
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 16USC4711]

 
                         TITLE 16--CONSERVATION
 
           CHAPTER 67--AQUATIC NUISANCE PREVENTION AND CONTROL
 
      SUBCHAPTER II--PREVENTION OF UNINTENTIONAL INTRODUCTIONS OF 
                      NONINDIGENOUS AQUATIC SPECIES
 
Sec. 4711. Aquatic nuisance species in waters of United States


(a) Great Lakes guidelines

                           (1) In general

        Not later than 6 months after November 29, 1990, the Secretary 
    shall issue voluntary guidelines to prevent the introduction and 
    spread of aquatic nuisance species into the Great Lakes through the 
    exchange of ballast water of vessels prior to entering those waters.

                      (2) Content of guidelines

        The guidelines issued under this subsection shall--
            (A) ensure to the maximum extent practicable that ballast 
        water containing aquatic nuisance species is not discharged into 
        the Great Lakes;
            (B) protect the safety of--
                (i) each vessel; and
                (ii) the crew and passengers of each vessel;

            (C) take into consideration different vessel operating 
        conditions; and
            (D) be based on the best scientific information available.

(b) Regulations

                           (1) In general

        Not later than 2 years after November 29, 1990, the Secretary, 
    in consultation with the Task Force, shall issue regulations to 
    prevent the introduction and spread of aquatic nuisance species into 
    the Great Lakes through the ballast water of vessels.

                     (2) Content of regulations

        The regulations issued under this subsection shall--
            (A) apply to all vessels equipped with ballast water tanks 
        that enter a United States port on the Great Lakes after 
        operating on the waters beyond the exclusive economic zone;
            (B) require a vessel to--
                (i) carry out exchange of ballast water on the waters 
            beyond the exclusive economic zone prior to entry into any 
            port within the Great Lakes;
                (ii) carry out an exchange of ballast water in other 
            waters where the exchange does not pose a threat of 
            infestation or spread of aquatic nuisance species in the 
            Great Lakes and other waters of the United States, as 
            recommended by the Task Force under section 4712(a)(1) of 
            this title; or
                (iii) use environmentally sound alternative ballast 
            water management methods if the Secretary determines that 
            such alternative methods are as effective as ballast water 
            exchange in preventing and controlling infestations of 
            aquatic nuisance species;

            (C) not affect or supersede any requirements or prohibitions 
        pertaining to the discharge of ballast water into waters of the 
        United States under the Federal Water Pollution Control Act (33 
        U.S.C. 1251 et seq.);
            (D) provide for sampling procedures to monitor compliance 
        with the requirements of the regulations;
            (E) prohibit the operation of a vessel in the Great Lakes if 
        the master of the vessel has not certified to the Secretary or 
        the Secretary's designee by not later than the departure of that 
        vessel from the first lock in the St. Lawrence Seaway that the 
        vessel has complied with the requirements of the regulations;
            (F) protect the safety of--
                (i) each vessel; and
                (ii) the crew and passengers of each vessel;

            (G) take into consideration different operating conditions; 
        and
            (H) be based on the best scientific information available.

                     (3) Additional regulations

        In addition to promulgating regulations under paragraph (1), the 
    Secretary, in consultation with the Task Force, shall, not later 
    than November 4, 1994, issue regulations to prevent the introduction 
    and spread of aquatic nuisance species into the Great Lakes through 
    ballast water carried on vessels that enter a United States port on 
    the Hudson River north of the George Washington Bridge.

           (4) Education and technical assistance programs

        The Secretary may carry out education and technical assistance 
    programs and other measures to promote compliance with the 
    regulations issued under this subsection.

(c) Voluntary national guidelines

                           (1) In general

        Not later than 1 year after October 26, 1996, and after 
    providing notice and an opportunity for public comment, the 
    Secretary shall issue voluntary guidelines to prevent the 
    introduction and spread of nonindigenous species in waters of the 
    United States by ballast water operations and other operations of 
    vessels equipped with ballast water tanks.

                      (2) Content of guidelines

        The voluntary guidelines issued under this subsection shall--
            (A) ensure to the maximum extent practicable that aquatic 
        nuisance species are not discharged into waters of the United 
        States from vessels;
            (B) apply to all vessels equipped with ballast water tanks 
        that operate in waters of the United States;
            (C) protect the safety of--
                (i) each vessel; and
                (ii) the crew and passengers of each vessel;

            (D) direct a vessel that is carrying ballast water into 
        waters of the United States after operating beyond the exclusive 
        economic zone to--
                (i) carry out the exchange of ballast water of the 
            vessel in waters beyond the exclusive economic zone;
                (ii) exchange the ballast water of the vessel in other 
            waters where the exchange does not pose a threat of 
            infestation or spread of nonindigenous species in waters of 
            the United States, as recommended by the Task Force under 
            section 4712(a)(1) of this title; or
                (iii) use environmentally sound alternative ballast 
            water management methods, including modification of the 
            vessel ballast water tanks and intake systems, if the 
            Secretary determines that such alternative methods are at 
            least as effective as ballast water exchange in preventing 
            and controlling infestations of aquatic nuisance species;

            (E) direct vessels to carry out management practices that 
        the Secretary determines to be necessary to reduce the 
        probability of unintentional nonindigenous species transfer 
        resulting from--
                (i) ship operations other than ballast water discharge; 
            and
                (ii) ballasting practices of vessels that enter waters 
            of the United States with no ballast water on board;

            (F) provide for the keeping of records that shall be 
        submitted to the Secretary, as prescribed by the guidelines, and 
        that shall be maintained on board each vessel and made available 
        for inspection, upon request of the Secretary and in a manner 
        consistent with subsection (i) of this section, in order to 
        enable the Secretary to determine compliance with the 
        guidelines, including--
                (i) with respect to each ballast water exchange referred 
            to in clause (ii), reporting on the precise location and 
            thoroughness of the exchange; and
                (ii) any other information that the Secretary considers 
            necessary to assess the rate of effective compliance with 
            the guidelines;

            (G) provide for sampling procedures to monitor compliance 
        with the guidelines;
            (H) take into consideration--
                (i) vessel types;
                (ii) variations in the characteristics of point of 
            origin and receiving water bodies;
                (iii) variations in the ecological conditions of waters 
            and coastal areas of the United States; and
                (iv) different operating conditions;

            (I) be based on the best scientific information available;
            (J) not affect or supersede any requirements or prohibitions 
        pertaining to the discharge of ballast water into waters of the 
        United States under the Federal Water Pollution Control Act (33 
        U.S.C. 1251 et seq.); and
            (K) provide an exemption from ballast water exchange 
        requirements to passenger vessels with operating ballast water 
        systems that are equipped with treatment systems designed to 
        kill aquatic organisms in ballast water, unless the Secretary 
        determines that such treatment systems are less effective than 
        ballast water exchange at reducing the risk of transfers of 
        invasive species in the ballast water of passenger vessels; and
            (L) not apply to crude oil tankers engaged in the coastwise 
        trade.

           (3) Education and technical assistance programs

        Not later than 1 year after October 26, 1996, the Secretary 
    shall carry out education and technical assistance programs and 
    other measures to encourage compliance with the guidelines issued 
    under this subsection.

(d) Report to Congress

    Not sooner than 24 months after the date of issuance of guidelines 
pursuant to subsection (c) of this section and not later than 30 months 
after such date, and after consultation with interested and affected 
persons, the Secretary shall prepare and submit to Congress a report 
containing the information required pursuant to paragraphs (1) and (2) 
of subsection (e) of this section.

(e) Periodic review and revision

                           (1) In general

        Not later than 3 years after the date of issuance of guidelines 
    pursuant to subsection (c) of this section, and not less frequently 
    than every 3 years thereafter, the Secretary shall, in accordance 
    with criteria developed by the Task Force under paragraph (3)--
            (A) assess the compliance by vessels with the voluntary 
        guidelines issued under subsection (c) of this section and the 
        regulations promulgated under this chapter;
            (B) establish the rate of compliance that is based on the 
        assessment under subparagraph (A);
            (C) assess the effectiveness of the voluntary guidelines and 
        regulations referred to in subparagraph (A) in reducing the 
        introduction and spread of aquatic nuisance species by vessels; 
        and
            (D) as necessary, on the basis of the best scientific 
        information available--
                (i) revise the guidelines and regulations referred to in 
            subparagraph (A);
                (ii) promulgate additional regulations pursuant to 
            subsection (f)(1) of this section; or
                (iii) carry out each of clauses (i) and (ii).

                   (2) Special review and revision

        Not later than 90 days after the Task Force makes a request to 
    the Secretary for a special review and revision for coastal and 
    inland waterways designated by the Task Force, the Secretary shall--
            (A) conduct a special review of guidelines and regulations 
        applicable to those waterways in accordance with the review 
        procedures under paragraph (1); and
            (B) as necessary, in the same manner as provided under 
        paragraph (1)(D)--
                (i) revise those guidelines;
                (ii) promulgate additional regulations pursuant to 
            subsection (f)(1) of this section; or
                (iii) carry out each of clauses (i) and (ii).

                   (3) Criteria for effectiveness

        Not later than 18 months after October 26, 1996, the Task Force 
    shall submit to the Secretary criteria for determining the adequacy 
    and effectiveness of the voluntary guidelines issued under 
    subsection (c) of this section.

(f) Authority of Secretary

                       (1) General regulations

        If, on the basis of a periodic review conducted under subsection 
    (e)(1) of this section or a special review conducted under 
    subsection (e)(2) of this section, the Secretary determines that--
            (A) the rate of effective compliance (as determined by the 
        Secretary) with the guidelines issued pursuant to subsection (c) 
        of this section is inadequate; or
            (B) the reporting by vessels pursuant to those guidelines is 
        not adequate for the Secretary to assess the compliance with 
        those guidelines and provide a rate of compliance of vessels, 
        including the assessment of the rate of compliance of vessels 
        under subsection (e)(2) of this section,

    the Secretary shall promptly promulgate regulations that meet the 
    requirements of paragraph (2).

                  (2) Requirements for regulations

        The regulations promulgated by the Secretary under paragraph 
    (1)--
            (A) shall--
                (i) not be promulgated sooner than 180 days following 
            the issuance of the report to Congress submitted pursuant to 
            subsection (d) of this section;
                (ii) make mandatory the requirements included in the 
            voluntary guidelines issued under subsection (c) of this 
            section; and
                (iii) provide for the enforcement of the regulations; 
            and

            (B) may be regional in scope.

                    (3) International regulations

        The Secretary shall revise regulations promulgated under this 
    subsection to the extent required to make such regulations 
    consistent with the treatment of a particular matter in any 
    international agreement, agreed to by the United States, governing 
    management of the transfer of nonindigenous aquatic species by 
    vessel.

(g) Sanctions

                         (1) Civil penalties

        Any person who violates a regulation promulgated under 
    subsection (b) or (f) of this section shall be liable for a civil 
    penalty in an amount not to exceed $25,000. Each day of a continuing 
    violation constitutes a separate violation. A vessel operated in 
    violation of the regulations is liable in rem for any civil penalty 
    assessed under this subsection for that violation.

                       (2) Criminal penalties

        Any person who knowingly violates the regulations promulgated 
    under subsection (b) or (f) of this section is guilty of a class C 
    felony.

                     (3) Revocation of clearance

        Upon request of the Secretary, the Secretary of the Treasury 
    shall withhold or revoke the clearance of a vessel required by 
    section 91 of title 46, Appendix, if the owner or operator of that 
    vessel is in violation of the regulations issued under subsection 
    (b) or (f) of this section.

                     (4) Exception to sanctions

        This subsection does not apply to a failure to exchange ballast 
    water if--
            (A) the master of a vessel, acting in good faith, decides 
        that the exchange of ballast water will threaten the safety or 
        stability of the vessel, its crew, or its passengers; and
            (B) the recordkeeping and reporting requirements of this 
        chapter are complied with.

(h) Coordination with other agencies

    In carrying out the programs under this section, the Secretary is 
encouraged to use, to the maximum extent practicable, the expertise, 
facilities, members, or personnel of established agencies and 
organizations that have routine contact with vessels, including the 
Animal and Plant Health Inspection Service of the Department of 
Agriculture, the National Cargo Bureau, port administrations, and ship 
pilots' associations.

(i) Consultation with Canada, Mexico, and other foreign governments

    In developing the guidelines issued and regulations promulgated 
under this section, the Secretary is encouraged to consult with the 
Government of Canada, the Government of Mexico, and any other government 
of a foreign country that the Secretary, in consultation with the Task 
Force, determines to be necessary to develop and implement an effective 
international program for preventing the unintentional introduction and 
spread of nonindigenous species.

(j) International cooperation

    The Secretary, in cooperation with the International Maritime 
Organization of the United Nations and the Commission on Environmental 
Cooperation established pursuant to the North American Free Trade 
Agreement, is encouraged to enter into negotiations with the governments 
of foreign countries to develop and implement an effective international 
program for preventing the unintentional introduction and spread of 
nonindigenous species.

(k) Safety exemption

                        (1) Master discretion

        The master of a vessel is not required to conduct a ballast 
    water exchange if the master decides that the exchange would 
    threaten the safety or stability of the vessel, its crew, or its 
    passengers because of adverse weather, vessel architectural design, 
    equipment failure, or any other extraordinary conditions.

                       (2) Other requirements

        (A) In general

            Except as provided in subparagraph (B), a vessel that does 
        not exchange ballast water on the high seas under paragraph (1) 
        shall not be restricted from discharging ballast water in any 
        harbor.

        (B) Great Lakes

            Subparagraph (A) shall not apply in a case in which a vessel 
        is subject to the regulations issued by the Secretary under 
        subsection (b) of this section.

             (3) Crude oil tanker ballast facility study

        (A) Within 60 days of October 26, 1996,\1\ the Secretary of the 
    department in which the Coast Guard is operating, in consultation 
    with the Under Secretary of Commerce for Oceans and Atmosphere, 
    affected shoreside ballast water facility operators, affected crude 
    oil tanker operators, and interested parties, shall initiate a study 
    of the effectiveness of existing shoreside ballast water facilities 
    used by crude oil tankers in the coastwise trade off Alaska in 
    preventing the introduction of nonindigenous aquatic species into 
    the waters off Alaska, as well as the cost and feasibility of 
    modifying such facilities to improve such effectiveness.
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    \1\ See Codification note below.
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        (B) The study required under subparagraph (A) shall be submitted 
    to the Congress by no later than October 1, 1997.

(l) Non-discrimination

    The Secretary shall ensure that vessels registered outside of the 
United States do not receive more favorable treatment than vessels 
registered in the United States when the Secretary performs studies, 
reviews compliance, determines effectiveness, establishes requirements, 
or performs any other responsibilities under this chapter.

(Pub. L. 101-646, title I, Sec. 1101, Nov. 29, 1990, 104 Stat. 4763; 
Pub. L. 102-580, title III, Sec. 302(b)(1), Oct. 31, 1992, 106 Stat. 
4839; Pub. L. 102-587, title IV, Sec. 4002, Nov. 4, 1992, 106 Stat. 
5068; Pub. L. 104-332, Sec. 2(b)(2), Oct. 26, 1996, 110 Stat. 4075.)

                       References in Text

    The Federal Water Pollution Control Act, referred to in subsecs. 
(b)(2)(C) and (c)(2)(J), is act June 30, 1948, ch. 758, as amended 
generally by Pub. L. 92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 816, which 
is classified generally to chapter 26 (Sec. 1251 et seq.) of Title 33, 
Navigation and Navigable Waters. For complete classification of this Act 
to the Code, see Short Title note set out under section 1251 of Title 33 
and Tables.
    This chapter, referred to in subsecs. (e)(1)(A), (g)(4)(B), and (l), 
was in the original ``this Act'' or ``the Act'', which, to reflect the 
probable intent of Congress, was translated as reading ``this title'' 
meaning title I of Pub. L. 101-646, Nov. 29, 1990, 104 Stat. 4761, known 
as the Nonindigenous Aquatic Nuisance Prevention and Control Act of 
1990, which is classified principally to this chapter. For complete 
classification of title I to the Code, see Short Title note set out 
below and Tables.

                          Codification

    October 26, 1996, referred to in subsec. (k)(3), was in the original 
``the date of enactment of this Act'', which was translated as meaning 
the date of enactment of Pub. L. 104-332, which amended this section 
generally, to reflect the probable intent of Congress.


                               Amendments

    1996--Pub. L. 104-332 amended section generally, substituting 
subsecs. (a) to (l) relating to aquatic nuisance species in waters of 
the United States for former subsecs. (a) to (e) relating to aquatic 
nuisance species in the Great Lakes.
    1992--Subsec. (b)(3). Pub. L. 102-580 and Pub. L. 102-587 made 
substantively identical amendments, adding par. (3). Par. (3) is based 
on text of Pub. L. 102-587.

                  Section Referred to in Other Sections

    This section is referred to in sections 4712, 4741 of this title.
