108th CONGRESS
2d Session
S. 2271
To establish national standards for discharges from cruise vessels
into the waters of the United States, and for other purposes.
IN THE SENATE OF THE UNITED STATES
April 1, 2004
Mr. DURBIN (for himself, Mr. LAUTENBERG, Mr. CORZINE, Mrs. FEINSTEIN, Mr.
KENNEDY, and Mrs. BOXER) introduced the following bill; which was read twice
and referred to the Committee on Commerce, Science, and Transportation
A BILL
To establish national standards for discharges from cruise vessels
into the waters of the United States, 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; TABLE OF CONTENTS.
This Act may be cited as the `Clean Cruise Ship Act of 2004'.
(a) SHORT TITLE- This Act may be cited as the `Clean Cruise Ship Act of 2004'.
(b) TABLE OF CONTENTS- The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 4. Prohibitions and conditions regarding the discharge of sewage, graywater,
or bilge water.
Sec. 5. Effluent limits for discharges of sewage and graywater.
Sec. 6. Inspection and sampling.
Sec. 7. Employee protection.
Sec. 11. Alaskan cruise vessels.
Sec. 14. Effect on other law.
SEC. 2. FINDINGS AND PURPOSES.
(a) FINDINGS- Congress finds that--
(1) cruise vessels carry millions of passengers each year, and in 2001 carried
8,400,000 passengers in North America;
(2) cruise vessels carry passengers to and through the most beautiful ocean
areas in the United States and provide many people in the United States
ample opportunities to relax and learn about oceans and marine ecosystems;
(3) ocean pollution threatens the beautiful and inspiring oceans and marine
wildlife that many cruise vessels intend to present to travelers;
(4) cruise vessels generate tremendous quantities of pollution, including--
(A) sewage (including sewage sludge);
(B) graywater from showers, sinks, laundries, baths, and galleys;
(D) toxic chemicals from photo processing, dry cleaning, and paints;
(G) emissions of air pollutants;
(5) some of the pollution generated by cruise ships, particularly sewage
discharge, can lead to high levels of nutrients that are known to harm and
kill coral reefs and which can increase the quantity of pathogens in the
water and heighten the susceptibility of many coral species to scarring
and disease;
(6) laws (including regulations) in effect as of the date of enactment of
this Act do not provide adequate controls, monitoring, or enforcement of
certain discharges from cruise vessels into the waters of the United States;
and
(7) to protect coastal and ocean areas of the United States from pollution
generated by cruise vessels, new Federal legislation is needed to reduce
and better regulate discharges from cruise vessels, and to improve monitoring,
reporting, and enforcement of discharges.
(b) PURPOSES- The purposes of this Act are--
(1) to prevent the discharge of any untreated sewage or graywater from a
cruise vessel entering ports of the United States into the waters of the
United States;
(2) to prevent the discharge of any treated sewage, sewage sludge, graywater,
or bilge water from cruise vessels entering ports of the United States into
the territorial sea;
(3) to establish new national effluent limits and management standards for
the discharge of treated sewage or graywater from cruise vessels entering
ports of the United States into the exclusive economic zone of the United
States in any case in which the discharge is not within an area in which
discharges are prohibited; and
(4) to ensure that cruise vessels entering ports of the United States comply
with all applicable environmental laws.
SEC. 3. DEFINITIONS.
(1) COMMANDANT- The term `Commandant' means the Commandant of the Coast
Guard.
(2) ADMINISTRATOR- The term `Administrator' means the Administrator of the
Environmental Protection Agency.
(A) IN GENERAL- The term `territorial sea' means the belt of the sea measured
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.
(B) INCLUSION- The term `territorial sea' includes the waters lying seaward
of the line of ordinary low water and extending to the baseline of the
United States described in subparagraph (A).
(4) EXCLUSIVE ECONOMIC ZONE- The term `exclusive economic zone' means the
Exclusive Economic Zone of the United States established by Presidential
Proclamation number 5030, dated March 10, 1983.
(5) WATERS OF THE UNITED STATES- The term `waters of the United States'
means the waters of the territorial sea, the exclusive economic zone, and
the Great Lakes.
(6) GREAT LAKE- The term `Great Lake' means--
(B) Lake Huron (including Lake Saint Clair);
(A) IN GENERAL- The term `cruise vessel' 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.
(B) EXCLUSIONS- The term `cruise vessel' 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.
(A) IN GENERAL- The term `passenger' means any person on board a cruise
vessel for the purpose of travel.
(B) INCLUSIONS- The term `passenger' includes--
(i) a paying passenger; and
(ii) a staffperson, such as a crew member, captain, or officer.
(9) PERSON- The term `person' means--
(D) a limited liability company;
(H) a commission or political subdivision of a State; and
(10) CITIZEN- The term `citizen' means a person that has an interest that
is or may be adversely affected by any provision of this Act.
(A) IN GENERAL- The term `discharge' means a release of any substance,
however caused, from a cruise vessel.
(B) INCLUSIONS- The term `discharge' includes any escape, disposal, spilling,
leaking, pumping, emitting or emptying of any substance.
(12) SEWAGE- The term `sewage' means--
(B) the wastes from toilets and other receptacles intended to receive
or retain human body wastes; and
(13) GRAYWATER- The term `graywater' means galley, dishwasher, bath, and
laundry waste water.
(14) BILGE WATER- The term `bilge water' means wastewater that includes
lubrication oils, transmission oils, oil sludge or slops, fuel or oil sludge,
used oil, used fuel or fuel filters, or oily waste.
(A) IN GENERAL- The term `sewage sludge' means any solid, semi-solid,
or liquid residue removed during the treatment of municipal waste water
or domestic sewage.
(B) INCLUSIONS- The term `sewage sludge' includes--
(i) solids removed during primary, secondary, or advanced waste water
treatment;
(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.
(C) EXCLUSIONS- The term `sewage sludge' does not include--
(i) grit or screenings; or
(ii) ash generated during the incineration of sewage sludge.
(16) INDIAN TRIBE- The term `Indian tribe' has the meaning given in section
4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C.
450b).
SEC. 4. PROHIBITIONS AND CONDITIONS REGARDING THE DISCHARGE OF SEWAGE, GRAYWATER,
OR BILGE WATER.
(1) IN GENERAL- Except as provided in paragraph (2) and section 11, no cruise
vessel entering a port of the United States may discharge sewage, graywater,
or bilge water into the waters of the United States.
(2) EXCEPTION- A cruise vessel described in paragraph (1) may discharge
sewage, graywater, or bilge water into the exclusive economic zone but outside
the territorial sea, or, in the case of the Great Lakes, beyond any point
that is 12 miles from the shore, only if--
(A)(i) in the case of a discharge of sewage or graywater, the discharge
meets all applicable effluent limits established under this Act and is
in accordance with all other applicable laws (including regulations);
or
(ii) in the case of a discharge of bilge water, the discharge is in accordance
with all applicable laws (including regulations);
(B) the cruise vessel meets all applicable management standards established
under this Act; and
(C) the cruise vessel is not discharging in an area in which the discharge
is otherwise prohibited.
(1) SCOPE OF EXCEPTION- Subsection (a) 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 for the purpose of preventing
or minimizing the discharge.
(2) NOTIFICATION OF COMMANDANT-
(A) IN GENERAL- If the owner, operator, or master, or other individual
in charge, of a cruise vessel authorizes a discharge described in paragraph
(1), the 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) REPORT- Not later than 7 days after the date on which an individual
described in subparagraph (A) notifies the Commandant of an authorization
of a discharge under the safety exception under this paragraph, the individual
shall submit to the Commandant a report that includes--
(i) the quantity and composition of each discharge made under the safety
exception;
(ii) the reason for authorizing each discharge;
(iii) the location of the vessel during the course of each discharge;
and
(iv) such other supporting information and data as are requested by
the Commandant.
SEC. 5. EFFLUENT LIMITS FOR DISCHARGES OF SEWAGE AND GRAYWATER.
(1) IN GENERAL- Not later than 3 years after the date of enactment of this
Act, the Commandant and the Administrator shall jointly promulgate effluent
limits for sewage and graywater discharges from cruise vessels entering
ports of the United States.
(2) REQUIREMENTS- The effluent limits shall--
(A) require the application of the best available technology that will
result in the greatest level of effluent reduction achievable, recognizing
that the national goal is the elimination of the discharge of all pollutants
in sewage and graywater by cruise vessels into the waters of the United
States by 2015; and
(B) require compliance with all relevant water quality criteria standards.
(b) MINIMUM LIMITS- The effluent limits under subsection (a) shall require,
at a minimum, that treated sewage and graywater effluent discharges from cruise
vessels shall, not later than 3 years after the date of enactment of this
Act, meet the following standards:
(1) IN GENERAL- The discharge satisfies the minimum level of effluent quality
specified in section 133.102 of title 40, Code of Regulations (or a successor
regulation).
(2) FECAL COLIFORM- 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) RESIDUAL CHLORINE- Concentrations of total residual chlorine in samples
shall not exceed 10 milligrams per liter.
(c) REVIEW AND REVISION OF EFFLUENT LIMITS- The Commandant and the Administrator
shall jointly--
(1) review the effluent limits required by subsection (a) at least once
every 3 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).
SEC. 6. INSPECTION AND SAMPLING.
(a) DEVELOPMENT AND IMPLEMENTATION OF INSPECTION PROGRAM-
(1) IN GENERAL- The Commandant, in consultation with the Administrator,
shall promulgate regulations to implement an inspection, sampling, and testing
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) INSPECTIONS- 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 shall
be subject to an unannounced inspection at least annually.
(b) REGULATIONS- Not later than 1 year after the date of enactment of this
Act, the Commandant, in consultation with the Administrator, shall promulgate
regulations that, at a minimum--
(1) require the owner, operator, or master, or other individual in charge,
of a cruise vessel to maintain and produce a logbook detailing the times,
types, volumes, and flow rates, origins, and locations of any discharges
from the cruise vessel;
(2) provide for routine announced and unannounced inspections of--
(A) cruise vessel environmental compliance records and procedures; and
(B) the functionality and proper operation of installed equipment for
abatement and control of any cruise vessel discharge (which equipment
shall include equipment intended to treat sewage, graywater, or bilge
water);
(3) require the sampling and testing of cruise vessel discharges that require
the owner, operator, or master, or other individual in charge, of a cruise
vessel--
(A) to conduct that sampling or testing; and
(B) to produce any records of the sampling or testing;
(4) require any owner, operator, or 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 immediately report that discharge to the Commandant (who shall provide
notification of the discharge to the Administrator); and
(5) require the owner, operator, or 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.
(c) EVIDENCE OF COMPLIANCE-
(1) VESSEL OF THE UNITED STATES-
(A) IN GENERAL- A cruise vessel registered in the United States to which
this Act applies shall have a certificate of inspection issued by the
Commandant.
(B) ISSUANCE OF CERTIFICATE- 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) VALIDITY OF CERTIFICATE- 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) SPECIAL CERTIFICATES- The Commandant may issue special certificates
to certain vessels that exhibit compliance with this Act and other best
practices, as determined by the Commandant.
(A) IN GENERAL- 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) ISSUANCE OF CERTIFICATE- 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 DOCUMENTATION- The 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 (except that such a certificate, endorsement, or
document shall not serve as a proxy for certification of compliance with
this Act).
(D) VALIDITY OF CERTIFICATE- 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) CRUISE OBSERVER PILOT PROGRAM-
(1) IN GENERAL- Not later than 1 year after the date of enactment of this
Act, the Commandant shall establish, and for each of fiscal years 2005 through
2007, shall carry out, a program for the placement of 2 or more independent
observers on cruise vessels for the purpose of monitoring and inspecting
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 (including regulations) and international
agreements.
(2) RESPONSIBILITIES- 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;
(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; and
(D) immediately report any known or suspected violation of this Act or
any other applicable Federal law or international agreement to--
(ii) the Environmental Protection Agency.
(3) REPORT- Not later than January 31, 2007, the Commandant shall submit
to Congress a report describing the results, and recommendations for continuance,
of the program under this subsection.
(e) ONBOARD MONITORING SYSTEM PILOT PROGRAM-
(1) IN GENERAL- Not later than 1 year after the date of 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 2005 through 2010, 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) graywater and sewage discharges from cruise vessels; and
(B) functioning of cruise vessel components relating to pollution control.
(2) TECHNOLOGY REQUIREMENTS- Technologies developed under the program under
this subsection--
(A) shall have the ability to record--
(i) the location and time of discharges from cruise vessels;
(ii) the source, content, and volume of those 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 PROCESS- Industry 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) CONTRIBUTION- A selected industry partner shall contribute not less
than 20 percent of the cost of the project in which the industry partner
participates.
(4) REPORT- Not later than January 31, 2007, the Administrator of the National
Oceanic and Atmospheric Administration shall submit to Congress a report
describing the results, and recommendations for continuance, of the program
under this subsection.
SEC. 7. EMPLOYEE PROTECTION.
(a) PROHIBITION OF DISCRIMINATION AGAINST PERSONS FILING, INSTITUTING, OR
TESTIFYING IN PROCEEDINGS UNDER THIS ACT- No 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) IN GENERAL- An employee or a representative of employees 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) APPLICATION- A copy of an application for review filed under paragraph
(1) shall be sent to the respondent.
(A) IN GENERAL- On receipt of an application for review under paragraph
(1), the Secretary of Labor shall carry out an investigation of the complaint.
(B) REQUIREMENTS- 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) FINDINGS OF COMMANDANT- 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 or representative of employees to the former
position of the employee or representative; and
(iii) if the Secretary of Labor determines that there was no violation,
issue an order denying the application.
(D) ORDER- 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) COSTS AND EXPENSES- 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 attorney's 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 EMPLOYEE ACTING WITHOUT DIRECTION FROM EMPLOYER
OR AGENT- This section shall not apply to any employee that, without
direction from the employer of the employee (or agent of the employer), deliberately
violates any provision of this Act.
SEC. 8. JUDICIAL REVIEW.
(a) REVIEW OF ACTIONS BY ADMINISTRATOR OR COMMANDANT; SELECTION OF COURT;
FEES-
(A) IN GENERAL- Any interested person may petition for a review, in the
United States circuit court 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 Commandant in promulgating any effluent limit
under section 5; or
(ii) of an action of the Commandant in carrying out an inspection, sampling,
or testing under section 6.
(B) DEADLINE FOR REVIEW- 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 relating to the review 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 PROCEEDINGS- An 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.
(3) AWARD OF FEES- In any judicial proceeding under this subsection, a court
may award costs of litigation (including reasonable attorney 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.
(1) IN GENERAL- 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 adduce 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 adduce 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) MODIFICATION OF FINDINGS- 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 so admitted; 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.
SEC. 9. ENFORCEMENT.
(a) IN GENERAL- Any person that violates section 4 or any regulation promulgated
under this Act may be--
(1) assessed a class I or class II penalty described in subsection (b);
or
(2) assessed a civil penalty in a civil action under subsection (c).
(b) AMOUNT OF ADMINISTRATIVE PENALTY-
(1) CLASS I- The amount of a class I civil penalty under subsection (a)(1)
shall not exceed--
(A) $10,000 per violation; or
(B) $25,000 in the aggregate, in the case of multiple violations.
(2) CLASS II- The amount of a class II civil penalty under subsection (a)(1)
shall 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) SEPARATE VIOLATIONS- Each day on which a violation continues shall constitute
a separate violation.
(4) DETERMINATION OF AMOUNT- In determining the amount of a civil penalty
under subsection (a)(1), the Commandant or the court, as the case may be,
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 PENALTY-
(A) IN GENERAL- 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) HEARING- 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 PENALTY-
(A) IN GENERAL- 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) RULES- The Commandant may promulgate rules for discovery procedures
for hearings under this subsection.
(7) RIGHTS OF INTERESTED PERSONS-
(A) PUBLIC NOTICE- 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) PRESENTATION OF EVIDENCE-
(i) IN GENERAL- 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; and
(II) any order assessing the penalty.
(ii) HEARING- 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) IN GENERAL- 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) NEW EVIDENCE- 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) DENIAL OF HEARING- 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.
(A) IN GENERAL- 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) DENIAL OF HEARING- 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 COMPLIANCE- No action by the Commandant under this
subsection shall affect the obligation of any person to comply with any
provision of this Act.
(A) IN GENERAL- 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) COURTS OF JURISDICTION- 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 United States district court 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 circuit court for any other circuit in which
the person resides or transacts business.
(C) COPY OF RECORD- 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) SUBSTANTIAL EVIDENCE- 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.
(A) IN GENERAL- 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) NONREVIEWABILITY- 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) FAILURE TO PAY PENALTY- 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) attorney's 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.
(A) IN GENERAL- 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) REFUSAL TO OBEY- In case of contumacy or refusal to obey a subpoena
issued under this paragraph and served on any person--
(i) the United States district court 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) CIVIL ACTION- The Commandant may commence, in the United States district
court 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.
(1) NEGLIGENT VIOLATIONS- A person that negligently violates section 4 or
any regulation promulgated under this Act commits a Class A misdemeanor.
(2) KNOWING VIOLATIONS- Any person that knowingly violates section 4 or
any regulation promulgated under this Act commits a Class D felony.
(3) FALSE STATEMENTS- 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.
(1) PAYMENTS TO INDIVIDUALS-
(A) IN GENERAL- 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) MULTIPLE INDIVIDUALS- 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) INELIGIBLE INDIVIDUALS- 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 TRIBES- The 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 INDIVIDUALS- In 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) LIABILITY IN REM- 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 United States district
court for any district in which the cruise vessel may be found.
(1) IN GENERAL- 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 the section or
requirement; or
(B) bring a civil action in accordance with subsection (b).
(2) COPIES OF ORDER, SERVICE-
(A) CORPORATE ORDERS- 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; SPECIFICATIONS- An 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; and
(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.
(1) IN GENERAL- 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) COURT OF JURISDICTION-
(A) IN GENERAL- A civil action under this subsection may be brought in
the United States district court for the district in which the defendant
is located, resides, or is doing business.
(B) JURISDICTION- A court described in subparagraph (A) shall have jurisdiction
to grant injunctive relief to address a violation, and require compliance,
by the defendant.
SEC. 10. CITIZEN SUITS.
(a) AUTHORIZATION- Except as provided in subsection (c), any citizen may commence
a civil action on his or her 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
of the Constitution) that is alleged to be in violation of--
(A) the conditions imposed by section 4;
(B) an effluent limit or management standard under this Act; or
(C) an order issued by the Administrator or Commandant with respect to
such a condition, effluent limit, or 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) JURISDICTION- The United States district courts 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 9(b).
(c) NOTICE- 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, limit, standard, or order;
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).
(1) IN GENERAL- 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 United States district court for any judicial district in
which a cruise vessel or the owner or operator of a cruise vessel are
located.
(2) INTERVENTION- In a civil action under this section, the Administrator
or the Commandant, if not a party, may intervene as a matter of right.
(A) SERVICE- 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
(B) CONSENT JUDGMENTS- 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
(1) IN GENERAL- 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 attorney's 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) SECURITY- 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 RESTRICTED- Nothing 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 GOVERNORS- A Governor of a State may commence a
civil action under subsection (a) of this section, 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.
SEC. 11. ALASKAN CRUISE VESSELS.
(a) DEFINITION OF ALASKAN CRUISE VESSEL- In this section, the term `Alaskan
cruise vessel' means a cruise vessel--
(1) that seasonally operates in water of or surrounding the State of Alaska;
(2) in which is installed, not later than the date of enactment of this
Act (or, at the option of the Commandant, not later than September 30 of
the fiscal year in which this Act is enacted), and certified by the State
of Alaska for continuous discharge and operation in accordance with all
applicable Federal and State law (including regulations), an advanced treatment
system for the treatment and discharge of graywater and sewage; and
(3) that enters a port of the United States.
(1) IN GENERAL- Except as provided in paragraph (2), an Alaskan cruise vessel
shall not be subject to this Act (including regulations promulgated under
this Act) until the date that is 15 years after the date of enactment of
this Act.
(2) EXCEPTIONS- An Alaskan cruise vessel--
(A) shall not be subject to the minimum effluent limits prescribed under
section 5(b) until the date that is 3 years after the date of enactment
of this Act;
(B) shall not be subject to effluent limits promulgated under section
5(a) or 5(c) until the date that is 6 years after the date of enactment
of this Act; and
(C) shall be prohibited from discharging sewage, graywater, and bilge
water in the territorial sea, in accordance with this Act, as of the date
of enactment of this Act.
SEC. 12. BALLAST WATER.
It 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.
SEC. 13. FUNDING.
(a) AUTHORIZATION OF APPROPRIATIONS- There 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 2005 through 2009.
(b) CRUISE VESSEL POLLUTION CONTROL FUND-
(1) ESTABLISHMENT- 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) APPROPRIATION OF AMOUNTS- There are appropriated to the Fund such amounts
as are deposited in the Fund under subsection (c)(5).
(3) USE OF AMOUNTS IN FUND- The Administrator and the Commandant may use
amounts in the fund, without further appropriation, to carry out this Act.
(c) FEES ON CRUISE VESSELS-
(1) IN GENERAL- The Commandant shall establish and collect from each cruise
vessel a reasonable and appropriate fee, in an amount not to exceed $10
for each paying passenger on a cruise vessel voyage, for use in carrying
out this Act.
(A) IN GENERAL- 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) ROUNDING- The Commandant may round the adjustment in subparagraph
(A) to the nearest 1/10 of a dollar.
(3) FACTORS IN ESTABLISHING FEES-
(A) IN GENERAL- 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--
(iii) such other factors as are determined to be appropriate by the
Commandant and Administrator.
(B) FEE SCHEDULES- 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) COLLECTION OF FEES- 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) DEPOSITS TO FUND- 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.
SEC. 14. EFFECT ON OTHER LAW.
(a) UNITED STATES- 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) IN GENERAL- 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
ships; or
(B) any requirement relating to the control or abatement of pollution.
(2) EXCEPTION- 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 described in paragraph (1) 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.
END
