1.Short title; table of
contents
(a)This Act may be cited as the Clean Cruise Ship Act of
2008
.
(b)The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Definitions.
Sec. 4. Prohibitions on the discharge of sewage, graywater,
bilge water, sewage sludge, incinerator ash, and hazardous waste.
Sec. 5. Effluent limits for discharges of sewage, graywater,
and bilge water.
Sec. 6. Alaskan cruise vessels.
Sec. 7. Inspection and sampling.
Sec. 8. Employee protection.
Sec. 9. Judicial review.
Sec. 10. Enforcement.
Sec. 11. Citizen suits.
Sec. 12. Sense of Congress on ballast water.
Sec. 13. Sense of Congress on air pollution.
Sec. 14. Funding.
Sec. 15. Effect on other law.
2.
(a)Congress
finds the following:
(1)Cruise vessels
carry millions of people through North American waters each year, showcase some
of the most beautiful ocean areas in the United States, and provide
opportunities for passengers to relax and enjoy the oceans and marine
ecosystems.
(2)A single cruise
vessel generates a tremendous amount of waste each week, including an estimated
140,000 to 210,000 gallons of blackwater (sewage) and 1,000,000 gallons of
graywater (including wastewater from dishwashers, showers, laundry, baths, and
washbasins). Onboard amenities such as photo-processing, dry-cleaning, and
hairdressing also generate hazardous waste streams.
(3)In its final
report, An Ocean Blueprint for the 21st Century
, released in
2004, the United States Commission on Ocean Policy found that these waste
streams and the cumulative impacts caused when cruise vessels repeatedly visit
the same environmentally sensitive areas, if not properly disposed of
and treated, can be a significant source of pathogens and nutrients with the
potential to threaten human health and damage shellfish beds, coral reefs, and
other aquatic life,
thus threatening the very environments cruise
vessel passengers seek to explore.
(4)The cruise
industry has grown by more than 6 percent annually since 2003 and is projected
to continue growing. Cruise vessel capacity is also expanding dramatically;
today cruise vessels can transport 5,000 passengers and crew members, but the
next generation of cruise vessels is expected to carry 7,000 passengers and
crew members. As the total number of passengers increases and the number of
passengers per ship increases, the volume of waste entering these ocean
ecosystems and the impact of that waste on ocean ecosystems will also
increase.
(5)In a 2005 report
requested by the International Council of Cruise Lines, the Ocean Conservation
and Tourism Alliance (OCTA) Science Panel recommended that [a]ll
blackwater should be treated
, that discharging treated blackwater
should be avoided in ports, close to bathing beaches or water bodies
with restricted circulation, flushing or inflow
, and that blackwater
should not be discharged within 4 nautical miles of shellfish beds, coral
reefs, or other sensitive habitats.
(6)The OCTA Science
Panel further recommended that graywater be treated in the same manner as
blackwater and that sewage sludge be off-loaded to approved land-based
facilities.
(7)The United States
lacks a comprehensive wastewater management policy for large passenger vessels,
and a new statutory regime for managing wastewater discharges from large
passenger vessels that applies throughout the United States is needed to
protect coastal and ocean areas from pollution generated by cruise vessels, to
reduce and better regulate discharges from cruise vessels, and to improve
monitoring, reporting, and enforcement of standards regarding
discharges.
(b)The
purpose of this Act is to protect the health and beauty of the marine and
coastal ecosystems that cruise passengers enjoy, by—
(1)prohibiting the
discharge of any untreated sewage, graywater, or bilge water from a cruise
vessel calling on a port of the United States into the waters of the United
States;
(2)prohibiting the
discharge of any sewage sludge, incinerator ash, or hazardous waste from a
cruise vessel calling on a port of the United States into the waters of the
United States;
(3)establishing new
national effluent limits for the discharge of treated sewage, treated
graywater, and treated bilge water from cruise vessels not less than 12 miles
from shore in any case in which the discharge is not within an area in which
discharges are prohibited; and
(4)ensuring that
cruise vessels calling on ports of the United States comply with all applicable
environmental laws.
3.In this Act:
(1)The
term Administrator means the Administrator of the Environmental
Protection Agency.
(2)The term bilge water means waste water that
includes lubrication oils, transmission oils, oil sludge or slops, fuel or oil
sludge, used oil, used fuel or fuel filters, or oily waste.
(3)The
term citizen means a person that has an interest that is or may be
adversely affected by any provision of this Act.
(4)The
term Commandant means the Commandant of the Coast Guard.
(5)The term cruise vessel—
(A)means a passenger
vessel (as defined in section 2101(22) of title 46, United States Code),
that—
(i)is
authorized to carry at least 250 passengers; and
(ii)has onboard
sleeping facilities for each passenger; and
(B)does not
include—
(i)a
vessel of the United States operated by the Federal Government; or
(ii)a vessel owned
and operated by the government of a State.
(6)The
term discharge—
(A)means a release,
however caused, of bilge water, graywater, hazardous waste, incinerator ash,
sewage, or sewage sludge from a cruise vessel; and
(B)includes any
escape, disposal, spilling, leaking, pumping, emitting, or emptying of a
substance described in subparagraph (A).
(7)The term exclusive economic zone has
the meaning given that term in section 107 of title 46, United States
Code.
(8)The
term graywater means galley, dishwasher, bath, spa, pool, and
laundry waste water.
(9)The term Great Lake means—
(A)Lake Erie;
(B)Lake Huron
(including Lake Saint Clair);
(C)Lake
Michigan;
(D)Lake Ontario;
or
(E)Lake
Superior.
(10)The term hazardous waste has the meaning given
that term in section 1004 of the Solid Waste Disposal Act (42 U.S.C.
6903).
(11)The term incinerator ash means ash generated
during the incineration of solid waste or sewage sludge.
(12)The term no discharge zones means important
ecological areas including marine sanctuaries, marine protected areas, marine
reserves, marine national monuments, national parks, and national wildlife
refuges.
(13)The
term passenger means a paying passenger.
(14)The
term person means—
(A)an
individual;
(B)a
corporation;
(C)a
partnership;
(D)a limited
liability company;
(E)an
association;
(F)a State;
(G)a
municipality;
(H)a commission or
political subdivision of a State; or
(I)an Indian
tribe.
(15)The
term sewage means—
(A)human body
wastes; and
(B)the wastes from
toilets and other receptacles intended to receive or retain human body
wastes.
(16)The term sewage sludge—
(A)means any solid,
semi-solid, or liquid residue removed during the treatment of on-board
sewage;
(B)includes—
(i)solids removed
during primary, secondary, or advanced waste water treatment;
(ii)scum;
(iii)septage;
(iv)portable toilet
pumpings;
(v)type III marine
sanitation device pumpings (as defined in part 159 of title 33, Code of Federal
Regulations); and
(vi)sewage sludge
products; and
(C)does not
include—
(i)grit or
screenings; or
(ii)ash generated
during the incineration of sewage sludge.
(17)The term territorial sea—
(A)means the belt of
the sea extending 12 nautical miles from the baseline of the United States
determined in accordance with international law, as set forth in Presidential
Proclamation number 5928, dated December 27, 1988; and
(B)includes the
waters lying seaward of the line of ordinary low water and extending to the
baseline of the United States, as determined under subparagraph (A).
(18)Waters of the
united statesThe term waters of the United States
means the waters of the territorial sea, the exclusive economic zone, and the
Great Lakes.
4.Prohibitions on
the discharge of sewage, graywater, bilge water, sewage sludge, incinerator
ash, and hazardous waste
(a)Prohibitions on
discharge of sewage, graywater, and bilge waterExcept as
provided in subsection (c) or section 6, no cruise vessel calling on a port of
the United States may discharge sewage, graywater, or bilge water into the
waters of the United States, unless—
(1)the effluent of
treated sewage, treated graywater, or treated bilge water meets all applicable
effluent limits established under this Act and is in accordance with all other
applicable laws;
(2)the cruise vessel
is underway and proceeding at a speed of not less than 6 knots;
(3)the cruise vessel
is not less than 12 nautical miles from shore;
(4)the cruise vessel
is not discharging in no discharge zones; and
(5)the cruise vessel
complies with all applicable management standards established under this
Act.
(b)Prohibition on
discharge of sewage sludge, incinerator ash, and hazardous
wasteNo sewage sludge, incinerator ash, or hazardous waste may
be discharged into the waters of the United States. Such sewage sludge,
incinerator ash, and hazardous waste shall be off-loaded at an appropriate
land-based facility.
(c)
(1)The provisions of subsections (a) and (b) shall not
apply in any case in which—
(A)a discharge is
made solely for the purpose of securing the safety of the cruise vessel or
saving a human life at sea; and
(B)all reasonable
precautions have been taken to prevent or minimize the discharge.
(2)Notification of
commandant
(A)If the owner, operator, master, or other individual in
charge of a cruise vessel authorizes a discharge described in paragraph (1),
such individual shall notify the Commandant of the decision to authorize the
discharge as soon as practicable, but not later than 24 hours, after
authorizing the discharge.
(B)Not
later than 7 days after the date on which an individual described in
subparagraph (A) notifies the Commandant of a decision to authorize a discharge
under paragraph (1), the individual shall submit to the Commandant a report
that includes—
(i)the
quantity and composition of each discharge authorized under paragraph
(1);
(ii)the reason for
authorizing each such discharge;
(iii)the location of
the vessel during the course of each such discharge; and
(iv)such other
supporting information and data as are requested by the Commandant.
(C)Upon receiving a report under subparagraph (B), the
Commandant shall—
(i)transmit a copy
of the report to the Administrator; and
(ii)make the report
available to the public.
5.Effluent limits
for discharges of sewage, graywater, and bilge water
(a)
(1)Not later than 12 months after the date of the enactment
of this Act, the Administrator shall promulgate effluent limits for sewage,
graywater, and bilge water discharges from cruise vessels calling on ports of
the United States.
(2)The
effluent limits shall, at a minimum—
(A)be consistent
with the capability of the best available technology to treat effluent;
(B)require
compliance with all relevant State and Federal water quality standards;
and
(C)take into account
the best available scientific information on the environmental effects of
sewage, graywater, and bilge water discharges, including levels of nutrients,
total and dissolved metals, pathogen indicators, oils and grease, classical
pollutants, and volatile and semivolatile organics.
(b)The effluent limits promulgated under subsection (a) shall
require, at a minimum, that treated sewage, treated graywater, and treated
bilge water effluent discharges from cruise vessels, measured at the point of
discharge, shall, not later than the date described in subsection (d), meet the
following standards:
(1)The discharge shall satisfy the minimum level of effluent
quality specified in section 133.102 of title 40, Code of Federal Regulations
(or a successor regulation).
(2)With respect to the samples from the discharge during
any 30-day period—
(A)the geometric
mean of the samples shall not exceed 20 fecal coliform per 100 milliliters;
and
(B)not more than 10
percent of the samples shall exceed 40 fecal coliform per 100
milliliters.
(3)Concentrations of total residual chlorine in samples
shall not exceed 10 milligrams per liter.
(c)Review and
revision of effluent limitsThe Administrator shall—
(1)review the
effluent limits promulgated under subsection (a) at least once every 5 years;
and
(2)revise the
effluent limits as necessary to incorporate technology available at the time of
the review in accordance with subsection (a)(2).
(d)
(1)The date described in this subsection is—
(A)with respect to
new vessels put into water after the date of the enactment of this Act, 2 years
after such date of enactment; and
(B)with respect to
vessels in use as of such date of enactment, 5 years after such date of
enactment.
(2)In this subsection, the term new vessel
means a vessel the keel of which is laid, or that is at a similar stage of
construction, on or after the date of the enactment of this Act.
6.
(a)An Alaskan cruise vessel shall not be subject to the
provisions of this Act (including regulations promulgated under this Act) until
the date that is 10 years after the date of the enactment of this Act.
(b)Definition of
Alaskan cruise vesselIn this section, the term Alaskan
cruise vessel means a cruise vessel—
(1)while the vessel
is operating in waters of the State of Alaska, as defined in section 159.305 of
title 33, Code of Federal Regulations; and
(2)that complies
with all relevant laws and regulations of the State of Alaska while in transit
from a port of call outside of the State of Alaska to the waters of the State
of Alaska.
7.
(a)Development and
implementation of inspection program
(1)The Administrator shall promulgate regulations to
implement a sampling and testing program, and the Commandant shall promulgate
regulations to implement an inspection program, sufficient to verify that
cruise vessels calling on ports of the United States are in compliance
with—
(A)this Act
(including regulations promulgated under this Act);
(B)the
Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.) (including regulations promulgated under that
Act);
(C)other applicable
Federal laws and regulations; and
(D)all applicable
requirements of international agreements.
(2)The
program shall require that—
(A)regular announced
and unannounced inspections be conducted of any relevant aspect of cruise
vessel operations, equipment, or discharges, including sampling and testing of
cruise vessel discharges; and
(B)each cruise
vessel that calls on a port of the United States be subject to an unannounced
inspection at least once per year.
(b)
(1)Not later than 1 year after the date of the enactment of
this Act, the Commandant, in consultation with the Administrator, shall
promulgate regulations that, at a minimum—
(A)require the
owner, operator, master, or other individual in charge of a cruise vessel to
maintain and submit annually a logbook detailing the times, types, volumes,
flow rates, origins, and specific locations of, and explanations for, any
discharges from the cruise vessel;
(B)provide for
routine announced and unannounced inspections of—
(i)cruise vessel
environmental compliance records and procedures; and
(ii)the
functionality and proper operation of installed equipment for abatement and
control of any cruise vessel discharge, including equipment intended to treat
sewage, graywater, or bilge water;
(C)require the
sampling and testing of cruise vessel discharges that require the owner,
operator, master, or other individual in charge of a cruise vessel—
(i)to
conduct that sampling or testing at the point of discharge; and
(ii)to
produce any records of the sampling or testing;
(D)require any
owner, operator, master, or other individual in charge of a cruise vessel who
has knowledge of a discharge from the cruise vessel in violation of this Act
(including regulations promulgated under this Act) to report immediately the
discharge to the Commandant, who shall provide notification of the discharge to
the Administrator; and
(E)require the
owner, operator, master, or other individual in charge of a cruise vessel to
provide to the Commandant and Administrator a blueprint of each cruise vessel
that includes the location of every discharge pipe and valve.
(2)Upon receiving a logbook described in paragraph (1)(A),
the Commandant shall—
(A)transmit a copy
of the logbook to the Administrator; and
(B)make the logbook
available to the public.
(c)
(1)Vessel of the
united states
(A)A cruise vessel registered in the United States to which
this Act applies shall have a certificate of inspection issued by the
Commandant.
(B)The Commandant may issue a certificate described in
subparagraph (A) only after the cruise vessel has been examined and found to be
in compliance with this Act, including prohibitions on discharges and
requirements for effluent limits, as determined by the Commandant.
(C)A certificate issued under this paragraph—
(i)shall be valid
for a period of not more than 5 years, beginning on the date of issuance of the
certificate;
(ii)may be renewed
as specified by the Commandant; and
(iii)shall be
suspended or revoked if the Commandant determines that the cruise vessel for
which the certificate was issued is not in compliance with the conditions under
which the certificate was issued.
(D)The Commandant may issue special certificates to
certain vessels that exhibit compliance with this Act and other best practices,
as determined by the Commandant, after public notice and comment.
(2)
(A)A cruise vessel registered in a country other than the
United States to which this Act applies may operate in the waters of the United
States, or visit a port or place under the jurisdiction of the United States,
only if the cruise vessel has been issued a certificate of compliance by the
Commandant.
(B)The Commandant may issue a certificate described in
subparagraph (A) to a cruise vessel only after the cruise vessel has been
examined and found to be in compliance with this Act, including prohibitions on
discharges and requirements for effluent limits, as determined by the
Commandant.
(C)Acceptance of
foreign documentationThe Commandant may consider a certificate,
endorsement, or document issued by the government of a foreign country under a
treaty, convention, or other international agreement to which the United States
is a party, in issuing a certificate of compliance under this paragraph. Such a
certificate, endorsement, or document shall not serve as a proxy for
certification of compliance with this Act.
(D)A certificate issued under this section—
(i)shall be valid
for a period of not more than 24 months, beginning on the date of issuance of
the certificate;
(ii)may be renewed
as specified by the Commandant; and
(iii)shall be
suspended or revoked if the Commandant determines that the cruise vessel for
which the certificate was issued is not in compliance with the conditions under
which the certificate was issued.
(d)
(1)Not later than 1 year after the date of the enactment of
this Act, the Commandant shall establish and carry out a program for the
placement of 1 or more trained independent observers on each cruise
vessel.
(2)The
purposes of the cruise observer program established under paragraph (1) are to
monitor and inspect cruise vessel operations, equipment, and discharges to
ensure compliance with—
(A)this Act
(including regulations promulgated under this Act); and
(B)all other
relevant Federal laws, regulations, and international agreements.
(3)An
observer described in paragraph (1) shall—
(A)observe and
inspect—
(i)onboard
environmental treatment systems;
(ii)use of
shore-based treatment and storage facilities;
(iii)discharges and
discharge practices; and
(iv)blueprints,
logbooks, and other relevant information, including fuel consumption and
atmospheric emissions;
(B)have the
authority to interview and otherwise query any crew member with knowledge of
vessel operations;
(C)have access to
all data and information made available to government officials under this
section;
(D)immediately
report any known or suspected violation of this Act or any other applicable
Federal law or international agreement to—
(i)the
Coast Guard; and
(ii)the
Environmental Protection Agency; and
(E)maintain a
logbook to be submitted to the Commandant and the Administrator annually and to
be made available to the public.
(4)The program established and carried out by the
Commandant under paragraph (1) shall also include—
(A)a method for
collecting and reviewing data related to the efficiency and operation of the
program; and
(B)periodic
revisions to the program based on the data collected under subparagraph
(A).
(5)Not
later than 3 years after the establishment of the program described in
paragraph (1), the Commandant shall submit to Congress a report
describing—
(A)the results of
the program;
(B)recommendations
for optimal observer coverage; and
(C)other
recommendations for improvement of the program.
(e)Onboard
monitoring system pilot program
(1)Not later than 1 year after the date of the enactment of
this Act, the Administrator of the National Oceanic and Atmospheric
Administration, in consultation with the Administrator and the Commandant,
shall establish, and for each of fiscal years 2008 through 2013, shall carry
out, with industry partners as necessary, a pilot program to develop and
promote commercialization of technologies to provide real-time data to Federal
agencies regarding—
(A)discharges of
sewage, graywater, and bilge water from cruise vessels; and
(B)functioning of
cruise vessel components relating to fuel consumption and control of air and
water pollution.
(2)Technologies developed under the program described
in paragraph (1)—
(A)shall have the
ability to record—
(i)the
location and time of discharges from cruise vessels;
(ii)the source,
content, and volume of the discharges; and
(iii)the state of
components relating to pollution control at the time of the discharges,
including whether the components are operating correctly; and
(B)shall be tested
on not less than 10 percent of all cruise vessels operating in the territorial
sea of the United States, including large and small vessels.
(3)Participation
of industry
(A)Competitive
selection processIndustry partners willing to participate in the
program may do so through a competitive selection process conducted by the
Administrator of the National Oceanic and Atmospheric Administration.
(B)A
selected industry partner shall contribute not less than 20 percent of the cost
of the project in which the industry partner participates.
(4)The program established and carried out by the
Administrator of the National Oceanic and Atmospheric Administration pursuant
to paragraph (1) shall also include—
(A)a method for
collecting and reviewing data related to the efficiency and operation of the
program; and
(B)periodic
revisions to the program based on the data collected under subparagraph
(A).
(5)Not
later than 3 years after the date of the enactment of this Act, the
Administrator of the National Oceanic and Atmospheric Administration shall
submit to Congress a report describing—
(A)the results of
the program;
(B)recommendations
for continuing the program; and
(C)other
recommendations for improving the program.
8.
(a)Prohibition of
discrimination against persons filing, instituting, or testifying in
proceedings under this ActNo person shall terminate the
employment of, or in any other way discriminate against (or cause the
termination of employment of or discrimination against), any employee or any
authorized representative of employees by reason of the fact that the employee
or representative—
(1)has filed,
instituted, or caused to be filed or instituted any proceeding under this Act;
or
(2)has testified or
is about to testify in any proceeding resulting from the administration or
enforcement of the provisions of this Act.
(b)Application for
review; investigation; hearings; review
(1)An employee or a representative of an employee who
believes that the termination of the employment of the employee has occurred,
or that the employee has been discriminated against, as a result of the actions
of any person in violation of subsection (a) may, not later than 30 days after
the date on which the alleged violation occurred, apply to the Secretary of
Labor for a review of the alleged termination of employment or
discrimination.
(2)A
copy of an application for review filed under paragraph (1) shall be sent to
the respondent.
(3)
(A)On receipt of an application for review under paragraph
(1), the Secretary of Labor shall carry out an investigation of the alleged
violation.
(B)In
carrying out this subsection, the Secretary of Labor shall—
(i)provide an
opportunity for a public hearing at the request of any party to the review to
enable the parties to present information relating to the alleged
violation;
(ii)ensure that, at
least 5 days before the date of the hearing, each party to the hearing is
provided written notice of the time and place of the hearing; and
(iii)ensure that the
hearing is on the record and subject to section 554 of title 5, United States
Code.
(C)On completion of an investigation under this paragraph,
the Secretary of Labor shall—
(i)make findings of
fact;
(ii)if
the Secretary of Labor determines that a violation did occur, issue a decision,
incorporating an order and the findings, requiring the person that committed
the violation to take such action as is necessary to abate the violation,
including the rehiring or reinstatement, with compensation, of an employee to
the former position of the employee; and
(iii)if the
Secretary of Labor determines that there was no violation, issue an order
denying the application.
(D)An
order issued by the Secretary of Labor under subparagraph (C) shall be subject
to judicial review in the same manner as orders and decisions of the
Administrator are subject to judicial review under this Act.
(c)In any case in which an order is issued under this
section to abate a violation, at the request of the applicant, a sum equal to
the aggregate amount of all costs and expenses (including attorneys' fees), as
determined by the Secretary of Labor, to have been reasonably incurred by the
applicant for, or in connection with, the institution and prosecution of the
proceedings, shall be assessed against the person committing the
violation.
(d)Deliberate
violations by employees acting without direction from employer or
agentThis section shall not apply to any employee who, without
direction from the employer of the employee (or agent of the employer),
deliberately violates any provision of this Act.
9.
(a)Review of
actions by Administrator or Commandant; selection of court; fees
(1)
(A)Any interested person may petition for a review, in the
United States court of appeals for the circuit in which the person resides or
transacts business directly affected by the action of which review is
requested—
(i)of
an action of the Administrator in promulgating any effluent limit under section
5; or
(ii)of
an action of the Commandant or the Administrator in carrying out an inspection,
sampling, or testing under section 7.
(B)A petition for review under subparagraph (A) shall be
made—
(i)not
later than 120 days after the date of promulgation of the limit or standard
with respect to which the review is sought; or
(ii)if
the petition for review is based solely on grounds that arose after the date
described in clause (i), as soon as practicable after that date.
(2)Civil and
criminal enforcement proceedingsAn action of the Commandant or
Administrator with respect to which review could have been obtained under
paragraph (1) shall not be subject to judicial review in any civil or criminal
proceeding for enforcement of such action.
(3)In any judicial proceeding under this subsection, a court
may award costs of litigation (including reasonable attorneys' and expert
witness fees) to any prevailing or substantially prevailing party in any case
in which the court determines such an award to be appropriate.
(b)
(1)In any judicial proceeding instituted under subsection
(a) in which review is sought of a determination under this Act required to be
made on the record after notice and opportunity for hearing, if any party
applies to the court for leave to introduce additional evidence and
demonstrates to the satisfaction of the court that the additional evidence is
material and that there were reasonable grounds for the failure to introduce
the evidence in the proceeding before the Commandant or Administrator, the
court may order the additional evidence (and evidence in rebuttal of the
additional evidence) to be taken before the Commandant or Administrator, in
such manner and on such terms and conditions as the court determines to be
appropriate.
(2)On admission of additional evidence under paragraph (1),
the Commandant or Administrator—
(A)may modify
findings of fact of the Commandant or Administrator, as the case may be,
relating to a judicial proceeding, or make new findings of fact, by reason of
the additional evidence; and
(B)shall file with
the return of the additional evidence any modified or new findings, and any
related recommendations, for the modification or setting aside of any original
determinations of the Commandant or Administrator.
10.
(a)Any person that violates a provision of section 4 or any
regulation promulgated under this Act may be assessed—
(1)a class I or
class II civil penalty described in subsection (b); or
(2)a civil penalty
in a civil action under subsection (c).
(b)Amount of
administrative penalty
(1)The amount of a class I civil penalty under subsection (a)(1)
may not exceed—
(A)$10,000 per
violation; or
(B)$25,000 in the
aggregate, in the case of multiple violations.
(2)The amount of a class II civil penalty under subsection (a)(1)
may not exceed—
(A)$10,000 per day
for each day during which the violation continues; or
(B)$125,000 in the
aggregate, in the case of multiple violations.
(3)Each day on which a violation continues shall
constitute a separate violation.
(4)In determining the amount of a civil penalty under
subsection (a)(1), the Commandant or the court, as appropriate, shall
consider—
(A)the seriousness
of the violation;
(B)any economic
benefit resulting from the violation;
(C)any history of
violations;
(D)any good faith
efforts to comply with the applicable requirements;
(E)the economic
impact of the penalty on the violator; and
(F)such other
matters as justice may require.
(5)Procedure for
class i civil penalty
(A)Before assessing a civil penalty under this subsection,
the Commandant shall provide to the person to be assessed the penalty—
(i)written notice of
the proposal of the Commandant to assess the penalty; and
(ii)the opportunity
to request, not later than 30 days after the date on which the notice is
received by the person, a hearing on the proposed penalty.
(B)A
hearing described in subparagraph (A)(ii)—
(i)shall not be
subject to section 554 or 556 of title 5, United States Code; but
(ii)shall provide a
reasonable opportunity to be heard and to present evidence.
(6)Procedure for
class ii civil penalty
(A)Except as otherwise provided in this subsection, a class
II civil penalty shall be assessed and collected in the same manner, and
subject to the same provisions, as in the case of civil penalties assessed and
collected after notice and an opportunity for a hearing on the record in
accordance with section 554 of title 5, United States Code.
(B)The
Commandant may promulgate rules for discovery procedures for hearings under
this subsection.
(7)Rights of
interested persons
(A)Before issuing an order assessing a class II civil penalty
under this subsection, the Commandant shall provide public notice of, and
reasonable opportunity to comment on, the proposed issuance of each
order.
(B)
(i)Any person that comments on a proposed assessment of a
class II civil penalty under this subsection shall be given notice of—
(I)any hearing held
under this subsection relating to such assessment; and
(II)any order
assessing the penalty.
(ii)In
any hearing described in clause (i)(I), a person described in clause (i) shall
have a reasonable opportunity to be heard and to present evidence.
(C)Rights of
interested persons to a hearing
(i)If no hearing is held under subparagraph (B) before the
date of issuance of an order assessing a class II civil penalty under this
subsection, any person that commented on the proposed assessment may, not later
than 30 days after the date of issuance of the order, petition the
Commandant—
(I)to set aside the
order; and
(II)to provide a
hearing on the penalty.
(ii)If any evidence presented by a petitioner in support of
the petition under clause (i) is material and was not considered in the
issuance of the order, as determined by the Commandant, the Commandant shall
immediately—
(I)set aside the
order; and
(II)provide a
hearing in accordance with subparagraph (B)(ii).
(iii)If the Commandant denies a hearing under this
subparagraph, the Commandant shall provide to the petitioner, and publish in
the Federal Register, notice of and the reasons for the denial.
(8)
(A)An order assessing a class II civil penalty under this
subsection shall become final on the date that is 30 days after the date of
issuance of the order unless, before that date—
(i)a
petition for judicial review is filed under paragraph (10); or
(ii)a
hearing is requested under paragraph (7)(C).
(B)If a hearing is requested under paragraph (7)(C) and
subsequently denied, an order assessing a class II civil penalty under this
subsection shall become final on the date that is 30 days after the date of the
denial.
(9)Effect of
action on complianceNo action by the Commandant under this
subsection shall affect the obligation of any person to comply with any
provision of this Act.
(10)
(A)Any person against which a civil penalty is assessed
under this subsection, or that commented on the proposed assessment of such a
penalty in accordance with paragraph (7), may obtain review of the assessment
in a court described in subparagraph (B) by—
(i)filing a notice
of appeal with the court within the 30-day period beginning on the date on
which the civil penalty order is issued; and
(ii)simultaneously
sending a copy of the notice by certified mail to the Commandant and the
Attorney General.
(B)Review of an assessment under subparagraph (A) may
be obtained by a person—
(i)in
the case of assessment of a class I civil penalty, in—
(I)the United States
District Court for the District of Columbia; or
(II)the district
court of the United States for the district in which the violation occurred;
or
(ii)in
the case of assessment of a class II civil penalty, in—
(I)the United States
Court of Appeals for the District of Columbia Circuit; or
(II)the United
States court of appeals for any other circuit in which the person resides or
transacts business.
(C)On receipt of notice under subparagraph (A)(ii), the
Commandant shall promptly file with the appropriate court a certified copy of
the record on which the order assessing a civil penalty that is the subject of
the review was issued.
(D)A court with jurisdiction over a review under this
paragraph—
(i)shall not set
aside or remand an order described in subparagraph (C) unless—
(I)there is not
substantial evidence in the record, taken as a whole, to support the finding of
a violation; or
(II)the assessment
by the Commandant of the civil penalty constitutes an abuse of discretion;
and
(ii)shall not impose
additional civil penalties for the same violation unless the assessment by the
Commandant of the civil penalty constitutes an abuse of discretion.
(11)
(A)If any person fails to pay an assessment of a civil
penalty after the assessment has become final, or after a court in a proceeding
under paragraph (10) has entered a final judgment in favor of the Commandant,
the Commandant shall request the Attorney General to bring a civil action in an
appropriate district court to recover—
(i)the
amount assessed; and
(ii)interest that
has accrued on the amount assessed, as calculated at currently prevailing rates
beginning on the date of the final order or the date of the final judgment, as
the case may be.
(B)In
an action to recover an assessed civil penalty under subparagraph (A), the
validity, amount, and appropriateness of the civil penalty shall not be subject
to judicial review.
(C)Any person that fails to pay, on a timely basis, the
amount of an assessment of a civil penalty under subparagraph (A) shall be
required to pay, in addition to the amount of the civil penalty and accrued
interest—
(i)attorneys' fees
and other costs for collection proceedings; and
(ii)for each quarter
during which the failure to pay persists, a quarterly nonpayment penalty in an
amount equal to 20 percent of the aggregate amount of the assessed civil
penalties and nonpayment penalties of the person that are unpaid as of the
beginning of the quarter.
(12)
(A)The Commandant may issue subpoenas for the attendance and
testimony of witnesses and the production of relevant papers, books, or
documents in connection with hearings under this subsection.
(B)In case of contumacy or refusal to obey a subpoena issued
under this paragraph and served on any person—
(i)the
district court of the United States for any district in which the person is
found, resides, or transacts business, on application by the United States and
after notice to the person, shall have jurisdiction to issue an order requiring
the person to appear and give testimony before the Commandant or to appear and
produce documents before the Commandant; and
(ii)any failure to
obey such an order of the court may be punished by the court as a contempt of
the court.
(c)The Commandant may commence, in the district court of the
United States for the district in which the defendant is located, resides, or
transacts business, a civil action to impose a civil penalty under this
subsection in an amount not to exceed $25,000 for each day of violation.
(d)
(1)A person that negligently violates section 4 or any
regulation promulgated under this Act commits a Class A misdemeanor under title
18, United States Code.
(2)Any person that knowingly violates section 4 or any
regulation promulgated under this Act commits a Class D felony under title 18,
United States Code.
(3)Any person that knowingly makes any false statement,
representation, or certification in any record, report, or other document filed
or required to be maintained under this Act or any regulation promulgated under
this Act, or that falsifies, tampers with, or knowingly renders inaccurate any
testing or monitoring device or method required to be maintained under this Act
or any regulation promulgated under this Act, commits a Class D felony under
title 18, United States Code.
(e)
(1)
(A)The Commandant or the court, as the case may be, may
order payment, from a civil penalty or criminal fine collected under this
section, of an amount not to exceed 1/2 of the civil
penalty or fine, to any individual who furnishes information that leads to the
payment of the civil penalty or criminal fine.
(B)If 2 or more individuals provide information
described in subparagraph (A), the amount available for payment as a reward
shall be divided equitably among the individuals.
(C)No officer or employee of the United States, a State,
or an Indian tribe who furnishes information or renders service in the
performance of the official duties of the officer or employee shall be eligible
for a reward payment under this subsection.
(2)Payments to
states or indian tribesThe Commandant or the court, as the case
may be, may order payment, from a civil penalty or criminal fine collected
under this section, to a State or Indian tribe providing information or
investigative assistance that leads to payment of the penalty or fine, of an
amount that reflects the level of information or investigative assistance
provided.
(3)Payments
divided among states, indian tribes, and individualsIn a case in
which a State or Indian tribe and an individual under paragraph (1) are
eligible to receive a reward payment under this subsection, the Commandant or
the court shall divide the amount available for the reward equitably among
those recipients.
(f)A cruise vessel operated in violation of this Act or any
regulation promulgated under this Act—
(1)shall be liable
in rem for any civil penalty or criminal fine imposed under this section;
and
(2)may be subject to
a proceeding instituted in the district court of the United States for any
district in which the cruise vessel may be found.
(g)
(1)If the Commandant determines that any person is in
violation of section 4 or any regulation promulgated under this Act, the
Commandant shall—
(A)issue an order
requiring the person to comply with such section or requirement; or
(B)bring a civil
action in accordance with subsection (c).
(2)
(A)In any case in which an order under this subsection is
issued to a corporation, a copy of the order shall be served on any appropriate
corporate officer.
(B)Method of
service; specificationsAn order issued under this subsection
shall—
(i)be
by personal service;
(ii)state with
reasonable specificity the nature of the violation for which the order was
issued; and
(iii)specify a
deadline for compliance that is not later than—
(I)30 days after the
date of issuance of the order, in the case of a violation of an interim
compliance schedule or operation and maintenance requirement; or
(II)such date as the
Commandant, taking into account the seriousness of the violation and any good
faith efforts to comply with applicable requirements, determines to be
reasonable, in the case of a violation of a final deadline.
(h)
(1)The Commandant may commence a civil action for
appropriate relief, including a permanent or temporary injunction, for any
violation for which the Commandant is authorized to issue a compliance order
under this subsection.
(2)
(A)A civil action under this subsection may be brought in
the district court of the United States for the district in which the defendant
is located, resides, or is doing business.
(B)A
court described in subparagraph (A) shall have jurisdiction to grant injunctive
relief to address a violation and require compliance by the defendant.
11.
(a)Except
as provided in subsection (c), any citizen may commence a civil action on the
citizen's own behalf—
(1)against any
person (including the United States and any other governmental instrumentality
or agency to the extent permitted by the eleventh amendment to the Constitution
of the United States) that is alleged to be in violation of—
(A)the conditions
imposed by section 4;
(B)an effluent limit
or performance standard under this Act; or
(C)an order issued
by the Administrator or Commandant with respect to such a condition, an
effluent limit, or a performance standard; or
(2)against the
Administrator or Commandant, in a case in which there is alleged a failure by
the Administrator or Commandant to perform any nondiscretionary act or duty
under this Act.
(b)The
district courts of the United States shall have jurisdiction, without regard to
the amount in controversy or the citizenship of the parties—
(1)to enforce a
condition, effluent limit, performance standard, or order described in
subsection (a)(1);
(2)to order the
Administrator or Commandant to perform a nondiscretionary act or duty described
in subsection (a)(2); and
(3)to apply any
appropriate civil penalties under section 10(b).
(c)No
action may be commenced under this section—
(1)before the date
that is 60 days after the date on which the plaintiff gives notice of the
alleged violation—
(A)to the
Administrator or Commandant; and
(B)to any alleged
violator of the condition, effluent limit, performance standard, or order
described in subsection (a)(1); or
(2)if the
Administrator or Commandant has commenced and is diligently prosecuting a civil
or criminal action on the same matter in a court of the United States (but in
any such action, a citizen may intervene as a matter of right).
(d)
(1)Any civil action under this section shall be brought
in—
(A)the United States
District Court for the District of Columbia; or
(B)any other
district court of the United States for any judicial district in which a cruise
vessel or the owner or operator of a cruise vessel is located.
(2)In
a civil action under this section, the Administrator or the Commandant, if not
a party, may intervene as a matter of right.
(3)
(A)In
any case in which a civil action is brought under this section in a court of
the United States, the plaintiff shall serve a copy of the complaint on—
(i)the
Attorney General;
(ii)the
Administrator; and
(iii)the
Commandant.
(B)No consent judgment shall be entered in a civil action
under this section to which the United States is not a party before the date
that is 45 days after the date of receipt of a copy of the proposed consent
judgment by—
(i)the
Attorney General;
(ii)the
Administrator; and
(iii)the
Commandant.
(e)
(1)A court of jurisdiction, in issuing any final order in
any civil action brought in accordance with this section, may award costs of
litigation (including reasonable attorneys' and expert witness fees) to any
prevailing or substantially prevailing party, in any case in which the court
determines that such an award is appropriate.
(2)In
any civil action under this section, the court of jurisdiction may, if a
temporary restraining order or preliminary injunction is sought, require the
filing of a bond or equivalent security in accordance with the Federal Rules of
Civil Procedure.
(f)Statutory or
common law rights not restrictedNothing in this section
restricts the rights of any person (or class of persons) under any statute or
common law to seek enforcement or other relief (including relief against the
Administrator or Commandant).
(g)Civil action by
State governorsA Governor of a State may commence a civil action
under subsection (a), without regard to the limitation under subsection (c),
against the Administrator or Commandant in any case in which there is alleged a
failure of the Administrator or Commandant to enforce an effluent limit or
performance standard under this Act, the violation of which is causing—
(1)an adverse effect
on the public health or welfare in the State; or
(2)a violation of
any water quality requirement in the State.
12.Sense of
Congress on ballast waterIt
is the sense of Congress that action should be taken to enact legislation
requiring strong, mandatory standards for ballast water to reduce the threat of
aquatic invasive species.
13.Sense of Congress on
air pollutionIt is the sense
of Congress that action should be taken to enact legislation requiring strong,
mandatory standards for air quality with respect to incineration and engine
activities of cruise vessels to reduce the level of harmful chemical and
particulate air pollutants.
14.
(a)Authorization
of appropriationsThere are authorized to be appropriated to the
Commandant and the Administrator such sums as are necessary to carry out this
Act for each of fiscal years 2009 through 2013.
(b)Cruise Vessel
Pollution Control Fund
(1)There
is established in the general fund of the Treasury a separate account to be
known as the Cruise Vessel Pollution Control Fund
(referred to
in this section as the Fund
).
(2)The
Fund shall consist of such amounts as are deposited in the Fund under
subsection (c)(5).
(3)The Administrator and the Commandant may use amounts in
the Fund, without further appropriation, to carry out this Act.
(c)
(1)The Commandant shall establish and collect from each
cruise vessel a reasonable and appropriate fee for each paying passenger on a
cruise vessel voyage, for use in carrying out this Act.
(2)
(A)The Commandant shall biennially adjust the amount of the
fee established under paragraph (1) to reflect changes in the Consumer Price
Index for All Urban Consumers published by the Department of Labor during each
2-year period.
(B)The
Commandant may round the adjustment in subparagraph (A) to the nearest
1/10 of a dollar.
(3)Factors in
establishing fees
(A)In establishing fees under paragraph (1), the Commandant
may establish lower levels of fees and the maximum amount of fees for certain
classes of cruise vessels based on—
(i)size;
(ii)economic share;
and
(iii)such other
factors as are determined to be appropriate by the Commandant and
Administrator.
(B)Any fee schedule established under paragraph (1),
including the level of fees and the maximum amount of fees, shall take into
account—
(i)cruise vessel
routes;
(ii)the frequency of
stops at ports of call by cruise vessels; and
(iii)other relevant
considerations.
(4)A fee established under paragraph (1) shall be collected by
the Commandant from the owner or operator of each cruise vessel to which this
Act applies.
(5)Notwithstanding any other provision of law, all fees
collected under this subsection, and all penalties and payments collected for
violations of this Act, shall be deposited into the Fund.
15.
(a)Nothing in this Act restricts, affects, or amends any
other law or the authority of any department, instrumentality, or agency of the
United States.
(b)States and
interstate agencies
(1)Except as provided in paragraph (2), nothing in this Act
precludes or denies the right of any State (including a political subdivision
of a State) or interstate agency to adopt or enforce—
(A)any standard or
limit relating to the discharge of pollutants by cruise vessels; or
(B)any requirement
relating to the control or abatement of pollution.
(2)If
an effluent limit, performance standard, water quality standard, or any other
prohibition or limitation is in effect under Federal law, a State (including a
political subdivision of a State) or interstate agency may not adopt or enforce
any effluent limit, performance standard, water quality standard, or any other
prohibition that—
(A)is less stringent
than the effluent limit, performance standard, water quality standard, or other
prohibition or limitation under this Act; or
(B)impairs or in any
manner affects any right or jurisdiction of the State with respect to the
waters of the State.