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State
California
PRC Sec 71200-71217 BALLAST WATER MANAGEMENT FOR CONTROL OF NONINDIGENOUS SPECIES (MARINE INVASIVE SPECIES ACT)


PUBLIC RESOURCES CODE
SECTION 71200-71217





71200. Unless the context otherwise requires, the following
definitions govern the construction of this division:
(a) "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.
(b) "Ballast water" means any water and suspended matter taken on
board a vessel to control or maintain trim, draft, stability, or
stresses of the vessel, without regard to the manner in which it is
carried.
(c) "Board" means the State Water Resources Control Board.
(d) "Coastal waters" means estuarine and ocean waters within 200
nautical miles of land or less than 2,000 meters (6,560 feet, 1,093
fathoms) deep, and rivers, lakes, or other water bodies navigably
connected to the ocean.
(e) "Commission" means the State Lands Commission.
(f) "EEZ" means exclusive economic zone, which extends from the
baseline of the territorial sea of the United States seaward 200
nautical miles.
(g) "Exchange" means to replace the water in a ballast tank using
either of the following methods:
(1) "Flow through exchange," which means to flush out ballast
water by pumping three full volumes of mid-ocean water through the
tank, continuously displacing water from the tank, to minimize the
number of original coastal organisms remaining in the tank.
(2) "Empty/refill exchange," which means to pump out, until the
tank is empty or as close to 100 percent empty as is safe to do so,
the ballast water taken on in ports, or estuarine or territorial
waters, then to refill the tank with mid-ocean waters.
(h) "Mid-ocean waters" means waters that are more than 200
nautical miles from land and at least 2,000 meters (6,560 feet, 1,093
fathoms) deep.
(i) "Nonindigenous species" means any species, including, but not
limited to, the seeds, eggs, spores, or other biological material
capable of reproducing that species, or any other viable biological
material that enters an ecosystem beyond its historic range,
including any of those organisms transferred from one country into
another.
(j) "Pacific Coast Region" means all coastal 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. The
commission may modify these boundaries through regulation if the
proponent for the boundary modification presents substantial
scientific evidence that the proposed modification is equally or more
effective at preventing the introduction of nonindigenous species
through vessel vectors as the boundaries described herein.
(k) "Person" means any individual, trust, firm, joint stock
company, business concern, or corporation, including, but not limited
to, a government corporation, partnership, limited liability
company, or association. "Person" also means any city, county, city
and county, district, commission, the state, or any department,
agency, or political subdivision of the state, any interstate body,
or the United States and its agencies and instrumentalities, to the
extent permitted by law.
(l) "Sediments" means any matter settled out of ballast water
within a vessel.
(m) "Waters of the state" means any surface waters, including
saline waters, that are within the boundaries of the state.
(n) "Vessel" means a vessel of 300 gross registered tons or more.

(o) "Voyage" means any transit by a vessel destined for any
California port or place from a port or place outside of the coastal
waters of the state.



71201. (a) This division applies to all vessels, United States and
foreign, carrying, or capable of carrying, ballast water into the
coastal waters of the state after operating outside of the coastal
waters of the state, except those vessels described in Section 71202.

(b) This division applies to all ballast water and associated
sediments taken on a vessel.
(c) This division may be known, and may be cited, as the "Marine
Invasive Species Act."
(d) The Legislature finds and declares that the purpose of this
division is to move the state expeditiously toward elimination of the
discharge of nonindigenous species into the waters of the state or
into waters that may impact the waters of the state, based on the
best available technology economically achievable. This division
shall be implemented in accordance with this intent, except as
expressly provided by this division.



71201.5. This division does not authorize the discharge of oil,
noxious liquids, or other pollutants, in a manner prohibited by
state, federal, or international laws or regulations. Ballast water
carried in any tank containing a residue of oil, noxious liquid
substances, or any other pollutant shall be discharged in accordance
with the applicable requirements.



71201.7. The commission shall adopt regulations necessary to
implement this division, pursuant to Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.


71202. This division does not apply to any of the following
vessels:
(a) A vessel of the armed forces, as defined in paragraph (14) of
subsection (a) of Section 1322 of Title 33 of the United States Code
that is subject to the "Uniform National Discharge Standards for
Vessels of the Armed Forces" pursuant to subsection (n) of Section
1322 of Title 33 of the United States Code.
(b) A vessel in innocent passage, which is a foreign vessel merely
traversing the territorial sea of the United States and not entering
or departing a United States port, or not navigating the internal
waters of the United States, and that does not discharge ballast
water into the waters of the state, or into waters that may impact
waters of the state.


71203. (a) The master, operator, or person in charge of a vessel is
responsible for the safety of the vessel, its crew, and its
passengers.
(b) (1) The master, operator, or person in charge of a vessel is
not required by this division to conduct a ballast water management
practice, including exchange, if the master determines that the
practice would threaten the safety of the vessel, its crew, or its
passengers because of adverse weather, vessel design limitations,
equipment failure, or any other extraordinary conditions.
(2) If a determination described in paragraph (1) is made, the
master, operator, or person in charge of the vessel shall take all
feasible measures, based on the best available technologies
economically achievable, that do not compromise the safety of the
vessel to minimize the discharge of ballast water containing
nonindigenous species into the waters of the state, or waters that
may impact waters of the state.
(c) Nothing in this division relieves the master, operator, or
person in charge of a vessel of the responsibility for ensuring the
safety and stability of the vessel or the safety of the crew and
passengers, or any other responsibility.


71204. Subject to Section 71203, the master, owner, operator, or
person in charge of a vessel carrying, or capable of carrying,
ballast water, that operates in the waters of the state shall do all
of the following to minimize the uptake and the release of
nonindigenous species:
(a) Discharge only the minimal amount of ballast water essential
for vessel operations while in the waters of the state.
(b) Minimize the discharge or uptake of ballast water in areas
within, or that may directly affect, marine sanctuaries, marine
preserves, marine parks, or coral reefs.
(c) Minimize or avoid uptake of ballast water in all of the
following areas and circumstances:
(1) Areas known to have infestations or populations of
nonindigenous organisms and pathogens.
(2) Areas near a sewage outfall.
(3) Areas for which the master, owner, operator, or person in
charge of a vessel has been informed of the presence of toxic algal
blooms.
(4) Areas where tidal flushing is known to be poor or in turbid
waters.
(5) In darkness when bottom-dwelling organisms may rise up in the
water column.
(6) Areas where sediments have been disturbed, such as near
dredging operations or where propellers may have recently stirred up
the sediment.
(d) Clean the ballast tanks regularly in mid-ocean waters, or
under controlled arrangements at port or in drydock, to remove
sediments, and dispose of the sediments in accordance with local,
state, and federal law.
(e) Rinse anchors and anchor chains when retrieving the anchor to
remove organisms and sediments at their place of origin.
(f) Remove fouling organisms from hull, piping, and tanks on a
regular basis, and dispose of any removed substances in accordance
with local, state, and federal law.
(g) Provide access to the commission, upon request, for sampling
of ballast intake and discharge.
(h) Maintain a ballast water management plan that was prepared
specifically for the vessel and that shall, upon request, be made
available to the commission for inspection and review. This plan
shall be specific to each vessel and shall provide, at a minimum, a
description of the ballast water management strategy for the vessel
that is sufficiently detailed to allow a master or other appropriate
ship's officer or crew member serving on that vessel to understand
and follow the ballast water management strategy.
(i) Train the master, operator, person in charge, and those
members of the crew who have responsibilities under the vessel's
ballast water management plan, on the application of ballast water
and sediment management and treatment procedures, as well as
procedures described in this section, in order to minimize other
releases of nonindigenous species from vessels.



71204.2. Prior to and until the date of implementation of the
regulations described in Section 71204.5, and subject to Section
71203, the master, operator, or person in charge of a vessel that
arrives at a California port or place from a port or place outside of
the EEZ shall employ at least one of the following ballast water
management practices:
(a) Exchange the vessel's ballast water in mid-ocean waters,
before entering the waters of the state.
(b) Retain all ballast water on board the vessel.
(c) (1) Discharge the ballast water at the same location where the
ballast water originated, provided that the master, operator, or
person in charge of the vessel can demonstrate that the ballast water
to be discharged was not mixed with ballast water taken on in an
area other than mid-ocean waters.
(2) For purposes of this subdivision, "same location" means an
area within one nautical mile (6,000 feet) of the berth or within the
recognized breakwater of a California port or place, at which the
ballast water to be discharged was loaded.
(d) Use an alternative, environmentally sound method of ballast
water management that, before the vessel begins the voyage, has been
approved by the commission or the United States Coast Guard as being
at least as effective as exchange, using mid-ocean waters, in
removing or killing nonindigenous species.
(e) Discharge the ballast water to a reception facility approved
by the commission.
(f) Under extraordinary circumstances, perform a ballast water
exchange within an area agreed to by the commission in consultation
with the United States Coast Guard at or before the time of the
request.


71204.3. Commencing on the date of implementation of the
regulations described in Section 71204.5, and subject to Section
71203, the master, operator, or person in charge of a vessel that
arrives at a California port or place from a port or place outside of
the Pacific Coast Region shall employ at least one of the following
ballast water management practices:
(a) Exchange the vessel's ballast water in mid-ocean waters,
before entering the coastal waters of the state.
(b) Retain all ballast water on board the vessel.
(c) (1) Discharge the ballast water at the same location where the
ballast water originated, provided that the master, operator, or
person in charge of the vessel can demonstrate that the ballast water
to be discharged was not mixed with ballast water taken on in an
area other than mid-ocean waters.
(2) For purposes of this subdivision, "same location" means an
area within one nautical mile (6,000 feet) of the berth or within the
recognized breakwater of a California port or place, at which the
ballast water to be discharged was loaded.
(d) Use an alternative, environmentally sound method of ballast
water management that, before the vessel begins the voyage, has been
approved by the commission or the United States Coast Guard as being
at least as effective as exchange, using mid-ocean waters, in
removing or killing nonindigenous species.
(e) Discharge the ballast water to a reception facility approved
by the commission.
(f) Under extraordinary circumstances, perform a ballast water
exchange within an area agreed to by the commission in consultation
with the United States Coast Guard at or before the time of the
request.



71204.5. (a) On or before January 1, 2005, the commission shall
adopt regulations governing ballast water management practices for
vessels arriving at a California port or place from a port or place
within the Pacific Coast Region. The commission shall consider
vessel design and voyage duration in developing these regulations.
The regulations shall be based on the best available technology
economically achievable and shall be designed to protect the waters
of the state. The regulations shall include, as appropriate,
restrictions or prohibitions on discharge of ballast water containing
nonindigenous species into areas in and outside estuaries and into
ocean areas shown to have a capacity to retain organisms.
(b) Subject to Section 71203, and commencing no later than July 1,
2005, the master, operator, or person in charge of a vessel arriving
at a California port or place from a port or place within the
Pacific Coast Region shall comply with these regulations.



71204.7. (a) On or before July 1, 2005, the commission, in
consultation with the United States Coast Guard, shall adopt
regulations governing the evaluation and approval of shipboard
experimental ballast water treatment systems.
(b) The regulations shall include criteria for the development of
a formal application package to use those systems.
(c) If an owner or operator of a vessel applies to install an
experimental ballast water treatment system, and the commission
approves that application, the commission may subsequently deem the
system to be in compliance with any future treatment standard
adopted, for a period not to exceed five years from the date that the
standard is adopted.
(1) A system approval on a particular vessel may be extended for
an additional period not to exceed five years, at the discretion of
the commission. That extension may be renewed for additional periods
not to exceed five years each, if the owner or operator demonstrates
that the system is at least as effective as existing systems in its
ability to kill, inactivate, or otherwise remove nonindigenous
species from ballast water.
(2) The commission may rescind its approval of the system at any
time if the commission, in consultation with the board and the United
States Coast Guard, and after an opportunity for administrative
appeal with the executive officer of the commission, determines that
the system has not been operated in accordance with conditions in the
agreed upon application package, or that there exists a serious
deficiency in performance, human safety, or environmental soundness
relative to anticipated performance.
(d) The commission may not approve an experimental ballast water
treatment system unless the owner or operator demonstrates that the
system has significant potential to improve upon the ability of
existing systems to kill, inactivate, or otherwise remove
nonindigenous species from ballast water.



71204.9. (a) (1) On or before January 31, 2006, the commission, in
consultation with the board and in consideration of the advisory
panel recommendations described in subdivision (b), shall submit to
the Legislature and make available to the public, a report that
recommends specific performance standards for the discharge of
ballast water into the waters of the state, or into waters that may
impact waters of the state. The performance standards shall be based
on the best available technology economically achievable and shall
be designed to protect the beneficial uses of affected, and
potentially affected, waters. If the commission, based on the best
available information, and in consultation with the board and in
consideration of the advisory panel recommendations, determines that
it is technologically and economically achievable to prohibit the
discharge of nonindigenous species, the commission shall include this
recommendation in the report to the Legislature.
(2) As appropriate, the commission may recommend different
performance standards for vessels arriving from mid-ocean waters, for
vessels that travel exclusively within the Pacific Coast Region, for
new or existing vessels, or for different vessel types. Each set of
performance standards shall be based on the best available
technology economically achievable for the described category of
vessel.
(b) (1) The commission shall convene and consult with an advisory
panel in developing the report required by subdivision (a). The
advisory panel shall be comprised of persons concerned with
performance standards for the discharge of treated ballast water.
The advisory panel shall include, but not be limited to,
representatives from one or more California regional water quality
control boards, the Department of Fish and Game, the United States
Coast Guard, the United States Environmental Protection Agency, and
persons representing shipping, port, conservation, fishing,
aquaculture, agriculture, and public water agency interests. The
commission shall ensure that the advisory panel meets in a manner
that facilitates the effective participation of both the public and
panel members.
(2) The advisory panel shall make recommendations regarding the
content, issuance, and implementation of the performance standards to
the commission.
(3) (A) The advisory panel's meetings shall be open to the public.

(B) The commission shall provide notice of the advisory panel's
meetings to any person who requests that notice in writing, as well
as on the commission's Web site. The commission shall provide that
notice at least 10 days before an advisory panel meeting and shall
include a brief general description of the meeting's agenda and the
name, address, and telephone number of a person who can provide
additional information before the meeting.
(4) The advisory panel shall submit its recommendations to the
commission on or before July 1, 2005.



71205. (a) (1) The master, owner, operator, agent, or person in
charge of a vessel carrying, or capable of carrying, ballast water,
that visits a California port or place, shall provide the information
described in subdivision (c) in electronic or written form to the
commission upon the vessel's departure from each port or place of
call in California.
(2) The information described in subdivision (c) shall be
submitted using a form developed by the United States Coast Guard.
(b) If the information submitted in accordance with this section
changes, an amended form shall be submitted to the commission upon
the vessel's departure from each port or place of call in California.

(c) (1) The master, owner, operator, or person in charge of the
vessel shall maintain on board the vessel, in written or electronic
form, records that include all of the following information:
(A) Vessel information, including all of the following:
(i) Name.
(ii) International Maritime Organization number or official number
if the International Maritime Organization number has not been
assigned.
(iii) Vessel type.
(iv) Owner or operator.
(v) Gross tonnage.
(vi) Call sign.
(vii) Port of Registry.
(B) Voyage information, including the date and port of arrival,
vessel agent, last port and country of call, and next port and
country of call.
(C) Ballast water information, including the total ballast water
capacity, total volume of ballast water onboard, total number of
ballast water tanks, capacity of each ballast water tank, and total
number of ballast water tanks in ballast, using measurements in
metric tons (MT) and cubic meters (m3).
(D) Ballast water management information, including all of the
following:
(i) The total number of ballast tanks or holds, the contents of
which are to be discharged into the waters of the state or to a
reception facility.
(ii) If an alternative ballast water management method is used,
the number of tanks that were managed using an alternative method, as
well as the type of method used.
(iii) Whether the vessel has a ballast water management plan and
International Maritime Organization guidelines on board, and whether
the ballast water management plan is used.
(iv) Whether the master, operator, or person in charge of the
vessel has claimed a safety exemption pursuant to paragraph (1) of
subdivision (b) of Section 71203 for the vessel voyage, and the
reason for asserting the applicability of that paragraph.
(E) Information on ballast water tanks, the contents of which are
to be discharged into the waters of the state or to a reception
facility, including all of the following:
(i) The origin of ballast water, including the date and location
of intake, volume, and temperature. If a tank has been exchanged,
the identity of the loading port of the ballast water that was
discharged during the exchange.
(ii) The date, location, volume, method, thoroughness measured by
percentage exchanged if exchange is conducted, and sea height at time
of exchange if exchange is conducted, of any ballast water exchanged
or otherwise managed.
(iii) The expected date, location, volume, and salinity of any
ballast water to be discharged into the waters of the state or a
reception facility.
(F) Discharge of sediment and, if sediment is to be discharged
within the state, the location of the facility where the disposal
will take place.
(G) Certification of accurate information, which shall include the
printed name, title, and signature of the master, owner, operator,
person in charge, or responsible officer attesting to the accuracy of
the information provided and certifying compliance with the
requirements of this division.
(H) Changes to previously submitted information.
(2) The master, owner, operator, or person in charge of a vessel
subject to this subdivision shall retain a signed copy of the
information described in this subdivision on board the vessel for two
years.
(d) The master, owner, operator, or person in charge of a vessel
subject to this division shall retain for two years a separate
ballast water log outlining ballast water management activities for
each ballast water tank on board the vessel and shall make the
separate ballast water log available to the commission for inspection
and review.


71206. (a) The commission, in coordination with the United States
Coast Guard, shall take samples of ballast water and sediment from at
least 25 percent of the arriving vessels subject to this division,
examine documents, and make other appropriate inquiries to assess the
compliance of any vessel subject to this division. The commission
shall provide to the board copies of all sampling results.
(b) The master, owner, operator, or person in charge of a vessel
subject to this division shall make available to the commission, upon
request of that commission, the records required by Section 71205.
(c) The commission, in coordination with the United States Coast
Guard, shall compile the information obtained from submitted reports.
The information shall be used, in conjunction with existing
information relating to the number of vessel arrivals, to assess
vessel reporting rates and compliance with the requirements of this
division.


71207. (a) This division describes the state program to regulate
the discharge or release of ballast water and other vectors of
nonindigenous species from vessels regulated pursuant to this
division. Prior to January 1, 2010, a state agency, board,
commission, or department shall not impose a requirement, pertaining
to the discharge or release of ballast water and other vectors of
nonindigenous species from a vessel regulated pursuant to this
division, that is different from the requirements set forth in this
division, unless that action is mandated by federal law.
(b) Nothing in this division restricts state agencies from
enforcing this division.
(c) Any person violating this division is subject to civil and
criminal liability in accordance with Chapter 5 (commencing with
Section 71216).
(d) The commission may require any vessel operating in violation
of this division to depart the waters of the state and exchange,
treat, or otherwise manage the ballast water at a location determined
by the commission, unless the master determines that the departure
or exchange would threaten the safety or stability of the vessel, its
crew, or its passengers.


71210. (a) The commission, in consultation with the board, the
United States Coast Guard, and a technical advisory group made up of
interested persons, including, but not limited to, shipping and port
representatives, shall sponsor pilot programs for the purpose of
evaluating alternatives for treating and otherwise managing ballast
water. The goal of this effort shall be the reduction or elimination
of the discharge of nonindigenous species into the coastal waters of
the state or into waters that may impact coastal waters of the
state. Whenever possible, the pilot programs shall include funding
from federal grants and appropriations, vendor funding, and state
bond funds, including, but not limited to, bond funds from the Water
Security, Clean Drinking Water, Coastal and Beach Protection Act of
2002. Priority shall be given to projects to test and evaluate
treatment technologies that can be used to prevent the introduction
and spread of nonindigenous aquatic species into coastal waters of
the state by ship-mediated vectors.
(b) The commission shall provide biennial summaries to the
Legislature and the public, beginning on or before January 31, 2005,
of the results of the pilot programs conducted pursuant to this
section. These summary reports shall include, but not be limited to,
a description of the projects, the relative effectiveness of the
technologies examined in minimizing the discharge of nonindigenous
species, and the costs of implementing the technologies.



71210.5. The commission, in consultation with the board, the United
States Coast Guard, and a technical advisory group made up of
interested persons including, but not limited to, shipping and port
representatives, shall prepare an analysis of the vectors, other than
ballast water, and relative risks of those vectors, for release of
nonindigenous species from vessels. This analysis shall include, but
not be limited to, the release of nonindigenous species from vessel
hulls, sea chests, sea suction grids, other hull apertures, in-water
propellers, chains, anchors, piping and tanks. The commission shall
prepare a report summarizing the results of this analysis and
recommending action to reduce the discharge of nonindigenous species
from vessel vectors other than ballast water. The commission shall
submit the report to the Legislature and make it available to the
public on or before March 1, 2006.

71211. (a) (1) The Department of Fish and Game, in consultation
with the commission and the United States Coast Guard, shall collect
data necessary to establish and maintain an inventory of the location
and geographic range of nonindigenous species populations in the
coastal and estuarine waters of the state that includes open coastal
waters and bays and estuaries. In particular, data shall be
collected that does both of the following:
(A) Supplements the existing baseline of nonindigenous species
previously developed pursuant to this section, by adding data from
investigations of intertidal and nearshore subtidal habitats along
the open coast.
(B) Monitors the coastal and estuarine waters of the state,
including, but not limited to, habitats along the open coast, for new
introductions of nonindigenous species or spread of existing
nonindigenous species populations.
(2) Whenever possible, the study shall utilize appropriate,
existing data, including data from previous studies made pursuant to
this section. The Department of Fish and Game shall make the
inventory and accompanying analysis available to the public through
the Internet on or before January 1, 2007, and shall provide to the
public an update of that inventory no later than July 1, 2008.
(b) (1) The Department of Fish and Game, in consultation with the
commission and the United States Coast Guard, shall assess the
effectiveness of the ballast water controls implemented pursuant to
this division by comparing the status and establishment of
nonindigenous species populations, as determined from the data
collected pursuant to subdivision (a), with the baseline data
collected pursuant to this division and submitted in a report to the
Legislature in 2003.
(2) Whenever possible, this research shall utilize appropriate,
existing data.
(3) The Department of Fish and Game shall submit a report
presenting its assessment to the Legislature and the public on or
before January 1, 2009.
(c) Information generated by the research conducted pursuant to
this section shall be of the type and in a format useful for
subsequent studies and reports undertaken for any of the following
purposes:
(1) The determination of alternative discharge zones.
(2) The identification of environmentally sensitive areas to be
avoided for uptake or discharge of ballast water.
(3) The long-term effectiveness of discharge control measures.
(4) The determination of potential risk zones where uptake or
discharge of ballast water shall be prohibited.
(5) The rate and risk of establishment of nonindigenous species in
the coastal waters of the state, and resulting impacts.



71212. On or before January 31, 2005, and updated biennially, the
commission, in consultation with the board, the Department of Fish
and Game, and the United States Coast Guard, shall submit to the
Legislature, and make available to the public, a report that
includes, but is not limited to, all of the following:
(a) A summary of the information provided in the ballast water
discharge report forms submitted to the commission, including the
volumes of ballast water exchanged, volumes discharged into state
waters, types of ballast water treatment, and locations at which
ballast water was loaded and discharged.
(b) Monitoring and inspection information collected by the
commission pursuant to this division, including a summary of
compliance rates, categorized by geographic area and other groupings
as information allows.
(c) An analysis of the monitoring and inspection information,
including recommendations for actions to be undertaken to improve the
effectiveness of the monitoring and inspection program.
(d) An evaluation of the effectiveness of the measures taken to
reduce or eliminate the discharge of nonindigenous species from
vessels, including recommendations regarding action that should be
taken to improve the effectiveness of those measures.
(e) A summary of the research completed during the two-year period
that precedes the release of the report, and ongoing research, on
the release of nonindigenous species by vessels.



71213. The commission, the board, and the Department of Fish and
Game, in consultation with interested stakeholders, shall identify
and conduct any other research determined necessary to carry out the
requirements of this division. The research may relate to the
transport and release of nonindigenous species by vessels, the
methods of sampling and monitoring of the nonindigenous species
transported or released by vessels, the rate or risk of release or
establishment of nonindigenous species in the waters of the state and
resulting impacts, and the means by which to reduce or eliminate a
release or establishment. The research shall focus on assessing or
developing methodologies for treating or otherwise managing ballast
water to reduce or eliminate the discharge or establishment of
nonindigenous species.

71215. (a) (1) The Marine Invasive Species Control Fund is hereby
created. The money in the fund, upon appropriation by the
Legislature, shall be used solely to carry out this division.
(2) All money accruing to the Exotic Species Control Fund shall be
transferred to the Marine Invasive Species Control Fund.
(b) (1) The commission shall administer the fund in accordance
with this chapter.
(2) The commission shall establish, through regulation, a
reasonable and appropriate fee solely for the purposes of carrying
out this division. The fee may not exceed one thousand dollars
($1,000) for each voyage, as described in subdivision (c). This
amount may be adjusted for inflation every two years.
(3) In establishing fees, the commission shall consult with a
technical advisory group made up of interested persons, including,
but not limited to, shipping and port representatives.
(4) The commission may establish lower levels of fees and the
maximum amount of fees for individual shipping companies or vessels.
Any fee schedule established, including the level of fees and the
maximum amount of fees, shall take into account the impact of the
fees on vessels operating from California in the Hawaii or Alaska
trades, the frequency of calls by particular vessels to California
ports within a year, the ballast water practices of the vessels, and
other relevant considerations.
(c) The State Board of Equalization, in accordance with Part 22.5
(commencing with Section 44000) of Division 2 of the Revenue and
Taxation Code, shall collect the fee from the owner or operator of
each vessel that arrives at a California port or place from a port or
place outside of California. That fee may not be assessed on any
vessel arriving at a California port or place if that vessel comes
directly from another California port or place and during that
transit has not first arrived at a port or place outside California
or moved outside the EEZ prior to arrival at the subsequent
California port or place.
(d) Notwithstanding any other provision of law, all fees imposed
pursuant to this section shall be deposited into the Marine Invasive
Species Control Fund.
(e) Notwithstanding any other provision of law, all penalties and
payments collected for violations of any requirements of this
division shall be deposited into the Marine Invasive Species Control
Fund.

71216. (a) Except as provided in subdivision (b) or (c), any person
who intentionally or negligently fails to comply with the
requirements of this division may be liable for an administrative
civil penalty in an amount which may not exceed five thousand dollars
($5,000) for each violation. Each day of a continuing violation
constitutes a separate violation.
(b) Any person who fails to comply with the reporting requirements
set forth in Section 71205 may be liable for an administrative civil
penalty in an amount which may not exceed five hundred dollars
($500) per violation. Each day of a continuing violation constitutes
a separate violation.
(c) Any person who, knowingly and with intent to deceive,
falsifies a ballast water control report form, or knowingly and with
intent to deceive, tampers with or disables a system for controlling
the release of nonindigenous species, required by this division, may
be liable for an administrative civil penalty in an amount which may
not exceed five thousand dollars ($5,000) per violation. Each day of
a continuing violation constitutes a separate violation.
(d) The executive officer of the commission may issue a complaint
to any person on whom civil liability may be imposed pursuant to this
division. The complaint shall allege the facts or failures to act
that constitute a basis for liability and the amount of the proposed
civil liability. The complaint shall be served by personal service
or certified mail and shall inform the person so served of the right
to a hearing. A person served with a complaint pursuant to this
subdivision may, within 30 days after service of the complaint,
request a hearing by filing with the executive officer a notice of
defense, as described in Section 11506 of the Government Code. A
notice of defense is deemed to be filed within the 30-day period if
it is postmarked within the 30-day period. If a hearing is requested
by the person, it shall be conducted within 30 days after the
executive officer receives the notice of defense. If no notice of
defense is filed within 30 days after service of the complaint, the
executive officer shall issue an order setting liability in the
amount proposed in the complaint unless the executive officer and the
person have entered into a settlement agreement, in which case the
executive officer shall issue an order setting liability in the
amount specified in the settlement agreement. If the person has not
filed a notice of defense or if the executive officer and the person
have entered into a settlement agreement, the order may not be
subject to review by a court or agency.
(e) A hearing required under this section shall be conducted by an
independent hearing officer, in accordance with the procedures
specified in Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code, except as otherwise
specified in this section. In making a determination, the hearing
officer shall take into consideration the nature, circumstances,
extent, and gravity of the violation, the violator's past and present
efforts to prevent, abate, or clean up conditions posing a threat to
the public health and safety of the environment, and the violator's
ability to pay the proposed civil penalty. After conducting a
hearing required under this section, the hearing officer shall,
within 30 days after the case is submitted, issue a decision,
including an order setting the amount, if any, of the civil penalty
to be imposed.
(f) Orders setting civil liability and issued pursuant to this
section are effective and final upon issuance. The violator shall
pay any penalty within 30 days of service, unless he or she seeks
judicial review pursuant to subdivision (g), in which case he or she
shall pay any penalty within 30 days of service of the court's order
setting civil liability. Copies of the orders shall be served by
personal service or by certified mail upon the person served with the
complaint and upon other persons who appeared at the hearing and
requested a copy.
(g) Within 30 days after service of a copy of a decision issued by
the hearing officer that the person served is liable for a civil
penalty, a person so served may file a petition for writ of mandate
for review of the decision pursuant to Section 11523 of the
Government Code. A person who fails to file the petition within the
30-day period may not challenge the reasonableness or validity of a
decision or order of the hearing officer in any judicial proceedings
brought to enforce the decision or order or for other remedies.
Except as otherwise provided in this section, Section 1094.5 of the
Code of Civil Procedure shall govern any proceedings conducted
pursuant to this subdivision. In all proceedings pursuant to this
subdivision, the court shall uphold the decision of the hearing
officer if the decision is based upon substantial evidence in the
whole record. The filing of a petition for writ of mandate may not
stay any corrective action required pursuant to this act or the
accrual of any penalties assessed pursuant to this act. This
subdivision does not prohibit the court from granting any appropriate
relief within its jurisdiction.
(h) An order for administrative penalties entered pursuant to this
section shall be subject to interest at the legal rate from the
filing date of the complaint as specified in subdivision (d).
(i) A provision of this chapter or a ruling of the executive
officer may not be construed to limit, abridge, or supersede the
power of the Attorney General, at the request of the executive
officer, or upon his or her own motion, to bring an action in the
name of the people of the State of California to enjoin a violation
of this division, seek necessary remedial action by a person who
violates this division, or seek civil and criminal penalties against
a person who violates this division.
(j) In lieu of a complaint under subdivision (d) to impose
administrative civil penalties set forth in subdivisions (a), (b),
and (c), the Attorney General, at the request of the commission, may
bring an action in superior court, in the name of the People of the
State of California, to enjoin a violation of this division, seek
necessary remedial action by a person who violates this division, or
seek civil penalties in the amounts set forth in subdivisions (a),
(b), and (c).



71217. A person who violates subdivision (c) of Section 71216 is
guilty of a misdemeanor, and is punishable by imprisonment in the
county jail for not more than one year.

71271. This division shall remain in effect only until January 1,
2010, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2010, deletes or extends
that date. If a federal program and regulations similar to the
program and regulations developed pursuant to this division are
established and implemented prior to January 1, 2010, the commission
shall submit a report to the Legislature within eight months of the
implementation of the federal program. The report shall compare the
federal program with the program described in this division and make
a finding as to the federal program's relative effectiveness in
preventing the introduction of marine invasive species from vessels
visiting California. The commission shall recommend repeal of the
program described in this division only if it finds that the federal
program is equally or more effective at implementing and funding
effective controls on the release of aquatic invasive species into
the waters of the state than the program described in this division.