Assembly Bill A5438

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5438

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 13, 2009
                               ___________

Introduced  by M. of A. KOON, FIELDS, PHEFFER, CAHILL -- Multi-Sponsored
  by -- M. of A. GLICK -- read once and referred  to  the  Committee  on
  Environmental Conservation

AN  ACT  to  amend  the  environmental  conservation law, in relation to
  ballast water management

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The legislature finds that some nonindigenous species and
certain pathogens have the potential to  cause  economic,  environmental
and  health  and  safety damage to the state and that current efforts to
stop the introduction of nonindigenous  species  and  certain  pathogens
from shipping vessels do not adequately reduce the risk of new introduc-
tions  into  New  York's  waters.  New York's interest in protecting the
health, safety and welfare of its citizens, its  natural  resources  and
environment  is  a  legitimate  local  interest  falling well within the
traditional police powers of the several states.
  The legislature, however, recognizes the  international  ramifications
and the rapidly changing dimensions of this issue, as well as the diffi-
culty  that  any one state has in either legally or practically managing
this issue. However, congress,  recognizing  that  the  states  and  the
federal  government  should work in concert on this issue, inserted into
the National Indigenous Species Act of 1996, 16 U.S.C. S 4701 et seq., a
specific provision, at 16 U.S.C. S4725,  which  disclaims  congressional
intent  to  preempt states from acting to control nonindigenous species.
Acknowledging the possible limits of state  jurisdiction  over  interna-
tional  waters,  the legislature declares its support for the efforts of
the United States coast guard and international maritime  organizations.
New  York  intends to complement the United States coast guard's ballast
water management program.
  S 2. Article 17 of the environmental conservation law  is  amended  by
adding a new title 21 to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02463-01-9
              

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                                TITLE 21
                        BALLAST WATER MANAGEMENT
SECTION 17-2101. SHORT TITLE.
        17-2103. DEFINITIONS.
        17-2105. APPLICATION.
        17-2107. AUTHORIZED BALLAST WATER DISCHARGE.
        17-2109. REPORTING AND SAMPLING REQUIREMENTS.
        17-2111. VIOLATIONS AND PENALTIES.
S  17-2101. SHORT TITLE.
  THIS  TITLE  SHALL  BE  KNOWN  AND  MAY BE CITED AS THE "BALLAST WATER
MANAGEMENT ACT".
S 17-2103. DEFINITIONS.
  AS USED IN THIS TITLE:
  1. "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.
  2.  "BALLAST WATER" MEANS ANY WATER AND MATTER TAKEN ON BOARD A VESSEL
TO CONTROL OR MAINTAIN TRIM, DRAFT, STABILITY OR STRESS OF  THE  VESSEL,
WITHOUT REGARD TO THE MANNER IN WHICH IT IS CARRIED.
  3. "EMPTY/REFILL EXCHANGE" MEANS TO PUMP OUT UNTIL THE BALLAST TANK IS
EMPTY  OR  AS  CLOSE  TO  EMPTY  AS THE MASTER OR OPERATOR OF THE VESSEL
DETERMINES IS SAFE, THE BALLAST WATER TAKEN ON IN PORTS,  ESTUARINE,  OR
TERRITORIAL  WATERS,  AND  THEN REFILLING THE BALLAST TANK WITH OPEN SEA
WATERS.
  4. "FLOW THROUGH EXCHANGE" MEANS TO FLUSH OUT BALLAST WATER BY PUMPING
IN MIDOCEAN WATER AT THE BOTTOM OF THE  BALLAST  TANK  AND  CONTINUOUSLY
OVERFLOWING  THE  BALLAST  TANK FROM THE TOP UNTIL THREE FULL VOLUMES OF
WATER HAVE BEEN CHANGED TO MINIMIZE THE  NUMBER  OF  ORIGINAL  ORGANISMS
REMAINING IN THE BALLAST TANK.
  5.  "NONINDIGENOUS  SPECIES" MEANS ANY SPECIES OR OTHER VIABLE BIOLOG-
ICAL MATERIAL THAT ENTERS AN ECOSYSTEM BEYOND ITS NATURAL RANGE.
  6. "OPEN SEA EXCHANGE" MEANS AN EXCHANGE THAT  OCCURS  FIFTY  OR  MORE
NAUTICAL  MILES  OFFSHORE.  IF  THE UNITED STATES COAST GUARD REQUIRES A
VESSEL TO CONDUCT AN EXCHANGE FURTHER OFFSHORE, THEN  THAT  DISTANCE  IS
THE REQUIRED DISTANCE FOR PURPOSES OF COMPLIANCE WITH THIS TITLE.
  7.  "RECOGNIZED  MARINE  TRADE  ASSOCIATION" MEANS THOSE TRADE ASSOCI-
ATIONS IN THE STATE THAT PROMOTE IMPROVED BALLAST WATER MANAGEMENT PRAC-
TICES BY EDUCATING THEIR  MEMBERS  ON  THE  PROVISIONS  OF  THIS  TITLE,
PARTICIPATING  IN  REGIONAL  BALLAST  WATER  COORDINATION, ASSISTING THE
DEPARTMENT IN THE COLLECTION OF BALLAST WATER EXCHANGE  FORMS,  AND  THE
MONITORING OF BALLAST WATER.
  8.  "SEDIMENT"  MEANS ANY MATTER SETTLED OUT OF BALLAST WATER WITHIN A
VESSEL.
  9. "UNTREATED BALLAST WATER" MEANS EXCHANGED  OR  UNEXCHANGED  BALLAST
WATER THAT HAS NOT UNDERGONE TREATMENT.
  10.  "VESSEL" MEANS A SELF-PROPELLED SHIP IN COMMERCE OF THREE HUNDRED
GROSS TONS OR MORE.
  11. "VOYAGE" MEANS ANY TRANSIT BY A VESSEL DESTINED FOR  ANY  PORT  IN
THE STATE.
  12.  "WATERS  OF THE STATE" SHALL HAVE THE SAME MEANING AS PROVIDED IN
SUBDIVISION 2 OF SECTION 17-0105 OF THIS ARTICLE.
S 17-2105. APPLICATION.
  1. THIS TITLE SHALL APPLY TO ALL VESSELS CARRYING BALLAST  WATER  INTO
THE WATERS OF THE STATE FROM A VOYAGE, EXCEPT:
  A.  A  VESSEL  OF  THE  UNITED  STATES DEPARTMENT OF DEFENSE OR UNITED
STATES COAST GUARD SUBJECT TO THE REQUIREMENTS OF SECTION  1103  OF  THE

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NATIONAL  INDIGENOUS  SPECIES  ACT  OF  1996, OR ANY VESSEL OF THE ARMED
FORCES, AS DEFINED IN 33 U.S.C. SEC. 1322(A)(14), THAT IS SUBJECT TO THE
UNIFORM NATIONAL DISCHARGE STANDARDS FOR VESSELS  OF  THE  ARMED  FORCES
UNDER 33 U.S.C. SEC. 1322(N);
  B.  A VESSEL (I) THAT DISCHARGES BALLAST WATER OR SEDIMENT ONLY AT THE
LOCATION WHERE THE BALLAST WATER OR SEDIMENT ORIGINATED, IF THE  BALLAST
WATER OR SEDIMENT DOES NOT MIX WITH BALLAST WATER OR SEDIMENT FROM AREAS
OTHER  THAN  OPEN  SEA  WATERS;  OR (II) THAT DOES NOT DISCHARGE BALLAST
WATER IN WATERS OF THE STATE;
  C. A VESSEL TRAVERSING THE INTERNAL WATERS OF THE STATE, (I) BOUND FOR
A PORT IN CANADA, AND NOT ENTERING OR DEPARTING A UNITED STATES PORT, OR
(II) A VESSEL IN INNOCENT PASSAGE, WHICH IS A VESSEL  MERELY  TRAVERSING
THE TERRITORIAL SEA OF THE UNITED STATES AND NOT ENTERING OR DEPARTING A
UNITED STATES PORT, OR (III) A VESSEL NOT NAVIGATING THE INTERNAL WATERS
OF THE UNITED STATES; OR
  D.  A  CRUDE  OIL  TANKER  THAT DOES NOT EXCHANGE OR DISCHARGE BALLAST
WATER INTO THE WATERS OF THE STATE.
  2. THIS TITLE SHALL NOT BE DEEMED TO AUTHORIZE THE DISCHARGE OF OIL OR
NOXIOUS LIQUID SUBSTANCES IN A MANNER PROHIBITED BY STATE,  FEDERAL,  OR
INTERNATIONAL LAWS OR REGULATIONS. BALLAST WATER CONTAINING OIL, NOXIOUS
LIQUID SUBSTANCES, OR ANY OTHER POLLUTANT SHALL BE DISCHARGED IN ACCORD-
ANCE WITH THE APPLICABLE REQUIREMENTS.
  3.   NOTHING IN THIS TITLE SHALL BE CONSTRUED TO RELIEVE THE MASTER OR
OPERATOR IN CHARGE OF A VESSEL OF THE RESPONSIBILITY  FOR  ENSURING  THE
SAFETY AND STABILITY OF THE VESSEL OR THE SAFETY OF THE CREW AND PASSEN-
GERS.
S 17-2107. AUTHORIZED BALLAST WATER DISCHARGE.
  1. THE OWNER OR OPERATOR IN CHARGE OF ANY VESSEL COVERED BY THIS TITLE
SHALL  BE  REQUIRED  TO  ENSURE  THAT  THE VESSEL UNDER ITS OWNERSHIP OR
CONTROL DOES NOT DISCHARGE BALLAST WATER INTO THE WATERS  OF  THE  STATE
EXCEPT AS AUTHORIZED BY THIS SECTION.
  A.  DISCHARGE  OF BALLAST WATER INTO WATERS OF THE STATE IS AUTHORIZED
IF THE VESSEL HAS CONDUCTED AN OPEN SEA EXCHANGE  OF  BALLAST  WATER.  A
VESSEL  IS  EXEMPT  FROM  THIS  REQUIREMENT  IF  (I) THE VESSEL'S MASTER
REASONABLY DETERMINES THAT SUCH A BALLAST WATER EXCHANGE OPERATION  WILL
THREATEN THE SAFETY OF THE VESSEL OR THE VESSEL'S CREW OR PASSENGERS, OR
(II)  DISCHARGE  IS  NOT  FEASIBLE  DUE  TO VESSEL DESIGN LIMITATIONS OR
EQUIPMENT FAILURE. IF A VESSEL RELIES ON THIS  EXEMPTION,  THEN  IT  MAY
DISCHARGE  BALLAST  WATER  INTO  WATERS  OF  THE  STATE,  SUBJECT TO THE
REQUIREMENTS OF TREATMENT UNDER PARAGRAPH  B  OF  THIS  SUBDIVISION  AND
SUBJECT TO SECTION 17-2109 OF THIS TITLE.
  B.  AFTER  JULY FIRST, TWO THOUSAND ELEVEN, DISCHARGE OF BALLAST WATER
INTO WATERS OF THE STATE IS AUTHORIZED ONLY IF THERE HAS  BEEN  AN  OPEN
SEA  EXCHANGE  OR  IF  THE  VESSEL HAS TREATED ITS BALLAST WATER TO MEET
STANDARDS SET BY THE DEPARTMENT. WHEN WEATHER OR  EXTRAORDINARY  CIRCUM-
STANCES  MAKE  ACCESS TO TREATMENT UNSAFE TO THE VESSEL, CREW OR PASSEN-
GERS, THE MASTER OF A VESSEL MAY DELAY  COMPLIANCE  WITH  ANY  TREATMENT
REQUIRED  UNDER THIS SUBDIVISION UNTIL IT IS SAFE TO COMPLETE THE TREAT-
MENT.
  2. THE REQUIREMENTS OF THIS SECTION DO NOT APPLY TO A VESSEL DISCHARG-
ING BALLAST WATER OR SEDIMENT THAT ORIGINATED SOLELY WITHIN  THE  WATERS
OF THE STATE.
S 17-2109. REPORTING AND SAMPLING REQUIREMENTS.
  THE OWNER OR OPERATOR IN CHARGE OF ANY VESSEL COVERED BY THIS TITLE IS
REQUIRED  TO  ENSURE  THAT  THE  VESSEL  UNDER  ITS OWNERSHIP OR CONTROL
COMPLIES WITH THE REPORTING AND SAMPLING REQUIREMENTS OF THIS SECTION.

A. 5438                             4

  1. VESSELS COVERED BY THIS TITLE MUST REPORT BALLAST WATER  MANAGEMENT
INFORMATION,  INCLUDING  INDIVIDUAL  BALLAST  TANK  SAMPLE DATA FOR EACH
VOYAGE, TO THE DEPARTMENT USING BALLAST WATER MANAGEMENT FORMS THAT  ARE
ACCEPTABLE  TO THE UNITED STATES COAST GUARD. THE FREQUENCY, MANNER, AND
FORM OF SUCH REPORTING SHALL BE ESTABLISHED BY THE DEPARTMENT BY RULE.
  2. ALL VESSELS COVERED BY THIS TITLE MUST SUBMIT NONINDIGENOUS SPECIES
BALLAST WATER MONITORING DATA TO THE DEPARTMENT.  THE MONITORING, SAMPL-
ING, TESTING PROTOCOLS, AND METHODS OF IDENTIFYING NONINDIGENOUS SPECIES
IN BALLAST WATER SHALL BE DETERMINED BY THE DEPARTMENT BY RULE.
  3.  ALL DATA SUBMITTED TO THE DEPARTMENT UNDER SUBDIVISION TWO OF THIS
SECTION SHALL ADHERE TO THE SAMPLING AND TESTING PROTOCOLS AS ADOPTED BY
THE DEPARTMENT.
  4. THE DEPARTMENT SHALL ADOPT RULES TO  IMPLEMENT  THIS  SECTION.  THE
RULES  AND  RECOMMENDATIONS  SHALL BE DEVELOPED IN CONSULTATION WITH THE
STATE  DEPARTMENT  OF  HEALTH,  REGULATED  INDUSTRIES  AND   POTENTIALLY
AFFECTED  PARTIES,  INCLUDING  BUT  NOT  LIMITED  TO SHIPPING INTERESTS,
PORTS, SHELLFISH GROWERS, FISHERIES, ENVIRONMENTAL INTERESTS, INTERESTED
CITIZENS WHO HAVE KNOWLEDGE OF THE ISSUES, AND APPROPRIATE  GOVERNMENTAL
REPRESENTATIVES INCLUDING THE UNITED STATES COAST GUARD.
  A.  THE  DEPARTMENT  SHALL  SET STANDARDS FOR THE DISCHARGE OF TREATED
BALLAST WATER INTO THE WATERS OF THE STATE. SUCH STANDARDS SHALL  ENSURE
THAT THE DISCHARGE OF TREATED BALLAST WATER POSES MINIMAL RISK OF INTRO-
DUCING  NONINDIGENOUS  SPECIES. IN DEVELOPING SUCH STANDARDS THE DEPART-
MENT SHALL CONSIDER THE EXTENT TO WHICH THE  REQUIREMENT  IS  TECHNOLOG-
ICALLY  AND  PRACTICALLY  FEASIBLE. WHERE PRACTICAL AND APPROPRIATE, THE
STANDARDS SHALL BE COMPATIBLE WITH STANDARDS SET BY  THE  UNITED  STATES
COAST  GUARD  AND  SHALL  BE  DEVELOPED IN CONSULTATION WITH FEDERAL AND
STATE AGENCIES TO ENSURE CONSISTENCY WITH THE FEDERAL CLEAN  WATER  ACT,
33 U.S.C. S 1251-1387.
  B.  THE  DEPARTMENT  SHALL  ADOPT  BALLAST  WATER SAMPLING AND TESTING
PROTOCOLS FOR MONITORING THE BIOLOGICAL COMPONENTS OF BALLAST WATER THAT
MAY BE DISCHARGED INTO THE WATERS OF THE STATE UNDER THIS  TITLE.    THE
SAMPLING AND TESTING PROTOCOLS MUST CONSIST OF COST-EFFECTIVE, SCIENTIF-
ICALLY  VERIFIABLE  METHODS  THAT, TO THE EXTENT PRACTICABLE AND WITHOUT
COMPROMISING  THE  PURPOSES  OF  THIS  TITLE,  UTILIZE  EASILY  MEASURED
INDICES,  THAT  INDICATE THE POTENTIAL PRESENCE OF NONINDIGENOUS SPECIES
OR PATHOGENIC SPECIES. THE DEPARTMENT SHALL SPECIFY APPROPRIATE  QUALITY
ASSURANCE AND QUALITY CONTROL FOR THE SAMPLING AND TESTING PROTOCOLS.
  5.  THE DEPARTMENT SHALL UTILIZE MONITORING DATA TO MONITOR THE EFFEC-
TIVENESS OF NATIONAL AND INTERNATIONAL EFFORTS TO PREVENT THE  INTRODUC-
TION  OF  NONINDIGENOUS SPECIES, TO EVALUATE THE RISK OF NEW, NONINDIGE-
NOUS SPECIES INTRODUCTIONS FROM THE DISCHARGE OF BALLAST WATER,  AND  TO
EVALUATE THE ACCURACY OF BALLAST WATER EXCHANGE PRACTICES.
  6. THE DEPARTMENT SHALL CONSULT WITH FEDERAL AND STATE AGENCIES, REGU-
LATED  INDUSTRIES  AND  POTENTIALLY AFFECTED PARTIES IN CARRYING OUT THE
PROVISIONS OF THIS SECTION. TO THE EXTENT  PRACTICABLE,  THE  DEPARTMENT
MAY  DEVELOP PILOT PROJECTS TO ENCOURAGE THE DEVELOPMENT OF EQUIPMENT OR
METHODS TO TEST AND/OR TREAT BALLAST WATER.
S 17-2111. VIOLATIONS AND PENALTIES.
  1. EXCEPT AS LIMITED BY SUBDIVISION TWO OR THREE OF THIS SECTION,  THE
COMMISSIONER  OR  THE COMMISSIONER'S DESIGNEE MAY IMPOSE A CIVIL PENALTY
OR WARNING FOR A VIOLATION OF THE REQUIREMENTS  OF  THIS  TITLE  ON  THE
OWNER  OR  OPERATOR  IN  CHARGE OF A VESSEL WHO FAILS TO COMPLY WITH THE
REQUIREMENTS IMPOSED UNDER SECTION 17-2109 OF THIS  TITLE.  THE  PENALTY
SHALL  NOT EXCEED FIVE THOUSAND DOLLARS FOR EACH VIOLATION. IN DETERMIN-
ING THE AMOUNT OF CIVIL PENALTY, THE DEPARTMENT SHALL  CONSIDER  IF  THE

A. 5438                             5

VIOLATION  WAS  INTENTIONAL,  NEGLIGENT, OR WITHOUT ANY FAULT, AND SHALL
CONSIDER THE QUALITY AND NATURE OF RISKS CREATED BY THE VIOLATION.   THE
OWNER  OR  OPERATOR  IN CHARGE OF A VESSEL SUBJECT TO SUCH A PENALTY MAY
CONTEST  THE DETERMINATION BY REQUESTING AN ADJUDICATIVE PROCEEDING FROM
THE DEPARTMENT WITHIN TWENTY DAYS OF THE IMPOSITION OF ANY CIVIL PENALTY
IMPOSED BY THE DEPARTMENT. ANY DETERMINATION  NOT  TIMELY  CONTESTED  IS
FINAL  AND  MAY  BE  REDUCED TO A JUDGMENT ENFORCEABLE IN ANY COURT WITH
JURISDICTION. IF THE DEPARTMENT PREVAILS USING ANY JUDICIAL  PROCESS  TO
COLLECT  A  PENALTY  UNDER  THIS  SECTION,  THE DEPARTMENT SHALL ALSO BE
AWARDED ITS COSTS AND REASONABLE ATTORNEY'S FEES.
  2. THE CIVIL PENALTY FOR A  VIOLATION  OF  REPORTING  REQUIREMENTS  OF
SECTION  17-2109 OF THIS TITLE SHALL NOT EXCEED FIVE HUNDRED DOLLARS PER
VIOLATION.
  3. ANY OWNER OR OPERATOR OR ANY MARINE TRADE ASSOCIATION WHO  KNOWING-
LY,  AND  WITH  INTENT  TO DECEIVE, FALSIFIES A BALLAST WATER MANAGEMENT
REPORT FORM IS LIABLE FOR A CIVIL PENALTY IN AN  AMOUNT  NOT  TO  EXCEED
FIVE THOUSAND DOLLARS PER VIOLATION, IN ADDITION TO ANY CRIMINAL LIABIL-
ITY THAT MAY ATTACH TO THE FILING OF FALSE DOCUMENTS.
  S  3. This act shall take effect one year after it shall have become a
law; provided that the department of  environmental  conservation  shall
promulgate  any  and all regulations necessitated by this act within one
hundred eighty days after it shall have become a law.