CHAPTER 51 —CLEAN HULLS
SUBCHAPTER I—GENERAL PROVISIONS
SUBCHAPTER II—IMPLEMENTATION OF THE CONVENTION
SUBCHAPTER III—PROHIBITIONS AND ENFORCEMENT AUTHORITY
SUBCHAPTER IV—ACTION ON VIOLATION, PENALTIES, and REFERRALS
SUBCHAPTER I—GENERAL PROVISIONS
§3801. Definitions
In this chapter:
(1) Administrator
The term "Administrator" means the Administrator of the Environmental Protection Agency.
(2) Antifouling system
The term "antifouling system" means a coating, paint, surface treatment, surface, or device that is used or intended to be used on a vessel to control or prevent attachment of unwanted organisms.
(3) Convention
The term "Convention" means the International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001, including its annexes, and including any amendments to the Convention or annexes which have entered into force for the United States.
(4) FPSO
The term "FPSO" means a floating production, storage, or offloading unit.
(5) FSU
The term "FSU" means a floating storage unit.
(6) Gross tonnage
The term "gross tonnage" as defined in
(7) International voyage
The term "international voyage" means a voyage by a vessel entitled to fly the flag of one country to or from a port, shipyard, offshore terminal, or other place under the jurisdiction of another country.
(8) Organotin
The term "organotin" means any compound or additive of tin bound to an organic ligand, that is used or intended to be used as biocide in an antifouling system.
(9) Person
The term "person" means—
(A) any individual, partnership, association, corporation, or organized group of persons whether incorporated or not;
(B) any department, agency, or instrumentality of the United States, except as provided in
(C) any other government entity.
(10) Secretary
The term "Secretary" means the Secretary of the department in which the Coast Guard is operating.
(11) Sell or distribute
The term "sell or distribute" means to distribute, sell, offer for sale, hold for distribution, hold for sale, hold for shipment, ship, deliver for shipment, release for shipment, import, export, hold for import, hold for export, or receive and (having so received) deliver or offer to deliver.
(12) Vessel
The term "vessel" has the meaning given that term in
(13) Territorial sea
The term "territorial sea" means the territorial sea as described in Presidential Proclamation No. 5928 on December 27, 1988.
(14) United States
The term "United States" means the several States of the United States, the District of Columbia, Puerto Rico, Guam, American Samoa, the Virgin Islands, the Commonwealth of the Northern Marianas, and any other territory or possession over which the United States has jurisdiction.
(15) Use
The term "use" includes application, reapplication, installation, or any other employment of an antifouling system.
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Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this title", meaning title X of
Presidential Proclamation No. 5928, referred to in par. (13), is set out under
Amendments
2010—Par. (9)(B).
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
§3802. Covered vessels
(a) Included vessel
Except as provided in subsection (b), after the Convention enters into force for the United States, the following vessels are subject to the requirements of this chapter:
(1) A vessel documented under
(2) Any vessel permitted by a Federal agency to operate on the Outer Continental Shelf.
(3) Any other vessel when—
(A) in the internal waters of the United States;
(B) in any port, shipyard, offshore terminal, or other place in the United States;
(C) lightering in the territorial sea; or
(D) to the extent consistent with international law, anchoring in the territorial sea of the United States.
(b) Excluded vessels
(1) In general
The following vessels are not subject to the requirements of this chapter:
(A) Any warship, naval auxiliary, or other vessel owned or operated by a foreign state, and used, for the time being, only on government noncommercial service.
(B) Except as provided in paragraph (2), any warship, naval auxiliary, or other vessel owned or operated by the United States and used for the time being only on government noncommercial service.
(2) Application to United States government vessels
(A) In general
The Administrator may apply any requirement of this chapter to one or more classes of vessels described in paragraph (1)(B), if the head of the Federal department or agency under which those vessels operate concurs in that application.
(B) Limitation for combat-related vessel
Subparagraph (A) shall not apply to combat-related vessels.
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Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this title", meaning title X of
§3803. Administration and enforcement
(a) In general
Unless otherwise specified in this chapter, with respect to a vessel, the Secretary shall administer and enforce the Convention and this chapter.
(b) Administrator
Except with respect to section 3841(b) and (c) of this title, the Administrator shall administer and enforce subchapter III.
(c) Regulations
The Administrator and the Secretary may each prescribe and enforce regulations as may be necessary to carry out their respective responsibilities under this chapter.
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Editorial Notes
References in Text
This chapter, referred to in subsecs. (a) and (c), was in the original "this title", meaning title X of
§3804. Compliance with international law
Any action taken under this chapter shall be taken in accordance with treaties to which the United States is a party and other international obligations of the United States.
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Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this title", meaning title X of
§3805. Utilization of personnel, facilities or equipment of other Federal departments and agencies
The Secretary and the Administrator may utilize by agreement, with or without reimbursement, personnel, facilities, or equipment of other Federal departments and agencies in administering the Convention, this chapter, or any regulations prescribed under this chapter.
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Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this title", meaning title X of
SUBCHAPTER II—IMPLEMENTATION OF THE CONVENTION
§3821. Certificates
(a) Certificate required
On entry into force of the Convention for the United States, any vessel of at least 400 gross tons that engages in one or more international voyages (except fixed or floating platforms, FSUs, and FPSOs) shall carry an International Antifouling System Certificate.
(b) Issuance of Certificate
On entry into force of the Convention, on a finding that a successful survey required by the Convention has been completed, a vessel of at least 400 gross tons that engages in at least one international voyage (except fixed or floating platforms, FSUs, and FPSOs) shall be issued an International Antifouling System Certificate. The Secretary may issue the Certificate required by this section. The Secretary may delegate this authority to an organization that the Secretary determines is qualified to undertake that responsibility.
(c) Maintenance of Certificate
The Certificate required by this section shall be maintained as required by the Secretary.
(d) Certificates issued by other party countries
A Certificate issued by any country that is a party to the Convention has the same validity as a Certificate issued by the Secretary under this section.
(e) Vessels of nonparty countries
Notwithstanding subsection (a), a vessel of at least 400 gross tons, having the nationality of or entitled to fly the flag of a country that is not a party to the Convention, may demonstrate compliance with this chapter through other appropriate documentation considered acceptable by the Secretary.
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Editorial Notes
References in Text
This chapter, referred to in subsec. (e), was in the original "this title", meaning title X of
§3822. Declaration
(a) Requirements
On entry into force of the Convention for the United States, a vessel of at least 24 meters in length, but less than 400 gross tons engaged on an international voyage (except fixed or floating platforms, FSUs, and FPSOs) must carry a declaration described in subsection (b) that is signed by the owner or owner's authorized agent. That declaration shall be accompanied by appropriate documentation, such as a paint receipt or a contractor invoice, or contain an appropriate endorsement.
(b) Content of declaration
The declaration must contain a clear statement that the antifouling system on the vessel complies with the Convention. The Secretary may prescribe the form and other requirements of the declaration.
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§3823. Other compliance documentation
In addition to the requirements under
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Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this title", meaning title X of
§3824. Process for considering additional controls
(a) Actions by Administrator
The Administrator may—
(1) participate in the technical group described in Article 7 of the Convention, and in any other body convened pursuant to the Convention for the consideration of new or additional controls on antifouling systems;
(2) evaluate any risks of adverse effects on nontarget organisms or human health presented by a given antifouling system such that the amendment of annex 1 of the Convention may be warranted;
(3) undertake an assessment of relevant environmental, technical, and economic considerations necessary to evaluate any proposals for new or additional controls of antifouling systems under the Convention, including benefits in the United States and elsewhere associated with the production and use in the United States and elsewhere, of the subject antifouling system; and
(4) develop recommendations based on that assessment.
(b) Referrals to technical group
(1) Convening of Shipping Coordinating Committee
On referral of any antifouling system to the technical group described in article 7 of the Convention for consideration of new or additional controls, the Secretary of State shall convene a public meeting of the Shipping Coordinating Committee for the purpose of receiving information and comments regarding controls on such antifouling system. The Secretary of State shall publish advance notice of such meeting in the Federal Register and on the State Department's Web site. The Administrator shall assemble and maintain a public docket containing notices pertaining to that meeting, any comments responding to those notices, the minutes of that meeting, and materials presented at that meeting.
(2) Report by technical group
The Administrator shall promptly make any report by the technical group described in the Convention available to the public through the docket established pursuant to subsection (b) and announce the availability of that report in the Federal Register. The Administrator shall provide an opportunity for public comment on the report for a period of not less than 30 days from the time the availability of the report is announced in the Federal Register.
(3) Consideration of comments
To the extent practicable, the Administrator shall take any comments into consideration in developing recommendations under subsection (a).
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§3825. Scientific and technical research and monitoring; communication and information
The Secretary, the Administrator, and the Administrator of the National Oceanic and Atmospheric Administration may each undertake scientific and technical research and monitoring pursuant to article 8 of the Convention and to promote the availability of relevant information concerning—
(1) scientific and technical activities undertaken in accordance with the Convention;
(2) marine scientific and technological programs and their objectives; and
(3) the effects observed from any monitoring and assessment programs relating to antifouling systems.
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§3826. Communication and exchange of information
(a) In general
Except as provided in subsection (b), with respect to those antifouling systems regulated by the Administrator, the Administrator shall provide to any party to the Convention that requests it, relevant information on which the decision to regulate was based, including information provided for in annex 3 to the Convention, or other information suitable for making an appropriate evaluation of the antifouling system.
(b) Limitation
This section shall not be construed to authorize the provision of information the disclosure of which is otherwise prohibited by law.
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SUBCHAPTER III—PROHIBITIONS AND ENFORCEMENT AUTHORITY
§3841. Prohibitions
(a) In general
Notwithstanding any other provision of law, it is unlawful for any person—
(1) to act in violation of this chapter, or any regulation prescribed under this chapter;
(2) to sell or distribute in domestic or international commerce organotin or an antifouling system containing organotin;
(3) to manufacture, process, or use organotin to formulate an antifouling system;
(4) to apply an antifouling system containing organotin on any vessel to which this chapter applies; or
(5) after the Convention enters into force for the United States, to apply or otherwise use in a manner inconsistent with the Convention, an antifouling system on any vessel that is subject to this chapter.
(b) Vessel hulls
Except as provided in subsection (c), no vessel shall bear on its hull or outer surface any antifouling system containing organotin, regardless of when such system was applied, unless that vessel bears an overcoating which forms a barrier to organotin leaching from the underlying antifouling system.
(c) Limitations
(1) Excepted vessel
Subsection (b) does not apply to fixed or floating platforms, FSUs, or FPSOs that were constructed prior to January 1, 2003, and that have not been in dry dock on or after that date.
(2) Sale, manufacture, etc.
This section does not apply to—
(A) the sale, distribution, or use pursuant to any agreement between the Administrator and any person that results in an earlier prohibition or cancellation date than specified in this chapter; or
(B) the manufacture, processing, formulation, sale, distribution, or use of organotin or antifouling systems containing organotin used or intended for use only for sonar domes or in conductivity sensors in oceanographic instruments.
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Editorial Notes
References in Text
This chapter, referred to in subsecs. (a)(1), (4), (5) and (c)(2)(A), was in the original "this title", meaning title X of
§3842. Investigations and inspections by Secretary
(a) In general
The Secretary may conduct investigations and inspections regarding a vessel's compliance with this chapter or the Convention.
(b) Violations; subpoenas
(1) In general
In any investigation under this section, the Secretary may issue a subpoena to require the attendance of a witness or the production of documents or other evidence if—
(A) before the issuance of the subpoena, the Secretary requests a determination by the Attorney General of the United States as to whether the subpoena will interfere with a criminal investigation; and
(B) the Attorney General—
(i) determines that the subpoena will not interfere with a criminal investigation; or
(ii) fails to make a determination under clause (i) before the date that is 30 days after the date on which the Secretary makes a request under subparagraph (A).
(2) Enforcement
In the case of refusal to obey a subpoena issued to any person under this subsection, the Secretary may request the Attorney General to invoke the aid of the appropriate district court of the United States to compel compliance.
(c) Further action
On completion of an investigation, the Secretary may take whatever further action the Secretary considers appropriate under the Convention or this chapter.
(d) Cooperation
The Secretary may cooperate with other parties to the Convention in the detection of violations and in enforcement of the Convention. Nothing in this section affects or alters requirements under any other laws.
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Editorial Notes
References in Text
This chapter, referred to in subsecs. (a) and (c), was in the original "this title", meaning title X of
§3843. EPA enforcement
(a) Inspections, subpoenas
(1) In general
For purposes of enforcing this chapter or any regulation prescribed under this chapter, officers or employees of the Environmental Protection Agency or of any State designated by the Administrator may enter at reasonable times any location where there is being held or may be held organotin or any other substance or antifouling system regulated under the Convention, for the purpose of inspecting and obtaining samples of any containers or labeling for organotin or other substance or system regulated under the Convention.
(2) Subpoenas
(A) In general
In any investigation under this section, the Administrator may issue a subpoena to require the attendance of a witness or the production of documents or other evidence if—
(i) before the issuance of the subpoena, the Administrator requests a determination by the Attorney General of the United States as to whether the subpoena will interfere with a criminal investigation; and
(ii) the Attorney General—
(I) determines that the subpoena will not interfere with a criminal investigation; or
(II) fails to make a determination under subclause (I) before the date that is 30 days after the date on which the Administrator makes a request under clause (i).
(B) Enforcement
In the case of refusal to obey a subpoena issued to any person under this paragraph, the Administrator may request the Attorney General to invoke the aid of the appropriate district court of the United States to compel compliance.
(b) Stop manufacture, sale, use, or removal orders
Consistent with
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Editorial Notes
References in Text
This chapter, referred to in subsecs. (a)(1) and (b), was in the original "this title", meaning title X of
§3844. Additional authority of the Administrator
The Administrator, in consultation with the Secretary, may establish, as necessary, terms and conditions regarding the removal and disposal of antifouling systems prohibited or restricted under this chapter.
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Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this title", meaning title X of
SUBCHAPTER IV—ACTION ON VIOLATION, PENALTIES, AND REFERRALS
§3851. Criminal enforcement
Any person who knowingly violates paragraph (2), (3), (4), or (5) of
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§3852. Civil enforcement
(a) Civil penalty
(1) In general
Any person who is found by the Secretary or the Administrator, as appropriate, after notice and an opportunity for a hearing, to have—
(A) violated the Convention, this chapter, or any regulation prescribed under this chapter, is liable to the United States Government for a civil penalty of not more than $37,500 for each violation; or
(B) made a false, fictitious, or fraudulent statement or representation in any matter in which a statement or representation is required to be made to the Secretary under the Convention, this chapter, or any regulations prescribed under this chapter, is liable to the United States for a civil penalty of not more than $50,000 for each such statement or representation.
(2) Relationship to other law
This subsection shall not limit or affect the authority of the Government under
(b) Assessment of penalty
The amount of the civil penalty shall be assessed by the Secretary or Administrator, as appropriate, by written notice.
(c) Limitation for recreational vessel
A civil penalty imposed under subsection (a) against the owner or operator of a recreational vessel, as that term is defined in
(d) Determination of penalty
For purposes of penalties under this section, each day of a continuing violation constitutes a separate violation. In determining the amount of the penalty, the Secretary or Administrator shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, the economic impact of the penalty on the violator, the economic benefit to the violator and other matters as justice may require.
(e) Reward
An amount equal to not more than one-half of any civil penalty assessed by the Secretary or Administrator under this section may, subject to the availability of appropriations, be paid by the Secretary or Administrator, respectively, to any person who provided information that led to the assessment or imposition of the penalty.
(f) Referral to Attorney General
If any person fails to pay a civil penalty assessed under this section after it has become final, or comply with an order issued under this chapter, the Secretary or Administrator, as appropriate, may refer the matter to the Attorney General of the United States for collection in any appropriate district court of the United States.
(g) Compromise, modification, or remission
Before referring any civil penalty that is subject to assessment or has been assessed under this section to the Attorney General, the Secretary, or Administrator, as appropriate, may compromise, modify, or remit, with or without conditions, the civil penalty.
(h) Nonpayment penalty
Any person who fails to pay on a timely basis a civil penalty assessed under this section shall also be liable to the United States for interest on the penalty at an annual rate equal to 11 percent compounded quarterly, attorney fees and costs for collection proceedings, and a quarterly nonpayment penalty for each quarter during which such failure to pay persists. That nonpayment penalty shall be in an amount equal to 20 percent of the aggregate amount of that person's penalties and nonpayment penalties that are unpaid as of the beginning of that quarter.
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Editorial Notes
References in Text
This chapter, referred to in subsecs. (a)(1), (c), and (f), was in the original "this title", meaning title X of
§3853. Liability in rem
A vessel operated in violation of the Convention, this chapter, or any regulation prescribed under this chapter, is liable in rem for any fine imposed under title 18 or civil penalty assessed pursuant to
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Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this title", meaning title X of
Amendments
2010—
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
§3854. Vessel clearance or permits; refusal or revocation; bond or other surety
If any vessel that is subject to the Convention or this chapter, or its owner, operator, or person in charge, is liable for a fine or civil penalty under
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Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this title", meaning title X of
§3855. Warnings, detentions, dismissals, exclusion
(a) In general
If a vessel is detected to be in violation of the Convention, this chapter, or any regulation prescribed under this chapter, the Secretary may warn, detain, dismiss, or exclude the vessel from any port or offshore terminal under the jurisdiction of the United States.
(b) Notifications
If action is taken under subsection (a), the Secretary, in consultation with the Secretary of State, shall make the notifications required by the Convention.
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Editorial Notes
References in Text
This chapter, referred to in subsec. (a), was in the original "this title", meaning title X of
§3856. Referrals for appropriate action by foreign country
Notwithstanding
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Editorial Notes
References in Text
This subchapter, referred to in text, was in the original "this subtitle", meaning subtitle D (§§1041–1048) of title X of
§3857. Remedies not affected
(a) In general
Nothing in this chapter limits, denies, amends, modifies, or repeals any other remedy available to the United States.
(b) Relationship to State and local law
Nothing in this chapter limits, denies, amends, modifies, or repeals any rights under existing law, of any State, territory, or possession of the United States, or any political subdivision thereof, to regulate any antifouling system. Compliance with the requirements of a State, territory, or possession of the United States, or political subdivision thereof related to antifouling paint or any other antifouling system does not relieve any person of the obligation to comply with this chapter.
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Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this title", meaning title X of