[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3618 Referred in Senate (RFS)]

111th CONGRESS
  1st Session
                                H. R. 3618


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 18, 2009

    Received; read twice and referred to the Committee on Commerce, 
                      Science, and Transportation

_______________________________________________________________________

                                 AN ACT


 
 To provide for implementation of the International Convention on the 
 Control of Harmful Anti-Fouling Systems on Ships, 2001, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Clean Hull Act of 2009''.

                      TITLE I--GENERAL PROVISIONS

SEC. 101. DEFINITIONS.

    In this Act:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Antifouling system.--The term ``antifouling system'' 
        means a coating, paint, surface treatment, surface, or device 
        that is used or intended to be used on a vessel to control or 
        prevent attachment of unwanted organisms.
            (3) Convention.--The term ``Convention'' means the 
        International Convention on the Control of Harmful Anti-Fouling 
        Systems on Ships, 2001, including its annexes, and including 
        any amendments to the Convention or annexes which have entered 
        into force for the United States.
            (4) FPSO.--The term ``FPSO'' means a floating production, 
        storage, or offloading unit.
            (5) FSU.--The term ``FSU'' means a floating storage unit.
            (6) Gross tonnage.--The term ``gross tonnage'' as defined 
        in chapter 143 of title 46, United States Code, means the gross 
        tonnage calculated in accordance with the tonnage measurement 
        regulations contained in annex 1 to the International 
        Convention on Tonnage Measurement of Ships, 1969.
            (7) International voyage.--The term ``international 
        voyage'' means a voyage by a vessel entitled to fly the flag of 
        one country to or from a port, shipyard, offshore terminal, or 
        other place under the jurisdiction of another country.
            (8) Organotin.--The term ``organotin'' means any compound 
        or additive of tin bound to an organic ligand, that is used or 
        intended to be used as biocide in an antifouling system.
            (9) Person.--The term ``person'' means--
                    (A) any individual, partnership, association, 
                corporation, or organized group of persons whether 
                incorporated or not;
                    (B) any department, agency, or instrumentality of 
                the United States, except as provided in section 
                3(b)(2); or
                    (C) any other government entity.
            (10) Secretary.--The term ``Secretary'' means the Secretary 
        of the department in which the Coast Guard is operating.
            (11) Sell or distribute.--The term ``sell or distribute'' 
        means to distribute, sell, offer for sale, hold for 
        distribution, hold for sale, hold for shipment, ship, deliver 
        for shipment, release for shipment, import, export, hold for 
        import, hold for export, or receive and (having so received) 
        deliver or offer to deliver.
            (12) Vessel.--The term ``vessel'' has the meaning given 
        that term in section 3 of title 1, United States Code, 
        including hydrofoil boats, air cushion watercraft, 
        submersibles, floating craft, fixed or floating platforms, 
        floating storage units, and floating production, storage, and 
        offloading units.
            (13) Territorial sea.--The term ``territorial sea'' means 
        the territorial sea as described in Presidential Proclamation 
        No. 5928 on December 27, 1988.
            (14) United states.--The term ``United States'' means the 
        several States of the United States, the District of Columbia, 
        Puerto Rico, Guam, American Samoa, the Virgin Islands, the 
        Commonwealth of the Northern Marianas, and any other territory 
        or possession over which the United States has jurisdiction.
            (15) Use.--The term ``use'' includes application, 
        reapplication, installation, or any other employment of an 
        antifouling system.

SEC. 102. COVERED VESSELS.

    (a) Included Vessel.--Except as provided in subsection (b), after 
the Convention enters into force for the United States, the following 
vessels are subject to the requirements of this Act:
            (1) A vessel documented under chapter 121 of title 46, 
        United States Code, or one operated under the authority of the 
        United States, wherever located.
            (2) Any vessel permitted by a Federal agency to operate on 
        the Outer Continental Shelf.
            (3) Any other vessel when--
                    (A) in the internal waters of the United States;
                    (B) in any port, shipyard, offshore terminal, or 
                other place in the United States;
                    (C) lightering in the territorial sea; or
                    (D) to the extent consistent with international 
                law, anchoring in the territorial sea of the United 
                States.
    (b) Excluded Vessels.--
            (1) In general.--The following vessels are not subject to 
        the requirements of this Act:
                    (A) Any warship, naval auxiliary, or other vessel 
                owned or operated by a foreign state, and used, for the 
                time being, only on government noncommercial service.
                    (B) Except as provided in paragraph (2), any 
                warship, naval auxiliary, or other vessel owned or 
                operated by the United States and used for the time 
                being only on government noncommercial service.
            (2) Application to united states government vessels.--
                    (A) In general.--The Administrator may apply any 
                requirement of this Act to one or more classes of 
                vessels described in paragraph (1)(B), if the head of 
                the Federal department or agency under which those 
                vessels operate concurs in that application.
                    (B) Limitation for combat-related vessel.--
                Paragraph (1) shall not apply to combat-related 
                vessels.

SEC. 104. ADMINISTRATION AND ENFORCEMENT.

    (a) In General.--Unless otherwise specified in this Act, with 
respect to a vessel, the Secretary shall administer and enforce the 
Convention and this Act.
    (b) Administrator.--Except with respect to section 301 (b) and (c), 
the Administrator shall administer and enforce title III of this Act.
    (c) Regulations.--The Administrator and the Secretary may each 
prescribe and enforce regulations as may be necessary to carry out 
their respective responsibilities under this Act.

SEC. 105. COMPLIANCE WITH INTERNATIONAL LAW.

    Any action taken under this Act shall be taken in accordance with 
treaties to which the United States is a party and other international 
obligations of the United States.

SEC. 106. UTILIZATION OF PERSONNEL, FACILITIES OR EQUIPMENT OF OTHER 
              FEDERAL DEPARTMENTS AND AGENCIES.

    The Secretary and the Administrator may utilize by agreement, with 
or without reimbursement, personnel, facilities, or equipment of other 
Federal departments and agencies in administering the Convention, this 
Act, or any regulations prescribed under this Act.

               TITLE II--IMPLEMENTATION OF THE CONVENTION

SEC. 201. CERTIFICATES.

    (a) Certificate Required.--On entry into force of the Convention 
for the United States, any vessel of at least 400 gross tons that 
engages in one or more international voyages (except fixed or floating 
platforms, FSUs, and FPSOs) shall carry an International Antifouling 
System Certificate.
    (b) Issuance of Certificate.--On entry into force of the 
Convention, on a finding that a successful survey required by the 
Convention has been completed, a vessel of at least 400 gross tons that 
engages in at least one international voyage (except fixed or floating 
platforms, FSUs, and FPSOs) shall be issued an International 
Antifouling System Certificate. The Secretary may issue the Certificate 
required by this section. The Secretary may delegate this authority to 
an organization that the Secretary determines is qualified to undertake 
that responsibility.
    (c) Maintenance of Certificate.--The Certificate required by this 
section shall be maintained as required by the Secretary.
    (d) Certificates Issued by Other Party Countries.--A Certificate 
issued by any country that is a party to the Convention has the same 
validity as a Certificate issued by the Secretary under this section.
    (e) Vessels of Nonparty Countries.--Notwithstanding subsection (a), 
a vessel of at least 400 gross tons, having the nationality of or 
entitled to fly the flag of a country that is not a party to the 
Convention, may demonstrate compliance with this Act through other 
appropriate documentation considered acceptable by the Secretary.

SEC. 202. DECLARATION.

    (a) Requirements.--On entry into force of the Convention for the 
United States, a vessel of at least 24 meters in length, but less than 
400 gross tons engaged on an international voyage (except fixed or 
floating platforms, FSUs, and FPSOs) must carry a declaration described 
in subsection (b) that is signed by the owner or owner's authorized 
agent. That declaration shall be accompanied by appropriate 
documentation, such as a paint receipt or a contractor invoice, or 
contain an appropriate endorsement.
    (b) Content of Declaration.--The declaration must contain a clear 
statement that the antifouling system on the vessel complies with the 
Convention. The Secretary may prescribe the form and other requirements 
of the declaration.

SEC. 203. OTHER COMPLIANCE DOCUMENTATION.

    In addition to the requirements under sections 201 and 202, the 
Secretary may require vessels to hold other documentation considered 
necessary to verify compliance with this Act.

SEC. 204. PROCESS FOR CONSIDERING ADDITIONAL CONTROLS.

    (a) Actions by Administrator.--The Administrator may--
            (1) participate in the technical group described in Article 
        7 of the Convention, and in any other body convened pursuant to 
        the Convention for the consideration of new or additional 
        controls on antifouling systems;
            (2) evaluate any risks of adverse effects on nontarget 
        organisms or human health presented by a given antifouling 
        system such that the amendment of annex 1 of the Convention may 
        be warranted;
            (3) undertake an assessment of relevant environmental, 
        technical, and economic considerations necessary to evaluate 
        any proposals for new or additional controls of antifouling 
        systems under the Convention, including benefits in the United 
        States and elsewhere associated with the production and use in 
        the United States and elsewhere, of the subject antifouling 
        system; and
            (4) develop recommendations based on that assessment.
    (b) Referrals to Technical Group.--
            (1) Convening of shipping coordinating committee.--On 
        referral of any antifouling system to the technical group 
        described in article 7 of the Convention for consideration of 
        new or additional controls, the Secretary of State shall 
        convene a public meeting of the Shipping Coordinating Committee 
        for the purpose of receiving information and comments regarding 
        controls on such antifouling system. The Secretary of State 
        shall publish advance notice of such meeting in the Federal 
        Register and on the State Department's Web site. The 
        Administrator shall assemble and maintain a public docket 
        containing notices pertaining to that meeting, any comments 
        responding to those notices, the minutes of that meeting, and 
        materials presented at that meeting.
            (2) Report by technical group.--The Administrator shall 
        promptly make any report by the technical group described in 
        the Convention available to the public through the docket 
        established pursuant to subsection (b) and announce the 
        availability of that report in the Federal Register. The 
        Administrator shall provide an opportunity for public comment 
        on the report for a period of not less than 30 days from the 
        time the availability of the report is announced in the Federal 
        Register.
            (3) Consideration of comments.--To the extent practicable, 
        the Administrator shall take any comments into consideration in 
        developing recommendations under subsection (a).

SEC. 205. SCIENTIFIC AND TECHNICAL RESEARCH AND MONITORING; 
              COMMUNICATION AND INFORMATION.

    The Secretary, the Administrator, and the Administrator of the 
National Oceanic and Atmospheric Administration may each undertake 
scientific and technical research and monitoring pursuant to article 8 
of the Convention and to promote the availability of relevant 
information concerning--
            (1) scientific and technical activities undertaken in 
        accordance with the Convention;
            (2) marine scientific and technological programs and their 
        objectives; and
            (3) the effects observed from any monitoring and assessment 
        programs relating to antifouling systems.

SEC. 206. COMMUNICATION AND EXCHANGE OF INFORMATION.

    (a) In General.--Except as provided in subsection (b), with respect 
to those antifouling systems regulated by the Administrator, the 
Administrator shall provide to any party to the Convention that 
requests it, relevant information on which the decision to regulate was 
based, including information provided for in annex 3 to the Convention, 
or other information suitable for making an appropriate evaluation of 
the antifouling system.
    (b) Limitation.--This section shall not be construed to authorize 
the provision of information the disclosure of which is otherwise 
prohibited by law.

           TITLE III--PROHIBITIONS AND ENFORCEMENT AUTHORITY

SEC. 301. PROHIBITIONS.

    (a) In General.--Notwithstanding any other provision of law, it is 
unlawful for any person--
            (1) to act in violation of this Act, or any regulation 
        prescribed under this Act;
            (2) to sell or distribute in domestic or international 
        commerce organotin or an antifouling system containing 
        organotin;
            (3) to manufacture, process, or use organotin to formulate 
        an antifouling system;
            (4) to apply an antifouling system containing organotin on 
        any vessel to which this Act applies; or
            (5) after the Convention enters into force for the United 
        States, to apply or otherwise use in a manner inconsistent with 
        the Convention, an antifouling system on any vessel that is 
        subject to this Act.
    (b) Vessel Hulls.--Except as provided in subsection (c), no vessel 
shall bear on its hull or outer surface any antifouling system 
containing organotin, regardless of when such system was applied, 
unless that vessel bears an overcoating which forms a barrier to 
organotin leaching from the underlying antifouling system.
    (c) Limitations.--
            (1) Excepted vessel.--Subsection (b) does not apply to 
        fixed or floating platforms, FSUs, or FPSOs that were 
        constructed prior to January 1, 2003, and that have not been in 
        dry dock on or after that date.
            (2) Sale, manufacture, etc.--This section does not apply 
        to--
                    (A) the sale, distribution, or use pursuant to any 
                agreement between the Administrator and any person that 
                results in an earlier prohibition or cancellation date 
                than specified in this Act; or
                    (B) the manufacture, processing, formulation, sale, 
                distribution, or use of organotin or antifouling 
                systems containing organotin used or intended for use 
                only for sonar domes or in conductivity sensors in 
                oceanographic instruments.

SEC. 302. INVESTIGATIONS AND INSPECTIONS BY SECRETARY.

    (a) In General.--The Secretary may conduct investigations and 
inspections regarding a vessel's compliance with this Act or the 
Convention.
    (b) Violations; Subpoenas.--In any investigation under this 
section, the Secretary may issue subpoenas to require the attendance of 
witnesses and the production of documents and other evidence. In case 
of refusal to obey a subpoena issued to any person, the Secretary may 
request the Attorney General to invoke the aid of the appropriate 
district court of the United States to compel compliance.
    (c) Further Action.--On completion of an investigation, the 
Secretary may take whatever further action the Secretary considers 
appropriate under the Convention or this Act.
    (d) Cooperation.--The Secretary may cooperate with other parties to 
the Convention in the detection of violations and in enforcement of the 
Convention. Nothing in this section affects or alters requirements 
under any other laws.

SEC. 303. EPA ENFORCEMENT.

    (a) Inspections, Subpoenas.--
            (1) In general.--For purposes of enforcing this Act or any 
        regulation prescribed under this Act, officers or employees of 
        the Environmental Protection Agency or of any State designated 
        by the Administrator may enter at reasonable times any location 
        where there is being held or may be held organotin or any other 
        substance or antifouling system regulated under the Convention, 
        for the purpose of inspecting and obtaining samples of any 
        containers or labeling for organotin or other substance or 
        system regulated under the Convention.
            (2) Subpoenas.--In any investigation under this section the 
        Administrator may issue subpoenas to require the attendance of 
        any witness and the production of documents and other evidence. 
        In case of refusal to obey such a subpoena, the Administrator 
        may request the Attorney General to compel compliance.
    (b) Stop Manufacture, Sale, Use, or Removal Orders.--Consistent 
with section 104, whenever any organotin or other substance or system 
regulated under the Convention is found by the Administrator and there 
is reason to believe that a manufacturer, seller, distributor, or user 
has violated or is in violation of any provision of this Act, or that 
such organotin or other substance or system regulated under the 
Convention has been or is intended to be manufactured, distributed, 
sold, or used in violation of this Act, the Administrator may issue a 
stop manufacture, sale, use, or removal order to any person that owns, 
controls, or has custody of such organotin or other substance or system 
regulated under the Convention. After receipt of that order the person 
may not manufacture, sell, distribute, use, or remove the organotin or 
other substance or system regulated under the Convention described in 
the order except in accordance with the order.

SEC. 304. ADDITIONAL AUTHORITY OF THE ADMINISTRATOR.

    The Administrator, in consultation with the Secretary, may 
establish, as necessary, terms and conditions regarding the removal and 
disposal of antifouling systems prohibited or restricted under this 
Act.

        TITLE IV--ACTION ON VIOLATION, PENALTIES, AND REFERRALS

SEC. 401. CRIMINAL ENFORCEMENT.

    Any person who knowingly violates paragraph (2), (3), (4), or (5) 
of section 301(a) or section 301(b) shall be fined under title 18, 
United States Code, or imprisoned not more than 6 years, or both.

SEC. 402. CIVIL ENFORCEMENT.

    (a) Civil Penalty.--
            (1) In general.--Any person who is found by the Secretary 
        or the Administrator, as appropriate, after notice and an 
        opportunity for a hearing, to have--
                    (A) violated the Convention, this Act, or any 
                regulation prescribed under this Act is liable to the 
                United States Government for a civil penalty of not 
                more than $37,500 for each violation; or
                    (B) made a false, fictitious, or fraudulent 
                statement or representation in any matter in which a 
                statement or representation is required to be made to 
                the Secretary under the Convention, this Act, or any 
                regulations prescribed under this Act, is liable to the 
                United States for a civil penalty of not more than 
                $50,000 for each such statement or representation.
            (2) Relationship to other law.--This subsection shall not 
        limit or affect the authority of the Government under section 
        1001 of title 18, United States Code.
    (b) Assessment of Penalty.--The amount of the civil penalty shall 
be assessed by the Secretary or Administrator, as appropriate, by 
written notice.
    (c) Limitation for Recreational Vessel.--A civil penalty imposed 
under subsection (a) against the owner or operator of a recreational 
vessel, as that term is defined in section 2101 of title 46, United 
States Code, for a violation of the Convention, this Act, or any 
regulation prescribed under this Act involving that recreational 
vessel, may not exceed $5,000 for each violation.
    (d) Determination of Penalty.--For purposes of penalties under this 
section, each day of a continuing violation constitutes a separate 
violation. In determining the amount of the penalty, the Secretary or 
Administrator shall take into account the nature, circumstances, 
extent, and gravity of the prohibited acts committed and, with respect 
to the violator, the degree of culpability, any history of prior 
offenses, the economic impact of the penalty on the violator, the 
economic benefit to the violator and other matters as justice may 
require.
    (e) Reward.--An amount equal to not more than one-half of any civil 
penalty assessed by the Secretary or Administrator under this section 
may, subject to the availability of appropriations, be paid by the 
Secretary or Administrator, respectively, to any person who provided 
information that led to the assessment or imposition of the penalty.
    (f) Referral to Attorney General.--If any person fails to pay a 
civil penalty assessed under this section after it has become final, or 
comply with an order issued under this Act, the Secretary or 
Administrator, as appropriate, may refer the matter to the Attorney 
General of the United States for collection in any appropriate district 
court of the United States.
    (g) Compromise, Modification, or Remission.--Before referring any 
civil penalty that is subject to assessment or has been assessed under 
this section to the Attorney General, the Secretary, or Administrator, 
as appropriate, may compromise, modify, or remit, with or without 
conditions, the civil penalty.
    (h) Nonpayment Penalty.--Any person who fails to pay on a timely 
basis a civil penalty assessed under this section shall also be liable 
to the United States for interest on the penalty at an annual rate 
equal to 11 percent compounded quarterly, attorney fees and costs for 
collection proceedings, and a quarterly nonpayment penalty for each 
quarter during which such failure to pay persists. That nonpayment 
penalty shall be in an amount equal to 20 percent of the aggregate 
amount of that person's penalties and nonpayment penalties that are 
unpaid as of the beginning of that quarter.

SEC. 403. LIABILITY IN REM.

    A vessel operated in violation of the Convention, this Act, or any 
regulation prescribed under this Act, is liable in rem for any fine 
imposed under section 18, United States Code, or civil penalty assessed 
pursuant to section 402, and may be proceeded against in the United 
States district court of any district in which the vessel may be found.

SEC. 404. VESSEL CLEARANCE OR PERMITS; REFUSAL OR REVOCATION; BOND OR 
              OTHER SURETY.

    If any vessel that is subject to the Convention or this Act, or its 
owner, operator, or person in charge, is liable for a fine or civil 
penalty under section 402 or 403, or if reasonable cause exists to 
believe that the vessel, its owner, operator, or person in charge may 
be subject to a fine or civil penalty under section 402 or 403, the 
Secretary may refuse or revoke the clearance required by section 60105 
of title 46, United States Code. Clearance may be granted upon the 
filing of a bond or other surety satisfaction to the Secretary.

SEC. 405. WARNINGS, DETENTIONS, DISMISSALS, EXCLUSION.

    (a) In General.--If a vessel is detected to be in violation of the 
Convention, this Act, or any regulation prescribed under this Act, the 
Secretary may warn, detain, dismiss, or exclude the vessel from any 
port or offshore terminal under the jurisdiction of the United States.
    (b) Notifications.--If action is taken under subsection (a), the 
Secretary, in consultation with the Secretary of State, shall make the 
notifications required by the Convention.

SEC. 406. REFERRALS FOR APPROPRIATE ACTION BY FOREIGN COUNTRY.

    Notwithstanding sections 401, 402, 403, and 405, if a violation of 
the Convention is committed by a vessel registered in or of the 
nationality of a country that is a party to the Convention, or by a 
vessel operated under the authority of a country that is a party to the 
Convention, the Secretary, acting in coordination with the Secretary of 
State, may refer the matter to the government of the country of the 
vessel's registry or nationality, or under whose authority the vessel 
is operating, for appropriate action, rather than taking the actions 
otherwise required or authorized by this title.

SEC. 407. REMEDIES NOT AFFECTED.

    (a) In General.--Nothing in this Act limits, denies, amends, 
modifies, or repeals any other remedy available to the United States.
    (b) Relationship to State and Local Law.--Nothing in this Act 
limits, denies, amends, modifies, or repeals any rights under existing 
law, of any State, territory, or possession of the United States, or 
any political subdivision thereof, to regulate any antifouling system. 
Compliance with the requirements of a State, territory, or possession 
of the United States, or political subdivision thereof related to 
antifouling paint or any other antifouling system does not relieve any 
person of the obligation to comply with this Act.

SEC. 408. REPEAL.

    The Organotin Antifouling Paint Control Act of 1988 (33 U.S.C. 2401 
et seq.) is repealed.

            Passed the House of Representatives November 17, 2009.

            Attest:

                                            LORRAINE C. MILLER,

                                                                 Clerk.