SEC. 401. Codification of Ports and Waterways Safety Act.
“CHAPTER 700— PORTS AND WATERWAYS SAFETY
“subchapter a—vessel operations
“70001. Vessel traffic services.
“70002. Special powers.
“70003. Port access routes.
“70004. Considerations by Secretary.
“70005. International agreements.
“subchapter b—ports and waterways safety
“70011. Waterfront safety.
“70012. Navigational hazards.
“70013. Requirement to notify Coast Guard of release of objects into the navigable waters of the United States.
“subchapter c—condition for entry into ports in the united states
“70021. Conditions for entry to ports in the united states.
“subchapter d—definitions, regulations, enforcement, investigatory powers, applicability
“70031. Definitions.
“70032. Saint Lawrence Seaway.
“70033. Limitation on application to foreign vessels.
“70034. Regulations.
“70035. Investigatory powers.
“70036. Enforcement.
“SUBCHAPTER I— VESSEL OPERATIONS
Ҥ 70001. Vessel traffic services
“(a) Subject to the requirements of section 70004, the Secretary—
“(1) in any port or place under the jurisdiction of the United States, in the navigable waters of the United States, or in any area covered by an international agreement negotiated pursuant to section 70005, may construct, operate, maintain, improve, or expand vessel traffic services, that consist of measures for controlling or supervising vessel traffic or for protecting navigation and the marine environment and that may include one or more of reporting and operating requirements, surveillance and communications systems, routing systems, and fairways;
“(2) shall require appropriate vessels that operate in an area of a vessel traffic service to utilize or comply with that service;
“(3)
(A) may require vessels to install and use specified navigation equipment, communications equipment, electronic relative motion analyzer equipment, or any electronic or other device necessary to comply with a vessel traffic service or that is necessary in the interests of vessel safety.
“(B) Notwithstanding subparagraph (A), the Secretary shall not require fishing vessels under 300 gross tons as measured under section 14502, or an alternate tonnage measured under section 14302 as prescribed by the Secretary under section 14104, or recreational vessels 65 feet or less to possess or use the equipment or devices required by this subsection solely under the authority of this chapter;
“(4) may control vessel traffic in areas subject to the jurisdiction of the United States that the Secretary determines to be hazardous, or under conditions of reduced visibility, adverse weather, vessel congestion, or other hazardous circumstances, by—
“(A) specifying times of entry, movement, or departure;
“(B) establishing vessel traffic routing schemes;
“(C) establishing vessel size, speed, or draft limitations and vessel operating conditions; and
“(D) restricting operation, in any hazardous area or under hazardous conditions, to vessels that have particular operating characteristics or capabilities that the Secretary considers necessary for safe operation under the circumstances;
“(5) may require the receipt of prearrival messages from any vessel, destined for a port or place subject to the jurisdiction of the United States, in sufficient time to permit advance vessel traffic planning before port entry, which shall include any information that is not already a matter of record and that the Secretary determines necessary for the control of the vessel and the safety of the port or the marine environment; and
“(6) may prohibit the use on vessels of electronic or other devices that interfere with communication and navigation equipment, except that such authority shall not apply to electronic or other devices certified to transmit in the maritime services by the Federal Communications Commission and used within the frequency bands 157.1875–157.4375 MHz and 161.7875–162.0375 MHz.
“(b) Cooperative Agreements.—
“(1) In general.—The Secretary may enter into cooperative agreements with public or private agencies, authorities, associations, institutions, corporations, organizations, or other persons to carry out the functions under subsection (a)(1).
“(2) Limitation.—
“(A) A nongovernmental entity may not under this subsection carry out an inherently governmental function.
“(B) As used in this paragraph, the term ‘inherently governmental function’ means any activity that is so intimately related to the public interest as to mandate performance by an officer or employee of the Federal Government, including an activity that requires either the exercise of discretion in applying the authority of the Government or the use of judgment in making a decision for the Government.
“(c) Limitation of Liability for Coast Guard Vessel Traffic Service Pilots and Non-Federal Vessel Traffic Service Operators.—
“(1) Coast guard vessel traffic service pilots.—Any pilot, acting in the course and scope of his or her duties while at a Coast Guard Vessel Traffic Service, who provides information, advice, or communication assistance while under the supervision of a Coast Guard officer, member, or employee shall not be liable for damages caused by or related to such assistance unless the acts or omissions of such pilot constitute gross negligence or willful misconduct.
“(2) Non-federal vessel traffic service operators.—An entity operating a non-Federal vessel traffic information service or advisory service pursuant to a duly executed written agreement with the Coast Guard, and any pilot acting on behalf of such entity, is not liable for damages caused by or related to information, advice, or communication assistance provided by such entity or pilot while so operating or acting unless the acts or omissions of such entity or pilot constitute gross negligence or willful misconduct.
Ҥ 70002. Special powers
“The Secretary may order any vessel, in a port or place subject to the jurisdiction of the United States or in the navigable waters of the United States, to operate or anchor in a manner the Secretary directs if—
“(1) the Secretary has reasonable cause to believe such vessel does not comply with any regulation issued under section 70034 or any other applicable law or treaty;
“(2) the Secretary determines such vessel does not satisfy the conditions for port entry set forth in section 70021 of this title; or
“(3) by reason of weather, visibility, sea conditions, port congestion, other hazardous circumstances, or the condition of such vessel, the Secretary is satisfied such direction is justified in the interest of safety.
Ҥ 70003. Port access routes
“(a) Authority To Designate.—Except as provided in subsection (b) and subject to the requirements of subsection (c), in order to provide safe access routes for the movement of vessel traffic proceeding to or from ports or places subject to the jurisdiction of the United States, the Secretary shall designate necessary fairways and traffic separation schemes for vessels operating in the territorial sea of the United States and in high seas approaches, outside the territorial sea, to such ports or places. Such a designation shall recognize, within the designated area, the paramount right of navigation over all other uses.
“(b) Limitation.—
“(1) In general.—No designation may be made by the Secretary under this section if—
“(A) the Secretary determines such a designation, as implemented, would deprive any person of the effective exercise of a right granted by a lease or permit executed or issued under other applicable provisions of law; and
“(B) such right has become vested before the time of publication of the notice required by paragraph (1) of subsection (c).
“(2) Consultation required.—The Secretary shall make the determination under paragraph (1)(A) after consultation with the head of the agency responsible for executing the lease or issuing the permit.
“(c) Consideration of Other Uses.—Before making a designation under subsection (a), and in accordance with the requirements of section 70004, the Secretary shall—
“(1) undertake a study of the potential traffic density and the need for safe access routes for vessels in any area for which fairways or traffic separation schemes are proposed or that may otherwise be considered and publish notice of such undertaking in the Federal Register;
“(2) in consultation with the Secretary of State, the Secretary of the Interior, the Secretary of Commerce, the Secretary of the Army, and the Governors of affected States, as their responsibilities may require, take into account all other uses of the area under consideration, including, as appropriate, the exploration for, or exploitation of, oil, gas, or other mineral resources, the construction or operation of deepwater ports or other structures on or above the seabed or subsoil of the submerged lands or the Outer Continental Shelf of the United States, the establishment or operation of marine or estuarine sanctuaries, and activities involving recreational or commercial fishing; and
“(3) to the extent practicable, reconcile the need for safe access routes with the needs of all other reasonable uses of the area involved.
“(d) Study.—In carrying out the Secretary’s responsibilities under subsection (c), the Secretary shall—
“(1) proceed expeditiously to complete any study undertaken; and
“(2) after completion of such a study, promptly—
“(A) issue a notice of proposed rulemaking for the designation contemplated; or
“(B) publish in the Federal Register a notice that no designation is contemplated as a result of the study and the reason for such determination.
“(e) Implementation of Designation.—In connection with a designation made under this section, the Secretary—
“(1) shall issue reasonable rules and regulations governing the use of such designated areas, including rules and regulations regarding the applicability of rules 9 and 10 of the International Regulations for Preventing Collisions at Sea, 1972, relating to narrow channels and traffic separation schemes, respectively, in waters where such regulations apply;
“(2) to the extent that the Secretary finds reasonable and necessary to effectuate the purposes of the designation, make the use of designated fairways and traffic separation schemes mandatory for specific types and sizes of vessels, foreign and domestic, operating in the territorial sea of the United States and for specific types and sizes of vessels of the United States operating on the high seas beyond the territorial sea of the United States;
“(3) may, from time to time, as necessary, adjust the location or limits of designated fairways or traffic separation schemes in order to accommodate the needs of other uses that cannot be reasonably accommodated otherwise, except that such an adjustment may not, in the judgment of the Secretary, unacceptably adversely affect the purpose for which the existing designation was made and the need for which continues; and
“(4) shall, through appropriate channels—
“(A) notify cognizant international organizations of any designation, or adjustment thereof; and
“(B) take action to seek the cooperation of foreign States in making it mandatory for vessels under their control to use, to the same extent as required by the Secretary for vessels of the United States, any fairway or traffic separation scheme designated under this section in any area of the high seas.
Ҥ 70004. Considerations by Secretary
“In carrying out the duties of the Secretary under sections 70001, 70002, and 70003, the Secretary shall—
“(1) take into account all relevant factors concerning navigation and vessel safety, protection of the marine environment, and the safety and security of United States ports and waterways, including—
“(A) the scope and degree of the risk or hazard involved;
“(B) vessel traffic characteristics and trends, including traffic volume, the sizes and types of vessels involved, potential interference with the flow of commercial traffic, the presence of any unusual cargoes, and other similar factors;
“(C) port and waterway configurations and variations in local conditions of geography, climate, and other similar factors;
“(D) the need for granting exemptions for the installation and use of equipment or devices for use with vessel traffic services for certain classes of small vessels, such as self-propelled fishing vessels and recreational vessels;
“(E) the proximity of fishing grounds, oil and gas drilling and production operations, or any other potential or actual conflicting activity;
“(F) environmental factors;
“(G) economic impact and effects;
“(H) existing vessel traffic services; and
“(I) local practices and customs, including voluntary arrangements and agreements within the maritime community; and
“(2) at the earliest possible time, consult with and receive and consider the views of representatives of the maritime community, ports and harbor authorities or associations, environmental groups, and other persons who may be affected by the proposed actions.
Ҥ 70005. International agreements
“(a) Transmittal of Regulations.—The Secretary shall transmit, via the Secretary of State, to appropriate international bodies or forums, any regulations issued under this subchapter, for consideration as international standards.
“(b) Agreements.—The President is authorized and encouraged to—
“(1) enter into negotiations and conclude and execute agreements with neighboring nations, to establish compatible vessel standards and vessel traffic services, and to establish, operate, and maintain international vessel traffic services, in areas and under circumstances of mutual concern; and
“(2) enter into negotiations, through appropriate international bodies, and conclude and execute agreements to establish vessel traffic services in appropriate areas of the high seas.
“(c) Operations.—The Secretary, pursuant to any agreement negotiated under subsection (b) that is binding upon the United States in accordance with constitutional requirements, may—
“(1) require vessels operating in an area of a vessel traffic service to utilize or to comply with the vessel traffic service, including the carrying or installation of equipment and devices as necessary for the use of the service; and
“(2) waive, by order or regulation, the application of any United States law or regulation concerning the design, construction, operation, equipment, personnel qualifications, and manning standards for vessels operating in waters over which the United States exercises jurisdiction if such vessel is not en route to or from a United States port or place, and if vessels en route to or from a United States port or place are accorded equivalent waivers of laws and regulations of the neighboring nation, when operating in waters over which that nation exercises jurisdiction.
“(d) Ship Reporting Systems.—The Secretary, in cooperation with the International Maritime Organization, may implement and enforce two mandatory ship reporting systems, consistent with international law, with respect to vessels subject to such reporting systems entering the following areas of the Atlantic Ocean:
“(1) Cape Cod Bay, Massachusetts Bay, and Great South Channel (in the area generally bounded by a line starting from a point on Cape Ann, Massachusetts at 42 deg. 39′ N., 70 deg. 37′ W; then northeast to 42 deg. 45′ N., 70 deg. 13′ W; then southeast to 42 deg. 10′ N., 68 deg. 31′ W, then south to 41 deg. 00′ N., 68 deg. 31′ W; then west to 41 deg. 00′ N., 69 deg. 17′ W; then northeast to 42 deg. 05′ N., 70 deg. 02′ W, then west to 42 deg. 04′ N., 70 deg. 10′ W; and then along the Massachusetts shoreline of Cape Cod Bay and Massachusetts Bay back to the point on Cape Ann at 42 deg. 39′ N., 70 deg. 37′ W).
“(2) In the coastal waters of the Southeastern United States within about 25 nm along a 90 nm stretch of the Atlantic seaboard (in an area generally extending from the shoreline east to longitude 80 deg. 51.6′ W with the southern and northern boundary at latitudes 30 deg. 00′ N., 31 deg. 27′ N., respectively).
“SUBCHAPTER II— PORTS AND WATERWAYS SAFETY
Ҥ 70011. Waterfront safety
“(a) In General.—The Secretary may take such action as is necessary to—
“(1) prevent damage to, or the destruction of, any bridge or other structure on or in the navigable waters of the United States, or any land structure or shore area immediately adjacent to such waters; and
“(2) protect the navigable waters and the resources therein from harm resulting from vessel or structure damage, destruction, or loss.
“(b) Actions Authorized.—Actions authorized by subsection (a) include—
“(1) establishing procedures, measures, and standards for the handling, loading, unloading, storage, stowage, and movement on a structure (including the emergency removal, control, and disposition) of explosives or other dangerous articles and substances, including oil or hazardous material as those terms are defined in section 2101;
“(2) prescribing minimum safety equipment requirements for a structure to assure adequate protection from fire, explosion, natural disaster, and other serious accidents or casualties;
“(3) establishing water or waterfront safety zones, or other measures, for limited, controlled, or conditional access and activity when necessary for the protection of any vessel, structure, waters, or shore area; and
“(4) establishing procedures for examination to assure compliance with the requirements prescribed under this section.
“(c) State Law.—Nothing in this section, with respect to structures, prohibits a State or political subdivision thereof from prescribing higher safety equipment requirements or safety standards than those that may be prescribed by regulations under this section.
Ҥ 70012. Navigational hazards
“(a) Reporting Procedure.—The Secretary shall establish a program to encourage fishermen and other vessel operators to report potential or existing navigational hazards involving pipelines to the Secretary through Coast Guard field offices.
“(b) Secretary’s Response.—
“(1) Notification by the operator of a pipeline.—Upon notification by the operator of a pipeline of a hazard to navigation with respect to that pipeline, the Secretary shall immediately notify Coast Guard headquarters, the Pipeline and Hazardous Materials Safety Administration, other affected Federal and State agencies, and vessel owners and operators in the pipeline’s vicinity.
“(2) Notification by other persons.—Upon notification by any other person of a hazard or potential hazard to navigation with respect to a pipeline, the Secretary shall promptly determine whether a hazard exists, and if so shall immediately notify Coast Guard headquarters, the Pipeline and Hazardous Materials Safety Administration, other affected Federal and State agencies, vessel owners and operators in the pipeline’s vicinity, and the owner and operator of the pipeline.
“(c) Pipeline Defined.—For purposes of this section, the term ‘pipeline’ has the meaning given the term ‘pipeline facility’ in section 60101(a)(18) of title 49.
Ҥ 70013. Requirement to notify Coast Guard of release of objects into the navigable waters of the United States
“(a) Requirement.—As soon as a person has knowledge of any release from a vessel or facility into the navigable waters of the United States of any object that creates an obstruction prohibited under section 10 of the Act of March 3, 1899, popularly known as the Rivers and Harbors Appropriations Act of 1899 (33 U.S.C. 403), such person shall notify the Secretary and the Secretary of the Army of such release.
“(b) Restriction on Use of Notification.—Any notification provided by an individual in accordance with subsection (a) may not be used against such individual in any criminal case, except a prosecution for perjury or for giving a false statement.
“SUBCHAPTER III— CONDITION FOR ENTRY INTO PORTS IN THE UNITED STATES
Ҥ 70021. Conditions for entry to ports in the United States
“(a) In General.—No vessel that is subject to chapter 37 shall operate in the navigable waters of the United States or transfer cargo or residue in any port or place under the jurisdiction of the United States, if such vessel—
“(1) has a history of accidents, pollution incidents, or serious repair problems that, as determined by the Secretary, creates reason to believe that such vessel may be unsafe or may create a threat to the marine environment;
“(2) fails to comply with any applicable regulation issued under section 70034, chapter 37, or any other applicable law or treaty;
“(3) discharges oil or hazardous material in violation of any law of the United States or in a manner or quantities inconsistent with any treaty to which the United States is a party;
“(4) does not comply with any applicable vessel traffic service requirements;
“(5) is manned by one or more officers who are licensed by a certificating State that the Secretary has determined, pursuant to section 9101 of title 46, does not have standards for licensing and certification of seafarers that are comparable to or more stringent than United States standards or international standards that are accepted by the United States;
“(6) is not manned in compliance with manning levels as determined by the Secretary to be necessary to insure the safe navigation of the vessel; or
“(7) while underway, does not have at least one licensed deck officer on the navigation bridge who is capable of clearly understanding English.
“(b) Exceptions.—
“(1) In general.—The Secretary may allow provisional entry of a vessel that is not in compliance with subsection (a), if the owner or operator of such vessel proves, to the satisfaction of the Secretary, that such vessel is not unsafe or a threat to the marine environment, and if such entry is necessary for the safety of the vessel or persons aboard.
“(2) Provisions not applicable.—Paragraphs (1), (2), (3), and (4) of subsection (a) of this section shall not apply to a vessel allowed provisional entry under paragraph (1) if the owner or operator of such vessel proves, to the satisfaction of the Secretary, that such vessel is no longer unsafe or a threat to the marine environment, and is no longer in violation of any applicable law, treaty, regulation, or condition, as appropriate.
“SUBCHAPTER IV— DEFINITIONS, REGULATIONS, ENFORCEMENT, INVESTIGATORY POWERS, APPLICABILITY
Ҥ 70031. Definitions
“As used in subchapters A through C and this subchapter, unless the context otherwise requires:
“(1) The term ‘marine environment’ means—
“(A) the navigable waters of the United States and the land and resources therein and thereunder;
“(B) the waters and fishery resources of any area over which the United States asserts exclusive fishery management authority;
“(C) the seabed and subsoil of the Outer Continental Shelf of the United States, the resources thereof, and the waters superjacent thereto; and
“(D) the recreational, economic, and scenic values of such waters and resources.
“(2) The term ‘Secretary’ means the Secretary of the department in which the Coast Guard is operating, except that such term means the Secretary of Transportation with respect to the application of this chapter to the Saint Lawrence Seaway.
“(3) The term ‘navigable waters of the United States’ includes all waters of the territorial sea of the United States as described in Presidential Proclamation No. 5928 of December 27, 1988.
Ҥ 70032. Saint Lawrence Seaway
“The authority granted to the Secretary under sections 70001, 70002, 70003, 70004, and 70011 may not be delegated with respect to the Saint Lawrence Seaway to any agency other than the Saint Lawrence Seaway Development Corporation. Any other authority granted the Secretary under subchapters A through C and this subchapter shall be delegated by the Secretary to the Saint Lawrence Seaway Development Corporation to the extent the Secretary determines such delegation is necessary for the proper operation of the Saint Lawrence Seaway.
Ҥ 70033. Limitation on application to foreign vessels
“Except pursuant to international treaty, convention, or agreement, to which the United States is a party, subchapters A through C and this subchapter shall not apply to any foreign vessel that is not destined for, or departing from, a port or place subject to the jurisdiction of the United States and that is in—
“(1) innocent passage through the territorial sea of the United States; or
“(2) transit through the navigable waters of the United States that form a part of an international strait.
Ҥ 70034. Regulations
“(a) In General.—In accordance with section 553 of title 5, the Secretary shall issue, and may from time to time amend or repeal, regulations necessary to implement subchapters A through C and this subchapter.
“(b) Consultation.—In the exercise of the regulatory authority under subchapters A through C and this subchapter, the Secretary shall consult with, and receive and consider the views of all interested persons, including—
“(1) interested Federal departments and agencies;
“(2) officials of State and local governments;
“(3) representatives of the maritime community;
“(4) representatives of port and harbor authorities or associations;
“(5) representatives of environmental groups;
“(6) any other interested persons who are knowledgeable or experienced in dealing with problems involving vessel safety, port and waterways safety, and protection of the marine environment; and
“(7) advisory committees consisting of all interested segments of the public when the establishment of such committees is considered necessary because the issues involved are highly complex or controversial.
Ҥ 70035. Investigatory powers
“(a) Secretary.—The Secretary may investigate any incident, accident, or act involving the loss or destruction of, or damage to, any structure subject to subchapters A through C and this subchapter, or that affects or may affect the safety or environmental quality of the ports, harbors, or navigable waters of the United States.
“(b) Powers.—In an investigation under this section, the Secretary may issue subpoenas to require the attendance of witnesses and the production of documents or other evidence relating to such incident, accident, or act. If any person refuses to obey a subpoena, the Secretary may request the Attorney General to invoke the aid of the appropriate district court of the United States to compel compliance with the subpoena. Any district court of the United States may, in the case of refusal to obey a subpoena, issue an order requiring compliance with the subpoena, and failure to obey the order may be punished by the court as contempt. Witnesses may be paid fees for travel and attendance at rates not exceeding those allowed in a district court of the United States.
Ҥ 70036. Enforcement
“(a) Civil Penalty.—
“(1) In general.—Any person who is found by the Secretary, after notice and an opportunity for a hearing, to have violated subchapters A through C or this subchapter or a regulation issued under subchapters A through C or this subchapter shall be liable to the United States for a civil penalty, not to exceed $25,000 for each violation. Each day of a continuing violation shall constitute a separate violation. The amount of such civil penalty shall be assessed by the Secretary, or the Secretary’s designee, by written notice. In determining the amount of such penalty, the Secretary 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, ability to pay, and such other matters as justice may require.
“(2) Compromise, modification, or remission.—The Secretary may compromise, modify, or remit, with or without conditions, any civil penalty that is subject to imposition or that has been imposed under this section.
“(3) Failure to pay penalty.—If any person fails to pay an assessment of a civil penalty after it has become final, the Secretary may refer the matter to the Attorney General of the United States, for collection in any appropriate district court of the United States.
“(b) Criminal Penalty.—
“(1) Class d felony.—Any person who willfully and knowingly violates subchapters A through C or this subchapter or any regulation issued thereunder commits a class D felony.
“(2) Class c felony.—Any person who, in the willful and knowing violation of subchapters A through C or this subchapter or of any regulation issued thereunder, uses a dangerous weapon, or engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce the provisions of such a subchapter or the regulations issued under such subchapter, commits a class C felony.
“(c) In Rem Liability.—Any vessel that is used in violation of subchapters A, B, or C or this subchapter, or any regulations issued under such subchapter, shall be liable in rem for any civil penalty assessed pursuant to subsection (a) and may be proceeded against in the United States district court for any district in which such vessel may be found.
“(d) Injunction.—The United States district courts shall have jurisdiction to restrain violations of subchapter A, B, or C or this subchapter or of regulations issued under such subchapter, for cause shown.
“(e) Denial of Entry.—Except as provided in section 70021, the Secretary may, subject to recognized principles of international law, deny entry by any vessel that is not in compliance with subchapter A, B, or C or this subchapter or the regulations issued under such subchapter—
“(1) into the navigable waters of the United States; or
“(2) to any port or place under the jurisdiction of the United States.
“(f) Withholding of Clearance.—
“(1) In general.—If any owner, operator, or individual in charge of a vessel is liable for a penalty or fine under this section, or if reasonable cause exists to believe that the owner, operator, or individual in charge may be subject to a penalty or fine under this section, the Secretary of the Treasury, upon the request of the Secretary, shall with respect to such vessel refuse or revoke any clearance required by section 60105 of title 46.
“(2) Granting clearance refused or revoked.—Clearance refused or revoked under this subsection may be granted upon filing of a bond or other surety satisfactory to the Secretary.”
“700. Ports and Waterways Safety 70001.”.