H.R. 6434

Clean Cruise Ship Act of 2008

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Contents

I

110th CONGRESS

2d Session

H. R. 6434

IN THE HOUSE OF REPRESENTATIVES

July 8, 2008

Mr. Farr (for himself, Mr. Blumenauer, Mr. Andrews, Mrs. Capps, Ms. Eshoo, Mr. Thompson of California, Mr. Stark, Mr. Filner, Ms. Lee, Mr. Baca, Mr. Dicks, Ms. Zoe Lofgren of California, Mrs. Davis of California, Mr. DeFazio, and Ms. Slaughter) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure

A BILL

To establish national standards for discharges from cruise vessels into the waters of the United States, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Clean Cruise Ship Act of 2008.

(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. 3. Definitions.

Sec. 4. Prohibitions on the discharge of sewage, graywater, bilge water, sewage sludge, incinerator ash, and hazardous waste.

Sec. 5. Effluent limits for discharges of sewage, graywater, and bilge water.

Sec. 6. Alaskan cruise vessels.

Sec. 7. Inspection and sampling.

Sec. 8. Employee protection.

Sec. 9. Judicial review.

Sec. 10. Enforcement.

Sec. 11. Citizen suits.

Sec. 12. Sense of Congress on ballast water.

Sec. 13. Sense of Congress on air pollution.

Sec. 14. Funding.

Sec. 15. Effect on other law.

2.

Findings and purposes

(a)

Findings

Congress finds the following:

(1)

Cruise vessels carry millions of people through North American waters each year, showcase some of the most beautiful ocean areas in the United States, and provide opportunities for passengers to relax and enjoy the oceans and marine ecosystems.

(2)

A single cruise vessel generates a tremendous amount of waste each week, including an estimated 140,000 to 210,000 gallons of blackwater (sewage) and 1,000,000 gallons of graywater (including wastewater from dishwashers, showers, laundry, baths, and washbasins). Onboard amenities such as photo-processing, dry-cleaning, and hairdressing also generate hazardous waste streams.

(3)

In its final report, An Ocean Blueprint for the 21st Century, released in 2004, the United States Commission on Ocean Policy found that these waste streams and the cumulative impacts caused when cruise vessels repeatedly visit the same environmentally sensitive areas, if not properly disposed of and treated, can be a significant source of pathogens and nutrients with the potential to threaten human health and damage shellfish beds, coral reefs, and other aquatic life, thus threatening the very environments cruise vessel passengers seek to explore.

(4)

The cruise industry has grown by more than 6 percent annually since 2003 and is projected to continue growing. Cruise vessel capacity is also expanding dramatically; today cruise vessels can transport 5,000 passengers and crew members, but the next generation of cruise vessels is expected to carry 7,000 passengers and crew members. As the total number of passengers increases and the number of passengers per ship increases, the volume of waste entering these ocean ecosystems and the impact of that waste on ocean ecosystems will also increase.

(5)

In a 2005 report requested by the International Council of Cruise Lines, the Ocean Conservation and Tourism Alliance (OCTA) Science Panel recommended that [a]ll blackwater should be treated, that discharging treated blackwater should be avoided in ports, close to bathing beaches or water bodies with restricted circulation, flushing or inflow, and that blackwater should not be discharged within 4 nautical miles of shellfish beds, coral reefs, or other sensitive habitats.

(6)

The OCTA Science Panel further recommended that graywater be treated in the same manner as blackwater and that sewage sludge be off-loaded to approved land-based facilities.

(7)

The United States lacks a comprehensive wastewater management policy for large passenger vessels, and a new statutory regime for managing wastewater discharges from large passenger vessels that applies throughout the United States is needed to protect coastal and ocean areas from pollution generated by cruise vessels, to reduce and better regulate discharges from cruise vessels, and to improve monitoring, reporting, and enforcement of standards regarding discharges.

(b)

Purpose

The purpose of this Act is to protect the health and beauty of the marine and coastal ecosystems that cruise passengers enjoy, by—

(1)

prohibiting the discharge of any untreated sewage, graywater, or bilge water from a cruise vessel calling on a port of the United States into the waters of the United States;

(2)

prohibiting the discharge of any sewage sludge, incinerator ash, or hazardous waste from a cruise vessel calling on a port of the United States into the waters of the United States;

(3)

establishing new national effluent limits for the discharge of treated sewage, treated graywater, and treated bilge water from cruise vessels not less than 12 miles from shore in any case in which the discharge is not within an area in which discharges are prohibited; and

(4)

ensuring that cruise vessels calling on ports of the United States comply with all applicable environmental laws.

3.

Definitions

In this Act:

(1)

Administrator

The term Administrator means the Administrator of the Environmental Protection Agency.

(2)

Bilge water

The term bilge water means waste water that includes lubrication oils, transmission oils, oil sludge or slops, fuel or oil sludge, used oil, used fuel or fuel filters, or oily waste.

(3)

Citizen

The term citizen means a person that has an interest that is or may be adversely affected by any provision of this Act.

(4)

Commandant

The term Commandant means the Commandant of the Coast Guard.

(5)

Cruise vessel

The term cruise vessel—

(A)

means a passenger vessel (as defined in section 2101(22) of title 46, United States Code), that—

(i)

is authorized to carry at least 250 passengers; and

(ii)

has onboard sleeping facilities for each passenger; and

(B)

does not include—

(i)

a vessel of the United States operated by the Federal Government; or

(ii)

a vessel owned and operated by the government of a State.

(6)

Discharge

The term discharge—

(A)

means a release, however caused, of bilge water, graywater, hazardous waste, incinerator ash, sewage, or sewage sludge from a cruise vessel; and

(B)

includes any escape, disposal, spilling, leaking, pumping, emitting, or emptying of a substance described in subparagraph (A).

(7)

Exclusive economic zone

The term exclusive economic zone has the meaning given that term in section 107 of title 46, United States Code.

(8)

Graywater

The term graywater means galley, dishwasher, bath, spa, pool, and laundry waste water.

(9)

Great lake

The term Great Lake means—

(A)

Lake Erie;

(B)

Lake Huron (including Lake Saint Clair);

(C)

Lake Michigan;

(D)

Lake Ontario; or

(E)

Lake Superior.

(10)

Hazardous waste

The term hazardous waste has the meaning given that term in section 1004 of the Solid Waste Disposal Act (42 U.S.C. 6903).

(11)

Incinerator ash

The term incinerator ash means ash generated during the incineration of solid waste or sewage sludge.

(12)

No discharge zones

The term no discharge zones means important ecological areas including marine sanctuaries, marine protected areas, marine reserves, marine national monuments, national parks, and national wildlife refuges.

(13)

Passenger

The term passenger means a paying passenger.

(14)

Person

The term person means—

(A)

an individual;

(B)

a corporation;

(C)

a partnership;

(D)

a limited liability company;

(E)

an association;

(F)

a State;

(G)

a municipality;

(H)

a commission or political subdivision of a State; or

(I)

an Indian tribe.

(15)

Sewage

The term sewage means—

(A)

human body wastes; and

(B)

the wastes from toilets and other receptacles intended to receive or retain human body wastes.

(16)

Sewage sludge

The term sewage sludge—

(A)

means any solid, semi-solid, or liquid residue removed during the treatment of on-board sewage;

(B)

includes—

(i)

solids removed during primary, secondary, or advanced waste water treatment;

(ii)

scum;

(iii)

septage;

(iv)

portable toilet pumpings;

(v)

type III marine sanitation device pumpings (as defined in part 159 of title 33, Code of Federal Regulations); and

(vi)

sewage sludge products; and

(C)

does not include—

(i)

grit or screenings; or

(ii)

ash generated during the incineration of sewage sludge.

(17)

Territorial sea

The term territorial sea—

(A)

means the belt of the sea extending 12 nautical miles from the baseline of the United States determined in accordance with international law, as set forth in Presidential Proclamation number 5928, dated December 27, 1988; and

(B)

includes the waters lying seaward of the line of ordinary low water and extending to the baseline of the United States, as determined under subparagraph (A).

(18)

Waters of the united states

The term waters of the United States means the waters of the territorial sea, the exclusive economic zone, and the Great Lakes.

4.

Prohibitions on the discharge of sewage, graywater, bilge water, sewage sludge, incinerator ash, and hazardous waste

(a)

Prohibitions on discharge of sewage, graywater, and bilge water

Except as provided in subsection (c) or section 6, no cruise vessel calling on a port of the United States may discharge sewage, graywater, or bilge water into the waters of the United States, unless—

(1)

the effluent of treated sewage, treated graywater, or treated bilge water meets all applicable effluent limits established under this Act and is in accordance with all other applicable laws;

(2)

the cruise vessel is underway and proceeding at a speed of not less than 6 knots;

(3)

the cruise vessel is not less than 12 nautical miles from shore;

(4)

the cruise vessel is not discharging in no discharge zones; and

(5)

the cruise vessel complies with all applicable management standards established under this Act.

(b)

Prohibition on discharge of sewage sludge, incinerator ash, and hazardous waste

No sewage sludge, incinerator ash, or hazardous waste may be discharged into the waters of the United States. Such sewage sludge, incinerator ash, and hazardous waste shall be off-loaded at an appropriate land-based facility.

(c)

Safety exception

(1)

Scope of exception

The provisions of subsections (a) and (b) shall not apply in any case in which—

(A)

a discharge is made solely for the purpose of securing the safety of the cruise vessel or saving a human life at sea; and

(B)

all reasonable precautions have been taken to prevent or minimize the discharge.

(2)

Notification of commandant

(A)

In general

If the owner, operator, master, or other individual in charge of a cruise vessel authorizes a discharge described in paragraph (1), such individual shall notify the Commandant of the decision to authorize the discharge as soon as practicable, but not later than 24 hours, after authorizing the discharge.

(B)

Report

Not later than 7 days after the date on which an individual described in subparagraph (A) notifies the Commandant of a decision to authorize a discharge under paragraph (1), the individual shall submit to the Commandant a report that includes—

(i)

the quantity and composition of each discharge authorized under paragraph (1);

(ii)

the reason for authorizing each such discharge;

(iii)

the location of the vessel during the course of each such discharge; and

(iv)

such other supporting information and data as are requested by the Commandant.

(C)

Disclosure of reports

Upon receiving a report under subparagraph (B), the Commandant shall—

(i)

transmit a copy of the report to the Administrator; and

(ii)

make the report available to the public.

5.

Effluent limits for discharges of sewage, graywater, and bilge water

(a)

Effluent limits

(1)

In general

Not later than 12 months after the date of the enactment of this Act, the Administrator shall promulgate effluent limits for sewage, graywater, and bilge water discharges from cruise vessels calling on ports of the United States.

(2)

Requirements

The effluent limits shall, at a minimum—

(A)

be consistent with the capability of the best available technology to treat effluent;

(B)

require compliance with all relevant State and Federal water quality standards; and

(C)

take into account the best available scientific information on the environmental effects of sewage, graywater, and bilge water discharges, including levels of nutrients, total and dissolved metals, pathogen indicators, oils and grease, classical pollutants, and volatile and semivolatile organics.

(b)

Minimum limits

The effluent limits promulgated under subsection (a) shall require, at a minimum, that treated sewage, treated graywater, and treated bilge water effluent discharges from cruise vessels, measured at the point of discharge, shall, not later than the date described in subsection (d), meet the following standards:

(1)

In general

The discharge shall satisfy the minimum level of effluent quality specified in section 133.102 of title 40, Code of Federal Regulations (or a successor regulation).

(2)

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 Administrator shall—

(1)

review the effluent limits promulgated under subsection (a) at least once every 5 years; and

(2)

revise the effluent limits as necessary to incorporate technology available at the time of the review in accordance with subsection (a)(2).

(d)

Compliance date

(1)

In general

The date described in this subsection is—

(A)

with respect to new vessels put into water after the date of the enactment of this Act, 2 years after such date of enactment; and

(B)

with respect to vessels in use as of such date of enactment, 5 years after such date of enactment.

(2)

New vessel defined

In this subsection, the term new vessel means a vessel the keel of which is laid, or that is at a similar stage of construction, on or after the date of the enactment of this Act.

6.

Alaskan cruise vessels

(a)

In general

An Alaskan cruise vessel shall not be subject to the provisions of this Act (including regulations promulgated under this Act) until the date that is 10 years after the date of the enactment of this Act.

(b)

Definition of Alaskan cruise vessel

In this section, the term Alaskan cruise vessel means a cruise vessel—

(1)

while the vessel is operating in waters of the State of Alaska, as defined in section 159.305 of title 33, Code of Federal Regulations; and

(2)

that complies with all relevant laws and regulations of the State of Alaska while in transit from a port of call outside of the State of Alaska to the waters of the State of Alaska.

7.

Inspection and sampling

(a)

Development and implementation of inspection program

(1)

In general

The Administrator shall promulgate regulations to implement a sampling and testing program, and the Commandant shall promulgate regulations to implement an inspection program, sufficient to verify that cruise vessels calling on ports of the United States are in compliance with—

(A)

this Act (including regulations promulgated under this Act);

(B)

the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) (including regulations promulgated under that Act);

(C)

other applicable Federal laws and regulations; and

(D)

all applicable requirements of international agreements.

(2)

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 be subject to an unannounced inspection at least once per year.

(b)

Regulations

(1)

In general

Not later than 1 year after the date of the enactment of this Act, the Commandant, in consultation with the Administrator, shall promulgate regulations that, at a minimum—

(A)

require the owner, operator, master, or other individual in charge of a cruise vessel to maintain and submit annually a logbook detailing the times, types, volumes, flow rates, origins, and specific locations of, and explanations for, any discharges from the cruise vessel;

(B)

provide for routine announced and unannounced inspections of—

(i)

cruise vessel environmental compliance records and procedures; and

(ii)

the functionality and proper operation of installed equipment for abatement and control of any cruise vessel discharge, including equipment intended to treat sewage, graywater, or bilge water;

(C)

require the sampling and testing of cruise vessel discharges that require the owner, operator, master, or other individual in charge of a cruise vessel—

(i)

to conduct that sampling or testing at the point of discharge; and

(ii)

to produce any records of the sampling or testing;

(D)

require any owner, operator, master, or other individual in charge of a cruise vessel who has knowledge of a discharge from the cruise vessel in violation of this Act (including regulations promulgated under this Act) to report immediately the discharge to the Commandant, who shall provide notification of the discharge to the Administrator; and

(E)

require the owner, operator, master, or other individual in charge of a cruise vessel to provide to the Commandant and Administrator a blueprint of each cruise vessel that includes the location of every discharge pipe and valve.

(2)

Disclosure of logbooks

Upon receiving a logbook described in paragraph (1)(A), the Commandant shall—

(A)

transmit a copy of the logbook to the Administrator; and

(B)

make the logbook available to the public.

(c)

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, after public notice and comment.

(2)

Foreign vessel

(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. 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 program

(1)

In general

Not later than 1 year after the date of the enactment of this Act, the Commandant shall establish and carry out a program for the placement of 1 or more trained independent observers on each cruise vessel.

(2)

Purposes

The purposes of the cruise observer program established under paragraph (1) are to monitor and inspect cruise vessel operations, equipment, and discharges to ensure compliance with—

(A)

this Act (including regulations promulgated under this Act); and

(B)

all other relevant Federal laws, regulations, and international agreements.

(3)

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, including fuel consumption and atmospheric emissions;

(B)

have the authority to interview and otherwise query any crew member with knowledge of vessel operations;

(C)

have access to all data and information made available to government officials under this section;

(D)

immediately report any known or suspected violation of this Act or any other applicable Federal law or international agreement to—

(i)

the Coast Guard; and

(ii)

the Environmental Protection Agency; and

(E)

maintain a logbook to be submitted to the Commandant and the Administrator annually and to be made available to the public.

(4)

Adaptive management

The program established and carried out by the Commandant under paragraph (1) shall also include—

(A)

a method for collecting and reviewing data related to the efficiency and operation of the program; and

(B)

periodic revisions to the program based on the data collected under subparagraph (A).

(5)

Report

Not later than 3 years after the establishment of the program described in paragraph (1), the Commandant shall submit to Congress a report describing—

(A)

the results of the program;

(B)

recommendations for optimal observer coverage; and

(C)

other recommendations for improvement of the program.

(e)

Onboard monitoring system pilot program

(1)

In general

Not later than 1 year after the date of the enactment of this Act, the Administrator of the National Oceanic and Atmospheric Administration, in consultation with the Administrator and the Commandant, shall establish, and for each of fiscal years 2008 through 2013, shall carry out, with industry partners as necessary, a pilot program to develop and promote commercialization of technologies to provide real-time data to Federal agencies regarding—

(A)

discharges of sewage, graywater, and bilge water from cruise vessels; and

(B)

functioning of cruise vessel components relating to fuel consumption and control of air and water pollution.

(2)

Technology requirements

Technologies developed under the program described in paragraph (1)—

(A)

shall have the ability to record—

(i)

the location and time of discharges from cruise vessels;

(ii)

the source, content, and volume of the discharges; and

(iii)

the state of components relating to pollution control at the time of the discharges, including whether the components are operating correctly; and

(B)

shall be tested on not less than 10 percent of all cruise vessels operating in the territorial sea of the United States, including large and small vessels.

(3)

Participation of industry

(A)

Competitive selection 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)

Adaptive management

The program established and carried out by the Administrator of the National Oceanic and Atmospheric Administration pursuant to paragraph (1) shall also include—

(A)

a method for collecting and reviewing data related to the efficiency and operation of the program; and

(B)

periodic revisions to the program based on the data collected under subparagraph (A).

(5)

Report

Not later than 3 years after the date of the enactment of this Act, the Administrator of the National Oceanic and Atmospheric Administration shall submit to Congress a report describing—

(A)

the results of the program;

(B)

recommendations for continuing the program; and

(C)

other recommendations for improving the program.

8.

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 an employee who believes that the termination of the employment of the employee has occurred, or that the employee has been discriminated against, as a result of the actions of any person in violation of subsection (a) may, not later than 30 days after the date on which the alleged violation occurred, apply to the Secretary of Labor for a review of the alleged termination of employment or discrimination.

(2)

Application

A copy of an application for review filed under paragraph (1) shall be sent to the respondent.

(3)

Investigation

(A)

In general

On receipt of an application for review under paragraph (1), the Secretary of Labor shall carry out an investigation of the alleged violation.

(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 Secretary

On completion of an investigation under this paragraph, the Secretary of Labor shall—

(i)

make findings of fact;

(ii)

if the Secretary of Labor determines that a violation did occur, issue a decision, incorporating an order and the findings, requiring the person that committed the violation to take such action as is necessary to abate the violation, including the rehiring or reinstatement, with compensation, of an employee to the former position of the employee; and

(iii)

if the Secretary of Labor determines that there was no violation, issue an order denying the application.

(D)

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 attorneys' fees), as determined by the Secretary of Labor, to have been reasonably incurred by the applicant for, or in connection with, the institution and prosecution of the proceedings, shall be assessed against the person committing the violation.

(d)

Deliberate violations by employees acting without direction from employer or agent

This section shall not apply to any employee who, without direction from the employer of the employee (or agent of the employer), deliberately violates any provision of this Act.

9.

Judicial review

(a)

Review of actions by Administrator or Commandant; selection of court; fees

(1)

Review of actions

(A)

In general

Any interested person may petition for a review, in the United States court of appeals for the circuit in which the person resides or transacts business directly affected by the action of which review is requested—

(i)

of an action of the Administrator in promulgating any effluent limit under section 5; or

(ii)

of an action of the Commandant or the Administrator in carrying out an inspection, sampling, or testing under section 7.

(B)

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 with respect to which the review is sought; or

(ii)

if the petition for review is based solely on grounds that arose after the date described in clause (i), as soon as practicable after that date.

(2)

Civil and criminal enforcement 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 of such action.

(3)

Award of fees

In any judicial proceeding under this subsection, a court may award costs of litigation (including reasonable attorneys' and expert witness fees) to any prevailing or substantially prevailing party in any case in which the court determines such an award to be appropriate.

(b)

Additional evidence

(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 introduce additional evidence and demonstrates to the satisfaction of the court that the additional evidence is material and that there were reasonable grounds for the failure to introduce the evidence in the proceeding before the Commandant or Administrator, the court may order the additional evidence (and evidence in rebuttal of the additional evidence) to be taken before the Commandant or Administrator, in such manner and on such terms and conditions as the court determines to be appropriate.

(2)

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; and

(B)

shall file with the return of the additional evidence any modified or new findings, and any related recommendations, for the modification or setting aside of any original determinations of the Commandant or Administrator.

10.

Enforcement

(a)

In general

Any person that violates a provision of section 4 or any regulation promulgated under this Act may be assessed—

(1)

a class I or class II civil penalty described in subsection (b); or

(2)

a civil penalty in a civil action under subsection (c).

(b)

Amount of administrative penalty

(1)

Class i

The amount of a class I civil penalty under subsection (a)(1) may not exceed—

(A)

$10,000 per violation; or

(B)

$25,000 in the aggregate, in the case of multiple violations.

(2)

Class ii

The amount of a class II civil penalty under subsection (a)(1) may not exceed—

(A)

$10,000 per day for each day during which the violation continues; or

(B)

$125,000 in the aggregate, in the case of multiple violations.

(3)

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 appropriate, shall consider—

(A)

the seriousness of the violation;

(B)

any economic benefit resulting from the violation;

(C)

any history of violations;

(D)

any good faith efforts to comply with the applicable requirements;

(E)

the economic impact of the penalty on the violator; and

(F)

such other matters as justice may require.

(5)

Procedure for class i civil penalty

(A)

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 civil 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 relating to such assessment; 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.

(8)

Finality of order

(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.

(10)

Judicial review

(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 district court of the United States for the district in which the violation occurred; or

(ii)

in the case of assessment of a class II civil penalty, in—

(I)

the United States Court of Appeals for the District of Columbia Circuit; or

(II)

the United States court of appeals for any other circuit in which the person resides or transacts business.

(C)

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.

(11)

Collection

(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)

attorneys' fees and other costs for collection proceedings; and

(ii)

for each quarter during which the failure to pay persists, a quarterly nonpayment penalty in an amount equal to 20 percent of the aggregate amount of the assessed civil penalties and nonpayment penalties of the person that are unpaid as of the beginning of the quarter.

(12)

Subpoenas

(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 district court of the United States for any district in which the person is found, resides, or transacts business, on application by the United States and after notice to the person, shall have jurisdiction to issue an order requiring the person to appear and give testimony before the Commandant or to appear and produce documents before the Commandant; and

(ii)

any failure to obey such an order of the court may be punished by the court as a contempt of the court.

(c)

Civil action

The Commandant may commence, in the district court of the United States for the district in which the defendant is located, resides, or transacts business, a civil action to impose a civil penalty under this subsection in an amount not to exceed $25,000 for each day of violation.

(d)

Criminal penalties

(1)

Negligent violations

A person that negligently violates section 4 or any regulation promulgated under this Act commits a Class A misdemeanor under title 18, United States Code.

(2)

Knowing violations

Any person that knowingly violates section 4 or any regulation promulgated under this Act commits a Class D felony under title 18, United States Code.

(3)

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 under title 18, United States Code.

(e)

Rewards

(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 district court of the United States for any district in which the cruise vessel may be found.

(g)

Compliance orders

(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 such section or requirement; or

(B)

bring a civil action in accordance with subsection (c).

(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; or

(II)

such date as the Commandant, taking into account the seriousness of the violation and any good faith efforts to comply with applicable requirements, determines to be reasonable, in the case of a violation of a final deadline.

(h)

Civil actions

(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 district court of the United States 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.

11.

Citizen suits

(a)

Authorization

Except as provided in subsection (c), any citizen may commence a civil action on the citizen's own behalf—

(1)

against any person (including the United States and any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution of the United States) that is alleged to be in violation of—

(A)

the conditions imposed by section 4;

(B)

an effluent limit or performance standard under this Act; or

(C)

an order issued by the Administrator or Commandant with respect to such a condition, an effluent limit, or a performance standard; or

(2)

against the Administrator or Commandant, in a case in which there is alleged a failure by the Administrator or Commandant to perform any nondiscretionary act or duty under this Act.

(b)

Jurisdiction

The district courts of the United States shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties—

(1)

to enforce a condition, effluent limit, performance standard, or order described in subsection (a)(1);

(2)

to order the Administrator or Commandant to perform a nondiscretionary act or duty described in subsection (a)(2); and

(3)

to apply any appropriate civil penalties under section 10(b).

(c)

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, effluent limit, performance standard, or order described in subsection (a)(1); or

(2)

if the Administrator or Commandant has commenced and is diligently prosecuting a civil or criminal action on the same matter in a court of the United States (but in any such action, a citizen may intervene as a matter of right).

(d)

Venue

(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 district court of the United States for any judicial district in which a cruise vessel or the owner or operator of a cruise vessel is located.

(2)

Intervention

In a civil action under this section, the Administrator or the Commandant, if not a party, may intervene as a matter of right.

(3)

Procedures

(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

(iii)

the Commandant.

(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

(iii)

the Commandant.

(e)

Litigation costs

(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 attorneys' and expert witness fees) to any prevailing or substantially prevailing party, in any case in which the court determines that such an award is appropriate.

(2)

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), without regard to the limitation under subsection (c), against the Administrator or Commandant in any case in which there is alleged a failure of the Administrator or Commandant to enforce an effluent limit or performance standard under this Act, the violation of which is causing—

(1)

an adverse effect on the public health or welfare in the State; or

(2)

a violation of any water quality requirement in the State.

12.

Sense of Congress on ballast 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.

13.

Sense of Congress on air pollution

It is the sense of Congress that action should be taken to enact legislation requiring strong, mandatory standards for air quality with respect to incineration and engine activities of cruise vessels to reduce the level of harmful chemical and particulate air pollutants.

14.

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 2009 through 2013.

(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)

Amounts

The Fund shall consist of 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 for each paying passenger on a cruise vessel voyage, for use in carrying out this Act.

(2)

Adjustment of fee

(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—

(i)

size;

(ii)

economic share; and

(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.

15.

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 vessels; 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 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.