[Senate Report 115-16]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 27
115th Congress   }                                       {      Report
                                 SENATE
 1st Session     }                                       {      115-16
_______________________________________________________________________

                                     
                               

                                     

                                     


             THE COMMERCIAL VESSEL INCIDENTAL DISCHARGE ACT

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                 S. 168

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                 March 30, 2017.--Ordered to be printed
                 
 
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

69-010                         WASHINGTON : 2017                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                     one hundred fifteenth congress
                             first session

                   JOHN THUNE, South Dakota, Chairman
 ROGER F. WICKER, Mississippi         BILL NELSON, Florida
 ROY BLUNT, Missouri                  MARIA CANTWELL, Washington
 TED CRUZ, Texas                      AMY KLOBUCHAR, Minnesota
 DEB FISCHER, Nebraska                RICHARD BLUMENTHAL, Connecticut
 JERRY MORAN, Kansas                  BRIAN SCHATZ, Hawaii
 DAN SULLIVAN, Alaska                 EDWARD J. MARKEY, Massachusetts
 DEAN HELLER, Nevada                  CORY A. BOOKER, New Jersey
 JIM INHOFE, Oklahoma                 TOM UDALL, New Mexico
 MIKE LEE, Utah                       GARY PETERS, Michigan
 RON JOHNSON, Wisconsin               TAMMY BALDWIN, Wisconsin
 SHELLEY MOORE CAPITO, West           TAMMY DUCKWORTH, Illinois
    Virginia
 CORY GARDNER, Colorado               MARGARETWOODHASSAN,NewHampshire
 TODD C. YOUNG, Indiana               CATHERINE CORTEZ MASTO, Nevada
                       Nick Rossi, Staff Director
                 Adrian Arnakis, Deputy Staff Director
                    Jason Van Beek, General Counsel
                 Kim Lipsky, Democratic Staff Director
           Christopher Day, Democratic Deputy Staff Director








                                                       Calendar No. 27
115th Congress   }                                       {      Report
                                 SENATE
 1st Session     }                                       {      115-16

======================================================================



 
             THE COMMERCIAL VESSEL INCIDENTAL DISCHARGE ACT

                                _______
                                

                 March 30, 2017.--Ordered to be printed

                                _______
                                

Mr. Thune, from the Committee on Commerce, Science, and Transportation, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 168]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 168) to amend and enhance 
certain maritime programs of the Department of Transportation, 
having considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                          Purpose of the Bill

    The purpose of S. 168, the Commercial Vessel Incidental 
Discharge Act, is to provide for the establishment of 
nationally uniform and environmentally sound standards for the 
regulation of ballast water discharges and other discharges 
that are incidental to the normal operation of vessels.

                          Background and Needs

    Ballast water discharged from vessels has been, and 
continues to be, of serious concern as one of several vectors 
for the introduction into ecosystems of aquatic invasive 
species. One of the best known examples of introduction of an 
aquatic invasive species via ballast water is that of the zebra 
mussel (Dreissena polymorpha). The zebra mussel is indigenous 
to freshwater lakes and rivers in Eastern Europe and Western 
Asia, but was discovered in North America in Lake St. Clair, 
which connects Lake Huron and Lake Erie, in 1988. It is 
generally accepted by the scientific community that the species 
arrived there in ballast water discharged by vessels coming 
from European ports. Since arriving in North America, the zebra 
mussel has spread throughout and beyond the Great Lakes. The 
introduction of this nonindigenous filter-feeder has 
drastically altered ecosystems in the Great Lakes and 
elsewhere.
    Although the problem of, and potential solution to, 
introduction of invasive species through ballast water are 
clear, the laws, including regulations, that govern ballast 
water management and the management of other discharges 
incidental to the normal operation of vessels could hardly be 
more confusing. Currently, these incidental discharges are 
regulated by a patchwork of Federal and State laws, including 
regulations. In 1973, when the Environmental Protection Agency 
(EPA) first implemented the National Pollutant Discharge 
Elimination System (NPDES) pursuant to section 402 of the Clean 
Water Act, it excluded discharges incidental to the normal 
operation of a vessel from the permitting requirement for the 
discharge of pollutants by point sources under NPDES.\1\ At the 
time, the EPA reasoned that the exclusion was warranted because 
``this type of discharge generally causes little pollution and 
exclusion of vessel wastes from the permit requirements will 
reduce administrative costs drastically.''\2\ This exemption 
remained in place until 2005 when the 9th Circuit Court of 
Appeals upheld a Federal district court ruling that the EPA's 
32 year old regulatory exclusion of vessel discharges from 
NPDES was  ultra vires to the Clean Water Act.\3\
---------------------------------------------------------------------------
    \1\National Pollutant Discharge Elimination System, 38 Fed. Reg. 
13528, May 22, 1973, (to be codified at 40 C.F.R. 125).
    \2\Ibid.
    \3\Northwest Environmental Advocates et al. v. U.S. Environmental 
Protection Agency (EPA), 537 F.3d 1006 (9th Cir. 2008).
---------------------------------------------------------------------------
    Separately, during the 3 decades in which the NPDES vessel 
exclusion was in place, Congress responded to growing concerns 
about zebra mussels and other aquatic invasive species in the 
United States by enacting the Nonindigenous Aquatic Nuisance 
Prevention and Control Act of 1990\4\ (NANPCA), and amendments 
thereto by the National Invasive Species Act\5\ (NISA) in 1996. 
NANPCA/NISA requires the Coast Guard, in coordination with the 
EPA and other relevant Federal agencies, to establish and 
administer a ballast water management program to prevent 
introduction and dispersal of nonindigenous species into the 
waters of the United States.
---------------------------------------------------------------------------
    \4\Nonindigenous Aquatic Nuisance Prevention and Control Act of 
1990, (Pub. Law 101-646, 104 Stat. 4761) (1990).
    \5\National Invasive Species Act, (Public Law No. 104-332, 110 
Stat. 4073) (1996).
---------------------------------------------------------------------------
    Also, prior to the overturn of the EPA's regulatory 
exclusion of vessels from NPDES, the Coast Guard, in 2004, with 
the State Department, led the U.S. delegation to the 
International Maritime Organization (IMO) Diplomatic Conference 
on Ballast Water Management for Ships, at which the 
International Convention for the Control and Management of 
Ships' Ballast Water and Sediments\6\ (Convention) was adopted. 
The Convention includes provisions for the experimental testing 
of prototype ballast water treatment systems on operating 
vessels that is largely based on the Coast Guard's own 
Shipboard Technology Evaluation Program, implemented in January 
2004.\7\ It also contains a provision advanced by the U.S. 
delegation for the sampling of ballast water discharged by 
ships as a port State control activity, in order to help port 
States ensure foreign-flagged vessels' compliance with the 
Convention's treatment and other management requirements.\8\
---------------------------------------------------------------------------
    \6\International Convention for the Control and Management of 
Ships' Ballast Water and Sediments, 2004, at http://www.uscg.mil/hq/
cg5/cg522/cg5224/docs/BWM-Treaty.pdf.
    \7\Ibid, Section D, Regulation D-4.
    \8\International Convention for the Control and Management of 
Ships' Ballast Water and Sediments, 2004, at http://www.uscg.mil/hq/
cg5/cg522/cg5224/docs/BWM-Treaty.pdf.
---------------------------------------------------------------------------
    Most importantly, the Convention includes a ballast water 
treatment standard based on the number of living organisms 
contained in discharged ballast water that is the most 
stringent standard scientifically proven to be achievable and 
detectable today. Specifically, Regulation D-2 requires that 
ballast water discharge contain (1) less than 10 viable 
organisms per cubic meter of ballast water that are greater 
than or equal to 50 micrometers in minimum dimension; and (2) 
less than 10 viable organisms per milliliter of ballast water 
that are less than 50 micrometers in minimum dimension and 
greater than or equal to 10 micrometers in minimum 
dimension.\9\ Regulation D-2 further requires that ballast 
water discharge contain only minimal concentrations of certain 
human health indicator microbes, as follows: (1) less than 1 
colony-forming unit (CFU) of toxicogenic Vibrio cholerae 
(serotypes O1 and O139) per 100 milliliters of ballast water or 
less than 1 CFU per 1 gram (wet weight) of zooplankton samples; 
(2) less than 250 CFUs of Escherichia coli per 100 milliliters 
of ballast water; and (3) less than 100 CFUs of intestinal 
Enterococci per 100 milliliters of ballast water.\10\ On 
September 8, 2017, the Convention will come into effect, 
requiring ships in international trade to meet Regulation D-
2.\11\
---------------------------------------------------------------------------
    \9\Ibid, Section D, Regulation D-2.
    \10\Ibid.
    \11\MarEx, ``Ballast Water Convention to Enter into Force in 
2017,'' The Maritime Executive, September 8, 2016, at http://
www.maritime-executive.com/article/ballast-water-convention-to-enter-
into-force-in-2017.
---------------------------------------------------------------------------
    Today, as a result of these independent developments, both 
the Coast Guard and EPA are regulating ballast water under 
separate, inconsistent, and sometimes directly conflicting sets 
of requirements: the Coast Guard under NANPCA/NISA and the EPA 
under the Clean Water Act and NPDES. While both the Coast Guard 
and the EPA have adopted Regulation D-2 as their treatment 
standard for ballast water, there is considerable confusion 
between Federal regulators and among vessel owner/operators 
over how to administer, and properly comply with, the Coast 
Guard and EPA's separate requirements.
    As an example, both the Coast Guard and EPA require a 
ballast water management system (BWMS) aboard a vessel covered 
by their regulations. On the one hand, the Coast Guard's 
regulations generally require that a BWMS be type-approved by 
the Coast Guard.\12\ In the case of a manufacturer whose BWMS 
has been approved by a foreign regulatory authority pursuant to 
Convention standards, that manufacturer may request a Coast 
Guard determination that its BWMS qualifies as an Alternate 
Management System (AMS). On the other hand, the EPA's Vessel 
General Permit (VGP) requires only that a BWMS ``has been shown 
to be effective by testing conducted by an independent third 
party laboratory, test facility or test organization.'' 
Although a BWMS approved by the Coast Guard is deemed by the 
VGP to comply with its effectiveness requirement, a BWMS may 
also be tested and found effective under the VGP by another 
``laboratory, test facility, or test organization,''\13\ even 
though it has not been approved by the Coast Guard. Thus, a 
BWMS could end up being installed on a vessel in compliance 
with the VGP, even though it does not (and may never) comply 
with Coast Guard regulations.
---------------------------------------------------------------------------
    \12\33 C.F.R. 151.2025(a)(1) (2013).
    \13\Vessel General Permit for Discharges Incidental to the Normal 
Operation of Vessels (VGP), December 19, 2013, Section 2.2.3.5.1.1, at 
http://www.epa.gov/npdes/pubs/vgp_permit2013.pdf.
---------------------------------------------------------------------------
    Furthermore, as of February 2017, the Coast Guard has only 
approved one BWMS because the type-approval process has taken 
longer than expected. Coast Guard regulations allow for the 
extension of compliance deadlines to accommodate delays in 
type-approval, but the EPA's VGP is vague as to how it will or 
will not apply when Coast Guard has granted a compliance date 
extension.\14\ The VGP took effect for most commercial vessels 
on December 19, 2013, while the first BWMS was not type-
approved by the Coast Guard until December 2016.\15\ Additional 
systems are likely to be approved shortly, but it will still be 
some time before there are suitable systems for all vessels. 
Other questions exist about equipage, such as, are vessel 
owner/operators expected to install VGP-compliant BWMS that may 
or may not later be approved by the Coast Guard? The EPA's only 
guidance in this regard is that, in cases where the vessel has 
received a compliance date extension from the Coast Guard, the 
vessel is not in compliance with the ballast water numeric 
discharge limit under the VGP, and the vessel is otherwise in 
compliance with the VGP, the EPA will, subject to additional 
case-by-case considerations, ``consider such violations of the 
VGP ballast water numeric discharge limit a low enforcement 
priority.''\16\
---------------------------------------------------------------------------
    \14\See id. Section 1.9.1 (stating only that ``Regarding 
implementation dates of the limits found in Part 2.2.3.5 of the VGP, 
EPA advises that where the U.S. Coast Guard has granted or denied an 
extension request pursuant to 33 CFR 151.2036, that information will be 
considered by EPA, but is not binding on EPA.'').
    \15\U.S. Coast Guard, ``Ballast Water Management (BWM) Extension 
Program Update,'' Marine Safety Information Bulletin, December 2, 2016, 
at https://www.uscg.mil/msib/docs/014-16-12-2-2016.PDF.
    \16\Memorandum from Cynthia Giles, EPA Assistant Administrator, to 
Regional Vessel General Permit Enforcement and Program Directors, 
December 27, 2013, at http://www2.epa.gov/sites/production/files/2013-
12/documents/vesselgeneralpermit-erp.pdf. VGP section 2.2.3.7.
---------------------------------------------------------------------------
    Another example of the conflict and confusion between the 
two regimes is the EPA's VGP requirement of ballast water 
exchange combined with the use of a BWMS for certain vessels 
that enter the Great Lakes after operating outside the U.S. 
Exclusive Economic Zone.\17\ This requirement stands in 
contrast to Coast Guard and IMO regulations, which do not 
require this combination of management methods. These 
inconsistent requirements are certain to cause confusion among 
vessel owner/operators, and particularly among owner/operators 
of foreign-flagged vessels. Some foreign vessel owner/operators 
have even suggested that this and other Clean Water Act 
requirements seem, to the extent they are inconsistent with IMO 
requirements, like thinly veiled non-tariff barriers to trade.
---------------------------------------------------------------------------
    \17\VGP, Section 2.2.3.7, http://www.epa.gov/npdes/pubs/
vgp_permit2013.pdf.
---------------------------------------------------------------------------
    Challenges abound not only with respect to proper 
compliance with, but also proper enforcement of, these 
conflicting requirements. Most notable among them is the fact 
that the Coast Guard is both required to enforce its own 
ballast water management and other vessel operational 
requirements and the EPA's conflicting vessel operational 
requirements under the VGP.\18\
---------------------------------------------------------------------------
    \18\``Memorandum of Understanding between the U.S. Environmental 
Protection Agency, Office of Enforcement and Compliance Assurance, and 
the U.S. Coast Guard, Office of Marine Safety, Security and 
Stewardship, for Collaboration on Compliance Assistance, Compliance 
Monitoring, and Enforcement of Vessel General Permit Requirements on 
Vessels,'' February 11, 2011, http://www.uscg.mil/hq/cgcvc/cvc1/
general/vgp/CG_EPA_MOU.pdf.
---------------------------------------------------------------------------
    On top of this duplicative, inconsistent, and confusing 
Federal regime, subjecting vessels to NPDES also has opened the 
door for States to establish their own varying standards and 
requirements for vessel incidental discharges. The States of 
California, Michigan, Minnesota, Ohio, Oregon, and Washington 
are among those that already have promulgated their own ballast 
water management requirements that also apply to commercial 
vessels navigating in State waters.
    In 2006, the State of California enacted a ballast water 
treatment standard at the recommendation of the California 
State Lands Commission (CSLC) that requires less than 0.01 
living organisms measuring between 10 and 50 micrometers per 
milliliter of ballast water discharged (1000 times the IMO 
Regulation D-2) and requires zero detectable living organisms 
greater than 50 micrometers per milliliter of ballast water 
discharged.\19\ However, the State has continued to delay 
implementation of its requirement that vessel owner/operators 
install BWMS that meet these standards because no BWMS are 
available that meet California's treatment standards. In the 
CSLC staff's words:
---------------------------------------------------------------------------
    \19\Cal. Pub. Res. Code 71205.3 (West 2014).

        More specifically, shipboard ballast water treatment 
        systems cannot be considered available to meet the 
        California performance standards because: 1) no ballast 
        water treatment system has demonstrated efficacy for 
        all of the California performance standards based on 
        the best available data; 2) there are no suitable 
        methods/technology to analyze ballast water samples to 
        determine treatment system efficacy for some of the 
        California performance standards; and 3) a lack of 
        sampling/compliance protocols precludes the ability of 
        the Commission to make a conclusive determination about 
        the availability of shipboard ballast water treatment 
        systems to meet the California performance 
        standards.\20\
---------------------------------------------------------------------------
    \20\California State Lands Commission, 2014 Assessment of the 
Efficacy, Availability, and Environmental Impacts of Ballast Water 
Treatment Technologies for Use in California Waters, August 2014, at 
http://www.slc.ca.gov/specx-0_pub/mfd/ballast_water/
Documents/Reports/2014CSLC_BWTechReport_Final-2.pdf.

    The States of Oregon and Washington, meanwhile, have 
adopted a number of reporting, recordkeeping, and inspection 
requirements, as well as certain ballast water open sea 
exchange measures, but neither State has yet imposed a 
treatment standard under State law, as California has done. The 
State of Washington's Ballast Water Management statute requires 
---------------------------------------------------------------------------
that the Washington Department of Fish and Wildlife:

        shall adopt by rule standards for the discharge of 
        ballast water into the waters of the State and their 
        implementation timelines. The standards are intended to 
        ensure that the discharge of ballast water poses 
        minimal risk of introducing nonindigenous species. In 
        developing these standards, the department shall 
        consider the extent to which the requirement is 
        technologically and practically feasible. Where 
        practical and appropriate, the standards must be 
        compatible with standards set by the United States 
        Coast Guard, the Federal Clean Water Act, or the 
        International Maritime Organization.\21\
---------------------------------------------------------------------------
    \21\Wash. Rev. Code Ann. 77.120.030 (West 2014).
---------------------------------------------------------------------------

    The State of Oregon's ballast water management statute 
contains similar language regarding technological and practical 
feasibility.\22\ Oregon's statute also includes a requirement 
that its ballast water standards and procedures be, ``[t]o the 
extent practicable . . . consistent with relevant rules adopted 
by the States of California and Washington.''\23\ But it is 
unclear how Oregon, or Washington for that matter, can 
reconcile its practicability-based approach to ballast water 
treatment with that of California, which has taken a very 
different approach.
---------------------------------------------------------------------------
    \22\See Or. Rev. Stat. Ann. 783.635 (West 2014) (providing, in 
part, that ``[t]he Environmental Quality Commission may adopt by rule 
standards and procedures that the commission considers necessary to 
carry out the provisions of ORS 783.625 to 783.640. The standards and 
procedures must minimize the risk of introducing aquatic invasive 
species into the waters of this State and must be based on the 
availability of treatment technology. Rules adopted under this 
subsection include, but are not limited to: Standards for the discharge 
of ballast water into the waters of this State and appropriate 
timelines for the implementation of the standards. In adopting the 
standards, the commission shall consider the extent to which treatment 
technology is feasible, practicable and commercially available, or 
expected to be available, by the proposed implementation timelines.'' 
(emphasis added)).
    \23\Ibid.
---------------------------------------------------------------------------
    In all, 25 States have certified the VGP subject to 
additional, individual State requirements. The potential 
compliance challenges posed by this situation are staggering. 
As an example, a commercial vessel owner/operator transiting 
the full length of the Mississippi River is required to comply 
not only with applicable Coast Guard requirements under NANPCA/
NISA and the EPA's VGP requirements, but also with varying 
additional VGP permit requirements imposed by the States of 
Minnesota, Wisconsin, Iowa, Illinois, Missouri, and Arkansas.
    Despite the wide latitude currently given to States to 
establish higher standards under the current regulatory regime, 
environmental groups have continued to sue the EPA. In an 
October 2015 decision, the U.S. Court of Appeals for the Second 
Circuit found that the EPA acted arbitrarily and capriciously 
because, among other reasons, it had not considered the 
possibility of on-shore treatment facilities for ballast water, 
even though none currently exist.\24\ Because of the Second 
Circuit decision, the EPA is currently revising its standards 
and will likely update the VGP in 2018.
---------------------------------------------------------------------------
    \24\MarEx, ``Ballast Water Convention to Enter into Force in 
2017,'' The Maritime Executive, September 8, 2016, at http://
www.maritime-executive.com/article/ballast-water-convention-to-enter-
into-force-in-2017.
---------------------------------------------------------------------------
    This complicated, inefficient, and confusing patchwork of 
Federal and State requirements will only continue to grow, 
confusing vessel owner/operators seeking in good faith to 
comply, confounding law enforcement authorities, unnecessarily 
impeding maritime commerce, and, most importantly, diminishing 
the overall effectiveness of U.S. efforts to prevent the 
introduction of aquatic invasive species. Strong uniform 
national standards are necessary to effectively defend against 
invasive species brought to the United States in ballast water.
    The Act would require the Secretary of the department in 
which the Coast Guard is operating (Secretary), in consultation 
with the Administrator of the EPA (Administrator), to establish 
and implement enforceable uniform national standards and 
requirements for the regulation of ballast water discharges and 
other discharges incidental to the normal operation of vessels. 
The new standards and requirements would be required to be 
based upon the best available technology economically 
achievable, and would generally supersede the current jumble of 
Federal and State incidental discharge requirements. 
Enforcement responsibilities with respect to these uniform 
national standards and requirements would be vested in the 
Secretary and the States.

                         Summary of Provisions

    S. 168 would require the Secretary, in consultation with 
the Administrator, to establish and implement uniform national 
standards for the regulation of ballast water discharges and 
other discharges incidental to the normal operation of vessels. 
The new standards would be based upon the best available 
technology economically achievable, and would generally 
supersede the current jumble of Federal and State incidental 
discharge requirements. The initial ballast water treatment 
standard under S. 168 would be the IMO Regulation D-2, the most 
stringent treatment standard scientifically proven to be 
achievable and detectable today. In 2022, the Secretary would 
be required to conduct a review to determine whether it is 
possible to increase the standard. Thereafter, decennial 
feasibility reviews would be required to determine whether 
further revisions of the ballast water standard would result in 
a reduction in the risk of the introduction of aquatic nuisance 
species. States would be allowed to petition for stricter 
ballast water and incidental discharge standards. Under the 
bill, if the Secretary determines those standards are feasible 
and protect the environment, they would become the new national 
standard. Enforcement responsibilities would be vested in the 
Secretary. States also would be authorized to enter into an 
agreement to enforce the standards and requirements established 
under the Act.

                          Legislative History

    During the 114th Congress, a provision similar to S. 168, 
S. 373, the Vessel Incidental Discharge Act, was reported out 
of Committee. It also was reported out of Committee as part of 
S. 2829, the Maritime Administration Authorization and 
Enhancement Act for Fiscal Year 2017.
    A provision similar to S. 168 was also included in the 
House of Representatives-passed version of H.R. 4909, the 
National Defense Authorization Act (NDAA) of 2017 (section 
3604). Forty-one Senators signed a letter to the Armed Services 
Chairmen and Ranking Members, asking that the provision be 
included in the NDAA conference report. Ultimately, the 
provision was not included because it lacked a direct defense 
nexus.
    This Congress, S. 168, the Commercial Vessel Incidental 
Discharge Act, was introduced by Senator Wicker on January 17, 
2017, with Senators Casey, Nelson, Rubio, Thune, McCaskill, 
Schatz, and Sullivan as cosponsors. On January 24, 2017, the 
Committee met in open Executive Session and, by voice vote, 
ordered S. 168 to be reported favorably without amendment.

                            Estimated Costs

    In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

S. 168--Commercial Vessel Incidental Discharge Act

    S. 168 would amend the environmental standards for water 
that is discharged from ships and would permanently exempt 
certain smaller vessels from those standards. Under current 
law, the United States Coast Guard (USCG) and the Environmental 
Protection Agency (EPA) set and enforce those standards.
    S. 168 also would change the procedures that the United 
States follows to review and regulate water discharged from 
certain vessels. The legislation would increase the 
administrative responsibilities of the USCG to implement some 
of the laws that govern water discharged from ships and require 
that the USCG carry out those responsibilities in consultation 
with the EPA. Under current law, most of those responsibilities 
are carried out by the EPA under the Clean Water Act.
    Under the bill, the EPA would no longer issue water 
discharge permits to vessels. Based on information from the 
EPA, CBO estimates that the agency currently spends roughly $1 
million per year to implement its share of those 
responsibilities under the Clean Water Act. CBO expects that 
the USCG would spend a similar amount--$5 million over the 
2018-2022 period--upon assuming those responsibilities from the 
EPA. Thus, CBO estimates that transferring those 
responsibilities would result in no net cost to the federal 
government. USCG would issue permits, conduct enforcement 
actions, and review proposals from states for more stringent 
standards.
    Enacting S. 168 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    S. 168 would not increase net direct spending or on-budget 
deficits in any of the four consecutive 10-year periods 
beginning in 2028.
    S. 168 contains intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA). The bill would preempt 
state and local laws that regulate ballast water and other 
discharges of vessels by establishing a national uniform 
standard and set of best management practices. Although it 
would limit the application of state and local regulations, the 
bill would impose no duty on state or local governments that 
would result in additional spending or a loss of revenues.
    S. 168 contains no private-sector mandates as defined in 
UMRA.
    The CBO staff contact for this estimate is Jon Sperl. The 
estimate was approved by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

                           Regulatory Impact

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       number of persons covered

    S. 168 as reported does not create any new programs or 
impose any new regulatory requirements; therefore, it would not 
subject any individuals or businesses to new regulations. It 
would streamline regulatory compliance for the owners and 
operators of approximately 70,000 vessels with respect to 
ballast discharge. It also would permanently exempt 
approximately 120,000 vessels from incidental vessel discharge 
rules; thus, it would reduce the regulatory burden on the 
owners and operators of those vessels.

                            economic impact

    Enactment of this legislation is not expected to have any 
significant adverse impacts on the Nation's economy and would 
reduce compliance costs for businesses.

                                privacy

    The bill would not impact the personal privacy of 
individuals.

                               paperwork

    By replacing myriad Federal and State vessel incidental 
discharge requirements with a single set of national 
requirements, S. 168 would likely reduce paperwork requirements 
for individuals and businesses.

                   Congressionally Directed Spending

    In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis


Section 1. Short title; table of contents.

    This section would designate the short title of this bill, 
as the ``Commercial Vessel Incidental Discharge Act'' and would 
provide a table of contents.

Section 2. Definitions.

    This section would define terms, including as follows: 
``Administrator'' as the Administrator of the EPA; ``aquatic 
nuisance species'' as nonindigenous species that threaten 
native species or activities dependent on navigable waters; 
``ballast water'' as water taken on board a vessel to aid in 
stabilizing the vessel; ``ballast water discharge standard'' as 
the numerical standard described in sections 151.2030 or 
section 151.1511 of title 33 of the Code of Federal Regulations 
or established under section 5 of this Act, as applicable; 
``geographically limited area'' as an area with a limitation by 
size or authorized route or is ecologically homogeneous; and 
``Secretary'' as the Secretary of the department in which the 
Coast Guard is operating.
    Also, this section would define ``discharge incidental to 
the normal operation of a commercial vessel'' to mean a 
discharge into navigable waters of the United States of any 
pollutant associated with the operation of a marine propulsion 
system, shipboard maneuvering system, habitability system, or 
installed major equipment; any pollutant from an application to 
the hull of a vessel; any runoff from the deck, chain locker, 
well deck, or fish hold; and any effluent from a marine engine. 
It would not include trash, oil or hazardous substances, 
sewage, certain types of graywater, or air pollution.

Section 3. Existing ballast water regulations.

    This section would preserve the existing regulations issued 
pursuant to the Nonindigenous Aquatic Nuisance Prevention and 
Control Act of 1990 (16 U.S.C. 4701 et seq.) until they are 
superseded by regulation issued under this Act. It also would 
provide that the sanctions under that Act would apply to 
violations under this Act.

Section 4. Ballast water discharge requirements.

    This section would allow ballast water discharge into the 
navigable waters of the United States only if the water is 
treated using the best available technology and the discharge 
is in accordance with any other standards set by the Secretary. 
It also would establish certain requirements for vessels 
entering the Saint Lawrence River, including a requirement that 
such a vessel do a complete ballast water exchange offshore.
    This section also would provide several exemptions from 
discharge requirements including if the discharge is necessary 
to ensure the safety of life at sea. It would prohibit the 
Secretary from requiring the installation of a BWMS on a vessel 
that carries all its ballast water in sealed tanks or 
discharges its ballast water into an on-shore facility. Vessels 
would be exempt from ballast water requirements if they 
continuously on-load and off-load ballast water, if they 
operate in a geographically limited area, or if they meet 
several other criteria.
    This section would require the Secretary to issue a policy 
letter for describing type approval testing methods capable of 
measuring the concentration of organisms in ballast water that 
are capable of reproduction. In developing the policy letter, 
the Secretary would consider a type of approval testing method 
that uses organism grow-out and most-probable-number 
statistical analysis to determine the concentration of 
organisms in ballast water that are capable of reproduction.

Section 5. Review of ballast water discharge standard.

    This section would require the Secretary to conduct reviews 
not later than January 1, 2022, and every 10 years thereafter, 
to determine whether revising the ballast water discharge 
standard based on the application of the best available 
technology that is economically achievable would result in a 
reduction in the risk of the introduction or establishment of 
aquatic nuisance species. It would grant the States the right 
to petition for a higher national standard and would specify 
the requirements for such a petition. This section also would 
establish a practicality review for when the Secretary is 
considering a higher standard. This section would require the 
Secretary to issue a revised ballast water discharge standard 
if the standard is determined to be economically achievable and 
operationally practicable, and if testing protocols exist that 
could assure accurate implementation. It would establish a time 
period for vessels to request an extension and would allow a 
BWMS to be used for the service life of the equipment, even if 
more stringent regulations are later issued.

Section 6. Alternative compliance program.

    This section would allow the Secretary to develop an 
alternative compliance program for vessels with very small 
amounts of ballast water or for vessels near the end of their 
service life.

Section 7. Reception facilities.

    This section would allow the use of on-shore reception 
facilities for the discharge of ballast water and require the 
Administrator to determine standards for such facilities.

Section 8. Requirements for discharge incidental to the normal 
        operation of a vessel.

    This section would require the Secretary to establish best 
management practices for discharges incidental to the normal 
operation of a commercial vessel for commercial vessels greater 
than or equal to 79 feet in length. This section would allow 
for the existing VGP, with the exception of the State-specific 
requirements, to remain in place until the Secretary 
establishes best management practices. Vessels under 79 feet in 
length and fishing vessels would be excluded from these 
requirements, and the existing requirements of the VGP would 
cease to apply to those vessels. This section also would 
provide criteria for States to petition for revised best 
management practices for discharges incidental to the normal 
operation of a commercial vessel. If accepted, such best 
management practices would become the national standard.

Section 9. Judicial review.

    This section would allow an interested person to file a 
petition for review of a final regulation in the United States 
Court of Appeals for the District of Columbia Circuit. Such an 
appeal would be required to be filed within 120 days of the 
appearance of the final regulation in the Federal Register, 
unless it were solely on grounds that arise after that 120 day 
period.

Section 10. State enforcement.

    This section would allow the Secretary to enter into an 
agreement with a State to authorize the State to enforce this 
Act.

Section 11. Effect on State authority.

    This section would prohibit States from adopting or 
enforcing any State statute or regulation with respect to 
incidental vessel discharge or ballast water standards after 
the date of enactment of this Act, except as provided in 
section 10. The authority of States to regulate any water or 
other substance discharged or emitted from a vessel in 
preparation for transport of the vessel by land from one body 
of water to another body of water would not be affected.

Section 12. Effect on other laws.

    This section would describe how this Act interacts with 
other relevant statutes. It would require standards developed 
under this Act be consistent with international law and 
preserve the right of the Secretary of the Interior and the 
Secretary of Commerce to administer lands and waters under 
those Secretaries' control.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
material is printed in italic, existing law in which no change 
is proposed is shown in roman):

    NONINDIGENOUS AQUATIC NUISANCE PREVENTION AND CONTROL ACT OF 1990


                  [Public Law 101-646; 104 Stat. 4761]

SEC. 1205. RELATIONSHIP TO OTHER LAWS.

                            [16 U.S.C. 4725]

  All actions taken by Federal agencies in implementing the 
provisions of section 1202 shall be consistent with all 
applicable Federal, State, and local environmental laws. 
Nothing in this title shall affect the authority of any State 
or political subdivision thereof to adopt or enforce control 
measures for aquatic nuisance species, or diminish or affect 
the jurisdiction of any State over species of fish and 
wildlife. Compliance with the control and eradication measures 
of any State or political subdivision thereof regarding aquatic 
nuisance species shall not relieve any person of the obligation 
to comply with the provisions of this subtitle. Ballast water 
and discharges incidental to the normal operation of a 
commercial vessel (as such terms are defined in the Commercial 
Vessel Incidental Discharge Act), shall be regulated pursuant 
to such Act.

                                  [all]