shall not take into consideration a testing method that relies on a staining method that measures the concentration of— (aa) organisms greater than or equal to 10 micrometers; and (bb) organisms less than or equal to 50 micrometers. (E) Intergovernmental response framework (i) In general The Secretary, in consultation with the Administrator and acting in coordination with, or through, the Aquatic Nuisance Species Task Force established by section 1201(a) of the Nonindigenous Aquatic Nui- sance Prevention and Control Act of 1990 (16 U.S.C. 4721(a)), shall establish a frame- work for Federal and intergovernmental response to aquatic nuisance species risks from discharges from vessels subject to ballast water and incidental discharge compliance requirements under this sub- section, including the introduction, spread, and establishment of aquatic nui- sance species populations. (ii) Ballast discharge risk response The Administrator, in coordination with the Secretary and taking into consider- ation information from the National Bal- last Information Clearinghouse developed under section 1102(f) of the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4712(f)), shall estab- lish a risk assessment and response frame- work using ballast water discharge data and aquatic nuisance species monitoring data for the purposes of— (I) identifying and tracking popu- lations of aquatic invasive species; (II) evaluating the risk of any aquatic nuisance species population tracked under subclause (I) establishing and spreading in waters of the United States or waters of the contiguous zone; and (III) establishing emergency best man- agement practices that may be deployed rapidly, in a local or regional manner, to respond to emerging aquatic nuisance species threats. (7) Petitions by Governors for review (A) In general The Governor of a State (or a designee) may submit to the Administrator or the Sec- retary a petition— Page 535 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 (i) to issue an order under paragraph (4)(E); or (ii) to review any standard of perform- ance, regulation, or policy promulgated under paragraph (4), (5), or (6), respec- tively, if there exists new information that could reasonably result in a change to— (I) the standard of performance, regu- lation, or policy; or (II) a determination on which the standard of performance, regulation, or policy was based. (B) Inclusion A petition under subparagraph (A) shall in- clude a description of any applicable sci- entific or technical information that forms the basis of the petition. (C) Determination (i) Timing The Administrator or the Secretary, as applicable, shall grant or deny— (I) a petition under subparagraph (A)(i) by not later than the date that is 180 days after the date on which the petition is submitted; and (II) a petition under subparagraph (A)(ii) by not later than the date that is 1 year after the date on which the peti- tion is submitted. (ii) Effect of grant If the Administrator or the Secretary de- termines under clause (i) to grant a peti- tion— (I) in the case of a petition under sub- paragraph (A)(i), the Administrator shall immediately issue the relevant order under paragraph (4)(E); or (II) in the case of a petition under sub- paragraph (A)(ii), the Administrator or Secretary shall publish in the Federal Register, by not later than 30 days after the date of that determination, a notice of proposed rulemaking to revise the rel- evant standard, requirement, regulation, or policy under paragraph (4), (5), or (6), as applicable. (iii) Notice of denial If the Administrator or the Secretary de- termines under clause (i) to deny a peti- tion, the Administrator or Secretary shall publish in the Federal Register, by not later than 30 days after the date of that de- termination, a detailed explanation of the scientific, technical, or operational factors that form the basis of the determination. (iv) Review A determination by the Administrator or the Secretary under clause (i) to deny a petition shall be— (I) considered to be a final agency ac- tion; and (II) subject to judicial review in ac- cordance with section 1369 of this title, subject to clause (v). (v) Exceptions (I) Venue Notwithstanding section 1369(b) of this title, a petition for review of a deter- mination by the Administrator or the Secretary under clause (i) to deny a peti- tion submitted by the Governor of a State under subparagraph (A) may be filed in any United States district court of competent jurisdiction. (II) Deadline for filing Notwithstanding section 1369(b) of this title, a petition for review of a deter- mination by the Administrator or the Secretary under clause (i) shall be filed by not later than 180 days after the date on which the justification for the deter- mination is published in the Federal Register under clause (iii). (8) Prohibition (A) In general It shall be unlawful for any person to vio- late— (i) a provision of the Vessel General Per- mit in force and effect under paragraph (3)(A); (ii) a regulation promulgated pursuant to section 1101 of the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4711) (as in effect on the day before December 4, 2018) in force and effect under paragraph (3)(B); or (iii) an applicable requirement or regula- tion under this subsection. (B) Compliance with regulations Effective beginning on the effective date of a regulation promulgated under paragraph (4), (5), (6), or (10), as applicable, it shall be unlawful for the owner or operator of a ves- sel subject to the regulation— (i) to discharge any discharge incidental to the normal operation of the vessel into waters of the United States or waters of the contiguous zone, except in compliance with the regulation; or (ii) to operate in waters of the United States or waters of the contiguous zone, if the vessel is not equipped with a required marine pollution control device that com- plies with the requirements established under this subsection, unless— (I) the owner or operator of the vessel denotes in an entry in the official log- book of the vessel that the equipment was not operational; and (II) either— (aa) the applicable discharge was avoided; or (bb) an alternate compliance option approved by the Secretary as meeting the applicable standard was employed. (C) Affirmative defense No person shall be found to be in violation of this paragraph if— (i) the violation was in the interest of ensuring the safety of life at sea, as deter- mined by the Secretary; and (ii) the applicable emergency cir- cumstance was not the result of negligence or malfeasance on the part of— (I) the owner or operator of the vessel; (II) the master of the vessel; or Page 536 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 (III) the person in charge of the vessel. (D) Treatment Each day of continuing violation of an ap- plicable requirement of this subsection shall constitute a separate offense. (E) In rem liability A vessel operated in violation of this sub- section is liable in rem for any civil penalty assessed for the violation. (F) Revocation of clearance The Secretary shall withhold or revoke the clearance of a vessel required under sec- tion 60105 of title 46 if the owner or operator of the vessel is in violation of this sub- section. (9) Effect on other laws (A) State authority (i) In general Except as provided in clauses (ii) through (v) and paragraph (10), effective beginning on the date on which the re- quirements promulgated by the Secretary under subparagraphs (A), (B), and (C) of paragraph (5) with respect to every dis- charge incidental to the normal operation of a vessel that is subject to regulation under this subsection are final, effective, and enforceable, no State, political sub- division of a State, or interstate agency may adopt or enforce any law, regulation, or other requirement of the State, polit- ical subdivision, or interstate agency with respect to any such discharge. (ii) Identical or lesser State laws Clause (i) shall not apply to any law, reg- ulation, or other requirement of a State, political subdivision of a State, or inter- state agency in effect on or after Decem- ber 4, 2018— (I) that is identical to a Federal re- quirement under this subsection applica- ble to the relevant discharge; or (II) compliance with which would be achieved concurrently in achieving com- pliance with a Federal requirement under this subsection applicable to the relevant discharge. (iii) State enforcement of Federal require- ments A State may enforce any standard of per- formance or other Federal requirement of this subsection in accordance with sub- section (k) or other applicable Federal au- thority. (iv) Exception for certain fees (I) In general Subject to subclauses (II) and (III), a State that assesses any fee pursuant to any State or Federal law relating to the regulation of a discharge incidental to the normal operation of a vessel before December 4, 2018, may assess or retain a fee to cover the costs of administration, inspection, monitoring, and enforcement activities by the State to achieve com- pliance with the applicable requirements of this subsection. (II) Maximum amount (aa) In general Except as provided in item (bb), a State may assess a fee for activities under this clause equal to not more than $1,000 against the owner or oper- ator of a vessel that— (AA) has operated outside of that State; and (BB) arrives at a port or place of destination in the State (excluding movement entirely within a single port or place of destination). (bb) Vessels engaged in coastwise trade A State may assess against the owner or operator of a vessel registered in accordance with applicable Federal law and lawfully engaged in the coast- wise trade not more than $5,000 in fees under this clause per vessel during a calendar year. (III) Adjustment for inflation (aa) In general A State may adjust the amount of a fee authorized under this clause not more frequently than once every 5 years to reflect the percentage by which the Consumer Price Index for All Urban Consumers published by the Department of Labor for the month of October immediately preceding the date of adjustment exceeds the Con- sumer Price Index for All Urban Con- sumers published by the Department of Labor for the month of October that immediately precedes the date that is 5 years before the date of adjustment. (bb) Effect of subclause Nothing in this subclause prevents a State from adjusting a fee in effect be- fore December 4, 2018, to the applicable maximum amount under subclause (II). (cc) Applicability This subclause applies only to in- creases in fees to amounts greater than the applicable maximum amount under subclause (II). (v) Alaska graywater Clause (i) shall not apply with respect to any discharge of graywater (as defined in section 1414 of the Consolidated Appropria- tions Act, 2001 (Public Law 106–554; 114 Stat. 2763A–323)) from a passenger vessel (as defined in section 2101 of title 46) in the State of Alaska (including all waters in the Alexander Archipelago) carrying 50 or more passengers. (vi) Preservation of authority Nothing in this subsection preempts any State law, public initiative, referendum, regulation, requirement, or other State ac- tion, except as expressly provided in this subsection. Page 537 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 (B) Established regimes Except as expressly provided in this sub- section, nothing in this subsection affects the applicability to a vessel of any other provision of Federal law, including— (i) this section; (ii) section 1321 of this title; (iii) the Act to Prevent Pollution from Ships (33 U.S.C. 1901 et seq.); and (iv) title X of the Coast Guard Author- ization Act of 2010 (33 U.S.C. 3801 et seq.). (C) Permitting Effective beginning on December 4, 2018— (i) the Small Vessel General Permit is repealed; and (ii) the Administrator, or a State in the case of a permit program approved under section 1342 of this title, shall not require, or in any way modify, a permit under that section for— (I) any discharge that is subject to reg- ulation under this subsection; (II) any discharge incidental to the normal operation of a vessel from a small vessel or fishing vessel, regardless of whether that discharge is subject to regulation under this subsection; or (III) any discharge described in para- graph (2)(B)(ii). (D) No effect on civil or criminal actions Nothing in this subsection, or any stand- ard, regulation, or requirement established under this subsection, modifies or otherwise affects, preempts, or displaces— (i) any cause of action; or (ii) any provision of Federal or State law establishing a remedy for civil relief or criminal penalty. (E) No effect on certain secretarial authority Nothing in this subsection affects the au- thority of the Secretary of Commerce or the Secretary of the Interior to administer any land or waters under the administrative con- trol of the Secretary of Commerce or the Secretary of the Interior, respectively. (F) No limitation on State inspection author- ity Nothing in this subsection limits the au- thority of a State to inspect a vessel pursu- ant to paragraph (5)(A)(iii) in order to mon- itor compliance with an applicable require- ment of this section. (10) Additional regional requirements (A) Minimum Great Lakes System require- ments (i) In general Except as provided in clause (ii), the owner or operator of a vessel entering the St. Lawrence Seaway through the mouth of the St. Lawrence River shall conduct a complete ballast water exchange or salt- water flush— (I) not less than 200 nautical miles from any shore for a voyage originating outside the United States or Cana- dian exclusive economic zone; or (II) not less than 50 nautical miles from any shore for a voyage originating within the United States or Canadian exclusive economic zone. (ii) Exceptions Clause (i) shall not apply to a vessel if— (I) complying with an applicable re- quirement of clause (i)— (aa) would compromise the safety of the vessel; or (bb) is otherwise prohibited by any Federal, Canadian, or international law (including regulations) pertaining to vessel safety; (II) design limitations of the vessel prevent a ballast water exchange from being conducted in accordance with an applicable requirement of clause (i); (III) the vessel— (aa) is certified by the Secretary as having no residual ballast water or sediments onboard; or (bb) retains all ballast water while in waters subject to the requirement; or (IV) empty ballast tanks on the vessel are sealed and certified by the Secretary in a manner that ensures that— (aa) no discharge or uptake occurs; and (bb) any subsequent discharge of bal- last water is subject to the require- ment. (B) Enhanced Great Lakes System require- ments (i) Petitions by Governors for proposed en- hanced standards and requirements (I) In general The Governor of a Great Lakes State (or a State employee designee) may sub- mit a petition in accordance with sub- clause (II) to propose that other Gov- ernors of Great Lakes States endorse an enhanced standard of performance or other requirement with respect to any discharge that— (aa) is subject to regulation under this subsection; and (bb) occurs within the Great Lakes System. (II) Submission A Governor shall submit a petition under subclause (I), in writing, to— (aa) the Executive Director of the Great Lakes Commission, in such man- ner as may be prescribed by the Great Lakes Commission; (bb) the Governor of each other Great Lakes State; and (cc) the Director of the Great Lakes National Program Office established by section 1268(b) of this title. Page 538 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 (III) Preliminary assessment by Great Lakes Commission (aa) In general After the date of receipt of a petition under subclause (II)(aa), the Great Lakes Commission (acting through the Great Lakes Panel on Aquatic Nui- sance Species, to the maximum extent practicable) may develop a preliminary assessment regarding each enhanced standard of performance or other re- quirement described in the petition. (bb) Provisions The preliminary assessment devel- oped by the Great Lakes Commission under item (aa)— (AA) may be developed in consulta- tion with relevant experts and stake- holders; (BB) may be narrative in nature; (CC) may include the preliminary views, if any, of the Great Lakes Commission on the propriety of the proposed enhanced standard of per- formance or other requirement; (DD) shall be submitted, in writing, to the Governor of each Great Lakes State and the Director of the Great Lakes National Program Office and published on the internet website of the Great Lakes National Program Office; and (EE) except as provided in clause (iii), shall not be taken into consid- eration, or provide a basis for review, by the Administrator or the Sec- retary for purposes of that clause. (ii) Proposed enhanced standards and re- quirements (I) Publication in Federal Register (aa) Request by Governor Not earlier than the date that is 90 days after the date on which the Exec- utive Director of the Great Lakes Commission receives from a Governor of a Great Lakes State a petition under clause (i)(II)(aa), the Governor may request the Director of the Great Lakes National Program Office to pub- lish, for a period requested by the Gov- ernor of not less than 30 days, and the Director shall so publish, in the Fed- eral Register for public comment— (AA) a copy of the petition; and (BB) if applicable as of the date of publication, any preliminary assess- ment of the Great Lakes Commission developed under clause (i)(III) relat- ing to the petition. (bb) Review of public comments On receipt of a written request of a Governor of a Great Lakes State, the Director of the Great Lakes National Program Office shall make available all public comments received in re- sponse to the notice under item (aa). (cc) No response required Notwithstanding any other provision of law, a Governor of a Great Lakes State or the Director of the Great Lakes National Program Office shall not be required to provide a response to any comment received in response to the publication of a petition or pre- liminary assessment under item (aa). (dd) Purpose Any public comments received in re- sponse to the publication of a petition or preliminary assessment under item (aa) shall be used solely for the purpose of providing information and feedback to the Governor of each Great Lakes State regarding the decision to endorse the proposed standard or requirement. (ee) Effect of petition A proposed standard or requirement developed under subclause (II) may dif- fer from the proposed standard or re- quirement described in a petition pub- lished under item (aa). (II) Coordination to develop proposed standard or requirement After the expiration of the public com- ment period for the petition under sub- clause (I), any interested Governor of a Great Lakes State may work in coordi- nation with the Great Lakes Commission to develop a proposed standard of per- formance or other requirement applica- ble to a discharge referred to in the peti- tion. (III) Requirements A proposed standard of performance or other requirement under subclause (II)— (aa) shall be developed— (AA) in consultation with rep- resentatives from the Federal and provincial governments of Canada; (BB) after notice and opportunity for public comment on the petition published under subclause (I); and (CC) taking into consideration the preliminary assessment, if any, of the Great Lakes Commission under clause (i)(III); (bb) shall be specifically endorsed in writing by— (AA) the Governor of each Great Lakes State, if the proposed standard or requirement would impose any ad- ditional equipment requirement on a vessel; or (BB) not fewer than 5 Governors of Great Lakes States, if the proposed standard or requirement would not impose any additional equipment re- quirement on a vessel; and (cc) in the case of a proposed require- ment to prohibit 1 or more types of dis- charge regulated under this subsection, whether treated or not treated, into waters within the Great Lakes System, shall not apply outside the waters of the Great Lakes States of the Gov- ernors endorsing the proposed require- ment under item (bb). Page 539 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 (iii) Promulgation by Administrator and Secretary (I) Submission (aa) In general The Governors endorsing a proposed standard or requirement under clause (ii)(III)(bb) may jointly submit to the Administrator and the Secretary for approval each proposed standard of performance or other requirement de- veloped and endorsed pursuant to clause (ii). (bb) Inclusion Each submission under item (aa) shall include an explanation regarding why the applicable standard of per- formance or other requirement is— (AA) at least as stringent as a com- parable standard of performance or other requirement under this sub- section; (BB) in accordance with maritime safety; and (CC) in accordance with applicable maritime and navigation laws and regulations. (cc) Withdrawal (AA) In general The Governor of any Great Lakes State that endorses a proposed standard or requirement under clause (ii)(III)(bb) may withdraw the endorsement by not later than the date that is 90 days after the date on which the Administrator and the Secretary receive the proposed standard or requirement. (BB) Effect on Federal review If, after the withdrawal of an en- dorsement under subitem (AA), the proposed standard or requirement does not have the applicable number of endorsements under clause (ii)(III)(bb), the Administrator and the Secretary shall terminate the re- view under this clause. (dd) Dissenting opinions The Governor of a Great Lakes State that does not endorse a proposed standard or requirement under clause (ii)(III)(bb) may submit to the Admin- istrator and the Secretary any dis- senting opinions of the Governor. (II) Joint notice On receipt of a proposed standard of performance or other requirement under subclause (I), the Administrator and the Secretary shall publish in the Federal Register a joint notice that, at min- imum— (aa) states that the proposed stand- ard or requirement is publicly avail- able; and (bb) provides an opportunity for pub- lic comment regarding the proposed standard or requirement during the 90- day period beginning on the date of re- ceipt by the Administrator and the Secretary of the proposed standard or requirement. (III) Review (aa) In general As soon as practicable after the date of publication of a joint notice under subclause (II)— (AA) the Administrator shall com- mence a review of each proposed standard of performance or other re- quirement covered by the notice to determine whether that standard or requirement is at least as stringent as comparable standards and require- ments under this subsection; and (BB) the Secretary shall commence a review of each proposed standard of performance or other requirement covered by the notice to determine whether that standard or require- ment is in accordance with maritime safety and applicable maritime and navigation laws and regulations. (bb) Consultation In carrying out item (aa), the Admin- istrator and the Secretary— (AA) shall consult with the Gov- ernor of each Great Lakes State and representatives from the Federal and provincial governments of Canada; (BB) shall take into consideration any relevant data or public com- ments received under subclause (II)(bb); and (CC) shall not take into consider- ation any preliminary assessment by the Great Lakes Commission under clause (i)(III), or any dissenting opin- ion under subclause (I)(dd), except to the extent that such an assessment or opinion is relevant to the criteria for the applicable determination under item (aa). (IV) Approval or disapproval Not later than 180 days after the date of receipt of each proposed standard of performance or other requirement under subclause (I), the Administrator and the Secretary shall— (aa) determine, as applicable, wheth- er each proposed standard or other re- quirement satisfies the criteria under subclause (III)(aa); (bb) approve each proposed standard or other requirement, unless the Ad- ministrator or the Secretary, as appli- cable, determines under item (aa) that the proposed standard or other require- ment does not satisfy the criteria under subclause (III)(aa); and (cc) submit to the Governor of each Great Lakes State, and publish in the Federal Register, a notice of the deter- mination under item (aa). Page 540 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 (V) Action on disapproval (aa) Rationale and recommendations If the Administrator and the Sec- retary disapprove a proposed standard of performance or other requirement under subclause (IV)(bb), the notices under subclause (IV)(cc) shall include— (AA) a description of the reasons why the standard or requirement is, as applicable, less stringent than a comparable standard or requirement under this subsection, inconsistent with maritime safety, or incon- sistent with applicable maritime and navigation laws and regulations; and (BB) any recommendations regard- ing changes the Governors of the Great Lakes States could make to conform the disapproved portion of the standard or requirement to the requirements of this subparagraph. (bb) Review Disapproval of a proposed standard or requirement by the Administrator and the Secretary under this subpara- graph shall be considered to be a final agency action subject to judicial re- view under section 1369 of this title. (VI) Action on approval On approval by the Administrator and the Secretary of a proposed standard of performance or other requirement under subclause (IV)(bb)— (aa) the Administrator shall estab- lish, by regulation, the proposed stand- ard or requirement within the Great Lakes System in lieu of any com- parable standard or other requirement promulgated under paragraph (4); and (bb) the Secretary shall establish, by regulation, any requirements nec- essary to implement, ensure compli- ance with, and enforce the standard or requirement under item (aa), or to apply the proposed requirement, with- in the Great Lakes System in lieu of any comparable requirement promul- gated under paragraph (5). (VII) No judicial review for certain ac- tions An action or inaction of a Governor of a Great Lakes State or the Great Lakes Commission under this subparagraph shall not be subject to judicial review. (VIII) Great Lakes Compact Nothing in this subsection limits, al- ters, or amends the Great Lakes Com- pact 2 to which Congress granted consent in the Act of July 24, 1968 (Public Law 90–419; 82 Stat. 414). (IX) Authorization of appropriations There is authorized to be appropriated to the Great Lakes Commission $5,000,000, to be available until expended. (C) Minimum Pacific Region requirements (i) Definition of commercial vessel In this subparagraph, the term ‘‘com- mercial vessel’’ means a vessel operating between— (I) 2 ports or places of destination within the Pacific Region; or (II) a port or place of destination with- in the Pacific Region and a port or place of destination on the Pacific Coast of Canada or Mexico north of parallel 20 de- grees north latitude, inclusive of the Gulf of California. (ii) Ballast water exchange (I) In general Except as provided in subclause (II) and clause (iv), the owner or operator of a commercial vessel shall conduct a complete ballast water exchange in wa- ters more than 50 nautical miles from shore. (II) Exemptions Subclause (I) shall not apply to a com- mercial vessel— (aa) using, in compliance with appli- cable requirements, a type-approved ballast water management system ap- proved by the Secretary; or (bb) voyaging— (AA) between or to a port or place of destination in the State of Wash- ington, if the ballast water to be dis- charged from the commercial vessel originated solely from waters located between the parallel 46 degrees north latitude, including the internal wa- ters of the Columbia River, and the internal waters of Canada south of parallel 50 degrees north latitude, in- cluding the waters of the Strait of Georgia and the Strait of Juan de Fuca; (BB) between ports or places of des- tination in the State of Oregon, if the ballast water to be discharged from the commercial vessel origi- nated solely from waters located be- tween the parallel 40 degrees north latitude and the parallel 50 degrees north latitude; (CC) between ports or places of des- tination in the State of California within the San Francisco Bay area east of the Golden Gate Bridge, in- cluding the Port of Stockton and the Port of Sacramento, if the ballast water to be discharged from the com- mercial vessel originated solely from ports or places within that area; (DD) between the Port of Los Ange- les, the Port of Long Beach, and the El Segundo offshore marine oil ter- minal, if the ballast water to be dis- charged from the commercial vessel originated solely from the Port of Los Angeles, the Port of Long Beach, or the El Segundo offshore marine oil terminal; (EE) between a port or place of des- tination in the State of Alaska with- in a single Captain of the Port Zone; Page 541 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 (FF) between ports or places of des- tination in different counties of the State of Hawaii, if the vessel may conduct a complete ballast water ex- change in waters that are more than 10 nautical miles from shore and at least 200 meters deep; or (GG) between ports or places of destination within the same county of the State of Hawaii, if the vessel does not transit outside State ma- rine waters during the voyage. (iii) Low-salinity ballast water (I) In general Except as provided in subclause (II) and clause (iv), the owner or operator of a commercial vessel that transports bal- last water sourced from waters with a measured salinity of less than 18 parts per thousand and voyages to a Pacific Region port or place of destination with a measured salinity of less than 18 parts per thousand shall conduct a complete ballast water exchange— (aa) not less than 50 nautical miles from shore, if the ballast water was sourced from a Pacific Region port or place of destination; or (bb) more than 200 nautical miles from shore, if the ballast water was not sourced from a Pacific Region port or place of destination. (II) Exception Subclause (I) shall not apply to a com- mercial vessel voyaging to a port or place of destination in the Pacific Re- gion that is using, in compliance with applicable requirements, a type-approved ballast water management system ap- proved by the Secretary to achieve standards of performance of— (aa) less than 1 organism per 10 cubic meters, if that organism— (AA) is living, or has not been ren- dered nonviable; and (BB) is 50 or more micrometers in minimum dimension; (bb) less than 1 organism per 10 milli- liters, if that organism— (AA) is living, or has not been ren- dered nonviable; and (BB) is more than 10, but less than 50, micrometers in minimum dimen- sion; (cc) concentrations of indicator mi- crobes that are less than— (AA) 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; (BB) 126 colony-forming units of escherichia coli per 100 milliliters; and (CC) 33 colony-forming units of in- testinal enterococci per 100 milli- liters; and (dd) concentrations of such addi- tional indicator microbes and viruses as may be specified in the standards of performance established by the Admin- istrator under paragraph (4). (iv) General exceptions The requirements of clauses (ii) and (iii) shall not apply to a commercial vessel if— (I) complying with the requirement would compromise the safety of the com- mercial vessel; (II) design limitations of the commer- cial vessel prevent a ballast water ex- change from being conducted in accord- ance with clause (ii) or (iii), as applica- ble; (III) the commercial vessel— (aa) is certified by the Secretary as having no residual ballast water or sediments onboard; or (bb) retains all ballast water while in waters subject to those requirements; or (IV) empty ballast tanks on the com- mercial vessel are sealed and certified by the Secretary in a manner that ensures that— (aa) no discharge or uptake occurs; and (bb) any subsequent discharge of bal- last water is subject to those require- ments. (D) Establishment of State no-discharge zones (i) State prohibition Subject to clause (ii), after the effective date of regulations promulgated by the Secretary under paragraph (5), if any State determines that the protection and en- hancement of the quality of some or all of the waters within the State require great- er environmental protection, the State may prohibit 1 or more types of discharge regulated under this subsection, whether treated or not treated, into such waters. (ii) Applicability A prohibition by a State under clause (i) shall not apply until the date on which the Administrator makes the applicable deter- minations described in clause (iii). (iii) Prohibition by Administrator (I) Determination On application of a State, the Adminis- trator, in concurrence with the Sec- retary (subject to subclause (II)), shall, by regulation, prohibit the discharge from a vessel of 1 or more discharges subject to regulation under this sub- section, whether treated or not treated, into the waters covered by the applica- tion if the Administrator determines that— (aa) prohibition of the discharge would protect and enhance the quality of the specified waters within the State; (bb) adequate facilities for the safe and sanitary removal and treatment of Page 542 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 the discharge are reasonably available for the water and all vessels to which the prohibition would apply; (cc) the discharge can be safely col- lected and stored until a vessel reaches a discharge facility or other location; and (dd) in the case of an application for the prohibition of discharges of ballast water in a port (or in any other loca- tion where cargo, passengers, or fuel are loaded and unloaded)— (AA) the adequate facilities de- scribed in item (bb) are reasonably available for commercial vessels, after considering, at a minimum, water depth, dock size, pumpout fa- cility capacity and flow rate, avail- ability of year-round operations, proximity to navigation routes, and the ratio of pumpout facilities to the population and discharge capacity of commercial vessels operating in those waters; and (BB) the prohibition will not un- reasonably interfere with the safe loading and unloading of cargo, pas- sengers, or fuel. (II) Concurrence with Secretary (aa) Request The Administrator shall submit to the Secretary a request for written concurrence with respect to a prohibi- tion under subclause (I). (bb) Effect of failure to concur A failure by the Secretary to concur with the Administrator under sub- clause (I) by the date that is 60 days after the date on which the Adminis- trator submits a request for concur- rence under item (aa) shall not prevent the Administrator from prohibiting the relevant discharge in accordance with subclause (III), subject to the con- dition that the Administrator shall in- clude in the administrative record of the promulgation— (AA) documentation of the request submitted under item (aa); and (BB) the response of the Adminis- trator to any written objections re- ceived from the Secretary relating to the proposed standard of perform- ance during the 60-day period begin- ning on the date of submission of the request. (III) Timing The Administrator shall approve or disapprove an application submitted under subclause (I) by not later than 90 days after the date on which the applica- tion is submitted to the Administrator. (E) Maintenance in effect of more-stringent standards In any case in which a requirement estab- lished under this paragraph is more strin- gent or environmentally protective than a comparable requirement established under paragraph (4), (5), or (6), the more-stringent or more-protective requirement shall con- trol. (June 30, 1948, ch. 758, title III, § 312, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 871; amended Pub. L. 95–217, § 59, Dec. 27, 1977, 91 Stat. 1596; Pub. L. 96–88, title V, § 509(b), Oct. 17, 1979, 93 Stat. 695; Pub. L. 100–4, title III, § 311, Feb. 4, 1987, 101 Stat. 42; Pub. L. 104–106, div. A, title III, § 325(b)–(c)(2), Feb. 10, 1996, 110 Stat. 254–259; Pub. L. 110–288, § 4, July 29, 2008, 122 Stat. 2650; Pub. L. 115–282, title IX, § 903(a)(1), (b), (c)(1), Dec. 4, 2018, 132 Stat. 4324, 4354, 4355.) Editorial Notes REFERENCES IN TEXT For definition of Canal Zone, referred to in subsecs. (a)(4) and (m), see section 3602(b) of Title 22, Foreign Relations and Intercourse. Sections 92, 93, and 633 of title 14, referred to in sub- sec. (p)(1)(J), were redesignated sections 501, 504, and 503, respectively, of title 14 by Pub. L. 115–282, title I, § 105(b), Dec. 4, 2018, 132 Stat. 4200, and references to sec- tions 92, 93, and 633 of title 14 deemed to refer to such redesignated sections, see section 123(b)(1) of Pub. L. 115–282, set out as a References to Sections of Title 14 as Redesignated by Pub. L. 115–282 note preceding sec- tion 101 of Title 14, Coast Guard. The Act of July 24, 1968, referred to in subsec. (p)(1)(L), (10)(B)(iii)(VIII), is Pub. L. 90–419, July 24, 1968, 82 Stat. 414, which is not classified to the Code. The Safe Drinking Water Act, referred to in subsec. (p)(2)(B)(ii)(III), is title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660, which is classified generally to subchapter XII (§ 300f et seq.) of chapter 6A of Title 42, The Public Health and Wel- fare. For complete classification of this Act to the Code, see Short Title note set out under section 201 of Title 42 and Tables. Section 903(a)(2)(A) of the Vessel Incidental Dis- charge Act of 2018, referred to in subsec. (p)(3)(B), is section 903(a)(2)(A) of title IX of Pub. L. 115–282, Dec. 4, 2018, 132 Stat. 4354, which repealed section 4711 of Title 16, Conservation, and provisions set out as a note under section 1342 of this title. The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, referred to in subsec. (p)(3)(B), (5)(A)(ii)(IV), (C)(ii)(II)(bb)(AA), (cc), is title I of Pub. L. 101–646, Nov. 29, 1990, 104 Stat. 4761, which is classi- fied principally to chapter 67 (§ 4701 et seq.) of Title 16, Conservation. Section 1101 of the Act (as in effect on the day before December 4, 2018), means section 1101 of the Act, which was classified to section 4711 of Title 16, prior to repeal by Pub. L. 115–282, title IX, § 903(a)(2)(A)(i), Dec. 4, 2018, 132 Stat. 4354. For complete classification of this Act to the Code, see Short Title note set out under section 4701 of Title 16 and Tables. Section 1414 of the Consolidated Appropriations Act, 2001 (Public Law 106–554; 114 Stat. 2763A–323), referred to in subsec. (p)(9)(A)(v), probably means section 1414 of title XIV of div. B of H.R. 5666 of the 106th Congress, as enacted into law by section 1(a)(4) of Pub. L. 106–554, Dec. 21, 2000, 114 Stat. 2763, 2763A–322, which is set out in a note under section 1901 of this title. The Act to Prevent Pollution from Ships, referred to in subsec. (p)(9)(B)(iii), is Pub. L. 96–478, Oct. 21, 1980, 94 Stat. 2297, which is classified principally to chapter 33 (§ 1901 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1901 of this title and Tables. The Coast Guard Authorization Act of 2010, referred to in subsec. (p)(9)(B)(iv), is Pub. L. 111–281, Oct. 15, 2010, 124 Stat. 2905. Title X of the Act is classified prin- cipally to chapter 51 (§ 3801 et seq.) of this title. For complete classification of this Act to the Code, see Ta- bles. Page 543 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 AMENDMENTS 2018—Pub. L. 115–282, § 903(b)(1), substituted ‘‘Marine sanitation devices; discharges incidental to the normal operation of vessels’’ for ‘‘Marine sanitation devices’’ in section catchline. Subsec. (a). Pub. L. 115–282, § 903(b)(1), inserted head- ing and substituted ‘‘In’’ for ‘‘For the purpose of’’ in in- troductory provisions. Subsec. (a)(7). Pub. L. 115–282, § 903(b)(2)(A), sub- stituted ‘‘devices, marine pollution control device equipment, or vessels’’ for ‘‘devices or of vessels’’. Subsec. (a)(13). Pub. L. 115–282, § 903(b)(2)(B), inserted ‘‘, except as provided in subsection (p),’’ after ‘‘means’’ in introductory provisions. Subsec. (g)(1). Pub. L. 115–282, § 903(b)(3)(A), (B), in- serted ‘‘or marine pollution control device equipment’’ after ‘‘marine sanitation device’’ in two places and ‘‘or equipment’’ after ‘‘such device’’ and ‘‘test device’’. Subsec. (g)(2). Pub. L. 115–282, § 903(b)(3)(A), (C), in- serted ‘‘or marine pollution control device equipment’’ after ‘‘marine sanitation device’’ and ‘‘or equipment’’ after ‘‘the device’’, ‘‘Any device’’, and ‘‘certified test device’’ wherever appearing. Subsec. (h). Pub. L. 115–282, § 903(b)(4)(D), inserted heading. Subsec. (h)(1). Pub. L. 115–282, § 903(b)(4)(C), (D), des- ignated existing provisions as par. (1), inserted heading, substituted ‘‘Subject to paragraph (2), after’’ for ‘‘After’’, redesignated former pars. (1) to (4) as subpars. (A) to (D), respectively, of par. (1), and realigned mar- gins. Pub. L. 115–282, § 903(b)(4)(A), inserted ‘‘and marine pollution control device equipment’’ after ‘‘marine sanitation device’’. Subsec. (h)(2). Pub. L. 115–282, § 903(b)(4)(E), added par. (2). Former par. (2) redesignated subpar. (B) of subsec. (h)(1). Pub. L. 115–282, § 903(b)(4)(B), inserted ‘‘or any cer- tified marine pollution control device equipment or ele- ment of design of such equipment’’ after ‘‘such device’’. Subsec. (h)(3), (4). Pub. L. 115–282, § 903(b)(4)(C), redes- ignated pars. (3) and (4) as subpars. (C) and (D), respec- tively, of subsec. (h)(1). Subsec. (k). Pub. L. 115–282, § 903(c), designated first sentence of existing provisions as par. (2)(A), sub- stituted ‘‘This’’ for ‘‘The provisions of this’’ and ‘‘oper- ating, who may use, by agreement’’ for ‘‘operating and he may utilize by agreement’’ in par. (2)(A) as redesig- nated, inserted headings for subsec. (k), par. (2), and par. (2)(A), added pars. (1), (2)(B), (2)(C), and (3), and struck out former second sentence which read as fol- lows: ‘‘The provisions of this section may also be en- forced by a State.’’ Subsec. (p). Pub. L. 115–282, § 903(a)(1), added subsec. (p). 2008—Subsec. (o). Pub. L. 110–288 added subsec. (o). 1996—Subsec. (a)(8). Pub. L. 104–106, § 325(c)(1)(A), sub- stituted ‘‘corporation, association, or agency of the United States,’’ for ‘‘corporation, or association,’’. Subsec. (a)(12) to (14). Pub. L. 104–106, § 325(c)(1)(B), (C), added pars. (12) to (14). Subsec. (j). Pub. L. 104–106, § 325(c)(2), substituted ‘‘subsection (g)(1), clause (1) or (2) of subsection (h), or subsection (n)(8) shall be liable’’ for ‘‘subsection (g)(1) of this section or clause (1) or (2) of subsection (h) of this section shall be liable’’. Subsec. (n). Pub. L. 104–106, § 325(b), added subsec. (n). 1987—Subsec. (f)(1). Pub. L. 100–4, § 311(a), designated existing provision as subpar. (A), substituted ‘‘Except as provided in subparagraph (B), after’’ for ‘‘After’’, and added subpar. (B). Subsec. (k). Pub. L. 100–4, § 311(b), inserted at end ‘‘The provisions of this section may also be enforced by a State.’’ 1977—Subsec. (a)(6). Pub. L. 95–217, § 59(a), inserted ‘‘except that, with respect to commercial vessels on the Great Lakes, such term shall include graywater’’ after ‘‘receive or retain body wastes’’. Subsec. (a)(10), (11). Pub. L. 95–217, § 59(b), added pars. (10) and (11). Subsec. (b)(1). Pub. L. 95–217, § 59(c), inserted ref- erences to standards established under subsec. (c)(1)(B) of this section and to standards promulgated under sub- sec. (c) of this section. Subsec. (c)(1). Pub. L. 95–217, § 59(d), designated exist- ing provisions as subpar. (A) and added subpar. (B). Subsec. (f)(4). Pub. L. 95–217, § 59(e), designated exist- ing provisions as subpar. (A) and added subpar. (B). Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Secretary of Health and Human Services’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ in subsec. (e) pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education. TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. TERMINATION OF UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE CANAL ZONE For termination of the United States District Court for the District of the Canal Zone at end of the ‘‘transi- tion period’’, being the 30-month period beginning Oct. 1, 1979, and ending midnight Mar. 31, 1982, see Para- graph 5 of Article XI of the Panama Canal Treaty of 1977 and sections 2101 and 2201 to 2203 of Pub. L. 96–70, title II, Sept. 27, 1979, 93 Stat. 493, formerly classified to sections 3831 and 3841 to 3843, respectively, of Title 22, Foreign Relations and Intercourse. PURPOSES OF 2018 AMENDMENT; FINDINGS Pub. L. 115–282, title IX, § 902, Dec. 4, 2018, 132 Stat. 4322, provided that: ‘‘(a) PURPOSES.—The purposes of this title [see Short Title of 2018 Amendment note set out under section 1251 of this title] are— ‘‘(1) to provide for the establishment of uniform, en- vironmentally sound standards and requirements for the management of discharges incidental to the nor- mal operation of a vessel; ‘‘(2) to charge the Environmental Protection Agen- cy with primary responsibility for establishing stand- ards relating to the discharge of pollutants from ves- sels; ‘‘(3) to charge the Coast Guard with primary re- sponsibility for prescribing, administering, and en- forcing regulations, consistent with the discharge standards established by the Environmental Protec- tion Agency, for the design, construction, installa- tion, and operation of the equipment and manage- ment practices required onboard vessels; and ‘‘(4) to preserve the flexibility of States, political subdivisions, and certain regions with respect to the administration and enforcement of standards relating to the discharge of pollutants from vessels engaged in maritime commerce and transportation. ‘‘(b) FINDINGS.—Congress finds that— ‘‘(1) the Environmental Protection Agency is the principal Federal authority charged under the Fed- eral Water Pollution Control Act (33 U.S.C. 1251 et seq.) with regulating through the issuance of permits for the discharge of pollutants into the navigable wa- ters of the United States; ‘‘(2) the Coast Guard is the principal Federal au- thority charged with administering, enforcing, and prescribing regulations relating to the discharge of pollutants from vessels; and ‘‘(3) during the period of 1973 to 2010— Page 544 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 ‘‘(A) the Environmental Protection Agency pro- mulgated regulations exempting certain discharges incidental to the normal operation of vessels from otherwise applicable permitting requirements of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.); and ‘‘(B) Congress enacted laws on numerous occa- sions governing the regulation of discharges inci- dental to the normal operation of vessels, includ- ing— ‘‘(i) the Act to Prevent Pollution from Ships (33 U.S.C. 1901 et seq.); ‘‘(ii) the Nonindigenous Aquatic Nuisance Pre- vention and Control Act of 1990 (16 U.S.C. 4701 et seq.); ‘‘(iii) the National Invasive Species Act of 1996 (16 U.S.C. 4701 note; Public Law 104–332) [see Short Title of 1996 Amendment note set out under sec- tion 4701 of this title]; ‘‘(iv) section 415 of the Coast Guard Authoriza- tion Act of 1998 (Public Law 105–383; 112 Stat. 3434) and section 623 of the Coast Guard and Maritime Transportation Act of 2004 (33 U.S.C. 1901 note; Public Law 108–293), which established interim and permanent requirements, respectively, for the regulation of vessel discharges of certain bulk cargo residue; ‘‘(v) title XIV of division B of Appendix D of the Consolidated Appropriations Act, 2001 (Public Law 106–554; 114 Stat. 2763A–315) [33 U.S.C. 1901 note], which prohibited or limited certain vessel discharges in certain areas of Alaska; ‘‘(vi) section 204 of the Maritime Transportation Security Act of 2002 ([former] 33 U.S.C. 1902a), which established requirements for the regulation of vessel discharges of agricultural cargo residue material in the form of hold washings; and ‘‘(vii) title X of the Coast Guard Authorization Act of 2010 (33 U.S.C. 3801 et seq.), which provided for the implementation of the International Con- vention on the Control of Harmful Anti-Fouling Systems on Ships, 2001.’’ PURPOSE OF 1996 AMENDMENT Pub. L. 104–106, div. A, title III, § 325(a), Feb. 10, 1996, 110 Stat. 254, provided that: ‘‘The purposes of this sec- tion [amending this section and section 1362 of this title and enacting provisions set out as a note below] are to— ‘‘(1) enhance the operational flexibility of vessels of the Armed Forces domestically and internationally; ‘‘(2) stimulate the development of innovative vessel pollution control technology; and ‘‘(3) advance the development by the United States Navy of environmentally sound ships.’’ COOPERATION IN NATIONAL DISCHARGE STANDARDS DEVELOPMENT Pub. L. 104–106, div. A, title III, § 325(d), Feb. 10, 1996, 110 Stat. 259, provided that: ‘‘The Administrator of the Environmental Protection Agency and the Secretary of Defense may, by mutual agreement, with or without re- imbursement, provide for the use of information, re- ports, personnel, or other resources of the Environ- mental Protection Agency or the Department of De- fense to carry out section 312(n) of the Federal Water Pollution Control Act [33 U.S.C. 1322(n)] (as added by subsection (b)), including the use of the resources— ‘‘(1) to determine— ‘‘(A) the nature and environmental effect of dis- charges incidental to the normal operation of a ves- sel of the Armed Forces; ‘‘(B) the practicability of using marine pollution control devices on vessels of the Armed Forces; and ‘‘(C) the effect that installation or use of marine pollution control devices on vessels of the Armed Forces would have on the operation or operational capability of the vessels; and ‘‘(2) to establish performance standards for marine pollution control devices on vessels of the Armed Forces.’’ CLEAN VESSELS Pub. L. 102–587, title V, subtitle F, Nov. 4, 1992, 106 Stat. 5086, as amended by Pub. L. 109–59, title X, § 10131, Aug. 10, 2005, 119 Stat. 1931, provided that: ‘‘SEC. 5601. SHORT TITLE. ‘‘This subtitle may be cited as the ‘Clean Vessel Act of 1992’. ‘‘SEC. 5602. FINDINGS; PURPOSE. ‘‘(a) FINDINGS.—The Congress finds the following: ‘‘(1) The discharge of untreated sewage by vessels is prohibited under Federal law in all areas within the navigable waters of the United States. ‘‘(2) The discharge of treated sewage by vessels is prohibited under either Federal or State law in many of the United States bodies of water where rec- reational boaters operate. ‘‘(3) There is currently an inadequate number of pumpout stations for type III marine sanitation de- vices where recreational vessels normally operate. ‘‘(4) Sewage discharged by recreational vessels be- cause of an inadequate number of pumpout stations is a substantial contributor to localized degradation of water quality in the United States. ‘‘(b) PURPOSE.—The purpose of this subtitle is to pro- vide funds to States for the construction, renovation, operation, and maintenance of pumpout stations and waste reception facilities. ‘‘SEC. 5603. DETERMINATION AND PLAN REGARD- ING STATE MARINE SANITATION DEVICE PUMPOUT STATION NEEDS. ‘‘(a) SURVEY.—Within 3 months after the notification under section 5605(b), each coastal State shall conduct a survey to determine— ‘‘(1) the number and location of all operational pumpout stations and waste reception facilities at public and private marinas, mooring areas, docks, and other boating access facilities within the coastal zone of the State; and ‘‘(2) the number of recreational vessels in the coast- al waters of the State with type III marine sanitation devices or portable toilets, and the areas of those coastal waters where those vessels congregate. ‘‘(b) PLAN.—Within 6 months after the notification under section 5605(b), and based on the survey con- ducted under subsection (a), each coastal State shall— ‘‘(1) develop and submit to the Secretary of the In- terior a plan for any construction or renovation of pumpout stations and waste reception facilities that are necessary to ensure that, based on the guidance issued under section 5605(a), there are pumpout sta- tions and waste reception facilities in the State that are adequate and reasonably available to meet the needs of recreational vessels using the coastal waters of the State; and ‘‘(2) submit to the Secretary of the Interior with that plan a list of all stations and facilities in the coastal zone of the State which are operational on the date of submittal. ‘‘(c) PLAN APPROVAL.— ‘‘(1) IN GENERAL.—Not later than 60 days after a plan is submitted by a State under subsection (b), the Secretary of the Interior shall approve or disapprove the plan, based on— ‘‘(A) the adequacy of the survey conducted by the State under subsection (a); and ‘‘(B) the ability of the plan, based on the guidance issued under section 5605(a), to meet the construc- tion and renovation needs of the recreational ves- sels identified in the survey. ‘‘(2) NOTIFICATION OF STATE; MODIFICATION.—The Secretary of the Interior shall promptly notify the affected Governor of the approval or disapproval of a plan. If a plan is disapproved, the Secretary of the In- terior shall recommend necessary modifications and return the plan to the affected Governor. ‘‘(3) RESUBMITTAL.—Not later than 60 days after re- ceiving a plan returned by the Secretary of the Inte- Page 545 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1322 rior, the Governor shall make the appropriate changes and resubmit the plan. ‘‘(d) INDICATION OF STATIONS AND FACILITIES ON NOAA CHARTS.— ‘‘(1) IN GENERAL.—The Under Secretary of Com- merce for Oceans and Atmosphere shall indicate, on charts published by the National Oceanic and Atmos- pheric Administration for the use of operators of rec- reational vessels, the locations of pumpout stations and waste reception facilities. ‘‘(2) NOTIFICATION OF NOAA.— ‘‘(A) LISTS OF STATIONS AND FACILITIES.—The Sec- retary of the Interior shall transmit to the Under Secretary of Commerce for Oceans and Atmosphere each list of operational stations and facilities sub- mitted by a State under subsection (b)(2), by not later than 30 days after the date of receipt of that list. ‘‘(B) COMPLETION OF PROJECT.—The Director of the United States Fish and Wildlife Service shall notify the Under Secretary of the location of each station or facility at which a construction or ren- ovation project is completed by a State with amounts made available under the Act of August 9, 1950 (16 U.S.C. 777a et seq. [16 U.S.C. 777 et seq.]), as amended by this subtitle, by not later than 30 days after the date of notification by a State of the com- pletion of the project. ‘‘SEC. 5604. FUNDING. ‘‘(a) TRANSFER.—[Amended section 777c of Title 16, Conservation.] ‘‘(b) ACCESS INCREASE.—[Amended section 777g of Title 16, Conservation.] ‘‘(c) GRANT PROGRAM.— ‘‘(1) MATCHING GRANTS.—The Secretary of the Inte- rior may obligate an amount not to exceed the amount made available under section 4(b)(2) of the Act of August 9, 1950 (16 U.S.C. 777c(b)(2) [now 16 U.S.C. 777c(b)(3)], as amended by this Act), to make grants to— ‘‘(A) coastal States to pay not more than 75 per- cent of the cost to a coastal State of— ‘‘(i) conducting a survey under section 5603(a); ‘‘(ii) developing and submitting a plan and ac- companying list under section 5603(b); ‘‘(iii) constructing and renovating pumpout sta- tions and waste reception facilities; and ‘‘(iv) conducting a program to educate rec- reational boaters about the problem of human body waste discharges from vessels and inform them of the location of pumpout stations and waste reception facilities. ‘‘(B) inland States, which can demonstrate to the Secretary of the Interior that there are an inad- equate number of pumpout stations and waste re- ception facilities to meet the needs of recreational vessels in the waters of that State, to pay 75 per- cent of the cost to that State of— ‘‘(i) constructing and renovating pumpout sta- tions and waste reception facilities in the inland State; and ‘‘(ii) conducting a program to educate rec- reational boaters about the problem of human body waste discharges from vessels and inform them of the location of pumpout stations and waste reception facilities. ‘‘(2) PRIORITY.—In awarding grants under this sub- section, the Secretary of the Interior shall give pri- ority consideration to grant applications that— ‘‘(A) provide for public/private partnership efforts to develop and operate pumpout stations and waste reception facilities; and ‘‘(B) propose innovative ways to increase the availability and use of pumpout stations and waste reception facilities. ‘‘(d) DISCLAIMER.—Nothing in this subtitle shall be in- terpreted to preclude a State from carrying out the provisions of this subtitle with funds other than those described in this section. ‘‘SEC. 5605. GUIDANCE AND NOTIFICATION. ‘‘(a) ISSUANCE OF GUIDANCE.—Not later than 3 months after the date of the enactment of this subtitle [Nov. 4, 1992], the Secretary of the Interior shall, after con- sulting with the Administrator of the Environmental Protection Agency, the Under Secretary of Commerce for Oceans and Atmosphere, and the Commandant of the Coast Guard, issue for public comment pumpout station and waste reception facility guidance. The Sec- retary of the Interior shall finalize the guidance not later than 6 months after the date of enactment of this subtitle. The guidance shall include— ‘‘(1) guidance regarding the types of pumpout sta- tions and waste reception facilities that may be ap- propriate for construction, renovation, operation, or maintenance with amounts available under the Act of August 9, 1950 (16 U.S.C. 777a et seq. [16 U.S.C. 777 et seq.]), as amended by this subtitle, and appropriate location of the stations and facilities within a marina or boatyard; ‘‘(2) guidance defining what constitutes adequate and reasonably available pumpout stations and waste reception facilities in boating areas; ‘‘(3) guidance on appropriate methods for disposal of vessel sewage from pumpout stations and waste re- ception facilities; ‘‘(4) guidance on appropriate connector fittings to facilitate the sanitary and expeditious discharge of sewage from vessels; ‘‘(5) guidance on the waters most likely to be af- fected by the discharge of sewage from vessels; and ‘‘(6) other information that is considered necessary to promote the establishment of pumpout facilities to reduce sewage discharges from vessels and to pro- tect United States waters. ‘‘(b) NOTIFICATION.—Not later than one month after the guidance issued under subsection (a) is finalized, the Secretary of the Interior shall provide notification in writing to the fish and wildlife, water pollution con- trol, and coastal zone management authorities of each State, of— ‘‘(1) the availability of amounts under the Act of August 9, 1950 (16 U.S.C. 777a et seq. [16 U.S.C. 777 et seq.]) to implement the Clean Vessel Act of 1992; and ‘‘(2) the guidance developed under subsection (a). ‘‘SEC. 5606. EFFECT ON STATE FUNDING ELIGI- BILITY. ‘‘This subtitle shall not be construed or applied to jeopardize any funds available to a coastal State under the Act of August 9, 1950 (16 U.S.C. 777a et seq. [16 U.S.C. 777 et seq.]), if the coastal State is, in good faith, pursuing a survey and plan designed to meet the pur- poses of this subtitle. ‘‘SEC. 5607. APPLICABILITY. ‘‘The requirements of section 5603 shall not apply to a coastal State if within six months after the date of enactment of this subtitle [Nov. 4, 1992] the Secretary of the Interior certifies that— ‘‘(1) the State has developed and is implementing a plan that will ensure that there will be pumpout sta- tions and waste reception facilities adequate to meet the needs of recreational vessels in the coastal waters of the State; or ‘‘(2) existing pumpout stations and waste reception facilities in the coastal waters of the State are ade- quate to meet those needs. ‘‘SEC. 5608. DEFINITIONS. ‘‘For the purposes of this subtitle the term: ‘‘(1) ‘coastal State’— ‘‘(A) means a State of the United States in, or bordering on the Atlantic, Pacific, or Arctic Ocean; the Gulf of Mexico; Long Island Sound; or one or more of the Great Lakes; ‘‘(B) includes Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa; and ‘‘(C) does not include a State for which the ratio of the number of recreational vessels in the State Page 546 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1323 numbered under chapter 123 of title 46, United States Code, to number of miles of shoreline (as that term is defined in section 926.2(d) of title 15, Code of Federal Regulations, as in effect on Janu- ary 1, 1991), is less than one. ‘‘(2) ‘coastal waters’ means— ‘‘(A) in the Great Lakes area, the waters within the territorial jurisdiction of the United States consisting of the Great Lakes, their connecting wa- ters, harbors, roadsteads, and estuary-type areas such as bays, shallows, and marshes; and ‘‘(B) in other areas, those waters, adjacent to the shorelines, which contain a measurable percentage of sea water, including sounds, bay, lagoons, bay- ous, ponds, and estuaries. ‘‘(3) ‘coastal zone’ has the same meaning that term has in section 304(1) of the Coastal Zone Management Act of 1972 (16 U.S.C. 1453(1)); ‘‘(4) ‘inland State’ means a State which is not a coastal state; ‘‘(5) ‘type III marine sanitation device’ means any equipment for installation on board a vessel which is specifically designed to receive, retain, and discharge human body wastes; ‘‘(6) ‘pumpout station’ means a facility that pumps or receives human body wastes out of type III marine sanitation devices installed on board vessels; ‘‘(7) ‘recreational vessel’ means a vessel— ‘‘(A) manufactured for operation, or operated, pri- marily for pleasure; or ‘‘(B) leased, rented, or chartered to another for the latter’s pleasure; and ‘‘(8) ‘waste reception facility’ means a facility spe- cifically designed to receive wastes from portable toilets carried on vessels, and does not include lavatories.’’ Executive Documents TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS For termination of Trust Territory of the Pacific Is- lands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions. CONTIGUOUS ZONE OF UNITED STATES For extension of contiguous zone of United States, see Proc. No. 7219, set out as a note under section 1331 of Title 43, Public Lands. § 1323. Federal facilities pollution control (a) Compliance with pollution control require- ments by Federal entities Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administra- tive authority, and process and sanctions re- specting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The preceding sentence shall apply (A) to any re- quirement whether substantive or procedural (including any recordkeeping or reporting re- quirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local ad- ministrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law. Nothing in this section shall be construed to prevent any department, agency, or instrumentality of the Federal Government, or any officer, agent, or employee thereof in the performance of his offi- cial duties, from removing to the appropriate Federal district court any proceeding to which the department, agency, or instrumentality or officer, agent, or employee thereof is subject pursuant to this section, and any such pro- ceeding may be removed in accordance with sec- tion 1441 et seq. of title 28. No officer, agent, or employee of the United States shall be person- ally liable for any civil penalty arising from the performance of his official duties, for which he is not otherwise liable, and the United States shall be liable only for those civil penalties aris- ing under Federal law or imposed by a State or local court to enforce an order or the process of such court. The President may exempt any ef- fluent source of any department, agency, or in- strumentality in the executive branch from compliance with any such a requirement if he determines it to be in the paramount interest of the United States to do so; except that no ex- emption may be granted from the requirements of section 1316 or 1317 of this title. No such ex- emptions shall be granted due to lack of appro- priation unless the President shall have specifi- cally requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested ap- propriation. Any exemption shall be for a period not in excess of one year, but additional exemp- tions may be granted for periods of not to ex- ceed one year upon the President’s making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting such exemption. In addition to any such exemption of a particular effluent source, the President may, if he deter- mines it to be in the paramount interest of the United States to do so, issue regulations ex- empting from compliance with the requirements of this section any weaponry, equipment, air- craft, vessels, vehicles, or other classes or cat- egories of property, and access to such property, which are owned or operated by the Armed Forces of the United States (including the Coast Guard) or by the National Guard of any State and which are uniquely military in nature. The President shall reconsider the need for such reg- ulations at three-year intervals. (b) Cooperation with Federal entities and limita- tion on facility construction (1) The Administrator shall coordinate with the head of each department, agency, or instru- mentality of the Federal Government having ju- risdiction over any property or facility utilizing federally owned wastewater facilities to develop a program of cooperation for utilizing waste- water control systems utilizing those innovative treatment processes and techniques for which guidelines have been promulgated under section