SA certificate issued under tica

A F TANË El suspended or revoked by the Foray for cause or because of changed conditions, and

3 she be Evalable for ingenin tanE LY MA the master, other person in charge, or agent of a sig using or intending to use the port or terminal.

4 The suspension or revocation of a certificate issued under this subsection may be appealed to the Secretary and acted on by the Secretary in the manner prescribed by regulation.

d The Secretary shall periodically cause to be published in the Federal Register a list of the ports or terminals holding a valid cer tificate issued under this section.

levi 18 Except in the case of force majeure, the Secretary shall deny entry to a seagoing ship required by the Convention to retain onboard while at sea, residues and mixtures containing oil or noxious liquid substances, if

(A) the port or terminal is one required by Annexes I and II of the Convention or regulations hereunder to have adequate reception facilities; and

(B) the port or terminal does not hold a valid certificate issued by the Secretary under this section.

(2) The Secretary may deny the entry of a ship to a port or terminal required by regulations issued under this section to provide adequate reception facilities for garbage if the port or terminal is not in compliance with those regulations.

(f) The Secretary is authorized to conduct surveys of existing re ception facilities in the United States to determine measures needed to comply with MARPOL Protocol.

16 Sec. 6(c) was amended and restated by sec. 2103(c) of Public Law 100-220 (101 Stat 1462) Previously, sec. 6(c) read as follows:

"(c) If, upon inspection, reception facilities of a port or terminal are adequate to meet the requirements of the MARPOL Protocol and the regulations established hereunder, the Secretary shall, after consultation with the Administrator of the Environmental Protection Agency, issue a certificate to that effect to the applicant. A certificate issued under this subsection

“(1) is valid until suspended or revoked by the Secretary for cause or because of changed conditions; and

"(2) shall be available for inspection upon the request of the master, other person in charge, or agent of a seagoing ship using or intending to use the port or terminal.

"The suspension or revocation of a certificate issued under this subsection may be appealed to the Secretary and acted on by him in the manner prescribed by regulation.".

17 Sec. 201(1) of Public Law 101-224 (103 Stat. 1910) struck out "Annex V" and inserted in lieu thereof "Annex I and Annex II".

18 Sec. 6(e) was amended by sec. 2103(d) of Public Law 100-220 (101 Stat. 1462), which inserted "(1)" after "(e)"; redesignated "(1)" and "(2)" as "(A)" and "(B)"; substituted "Annexes I and II of the Convention" in lieu of "the MARPOL Protocol"; and added a new subpar. "(2)",

SEC. 7.19 (a) As soon as he has knowledge of an incident, the master or other person in charge of a ship shall report it to the Secretary in the manner prescribed by Article 8 of the Convention.

(b) Upon receipt of the report of an incident involving a ship, other than one of United States registry or nationality or one operated under the authority of the United States, the Secretary shall take the action required by Article 8 of the Convention.

SEC. 8.20 (a) It is unlawful to act in violation of the MARPOL Protocol, this Act, or the regulations issued thereunder. The Secretary shall cooperate with other parties to the MARPOL Protocol in the detection of violations and in enforcement of the MARPOL Protocol. The Secretary shall use all appropriate and practical measures of detection and environmental monitoring, and shall establish adequate procedures for reporting violations and accumulating evidence.

(b) Upon receipt of evidence that a violation has occurred, the Secretary shall cause the matter to be investigated. In any investigation under this section the Secretary may issue subpenas to require the attendance of any witness and the production of documents and other evidence. In case of refusal to obey a subpena issued to any person, the Secretary may request the Attorney General to invoke the aid of the appropriate district court of the United States to compel compliance. Upon completion of the investigation, the Secretary shall take the action required by the MARPOL Protocol and whatever further action he considers appropriate under the circumstances. If the initial evidence was provided by a party to the MARPOL Protocol, the Secretary, acting through the Secretary of State, shall inform that party of the action taken or proposed.

(c)(1) 21 This subsection applies to inspection relating to possible violations of Annex I or Annex II to the Convention or of this Act 22 by any seagoing ship referred to in section 3(a)(2) of this Act.

(2) 21 While at a port or terminal subject to the jurisdiction of the United States, a ship to which the MARPOL Protocol applies may be inspected by the Secretary

(A) 21 to verify whether or not the ship has discharged a harmful substance in violation of the MARPOL Protocol or this Act; or

(B) 21 to comply with a request from a party to the MARPOL Protocol for an investigation as to whether the ship may have discharged a harmful substance anywhere in violation of the MARPOL Protocol. An investigation may be undertaken under this clause only when the requesting party has furnished sufficient evidence to allow the Secretary reasonably to believe that a discharge has occurred.

If an inspection under this subsection indicates that a violation has occurred, the investigating officer shall forward a report to the Sec

19 33 U.S.C. 1906.

20 33 U.S.C. 1907.

21 Sec. 8(c) was amended by sec. 2104(a) of Public Law 100-220 (101 Stat. 1462), which added a new par. "(1)"; redesignated par. "(c)" as "(c)(2)"; and redesignated former subpars. “(1)" and "(2)" as "(A)" and "(B)".

22 Sec. 201(2) of Public Law 101-225 (103 Stat. 1910) added "or of this Act".

retary for appropriate action. The 23 Secretary shall undertake to notify the master of the ship concerned and, acting in coordination with the Secretary of State, shall take any additional action re quired by Article 6 of the Convention.

(d) The Secretary may inspect a ship referred to in section 3 a 3 of this Act to verify whether the ship has disposed of garbage in violation of Annex V to the Convention or this Act.

2 If an inspection under this subsection indicates that a violation has occurred, the Secretary may undertake enforcement action under section 9 of this Act.

(e*1,24 The Secretary may inspect at any time a ship of United States registry or nationality or operating under the authority of the United States to which the MARPOL Protocol applies to verify whether the ship has discharged a harmful substance or disposed of garbage in violation of that Protocol or this Act.

(2) If an inspection under this subsection indicates that a violation of the MARPOL Protocol or of this Act 25 has occurred, the Secretary may undertake enforcement action under section 9 of this Act.

(f) 24 Remedies and requirements of this Act supplement and neither amend nor repeal any other provisions of law, except as expressly provided in this Act. Nothing in this Act shall limit, deny, amend, modify, or repeal any other remedy available to the United States or any other person, except as expressly provided in this Act.

SEC. 9.26 (a) A person who knowingly violates the MARPOL Protocol, this Act, or the regulations issued thereunder commits a class D felony.27 In the discretion of the Court, an amount equal to not more than 1⁄2 of such fine may be paid to the person giving information leading to conviction. 28

(b) A person who is found by the Secretary, after notice and an opportunity for a hearing, to have

(1) violated the MARPOL Protocol, this Act, or the regula tions issued thereunder shall be liable to the United States for a civil penalty, not to exceed $25,000 for each violation; or

(2) make 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 MARPOL Protocol, this Act, or the regulations thereunder, shall be liable to the United States for a civil penalty, not to exceed $5,000 for each statement or representation.

Each day of a continuing violation shall constitute a separate violation. The amount of the civil penalty shall be assessed by the Secretary, or his designee, by written notice. In determining the

23 The words "If a report made under this subsection involves a ship, other than one of United States registry or nationality or one operated under the authority of the United States, the" which previously appeared at this point were struck out by sec. 2104(a) of Public Law 100220 (101 Stat. 1462), which substituted in lieu thereof the word "The".

24 Sec. 2104(b) of Public Law 100-220 (101 Stat. 1463) redesignated former subsec. "(d)" as subsec. "(f)" and added new subsecs. "(d)" and "(e)".

25 Sec. 201(3) of Public Law 101-225 (103 Stat. 1910) added "or of this Act".

26 33 U.S.C. 1908.

27 Sec. 4302(n) of the Oil Pollution Act of 1990 (Public Law 101-380; 104 Stat. 539) struck out "shall, for each violation, be fined not more than $50,000 or be imprisoned for not more than 5 years, or both." and inserted in lieu thereof "commits a class D felony.".

28 The second sentence was added by sec. 2105(a)(1) of Public Law 100-220 (101 Stat. 1463).

amount of the 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 other matters as justice may require. An amount equal to not more than 1⁄2 of such penalties may be paid by the Secretary to the person giving information leading to the assessment of such penalties.29

(c) The Secretary may compromise, modify, or remit, with or without conditions, any civil penalty which is subject to assessment or which has been assessed under this section. 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.

(d) A ship operated in violation of the MARPOL Protocol, this Act, or the regulations thereunder is liable in rem for any fine imposed under subsection (a) or civil penalty assessed pursuant to subsection (b), and may be proceeded against in the United States district court of any district in which the ship may be found.

(e) If any ship subject to the MARPOL Protocol or this Act, its owner, operator, or person in charge is liable for a fine or civil penalty under this section, or if reasonable cause exists to believe that the ship, its owner, operator, or person in charge may be subject to a fine or civil penalty under this section, the Secretary of the Treasury, upon the request of the Secretary, shall refuse or revoke

(1) the clearance required by section 4197 of the Revised Statutes of the United States as amended (46 U.S.C. 91); or

(2) a permit to proceed under section 4367 of the Revised Statutes of the United States (46 U.S.C. 313) or section 443 of the Tariff Act 1930, as amended (19 U.S.C. 1443).

Clearance or a permit to proceed may be granted upon the filing of a bond or other surety satisfactory to the Secretary.

(f) Notwithstanding subsection (a), (b), or (d) of this section, if the violation is by a ship registered in or of the nationality of a country party to the MARPOL Protocol, or one operated under the authority of a country party to the MARPOL Protocol, the Secretary, acting in coordination with the Secretary of State, may refer the matter to the government of the country of the ships of the ship's registry or nationality, or under whose authority the ship is operating 30 for appropriate action, rather than taking the actions required or authorized by this section.

SEC. 10.31 (a) A proposed amendment to the MARPOL Protocol received by the United States from the Secretary-General of the International Maritime Organization 32 pursuant to Article VI of the MARPOL Protocol, may be accepted on behalf of the United

29 This last sentence was added by sec. 2105(a)(2) of Public Law 100-220 (101 Stat. 1463). 30 The words to this point beginning with "to the government" were inserted in lieu of the words "to that country" which were struck out by sec. 2105(b) of Public Law 100-220 (101 Stat. 1463).

31 33 U.S.C. 1909.

32 Sec. 2106 of Public Law 100-220 (101 Stat. 1463) substituted "International Maritime Organization" in lieu of "Inter-Governmental Maritime Consultative Organization".

States by the President following the advice and consent of the Senate, except as provided for in subsection (b) of this section.

(b) A proposed amendment to Annex I, II, or V to the Convention, appendices to those Annexes, or Protocol I of the Convention, 33 received by the United States from the Secretary-General of the International Maritime Organization 32 pursuant to Article VI of the MARPOL Protocol, may be the subject of appropriate action on behalf of the United States by the Secretary of State following consultation with the Secretary, who shall inform the Secretary of State as to what action he considers appropriate at least 30 days prior to the expiration of the period specified in Article VI of the MARPOL Protocol during which objection may be made to any amendment received.

(c) Following consultation with the Secretary, the Secretary of State may make a declaration that the United States does not accept an amendment proposed pursuant to Article VI of the MARPOL Protocol.

SEC. 11.34 (a) Except as provided in subsection (b) of this section, any person having an interest which is, or can be, adversely affected, may bring an action on his own behalf

(1) against any person alleged to be in violation of the provisions of this Act, or regulations issued hereunder;

(2) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under this Act which is not discretionary with the Secretary;

(3) against the Secretary of the Treasury where there is alleged a failure of the Secretary of the Treasury to take action under section 9(e) of this Act.

(b) No action may be commenced under subsection (a) of this section

(1) prior to 60 days after the plaintiff has given notice, in writing and under oath, to the alleged violator, the Secretary concerned, and the Attorney General; or

(2) if the Secretary has commenced enforcement or penalty action with respect to the alleged violation and is conducting such procedures diligently.

(c) Any suit brought under this section shall be brought

(1) in a case concerning an onshore facility or port, in the United States district court for the judicial district where the onshore facility or port is located;

(2) in a case concerning an offshore facility or offshore structure under the jurisdiction of the United States, in the United States district court for the judicial district nearest the offshore facility or offshore structure;

(3) in a case concerning a ship, in the United States district. court for any judicial district wherein the ship or its owner or operator may be found; or

(4) in any case, in the District Court for the District of Columbia.

33 The words to this point beginning with "Annex I" were substituted in lieu of "Annex I or II, appendices to the Annexes, or Protocol I of the MARPOL Protocol," by sec. 2106(2) of Public Law 100-220 (101 Stat. 1463).

34 33 U.S.C. 1910.