April 21, 2017

Maritime Alert: California Issues New Civil Penalty Regulations For Ballast Water Management Violations

California State Lands Commission Announces New Regulations For Enforcement Of California’s Ballast Water Management Regulations

On April 19, 2017, the California State Lands Commission (“SLC”) enlisted the assistance of local vessel California State Lands Commission Announces New Regulations For Enforcement Of California’s Ballast Water Management Regulationsagents and other interested parties in disseminating information about the following development: new regulations dictating the dollar amount of civil penalties for violations of California’s Marine Invasive Species Act, or (“MISA”) (California Public Resources Code §§ 71200 – 71271), and how the SLC will administratively adjudicate the same, will take effect on July 1, 2017.

MISA

MISA is most well-known for its ballast water management system performance standards that are exponentially more stringent than even those of the United States Coast Guard.  MISA also contains ballast water exchange, reporting, and recordkeeping requirements applicable to all vessels of at least 300 gross tons capable of carrying ballast water that call at California ports.  MISA authorizes the SLC to pursue civil penalties not to exceed $27,500 per violation for each of these requirements.  MISA also explains the administrative hearing procedures applicable to the SLC’s enforcement of these penalties.

SLC Civil Penalty Enforcement Regulations

The SLC’s new regulations, which are found at Title 2 of the California Code of Regulations, §§ 2299.01 – 2299.09, now classify violation types, clarify the penalties for these newly-classified violations, and create an initial, informal dispute resolution step to the civil penalty enforcement procedures set forth in MISA.

Civil Penalties for Improper Mid-Ocean Ballast Water Exchanges

Mid-ocean ballast water exchanges are a permitted from of ballast water treatment under MISA.  MISA and the SLC’S regulations explicitly state where mid-ocean exchanges must occur.  Where a vessel must conduct a ballast water exchange depends on whether or not its voyage begins outside or within the Pacific Coast Region, or “PCR.”  The PCR is defined as “…all waters on the Pacific Coast of North America east of 154 degrees W longitude and north of 25 degrees N latitude, exclusive of the Gulf of California.”

Vessels on voyages originating from outside the PCR must conduct ballast water exchanges 200 nautical miles off the California coast (including islands), and in waters 2,000 meters deep.  These requirements also apply to vessels on voyages beginning within the PCR that take on ballast water outside the PCR.  Vessels whose voyages begin within the PCR must conduct ballast water exchanges 50 nautical miles off the California coast (including islands), and in waters 200 meters deep.  The SLC’s new regulations provide the following penalty classifications for violations of the PCR-based, ballast water exchange location requirements:

Civil Penalties for Improper Ballast Water Recordkeeping and Reporting

MISA and the SLC’s regulations require vessels to maintain onboard ballast water management plans, logs, and copies of Ballast Water Management Reports.  MISA and the SLC’s regulations also require the submission of Ballast Water Management Reports, Annual and Supplemental Technology Reports (relating to ballast water treatment system usage) and Hull Husbandry Reports (relating to anti-biofouling).  The SLC’s new regulations provide the following penalties for violations of these ballast water recordkeeping and reporting requirements:

MISA also makes the falsification of a Ballast Water Management Report a misdemeanor punishable by a jail sentence not to exceed 1 year.

Civil Penalty Enforcement Procedures

The procedures for SLC administrative adjudication of the foregoing penalties are well-outlined in MISA.  (See PRC § 71216)  MISA discusses in detail how the SLC initiates administrative proceedings and the rights of parties whom the SLC contends violated MISA, including such parties’ appellate rights.  The SLC’s new regulations add little to these procedures.  However, the regulations now require the SLC to engage in “Preliminary Actions” in an effort to resolve an alleged violation short of a full-blown administrative hearing.  (2 CCR § 2299.05).  MISA does not expressly mandate that the SLC engage in such efforts.

Conclusion

The SLC’s introduction of its new civil penalty enforcement regulations is evidence of the agency’s commitment to regulating the management of ballast water discharged into California waters notwithstanding the fact that: (1) technology capable of meeting the SLC’s treatment system performance standards is most likely years away and (2) the U.S. Congress continues its effort to pass the Commercial Vessel Incidental Discharge Act (“CVIDA”) which would negate California’s (and other state’s) ability to independently enforce state regulations.  Therefore vessels engaged in international trade calling in California ports must continue to be mindful of their ballast water management compliance obligations under the IMO, USCG and SLC regulations.

Keesal, Young & Logan Maritime Law Group

This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.