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U.S. Code as of:
01/19/04
Section 1322. Marine sanitation devices
(a) Definitions
For the purpose of this section, the term -
(1) "new vessel" includes every description of watercraft or
other artificial contrivance used, or capable of being used, as a
means of transportation on the navigable waters, the construction
of which is initiated after promulgation of standards and
regulations under this section;
(2) "existing vessel" includes every description of watercraft
or other artificial contrivance used, or capable of being used,
as a means of transportation on the navigable waters, the
construction of which is initiated before promulgation of
standards and regulations under this section;
(3) "public vessel" means a vessel owned or bareboat chartered
and operated by the United States, by a State or political
subdivision thereof, or by a foreign nation, except when such
vessel is engaged in commerce;
(4) "United States" includes the States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, American Samoa, the Canal Zone, and the Trust Territory of
the Pacific Islands;
(5) "marine sanitation device" includes any equipment for
installation on board a vessel which is designed to receive,
retain, treat, or discharge sewage, and any process to treat such
sewage;
(6) "sewage" means human body wastes and the wastes from
toilets and other receptacles intended to receive or retain body
wastes except that, with respect to commercial vessels on the
Great Lakes, such term shall include graywater;
(7) "manufacturer" means any person engaged in the
manufacturing, assembling, or importation of marine sanitation
devices or of vessels subject to standards and regulations
promulgated under this section;
(8) "person" means an individual, partnership, firm,
corporation, association, or agency of the United States, but
does not include an individual on board a public vessel;
(9) "discharge" includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying or dumping;
(10) "commercial vessels" means those vessels used in the
business of transporting property for compensation or hire, or in
transporting property in the business of the owner, lessee, or
operator of the vessel;
(11) "graywater" means galley, bath, and shower water;
(12) "discharge incidental to the normal operation of a vessel"
-
(A) means a discharge, including -
(i) graywater, bilge water, cooling water, weather deck
runoff, ballast water, oil water separator effluent, and any
other pollutant discharge from the operation of a marine
propulsion system, shipboard maneuvering system, crew
habitability system, or installed major equipment, such as an
aircraft carrier elevator or a catapult, or from a
protective, preservative, or absorptive application to the
hull of the vessel; and
(ii) a discharge in connection with the testing,
maintenance, and repair of a system described in clause (i)
whenever the vessel is waterborne; and
(B) does not include -
(i) a discharge of rubbish, trash, garbage, or other such
material discharged overboard;
(ii) an air emission resulting from the operation of a
vessel propulsion system, motor driven equipment, or
incinerator; or
(iii) a discharge that is not covered by part 122.3 of
title 40, Code of Federal Regulations (as in effect on
February 10, 1996);
(13) "marine pollution control device" means any equipment or
management practice, for installation or use on board a vessel of
the Armed Forces, that is -
(A) designed to receive, retain, treat, control, or discharge
a discharge incidental to the normal operation of a vessel; and
(B) determined by the Administrator and the Secretary of
Defense to be the most effective equipment or management
practice to reduce the environmental impacts of the discharge
consistent with the considerations set forth in subsection
(n)(2)(B) of this section; and
(14) "vessel of the Armed Forces" means -
(A) any vessel owned or operated by the Department of
Defense, other than a time or voyage chartered vessel; and
(B) any vessel owned or operated by the Department of
Transportation that is designated by the Secretary of the
department in which the Coast Guard is operating as a vessel
equivalent to a vessel described in subparagraph (A).
(b) Federal standards of performance
(1) As soon as possible, after October 18, 1972, and subject to
the provisions of section 1254(j) of this title, the Administrator,
after consultation with the Secretary of the department in which
the Coast Guard is operating, after giving appropriate
consideration to the economic costs involved, and within the limits
of available technology, shall promulgate Federal standards of
performance for marine sanitation devices (hereafter in this
section referred to as "standards") which shall be designed to
prevent the discharge of untreated or inadequately treated sewage
into or upon the navigable waters from new vessels and existing
vessels, except vessels not equipped with installed toilet
facilities. Such standards and standards established under
subsection (c)(1)(B) of this section shall be consistent with
maritime safety and the marine and navigation laws and regulations
and shall be coordinated with the regulations issued under this
subsection by the Secretary of the department in which the Coast
Guard is operating. The Secretary of the department in which the
Coast Guard is operating shall promulgate regulations, which are
consistent with standards promulgated under this subsection and
subsection (c) of this section and with maritime safety and the
marine and navigation laws and regulations governing the design,
construction, installation, and operation of any marine sanitation
device on board such vessels.
(2) Any existing vessel equipped with a marine sanitation device
on the date of promulgation of initial standards and regulations
under this section, which device is in compliance with such initial
standards and regulations, shall be deemed in compliance with this
section until such time as the device is replaced or is found not
to be in compliance with such initial standards and regulations.
(c) Initial standards; effective dates; revision; waiver
(1)(A) Initial standards and regulations under this section shall
become effective for new vessels two years after promulgation; and
for existing vessels five years after promulgation. Revisions of
standards and regulations shall be effective upon promulgation,
unless another effective date is specified, except that no revision
shall take effect before the effective date of the standard or
regulation being revised.
(B) The Administrator shall, with respect to commercial vessels
on the Great Lakes, establish standards which require at a minimum
the equivalent of secondary treatment as defined under section
1314(d) of this title. Such standards and regulations shall take
effect for existing vessels after such time as the Administrator
determines to be reasonable for the upgrading of marine sanitation
devices to attain such standard.
(2) The Secretary of the department in which the Coast Guard is
operating with regard to his regulatory authority established by
this section, after consultation with the Administrator, may
distinguish among classes, type, and sizes of vessels as well as
between new and existing vessels, and may waive applicability of
standards and regulations as necessary or appropriate for such
classes, types, and sizes of vessels (including existing vessels
equipped with marine sanitation devices on the date of promulgation
of the initial standards required by this section), and, upon
application, for individual vessels.
(d) Vessels owned and operated by the United States
The provisions of this section and the standards and regulations
promulgated hereunder apply to vessels owned and operated by the
United States unless the Secretary of Defense finds that compliance
would not be in the interest of national security. With respect to
vessels owned and operated by the Department of Defense,
regulations under the last sentence of subsection (b)(1) of this
section and certifications under subsection (g)(2) of this section
shall be promulgated and issued by the Secretary of Defense.
(e) Pre-promulgation consultation
Before the standards and regulations under this section are
promulgated, the Administrator and the Secretary of the department
in which the Coast Guard is operating shall consult with the
Secretary of State; the Secretary of Health and Human Services; the
Secretary of Defense; the Secretary of the Treasury; the Secretary
of Commerce; other interested Federal agencies; and the States and
industries interested; and otherwise comply with the requirements
of section 553 of title 5.
(f) Regulation by States or political subdivisions thereof;
complete prohibition upon discharge of sewage
(1)(A) Except as provided in subparagraph (B), after the
effective date of the initial standards and regulations promulgated
under this section, no State or political subdivision thereof shall
adopt or enforce any statute or regulation of such State or
political subdivision with respect to the design, manufacture, or
installation or use of any marine sanitation device on any vessel
subject to the provisions of this section.
(B) A State may adopt and enforce a statute or regulation with
respect to the design, manufacture, or installation or use of any
marine sanitation device on a houseboat, if such statute or
regulation is more stringent than the standards and regulations
promulgated under this section. For purposes of this paragraph, the
term "houseboat" means a vessel which, for a period of time
determined by the State in which the vessel is located, is used
primarily as a residence and is not used primarily as a means of
transportation.
(2) If, after promulgation of the initial standards and
regulations and prior to their effective date, a vessel is equipped
with a marine sanitation device in compliance with such standards
and regulations and the installation and operation of such device
is in accordance with such standards and regulations, such
standards and regulations shall, for the purposes of paragraph (1)
of this subsection, become effective with respect to such vessel on
the date of such compliance.
(3) After the effective date of the initial standards and
regulations promulgated under this section, if any State determines
that the protection and enhancement of the quality of some or all
of the waters within such State require greater environmental
protection, such State may completely prohibit the discharge from
all vessels of any sewage, whether treated or not, into such
waters, except that no such prohibition shall apply until the
Administrator determines that adequate facilities for the safe and
sanitary removal and treatment of sewage from all vessels are
reasonably available for such water to which such prohibition would
apply. Upon application of the State, the Administrator shall make
such determination within 90 days of the date of such application.
(4)(A) If the Administrator determines upon application by a
State that the protection and enhancement of the quality of
specified waters within such State requires such a prohibition, he
shall by regulation completely prohibit the discharge from a vessel
of any sewage (whether treated or not) into such waters.
(B) Upon application by a State, the Administrator shall, by
regulation, establish a drinking water intake zone in any waters
within such State and prohibit the discharge of sewage from vessels
within that zone.
(g) Sales limited to certified devices; certification of test
device; recordkeeping; reports
(1) No manufacturer of a marine sanitation device shall sell,
offer for sale, or introduce or deliver for introduction in
interstate commerce, or import into the United States for sale or
resale any marine sanitation device manufactured after the
effective date of the standards and regulations promulgated under
this section unless such device is in all material respects
substantially the same as a test device certified under this
subsection.
(2) Upon application of the manufacturer, the Secretary of the
department in which the Coast Guard is operating shall so certify a
marine sanitation device if he determines, in accordance with the
provisions of this paragraph, that it meets the appropriate
standards and regulations promulgated under this section. The
Secretary of the department in which the Coast Guard is operating
shall test or require such testing of the device in accordance with
procedures set forth by the Administrator as to standards of
performance and for such other purposes as may be appropriate. If
the Secretary of the department in which the Coast Guard is
operating determines that the device is satisfactory from the
standpoint of safety and any other requirements of maritime law or
regulation, and after consideration of the design, installation,
operation, material, or other appropriate factors, he shall certify
the device. Any device manufactured by such manufacturer which is
in all material respects substantially the same as the certified
test device shall be deemed to be in conformity with the
appropriate standards and regulations established under this
section.
(3) Every manufacturer shall establish and maintain such records,
make such reports, and provide such information as the
Administrator or the Secretary of the department in which the Coast
Guard is operating may reasonably require to enable him to
determine whether such manufacturer has acted or is acting in
compliance with this section and regulations issued thereunder and
shall, upon request of an officer or employee duly designated by
the Administrator or the Secretary of the department in which the
Coast Guard is operating, permit such officer or employee at
reasonable times to have access to and copy such records. All
information reported to or otherwise obtained by the Administrator
or the Secretary of the Department in which the Coast Guard is
operating or their representatives pursuant to this subsection
which contains or relates to a trade secret or other matter
referred to in section 1905 of title 18 shall be considered
confidential for the purpose of that section, except that such
information may be disclosed to other officers or employees
concerned with carrying out this section. This paragraph shall not
apply in the case of the construction of a vessel by an individual
for his own use.
(h) Sale and resale of properly equipped vessels; operability of
certified marine sanitation devices
After the effective date of standards and regulations promulgated
under this section, it shall be unlawful -
(1) for the manufacturer of any vessel subject to such
standards and regulations to manufacture for sale, to sell or
offer for sale, or to distribute for sale or resale any such
vessel unless it is equipped with a marine sanitation device
which is in all material respects substantially the same as the
appropriate test device certified pursuant to this section;
(2) for any person, prior to the sale or delivery of a vessel
subject to such standards and regulations to the ultimate
purchaser, wrongfully to remove or render inoperative any
certified marine sanitation device or element of design of such
device installed in such vessel;
(3) for any person to fail or refuse to permit access to or
copying of records or to fail to make reports or provide
information required under this section; and
(4) for a vessel subject to such standards and regulations to
operate on the navigable waters of the United States, if such
vessel is not equipped with an operable marine sanitation device
certified pursuant to this section.
(i) Jurisdiction to restrain violations; contempts
The district courts of the United States shall have jurisdictions
to restrain violations of subsection (g)(1) of this section and
subsections (h)(1) through (3) of this section. Actions to restrain
such violations shall be brought by, and in, the name of the United
States. In case of contumacy or refusal to obey a subpena served
upon any person under this subsection, the district court of the
United States for any district in which such person is found or
resides or transacts business, upon application by the United
States and after notice to such person, shall have jurisdiction to
issue an order requiring such person to appear and give testimony
or to appear and produce documents, and any failure to obey such
order of the court may be punished by such court as a contempt
thereof.
(j) Penalties
Any person who violates subsection (g)(1) of this section, clause
(1) or (2) of subsection (h) of this section, or subsection (n)(8)
of this section shall be liable to a civil penalty of not more than
$5,000 for each violation. Any person who violates clause (4) of
subsection (h) of this section or any regulation issued pursuant to
this section shall be liable to a civil penalty of not more than
$2,000 for each violation. Each violation shall be a separate
offense. The Secretary of the department in which the Coast Guard
is operating may assess and compromise any such penalty. No penalty
shall be assessed until the person charged shall have been given
notice and an opportunity for a hearing on such charge. In
determining the amount of the penalty, or the amount agreed upon in
compromise, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid
compliance, after notification of a violation, shall be considered
by said Secretary.
(k) Enforcement authority
The provisions of this section shall be enforced by the Secretary
of the department in which the Coast Guard is operating and he may
utilize by agreement, with or without reimbursement, law
enforcement officers or other personnel and facilities of the
Administrator, other Federal agencies, or the States to carry out
the provisions of this section. The provisions of this section may
also be enforced by a State.
(l) Boarding and inspection of vessels; execution of warrants and
other process
Anyone authorized by the Secretary of the department in which the
Coast Guard is operating to enforce the provisions of this section
may, except as to public vessels, (1) board and inspect any vessel
upon the navigable waters of the United States and (2) execute any
warrant or other process issued by an officer or court of competent
jurisdiction.
(m) Enforcement in United States possessions
In the case of Guam and the Trust Territory of the Pacific
Islands, actions arising under this section may be brought in the
district court of Guam, and in the case of the Virgin Islands such
actions may be brought in the district court of the Virgin Islands.
In the case of American Samoa and the Trust Territory of the
Pacific Islands, such actions may be brought in the District Court
of the United States for the District of Hawaii and such court
shall have jurisdiction of such actions. In the case of the Canal
Zone, such actions may be brought in the District Court for the
District of the Canal Zone.
(n) Uniform national discharge standards for vessels of Armed
Forces
(1) Applicability
This subsection shall apply to vessels of the Armed Forces and
discharges, other than sewage, incidental to the normal operation
of a vessel of the Armed Forces, unless the Secretary of Defense
finds that compliance with this subsection would not be in the
national security interests of the United States.
(2) Determination of discharges required to be controlled by
marine pollution control devices
(A) In general
The Administrator and the Secretary of Defense, after
consultation with the Secretary of the department in which the
Coast Guard is operating, the Secretary of Commerce, and
interested States, shall jointly determine the discharges
incidental to the normal operation of a vessel of the Armed
Forces for which it is reasonable and practicable to require
use of a marine pollution control device to mitigate adverse
impacts on the marine environment. Notwithstanding subsection
(a)(1) of section 553 of title 5, the Administrator and the
Secretary of Defense shall promulgate the determinations in
accordance with such section. The Secretary of Defense shall
require the use of a marine pollution control device on board a
vessel of the Armed Forces in any case in which it is
determined that the use of such a device is reasonable and
practicable.
(B) Considerations
In making a determination under subparagraph (A), the
Administrator and the Secretary of Defense shall take into
consideration -
(i) the nature of the discharge;
(ii) the environmental effects of the discharge;
(iii) the practicability of using the marine pollution
control device;
(iv) the effect that installation or use of the marine
pollution control device would have on the operation or
operational capability of the vessel;
(v) applicable United States law;
(vi) applicable international standards; and
(vii) the economic costs of the installation and use of the
marine pollution control device.
(3) Performance standards for marine pollution control devices
(A) In general
For each discharge for which a marine pollution control
device is determined to be required under paragraph (2), the
Administrator and the Secretary of Defense, in consultation
with the Secretary of the department in which the Coast Guard
is operating, the Secretary of State, the Secretary of
Commerce, other interested Federal agencies, and interested
States, shall jointly promulgate Federal standards of
performance for each marine pollution control device required
with respect to the discharge. Notwithstanding subsection
(a)(1) of section 553 of title 5, the Administrator and the
Secretary of Defense shall promulgate the standards in
accordance with such section.
(B) Considerations
In promulgating standards under this paragraph, the
Administrator and the Secretary of Defense shall take into
consideration the matters set forth in paragraph (2)(B).
(C) Classes, types, and sizes of vessels
The standards promulgated under this paragraph may -
(i) distinguish among classes, types, and sizes of vessels;
(ii) distinguish between new and existing vessels; and
(iii) provide for a waiver of the applicability of the
standards as necessary or appropriate to a particular class,
type, age, or size of vessel.
(4) Regulations for use of marine pollution control devices
The Secretary of Defense, after consultation with the
Administrator and the Secretary of the department in which the
Coast Guard is operating, shall promulgate such regulations
governing the design, construction, installation, and use of
marine pollution control devices on board vessels of the Armed
Forces as are necessary to achieve the standards promulgated
under paragraph (3).
(5) Deadlines; effective date
(A) Determinations
The Administrator and the Secretary of Defense shall -
(i) make the initial determinations under paragraph (2) not
later than 2 years after February 10, 1996; and
(ii) every 5 years -
(I) review the determinations; and
(II) if necessary, revise the determinations based on
significant new information.
(B) Standards
The Administrator and the Secretary of Defense shall -
(i) promulgate standards of performance for a marine
pollution control device under paragraph (3) not later than 2
years after the date of a determination under paragraph (2)
that the marine pollution control device is required; and
(ii) every 5 years -
(I) review the standards; and
(II) if necessary, revise the standards, consistent with
paragraph (3)(B) and based on significant new information.
(C) Regulations
The Secretary of Defense shall promulgate regulations with
respect to a marine pollution control device under paragraph
(4) as soon as practicable after the Administrator and the
Secretary of Defense promulgate standards with respect to the
device under paragraph (3), but not later than 1 year after the
Administrator and the Secretary of Defense promulgate the
standards. The regulations promulgated by the Secretary of
Defense under paragraph (4) shall become effective upon
promulgation unless another effective date is specified in the
regulations.
(D) Petition for review
The Governor of any State may submit a petition requesting
that the Secretary of Defense and the Administrator review a
determination under paragraph (2) or a standard under paragraph
(3), if there is significant new information, not considered
previously, that could reasonably result in a change to the
particular determination or standard after consideration of the
matters set forth in paragraph (2)(B). The petition shall be
accompanied by the scientific and technical information on
which the petition is based. The Administrator and the
Secretary of Defense shall grant or deny the petition not later
than 2 years after the date of receipt of the petition.
(6) Effect on other laws
(A) Prohibition on regulation by States or political
subdivisions of States
Beginning on the effective date of -
(i) a determination under paragraph (2) that it is not
reasonable and practicable to require use of a marine
pollution control device regarding a particular discharge
incidental to the normal operation of a vessel of the Armed
Forces; or
(ii) regulations promulgated by the Secretary of Defense
under paragraph (4);
except as provided in paragraph (7), neither a State nor a
political subdivision of a State may adopt or enforce any
statute or regulation of the State or political subdivision
with respect to the discharge or the design, construction,
installation, or use of any marine pollution control device
required to control discharges from a vessel of the Armed
Forces.
(B) Federal laws
This subsection shall not affect the application of section
1321 of this title to discharges incidental to the normal
operation of a vessel.
(7) Establishment of State no-discharge zones
(A) State prohibition
(i) In general
After the effective date of -
(I) a determination under paragraph (2) that it is not
reasonable and practicable to require use of a marine
pollution control device regarding a particular discharge
incidental to the normal operation of a vessel of the Armed
Forces; or
(II) regulations promulgated by the Secretary of Defense
under paragraph (4);
if a State determines that the protection and enhancement of
the quality of some or all of the waters within the State
require greater environmental protection, the State may
prohibit 1 or more discharges incidental to the normal
operation of a vessel, whether treated or not treated, into
the waters. No prohibition shall apply until the
Administrator makes the determinations described in
subclauses (II) and (III) of subparagraph (B)(i).
(ii) Documentation
To the extent that a prohibition under this paragraph would
apply to vessels of the Armed Forces and not to other types
of vessels, the State shall document the technical or
environmental basis for the distinction.
(B) Prohibition by the Administrator
(i) In general
Upon application of a State, the Administrator shall by
regulation prohibit the discharge from a vessel of 1 or more
discharges incidental to the normal operation of a vessel,
whether treated or not treated, into the waters covered by
the application if the Administrator determines that -
(I) the protection and enhancement of the quality of the
specified waters within the State require a prohibition of
the discharge into the waters;
(II) adequate facilities for the safe and sanitary
removal of the discharge incidental to the normal operation
of a vessel are reasonably available for the waters to
which the prohibition would apply; and
(III) the prohibition will not have the effect of
discriminating against a vessel of the Armed Forces by
reason of the ownership or operation by the Federal
Government, or the military function, of the vessel.
(ii) Approval or disapproval
The Administrator shall approve or disapprove an
application submitted under clause (i) not later than 90 days
after the date on which the application is submitted to the
Administrator. Notwithstanding clause (i)(II), the
Administrator shall not disapprove an application for the
sole reason that there are not adequate facilities to remove
any discharge incidental to the normal operation of a vessel
from vessels of the Armed Forces.
(C) Applicability to foreign flagged vessels
A prohibition under this paragraph -
(i) shall not impose any design, construction, manning, or
equipment standard on a foreign flagged vessel engaged in
innocent passage unless the prohibition implements a
generally accepted international rule or standard; and
(ii) that relates to the prevention, reduction, and control
of pollution shall not apply to a foreign flagged vessel
engaged in transit passage unless the prohibition implements
an applicable international regulation regarding the
discharge of oil, oily waste, or any other noxious substance
into the waters.
(8) Prohibition relating to vessels of the Armed Forces
After the effective date of the regulations promulgated by the
Secretary of Defense under paragraph (4), it shall be unlawful
for any vessel of the Armed Forces subject to the regulations to
-
(A) operate in the navigable waters of the United States or
the waters of the contiguous zone, if the vessel is not
equipped with any required marine pollution control device
meeting standards established under this subsection; or
(B) discharge overboard any discharge incidental to the
normal operation of a vessel in waters with respect to which a
prohibition on the discharge has been established under
paragraph (7).
(9) Enforcement
This subsection shall be enforceable, as provided in
subsections (j) and (k) of this section, against any agency of
the United States responsible for vessels of the Armed Forces
notwithstanding any immunity asserted by the agency.
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