Senate Approves Coast Guard Authorization Bill Setting Stage

Winston & Strawn LLP Maritime Briefing on the Senate's Coast Guard Authorization bill.

Senate Approves Coast Guard Authorization Bill Setting Stage for Conference with the House of Representatives

On May 7, 2010, the U.S. Senate passed a House version of a Coast Guard authorization bill (HR3619), setting the stage for enactment of the service’s first reauthorization since 2006. The Senate passed the measure, titled the “Coast Guard Authorization Act for Fiscal Years 2010 and 2011,” with the addition of a substitute amendment by Sen. Maria Cantwell (D-WA) which contains modified language from an earlier Senate version of the bill (S-1194).

Action by the Senate Committee on Commerce, Science, and Transportation kicked into high gear when Senator Cantwell, who chairs the subcommittee of jurisdiction, announced that she would be “hotlining” the bill, meaning that she requested Senators to support a unanimous consent request to pass the measure quickly so that it can begin conference with the House to resolve differences and get to a final version of the bill. Previously, many observers expressed some skepticism that 2010 would provide the conditions for passage, given the many distractions with appropriations measures, financial regulatory reform, climate change legislation, and other pressing matters. In recent weeks, the measure had been held up by an otherwise little-noticed provision regarding the licensing of operators of uninspected passenger vessels on Lake Texoma in Texas and Oklahoma.

Deepwater Horizon
The bill does not address directly the Deepwater Horizon oil spill, although there is speculation that the visibility and attention arising out of that matter and the Coast Guard’s role there helped expedite passage. However, the bill does contain a number of oil spill provisions that have been looking for a berth in legislation for years. Upon passage, full committee Chairman Jay Rockefeller (D-WV) made note of the Coast Guard’s ongoing operations in the Gulf, and said “I will always fight to make sure the Coast Guard has the tools it needs to carry out its missions,” and Ranking Member Kay Bailey Hutchison (R-TX) similarly noted the importance of the legislation in providing the Coast Guard with the authority it needs to deal with the Gulf spill and other such events. Senator Cantwell also linked passage of the bill to the Deepwater Horizon spill, stating that it “provides the much-needed tools” for the Coast Guard to contain the spill and fulfill its other missions.

The Senate’s substitute amendment to the House bill passed last October set authorization levels at just under $9.5 billion annually for FY10-11, which is a decrease from the House-passed authorization of approximately $10 billion for those years.

Highlights of New Provisions

The Senate amendment introduces a number of new provisions to the bill, the highlights of which are summarized below:
1. International Organizations. The bill provides the Coast Guard with new authority to work directly with international organizations, which most notably affects the Coast Guard’s ability to operate in the International Maritime Organization (IMO). It further permits the use of Coast Guard appropriated funds for the interaction with these entities, and directs stronger enforcement of IMO agreements related to oil discharges.

2. Command Structure and Personnel. The outgoing Commandant of the Coast Guard, Adm. Thad Allen, had long sought changes and improvements to the command structure, which are realized in this legislation. Additionally, provisions in the bill permit service members to retain leave when recalled to service in the event of disasters and other emergencies.

3. Seafarer Protection. Similar to a provision in an earlier House bill, the bill would create a new “Support of Seafarers Fund” to help ensure the fair treatment of seafarers involved in an ongoing investigation or law enforcement action, and seafarers abandoned in the United States. In the past, the Department of Justice has required mariners to remain in the United States, away from their families sometimes for months, during an investigation into environmental crimes or other similar matters on ship. Advocated for by the Seamen’s Church in New York, the provision would help address these injustices. Shipowners and operators found to have failed to provide necessary support for seafarers paroled into the United States to facilitate an investigation, or found to have abandoned a seafarer in the United States, are required to reimburse the fund for expenses plus a 25% surcharge. Where shipowners fail to reimburse as required, the Government is authorized to proceed in rem against their vessels or revoke the clearance required to call United States ports pursuant to 46 U.S.C. § 60105.

4. Acquisition Reform. Like the House bill, the Senate amendment would overhaul the Coast Guard acquisition process, aiming to eliminate the problems that plagued the Coast Guard’s “Deepwater” fleet renewal program. The provision would require the establishment of a Coast Guard Chief Acquisition Officer and an acquisition directorate to govern the service’s procurements, and make other changes designed to increase oversight and accountability in acquisitions. Furthermore, the bill would prohibit the use of “lead systems integrators.” Lead systems integrators are used to carry out the procurement process on behalf of the agency, and excessive reliance upon them in lieu of organic acquisitions expertise within the Government has been viewed as the root of Deepwater’s troubles. The bill also directs the Coast Guard to leverage procurement expertise within the Department of Defense, perform more thorough needs analyses for major systems acquisitions, and undertake other improvements to its procurement programs.

5. Icebreakers. The Senate bill also tracks its House counterpart in addressing the Coast Guard’s icebreaker program. It requires that Coast Guard to conduct an analysis, within 90 days of the bill’s enactment, regarding the costs and benefits of improving its existing fleet of polar icebreakers rather than replacing the fleet. Under the new Senate proposal, the analysis would be prepared by a non-governmental third party with experience in military procurement analyses.

6. Oil Pollution Provisions. The bill includes a number of provisions intended to combat marine oil pollution. It includes a provision that would extend responsibility for oil spills from single-hull tank vessels to cargo owners. It would also require the administration to promulgate regulations designed to minimize spills in connection with tank vessel transfers, establish an awareness and prevention program aimed at preventing small oil spills, require reporting on the frequency and type of oil spills over the last ten years, and impose improved auditing requirements on the use of funds from the Oil Spill Liability Trust Fund.

7. Offshore Supply Vessels. The proposed legislation includes a number of provisions from the House Bill, and some additional language, regarding the manning, measurement, and construction of offshore supply vessels. Among other things, it would require oil fuel tank protections consistent with MARPOL.

The Senate bill does not include many of the House provisions, which were discussed in greater detail in our briefings of April 2008 and October 2009.1 Those House provisions address, among other matters, LNG vessel and terminal security, fishing vessel safety, cruise ship crimes, increased Jones Act enforcement, added bunker tank protection, and the establishment of Coast Guard Ombudsmen to improve industry relations. As the bill goes into conference, negotiations will likely to focus on these issues.