BILL NUMBER: AB 703 CHAPTERED
BILL TEXT
CHAPTER 849
FILED WITH SECRETARY OF STATE OCTOBER 10, 1999
APPROVED BY GOVERNOR OCTOBER 8, 1999
PASSED THE ASSEMBLY SEPTEMBER 9, 1999
PASSED THE SENATE SEPTEMBER 8, 1999
AMENDED IN SENATE SEPTEMBER 7, 1999
AMENDED IN SENATE AUGUST 18, 1999
AMENDED IN SENATE AUGUST 17, 1999
AMENDED IN SENATE JULY 6, 1999
AMENDED IN ASSEMBLY MAY 28, 1999
AMENDED IN ASSEMBLY APRIL 27, 1999
AMENDED IN ASSEMBLY APRIL 5, 1999
INTRODUCED BY Assembly Member Lempert
(Coauthors: Assembly Members Aroner and Corbett)
(Coauthor: Senator Alpert)
FEBRUARY 24, 1999
An act to add and repeal Division 36 (commencing with Section
71200) of the Public Resources Code, relating to ballast water.
LEGISLATIVE COUNSEL'S DIGEST
AB 703, Lempert. Ballast water.
Existing law requires the Department of Fish and Game to adopt the
International Maritime Organization's "Guidelines for Preventing the
Introduction of Unwanted Aquatic Organisms and Pathogens from Ships'
Ballast Water and Sediment Discharges" as the policy of the state to
prevent the introduction and spread of aquatic nuisance species into
any river, estuary, bay, or coastal area through the exchange of
ballast water of vessels prior to entering those waters and to adopt
a ballast water control report form to monitor compliance with those
guidelines.
This bill, with certain exceptions, would require the master,
operator, or person in charge of a vessel to employ prescribed
ballast water management practices for ballast water carried into the
waters of the state from areas outside the exclusive economic zone,
as defined. The bill would require those persons to take certain
actions to minimize the uptake and release of nonindigenous species.
The bill would require the master, owner, operator, agent, or person
in charge of a vessel carrying ballast water into waters of the
state after operating outside the exclusive economic zone to provide
the State Lands Commission, and maintain on board the vessel,
specified information.
The bill would require the State Lands Commission to take samples
of ballast water and sediment and to take other action to assess the
compliance of any vessel with prescribed requirements. The bill
would prohibit, unless required by federal law, any state agency from
imposing requirements different from those contained in the bill
relating to the discharge of ballast water for the purpose of
limiting the introduction of nonindigenous species prior to January
1, 2004. The bill would, on or before December 1, 2002, require the
State Water Resources Control Board to evaluate alternatives for
managing ballast water, as specified. The bill would require the
Department of Fish and Game to conduct a study relating to resident
nonindigenous species populations, as prescribed. The bill would, on
or before September 1, 2002, require the State Lands Commission to
submit to the Legislature, and make available to the public, a report
relating to ballast water. The bill would require the state board,
the State Lands Commission, and the Department of Fish and Game to
conduct prescribed research.
The bill would subject a person who fails to comply with the
ballast water management program required to be undertaken by the
bill with prescribed civil penalties. The bill would require the
State Lands Commission to establish fees not to exceed $1,000 per
vessel, as specified. The bill would require the money generated by
the imposition of the fees and the penalties to be deposited in the
Exotic Species Control Fund, which the bill would create. The money
in the fund, upon appropriation by the Legislature, would be
available to carry out the ballast water management program, as
described above.
The provisions of this bill would be repealed on January 1, 2004.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Division 36 (commencing with Section 71200) is added to
the Public Resources Code, to read:
DIVISION 36. BALLAST WATER MANAGEMENT FOR CONTROL OF
NONINDIGENOUS SPECIES
CHAPTER 1. GENERAL PROVISIONS
71200. Unless the context otherwise requires, the following
definitions govern the construction of this division:
(a) "Ballast tank" means any tank or hold on a vessel used for
carrying ballast water, whether or not the tank or hold was designed
for that purpose.
(b) "Ballast water" means any water and suspended matter taken on
board a vessel to control or maintain trim, draft, stability, or
stresses of the vessel, without regard to the manner in which it is
carried.
(c) "EEZ" means exclusive economic zone, which extends from the
baseline of the territorial sea of the United States seaward 200
miles.
(d) "Exchange" means to replace the water in a ballast tank using
either of the following methods:
(1) "Flow through exchange," means to flush out ballast water by
pumping in mid-ocean water at the bottom of the tank and continuously
overflowing the tank from the top until three full volumes of water
have been changed to minimize the number of original organisms
remaining in the tank.
(2) "Empty/refill exchange," means to pump out, until the tank is
empty or as close to 100 percent as the master or operator determines
is safe to do so, the ballast water taken on in ports, or estuarine
or territorial waters, then refilling the tank with mid-ocean waters.
(e) "Mid-ocean waters" means waters that are more than 200
nautical miles from land and at least 2,000 meters (6,560 feet, 1,093
fathoms) deep.
(f) "Nonindigenous species" means any species or other viable
biological material that enters an ecosystem beyond its historic
range, including any such organism transferred from one country into
another.
(g) "Person" means any individual, trust, firm, joint stock
company, or corporation, including, but not limited to, a government
corporation, partnership, or association.
(h) "Sediments" means any matter settled out of ballast water
within a vessel.
(i) "Waters of the state" means any surface waters, including
saline waters, that are within the boundaries of the state.
(j) "Voyage" means any transit by a vessel destined for any
California port from a port or place outside the EEZ, including
intermediate stops at a port or place within the EEZ. For the
purposes of this division, a transit by a vessel from a United States
port to any other United States port, if at any time the vessel
operates outside the EEZ or equivalent zone of Canada, is also a
voyage.
71201. (a) This division applies to all vessels, United States
and foreign, carrying ballast water into the waters of the state
after operating outside the EEZ, except those vessels described in
Section 71202.
(b) This division applies to all ballast water and associated
sediments taken on a vessel in areas less than 200 nautical miles
from any shore, or with water that is less than 2,000 meters (6,560
feet, 1,093 fathoms) deep.
71201.5. This division does not authorize the discharge of oil or
noxious liquid substances in a manner prohibited by state, federal
or international laws or regulations. Ballast water carried in any
tank containing a residue of oil, noxious liquid substances, or any
other pollutant shall be discharged in accordance with the applicable
requirements.
71202. This division does not apply to any of the following
vessels:
(a) A crude oil tanker engaged in the coastwise trade, as
implemented by the United States Coast Guard in accordance with the
National Invasive Species Act of 1996.
(b) A passenger vessel equipped with a functioning treatment
system designed to kill nonindigenous species in the ballast water if
both of the following apply:
(1) The State Lands Commission has determined that the system is
at least as effective as ballast water exchange at reducing the risk
of transfer of nonindigenous species in the ballast water of
passenger vessels.
(2) The master, operator, or person in charge of the vessel
operates, or ensures the operation of, the treatment system as
designed.
(c) A vessel of the United States Department of Defense or United
States Coast Guard subject to the requirements of Section 1103 of the
National Invasive Species Act of 1996, or any vessel of the armed
forces, as defined in Section 1322(a)(14) of Title 33 of the United
States Code that is subject to the "Uniform National Discharge
Standards for Vessels of the Armed Forces" pursuant to Section 1322
(n) of Title 33 of the United States Code.
(d) A vessel that discharges ballast water or sediments only at
the location where the ballast water or sediments originated, if the
ballast water or sediments do not mix with ballast water or sediments
from areas other than mid-ocean waters.
(e) A vessel in innocent passage, which is a foreign vessel merely
traversing the territorial sea of the United States and not entering
or departing a United States port, or not navigating the internal
waters of the United States. However, it is the intent of the
Legislature that a vessel described in this subdivision does not
discharge ballast water into the waters of the state, or into waters
that may impact waters of the state, unless the vessel meets the
requirements of Section 71204.
CHAPTER 2. BALLAST WATER MANAGEMENT REQUIREMENTS
71203. (a) The master, operator, or person in charge of a vessel
is responsible for the safety of the vessel, its crew, and its
passengers.
(b) (1) The master, operator, or person in charge of a vessel is
not required by this division to conduct a ballast water management
practice, including exchange, if the master determines that the
practice would threaten the safety of the vessel, its crew, or its
passengers because of adverse weather, vessel design limitations,
equipment failure, or any other extraordinary conditions.
(2) If a determination described in paragraph (1) is made, it is
the intent of the Legislature that the master, operator, or person in
charge of the vessel consider taking all feasible measures that do
not compromise the safety of the vessel to minimize the discharge of
ballast water containing nonindigenous species into the waters of the
state, or waters that may impact waters of the state.
(c) Nothing in this division relieves the master, operator, or
person in charge of a vessel of the responsibility for ensuring the
safety and stability of the vessel or the safety of the crew and
passengers, or any other responsibility.
71204. (a) Subject to Section 71203, the master, operator, or
person in charge of a vessel shall employ at least one of the
following ballast water management practices for ballast water
carried into the waters of the state from areas outside the EEZ:
(1) Exchange ballast water outside the EEZ, from an area not less
than 200 nautical miles from any shore, and in waters more than 2,000
meters (6,560 feet, 1,093 fathoms) deep, before entering the waters
of the state.
(2) Retain the ballast water on board the vessel.
(3) Use an alternative environmentally sound method of ballast
water management that has been approved by the State Lands Commission
before the vessel begins the voyage, and that is at least as
effective as ballast water exchange in removing or killing
nonindigenous species.
(4) Discharge ballast water to an approved reception facility.
(5) Under extraordinary conditions, conduct a ballast water
exchange within an area agreed to by the State Lands Commission at
the time of the request.
(b) Subject to Section 71203, the master, owner, operator, or
person in charge of all vessels equipped with ballast water tanks
that operate in the waters of the state shall do all of the following
to minimize the uptake and the release of nonindigenous species:
(1) Avoid the discharge or uptake of ballast water in areas within
or that may directly affect marine sanctuaries, marine preserves,
marine parks, or coral reefs.
(2) Minimize or avoid uptake of ballast water in all of the
following areas and circumstances:
(A) Areas known to have infestations or populations of harmful
organisms and pathogens.
(B) Areas near a sewage outfall.
(C) Areas near dredging operations.
(D) Areas where tidal flushing is known to be poor or times when a
tidal stream is known to be more turbid.
(E) In darkness when bottom-dwelling organisms may rise up in the
water column.
(F) Where propellers may stir up the sediment.
(3) (A) Clean the ballast tanks regularly to remove sediments.
(B) Clean the ballast tanks in mid-ocean waters or under
controlled arrangements in port, or at drydock.
(C) Dispose of sediments in accordance with local, state, and
federal law.
(4) Discharge only the minimal amount of ballast water essential
for vessel operations while in the waters of the state.
(5) Rinse anchors and anchor chains when retrieving the anchor to
remove organisms and sediments at their place of origin.
(6) Remove fouling organisms from hull, piping, and tanks on a
regular basis and dispose of any removed substances in accordance
with local, state, and federal law.
(7) Maintain a ballast water management plan that was prepared
specifically for the vessel.
(8) Train the master, operator, person in charge, and crew, on the
application of ballast water and sediment management and treatment
procedures.
71205. (a) (1) The master, owner, operator, agent, or person in
charge of a vessel carrying ballast water into the waters of the
state after operating outside the EEZ shall provide the information
described in subdivision (c) in electronic or written form to the
State Lands Commission before the vessel departs from the first port
of call in California.
(2) The information described in subdivision (c) shall be
submitted using the form developed by the United States Coast Guard
pursuant to the National Invasive Species Act of 1996.
(b) If the information submitted in accordance with this section
changes, an amended form shall be submitted to the State Lands
Commission before the vessel departs the waters of the state.
(c) (1) The master, owner, operator, or person in charge of a
vessel carrying ballast water into the waters of the state after
operating outside the EEZ, shall maintain on board the vessel, in
written form, records that include all of the following information:
(A) Vessel information, including all of the following:
(i) Name.
(ii) International Maritime Organization number or official number
if the International Maritime Organization number has not been
assigned.
(iii) Vessel type.
(iv) Owner or operator.
(v) Gross tonnage.
(vi) Call sign.
(vii) Port of Registry.
(B) Voyage information, including the date and port of arrival,
vessel agent, last port and country of call, and next port and
country of call.
(C) Ballast water information, including the total ballast water
capacity, total volume of ballast water onboard, total number of
ballast water tanks, and total number of ballast water tanks in
ballast, using units of measurements such as metric tons (MT), cubic
meters (m3), long tons (LT), and short tons (ST).
(D) Ballast Water Management, including all of the following
information:
(i) The total number of ballast tanks or holds, the contents of
which are to be discharged into the waters of the state or to a
reception facility.
(ii) If an alternative ballast water management method is used,
the number of tanks that were managed using an alternative method, as
well as the type of method used.
(iii) Whether the vessel has a ballast water management plan and
International Maritime Organization guidelines on board, and whether
the ballast water management plan is used.
(E) Information on ballast water tanks, the contents of which are
to be discharged into the waters of the state or to a reception
facility, including all of the following:
(i) The origin of ballast water, including the date and location
of intake, volume, and temperature. If a tank has been exchanged,
the identity of the loading port of the ballast water that was
discharged during the exchange.
(ii) The date, location, volume, method, thoroughness measured by
percentage exchanged if exchange is conducted, and sea height at time
of exchange if exchange conducted, of any ballast water exchanged or
otherwise managed.
(iii) The expected date, location, volume, and salinity of any
ballast water to be discharged into the waters of the state or a
reception facility.
(F) Discharge of sediment and, if sediment is to be discharged
within the state, the location of the facility where the disposal
will take place.
(G) Certification of accurate information, which shall include the
printed name, title, and signature of the master, owner, operator,
person in charge, or responsible officer attesting to the accuracy of
the information provided and certifying compliance with the
requirements of this division.
(H) Changes to previously submitted information.
(2) The master, owner, operator, or person in charge of a vessel
subject to this subdivision shall retain a signed copy of the
information described in this subdivision on board the vessel for two
years.
71206. (a) The State Lands Commission, in coordination with the
United States Coast Guard, shall take samples of ballast water and
sediment, examine documents, and make other appropriate inquiries to
assess the compliance of any vessel subject to this division.
(b) The master, owner, operator, or person in charge of a vessel
subject to this division shall make available to the State Lands
Commission, upon request of that commission, the records required by
Section 71205.
(c) The State Lands Commission, in coordination with the United
States Coast Guard, shall compile the information obtained from
submitted reports. The information shall be used, in conjunction
with existing information relating to the number of vessel arrivals,
to assess vessel reporting rates and compliance with the requirements
of this division.
71207. (a) This division describes the state program to regulate
discharges of ballast water from vessels in order to limit the
introduction of nonindigenous species. Unless required by federal
law, a state agency, board, commission, or department shall not,
prior to January 1, 2004, impose any requirements that are different
from those set forth in this division.
(b) Nothing in this division restricts state agencies from
enforcing the provisions of this division.
(c) Any person violating this division is subject to civil
liability in accordance with Chapter 5 (commencing with Section
71216).
(e) The State Lands Commission may require any vessel operating in
violation of this division to depart the waters of the state and
exchange, treat or otherwise manage the ballast water at a location
determined by the commission, unless the master determines that the
departure or exchange would threaten the safety or stability of the
vessel, its crew, or its passengers because of adverse weather,
vessel architecture design, equipment failure, or any other
extraordinary condition.
CHAPTER 3. RESEARCH AND PROGRAM EVALUATION
71210. (a) The State Water Resources Control Board, in
consultation with the Department of Fish and Game, the State Lands
Commission, the United States Coast Guard, the regulated industry,
and other stakeholders, shall evaluate alternatives for treating and
otherwise managing ballast water for the purpose of eliminating the
discharge of nonindigenous species into the waters of the state or
into waters that impact the waters of the state. Whenever possible,
the evaluation shall utilize appropriate existing data.
(b) The evaluation shall be completed and submitted to the
Legislature and available to the public, on or before December 31,
2002, and shall include, but not be limited to, a description of
recommended best available technologies that reflect the greatest
degree of reduction in the release of nonindigenous species that is
economically feasible, the relative effectiveness of those
technologies in minimizing the discharge of nonindigenous species,
and the costs of implementing those technologies.
71211. (a) The Department of Fish and Game, in consultation with
the State Water Resources Control Board, the State Lands Commission,
and the United States Coast Guard, shall conduct a study to establish
baseline conditions in the coastal and estuarine waters of the
state, which includes an inventory of the location and geographic
range of resident nonindigenous species populations. Whenever
possible, the study shall utilize appropriate existing data.
(b) The study shall be submitted to the Legislature, and available
to the public, on or before December 31, 2002. Information
generated by this study shall be of the type and in a format useful
for subsequent studies and reports undertaken for any of the
following purposes:
(1) The determination of alternative discharge zones.
(2) The identification of environmentally sensitive areas to be
avoided for uptake or discharge of ballast water.
(3) The long-term effectiveness of discharge control measures.
(4) The assessment of potential risk zones where uptake shall be
prohibited.
71212. Notwithstanding Section 7550.5 of the Government Code, on
or before September 1, 2002, the State Lands Commission, in
consultation with the State Water Resources Control Board, the
Department of Fish and Game, and the United States Coast Guard, shall
submit to the Legislature, and make available to the public, a
report that includes, but is not limited to, all of the following:
(a) A summary of the information provided in the ballast water
discharge report forms submitted to the State Lands Commission,
including the volumes of ballast water exchanged, volumes discharged
into state waters, types of ballast water treatment, and locations at
which ballast water was loaded and discharged.
(b) Monitoring and inspection information collected by the State
Lands Commission pursuant to this division, including a summary of
compliance rates, categorized by geographic area and other groupings
as information allows.
(c) An analysis of the monitoring and inspection information,
including recommendations for actions to be undertaken to improve the
effectiveness of the monitoring and inspection program.
(d) An evaluation of the effectiveness of the measures taken to
reduce or eliminate the discharge of nonindigenous species from
vessels, including recommendations regarding action that should be
taken to improve the effectiveness of those measures.
(e) A summary of the research completed during the two-year period
that precedes the release of the report, and ongoing research, on
the release of nonindigenous species by vessels, including, but not
limited to, the research described in Section 71213.
71213. The State Water Resources Control Board, the State Lands
Commission, and the Department of Fish and Game shall conduct any
research determined necessary to carry out the requirements of this
division. The research may relate to the transport and release of
nonindigenous species by vessels, the methods of sampling and
monitoring of the nonindigenous species transported or released by
vessels, the rate or risk of release or establishment of
nonindigenous species in the waters of the state and resulting
impacts, and the means by which to reduce or eliminate such a release
or establishment. The research shall focus on assessing or
developing methodologies for treating or otherwise managing ballast
water to reduce or eliminate the discharge or establishment of
nonindigenous species.
CHAPTER 4. EXOTIC SPECIES CONTROL FUND
71215. (a) The Exotic Species Control Fund is hereby created.
The money in the fund, upon appropriation by the Legislature, shall
be used to carry out this division.
(b) (1) The State Lands Commission shall establish a reasonable
and appropriate fee to carry out this division in an amount not to
exceed one thousand dollars ($1,000) per vessel voyage. This amount
may be adjusted for inflation every two years.
(2) In establishing fees, the State Lands Commission may establish
lower levels of fees and the maximum amount of fees for individual
shipping companies or vessels. Any fee schedule established,
including the level of fees and the maximum amount of fees, shall
take into account the impact of the fees on vessels operating from
California in the Hawaii or Alaska trades, the frequency of calls by
particular vessels to California ports within a year, the ballast
water practices of the vessels, and other relevant considerations.
(c) The fee shall be collected by the State Board of Equalization
from the owner or operator of each vessel that enters a California
port with ballast water loaded from outside the EEZ.
(d) Notwithstanding any other provision of law, all fees imposed
pursuant to this section shall be deposited into the Exotic Species
Control Fund.
(e) Notwithstanding any other provision of law, all penalties and
payments collected for violations of any requirements of this
division shall be deposited into the Exotic Species Control Fund.
CHAPTER 5. CIVIL PENALTIES
71216. (a) Except as provided in subdivision (b) or (c), any
person who intentionally or negligently fails to comply with the
requirements of this division may be liable for an administrative
civil penalty in an amount which shall not exceed five thousand
dollars ($5,000) for each violation. Each day of a continuing
violation constitutes a separate violation.
(b) Any person who fails to comply with the reporting requirements
set forth in Section 71205 may be liable for an administrative civil
penalty in an amount which shall not exceed five hundred dollars
($500) per violation. Each day of a continuing violation constitutes
a separate violation.
(c) Any person who, knowingly and with intent to deceive,
falsifies a ballast water control report form may be liable for an
administrative civil penalty in an amount which shall not exceed five
thousand dollars ($5,000) per violation. Each day of a continuing
violation constitutes a separate violation.
(d) The employees designated by the Executive Officer of the State
Lands Commission may enforce the requirements of this division.
(e) Any violation of this division may be referred by the
Executive Officer of the State Lands Commission to the administrator
for oil spill response, as appointed by the Governor pursuant to
Section 8670.4 of the Government Code, for the purpose of imposing
administrative civil penalties.
(f) The administrator may issue a complaint to any person on whom
civil liability may be imposed pursuant to this division. Any
hearing required shall be conducted pursuant to Section 8670.68 of
the Government Code.
CHAPTER 6. REPEAL
71271. This division shall remain in effect only until January 1,
2004, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2004, deletes or extends
that date.