Congress “Almost” Takes Action on the “Coast Guard Authorization Act of 2015”

Mainbrace | January 2016 (No. 1)

Jonathan K. Waldron and Joan M. Bondareff

In the waning hours of the first session of the 114th Congress, the Senate passed H.R. 4188, an “Act to authorize appropriations for the Coast Guard for fiscal years 2016 and 2017, and for other purposes,” but the House of Representatives had already recessed for the year so final passage has been stalled until 2016. We anticipate that the House will take up the bill within the first two months of 2016, pass it without further amendment, and send it off to the President for his signature. Therefore, we have summarized the Senate enrolled bill, below, with our fondest hopes that the House decides not to tinker with the bill any further…

In summary, the bill, entitled the “Coast Guard Authorization Act of 2015,” authorizes the essential programs of the Coast Guard for two years (title I); addresses acquisition reform and other Coast Guard programs (title II); establishes several new shipping and navigation requirements (title III); reauthorizes the Federal Maritime Commission (title IV); conveys excess Coast Guard property (title V); and has a number of miscellaneous provisions (title VI). Following is a summary of the key provisions that we anticipate will be finally enacted in 2016. Unless otherwise indicated, Secretary means the Secretary of the Department of Homeland Security (“DHS”), the department in which the Coast Guard is located.

Title I – Coast Guard Authorizations and Reports to Congress

This title authorizes the basic Coast Guard programs for fiscal years 2016 and 2017 at the following levels: 1) $6.9B for operation and maintenance; 2) $1.945B for acquisition and construction; 3) $140M for the Coast Guard reserve program; 4) $16.7M for environmental compliance; and 5) $19.89M for research and development. The Coast Guard is authorized an end-of-year strength for active duty personnel of 43,000. On the date the President submits his budget for fiscal year 2017, and every four years thereafter, the Commandant must submit to Congress a manpower requirements plan.

Title I also authorizes funding for icebreakers as follows. For icebreaking on the Great Lakes, the Commandant may use available funds for the selection of a design for and the construction of an icebreaker that is capable of buoy tending on the Great Lakes. The Senate also authorized $4M for FY2016 and $10M for FY2017 for preacquisition activities for a new polar icebreaker. As part of the Consolidated Appropriations Act, 2016 (P.L. 114-113), which included funding for DHS, Congress plussed up the amount for polar icebreaker design work for FY2016 to $6M.

Title II – Coast Guard Programs

This title contains administrative reforms for the Coast Guard, including the following key provisions.

Sec. 201-202. Vice Admiral. Authorizes the President to designate five positions within the Coast Guard of sufficient importance and responsibility to have the grade of vice admiral, including the position of the Chief of Staff of the Coast Guard; and elevates the rank of the Vice Commandant from vice admiral to admiral.

Sec. 204. Acquisition reform. This section establishes new requirements for the Coast Guard to report to Congress on acquisition of its major capital assets, including estimates of life-cycle costs for any new capital asset, and its anticipated delivery date; and a long-term major acquisition plan for each upcoming fiscal year for the next 20 fiscal years with the numbers and types of cutters and aircraft to be decommissioned and the numbers of cutters and aircraft to be acquired, with an estimate for funding required for same. The plan must also be updated on a quarterly basis specifying risks associated with all current major acquisition programs.

Sec. 205. Auxiliary jurisdiction. The Auxiliary is authorized to conduct patrols on waterways only if the Commandant has determined that such waterway is navigable for pur- poses of Coast Guard jurisdiction.

Sec. 207. Polar icebreakers. This section authorizes the Commandant to enter into a contract or contracts for the acquisition of polar icebreakers and associated equipment using “Incremental Funding.” Incremental Funding means the partial funding of a contract or an exercised option, with additional funds anticipated to be provided at a later time according to the Defense Federal Acquisition Regulations. The section also authorizes the Coast Guard to conduct a material condition assessment of the Polar Sea, and determine whether it is cost-effective to reactivate the Polar Sea. The assessment is to be submitted within one year after the date of enactment to the respective House and Senate authorizing committees.

Sec. 208. Air facility closures. This section establishes specific criteria under which the Commandant may close Coast Guard air facilities. Initially, the Coast Guard may not close a Coast Guard air facility that was in operation on November 30, 2014, but this ban sunsets on the later of January 1, 2018, or the date on which the Secretary of Homeland Security (“Secretary”) submits rotary wing strategic plans to Congress. Starting on January 1, 2018, the Secretary may not close a Coast Guard air facility unless the Secretary determines that remaining search and rescue capabilities maintain the safety of the maritime public in the area of the air facility and Coast Guard search and rescue standards and times are met. Prior to closing an air facility, the Secretary must give notice to the public and to each member of Congress who represents a district or state in which the facility is located.

No later than one year from the date of enactment, the Secretary must develop and submit to Congress a rotary wing contingency plan to address the planned losses of rotary wing airframes; and, in two years, shall submit a capital investment plan for the acquisition of new rotary wing airframes to replace the Coast Guard’s legacy helicopters.

Sec. 210. Discontinuance of an aid to navigation. No later than 180 days after the date of enactment, the Secretary must establish a process for the discontinuance of a Coast Guard aid to navigation, including procedures to notify the public.

Sec. 212. Communications. The Secretary shall conduct a pilot program across three DHS components to assess the effectiveness of their communications systems with respect to their interoperability and with respect to the Coast Guard response capabilities.

Sec. 213. Coast Guard graduate maritime operations education. No later than one year after enactment, the Secretary shall establish an education program for members and employees of the Coast Guard that offers a master’s degree in maritime operations, that provides resident and distant learning options, and, to the greatest extent practicable, is conducted at an accredited public academic institution that is located near a significant number of Coast Guard and other DHS law enforcement personnel.

Sec. 214. Professional development. No later than one year after the date of enactment, the Commandant shall develop and implement a plan to conduct every two years a “Multirater” assessment for each Coast Guard flag officer, each officer nominated for flag rank, and each member of the Coast Guard’s Senior Executive Service (“SES”). A Multirater assessment seeks opinions from members senior to the reviewee as well as the peers and subordinates of the reviewee.

The Commandant must also submit to Congress, no later than 180 days from enactment, a report on Coast Guard leadership  development.

Sec. 216. Coast Guard member pay. The Commandant must conduct an annual audit of member pay and allow- ances and, in 180 days after enactment, report to Congress on alternative methods for notifying members of their monthly earnings.

Sec. 217. Transfer of funds necessary to provide medical care. This section authorizes the Secretary to transfer to the Secretary of Defense funds that represent the value of treatment or care that the Department of Defense provides to current and former members of the Coast Guard.

Sec. 218. Participation of the Coast Guard Academy in federal, state, or other educational research grants. Authorizes the Commandant to enter into agreements with “qualified organizations” for the purpose of education and research where a “Qualified Organization” means a 501(c)(3) tax-exempt organization and is established by the Coast Guard Academy Alumni Association for the purpose of supporting academic research.

Sec. 220. Investigations. In conducting an investigation into an allegation of misconduct by a flag officer or member of the SES serving the Coast Guard, the Inspector General of DHS must conduct the investigation consistent with Department of Defense policies for such an investigation.

Sec. 221. Clarification of eligibility of members of the Coast Guard for combat-related special compensation. No later than 90 days after enactment, the Secretary shall issue procedures and criteria to use in determining whether the disability of a member of the Coast Guard is a combat- related disability for purposes of receiving combat-related special  compensation.

Sec. 222. Leave policies for the Coast Guard. No later than one year after the Secretary of the Navy promulgates a new policy with respect to the birth or adoption of a child, the Secretary shall promulgate a similar rule or policy for the Coast Guard.

Title III – Shipping and Navigation

Sec. 301. Survival craft. The Secretary shall require that a passenger vessel be equipped with survival craft that ensures that no part of an individual is immersed in water if such ves- sel is built or undergoes a major conversion after January 1, 2016, and operates in cold waters. The Secretary may allow a passenger vessel to be equipped with a life-saving appliance or arrangement of an innovative design that ensures no part of an individual is immersed in water, and provides an equal or higher standard of safety than is provided by requirements in effect before the date of enactment.

No later than December 31, 2016, the Secretary shall submit a report to Congress on casualties, risks to certain individuals, children, and the elderly, and the effect that carriage of survival craft has on passenger vessel safety. The review must be updated every five years. No later than five years from the date of enactment, the Comptroller General of the United States shall also report to Congress on any positive changes in public safety as a result of the amendments in the Act.

Sec. 302. Vessel replacement. This section contains a series of amendments to the federal fishing vessel loan guarantee program, administered by the Secretary of Commerce with respect to fishing vessels. Of the direct loan obligations issued by the Secretary of Commerce, the Secretary shall make a minimum of $59M available each fiscal year for “Historic Uses.” Historic Uses include repairing a fishing vessel without materially increasing harvesting capacity; purchasing a used fishing vessel; purchasing or reconditioning a fishery facility; refinancing existing debt; reducing fishing capacity; and making certain upgrades to a fishing vessel. The Secretary of Commerce may also issue direct loans to finance a fishing vessel in a fishery managed under a limited access system, or financing the purchase of harvesting rights in such fishery. Finally, this legislation restricts the use of a fishing vessel in a fishery managed by the North Pacific Fishery Management Council and that is replaced by a vessel constructed or rebuilt with a federal loan or loan guarantee from the use of that vessel to harvest fish in any other region.

Sec. 304. Merchant mariner credential expiration harmonization. No later than one year after the date of enactment, the Secretary shall establish a process to harmonize the expiration dates of merchant mariner credentials, medical certificates, and radar observer endorsements for individuals applying for a new credential or for renewal of same. This process does not apply to individuals holding a credential with an active Standards of Training, Certification, and Watchkeeping endorsement.

Sec. 307. Recommendations for improvements of marine casualty reporting. No later than 180 days after the date of enactment, the Commandant shall notify the House and Senate the actions the Commandant will take to implement recommendations on improvements to the Coast Guard’s marine casualty reporting requirements and procedures.

Sec. 309. Merchant mariner medical certification reform. Notwithstanding any other law, a “Trusted Agent” may issue a medical certificate to an individual who must hold such certificate to qualify for a merchant marine license or document. A Trusted Agent means a medical practitioner certified by the Secretary to perform physical examinations for such individuals.

Sec. 310. Atlantic coast port access route study. No later than April 1, 2016, the Commandant shall conclude the Atlantic Coast Port Access Route Study and submit the results to the House and Senate.

Sec. 311. Certificates of documentation for recreational vessels. No later than one year after the date of enactment, the Secretary shall issue regulations that make certificates of documentation for recreational vessels effective for five years.

Sec. 312. Program guidelines. No later than 180 days after the date of enactment, the Secretary of Transportation shall develop guidelines to ensure the future availability of credentialed U.S.-licensed and unlicensed seafarers, including incentives to encourage partnerships with operators of foreign-flag vessels that carry liquefied natural gas to provide training billets for U.S. merchant mariners.

Sec. 314. Maritime drug law enforcement. This section establishes new fines and criminal penalties for individuals who knowingly or intentionally manufacture or distribute a controlled substance or conceal more than $100,000 in currency aboard certain vessels.

Sec. 315. Examinations for merchant mariner credentials. The Secretary is required to develop a sample merchant mariner credential examination and outline of examination topics on an annual basis, but is not required to disclose to the public any question or answer to a question from any examination for a merchant mariner credential.

Sec. 317. Recognition of port security assessments con- ducted by other entities. This provision authorizes the Secretary to provide equal treatment to a port security assessment conducted by a foreign government, including an entity operating under the auspices of the European Union, or international organization recognized by the Secretary.

Sec. 318. Fishing vessel and fish tender vessel certification. This provision authorizes the Coast Guard to establish an alternative safety compliance program for fishing vessels between 50 and 79 feet overall in length, if the vessel is built after the date of enactment of this Act. The alternative safety compliance program must incorporate standards equivalent to those prescribed by a classification society and the vessel must undergo a condition survey at least twice in five years and an out-of-water survey at least once every five years. No later than 10 years after enactment, the Secretary is to report to Congress its analysis of the adequacy of the alternative safety requirements, and if they are not deemed adequate, then the Secretary may establish his own alternative safety compliance program. The Comptroller General is also to report no later than 12 months after the date of enactment on fishing vessel safety.

Title IV – Federal Maritime Commission

This title authorizes $24.7M for each of fiscal years 2016 and 2017 for the activities of the Federal Maritime Commission (“FMC”). The title also prohibits the FMC from making any award that is not related to its mission.

Title V – Conveyances of Excess Coast Guard Property

This title contains a series of conveyances of excess Coast Guard property to a number of recipients, including the Coast Guard property in Point Reyes Station, CA, to the County of Marin, California; property in Tok, Alaska, to the Tanana Chiefs’ Conference; property on St. Paul Island, Alaska, to the Alaska native village corporation for St. Paul Island; and property at Point Spencer, Alaska, to the Bering Strait native village corporation.

Title VI – Miscellaneous

Sec. 603. GAO audit. The Comptroller General is required to conduct an audit of funds in the Vessel Operations Revolving Fund attributable to the sale of obsolete ves- sels in the National Defense Reserve Fleet, and submit the audit to Congress no later than 180 days after the date of enactment.

Sec. 604. National Academy of Sciences cost assessment. The Secretary shall enter into an agreement with the National Academy of Sciences to conduct an assessment of the costs incurred by the federal government to carry out polar icebreaking missions. The assessment shall identify potential design, procurement, leasing, service contracts, and other options that could minimize life-cycle costs and optimize efficiency of Coast Guard polar icebreaker operations in the Arctic and Antarctic.

Sec. 606. International ice patrol. No later than 180 days after the date of enactment, the Commandant shall submit to Congress a report on its current operations to perform its International Ice Patrol mission and on alternatives for carrying out the mission.

Sec. 607. Assessment of oil spill response and cleanup activities in the Great Lakes. The Commandant, in consultation with the Administrator of the National Oceanic and Atmospheric Administration, shall conduct an assessment of the effectiveness of oil spill response activities on the Great Lakes.

Sec. 608. Report on status of technology detecting passengers who have fallen overboard. No later than 18 months after the date of enactment, the Commandant shall submit a report to Congress on the status of technology for immediately detecting passengers who have fallen overboard with a recommendation to cruise lines on the feasibility of implementing such technology.

Sec. 610. Disposition of infrastructure related to E-Loran. The Secretary may not dismantle or dispose of infrastructure comprising the LORAN-C system until the date the Secretary has submitted to Congress notice of a determination that such infrastructure is not required to provide a positioning, navigation, and timing system to provide redundant capability in the event the Global Positioning System signals are displaced.

Conclusions

In conclusion, as of the time that this article was written in January 2016, we expect the House to pass H.R. 4188 early this year, which will then become law when signed by President Obama because the same language was passed by the Senate before it recessed in 2015. Among other things, the Coast Guard will have its hands full meeting new congressional deadlines for reports and regulations.