Congress Passes Major Maritime Safety Legislation but Fails to Fund a New Icebreaker or Pass Authorization

Joan M. Bondareff, Jonathan K. Waldron, and Genevieve Cowan*

This article provides an update on the status of several maritime-related bills pending with the 115th Congress as of October 3, 2018, and reviews one major marine safety law that passed Congress and is awaiting presidential signature.

America’s Water Infrastructure Act of 2018

The latest version of “America’s Water Infrastructure Act of 2018” (S. 3021), previously referred to as WRDA, is a product of compromise. The issues that were stalling the legislation for most of the summer have been resolved, resulting in a now far broader version that includes improvements to America’s water resources infrastructure; a streamlined project acquisition process for the Army Corps of Engineers that allows them to accept funds from nonfederal sponsors to advance studies and project elements; an extension of a new Environmental Protection Agency (“EPA”) water loan program for two more years; an EPA study requirement on small water utilities that are repeatedly out of compliance; a Government Accountability Office (“GAO”) study on whether to move the Army Corps out of the Department of Defense and into a civilian agency; and enhancements to oversight and transparency when reviewing water resources development activities by Congress. For a full summary and section-by-section review of the bill, please visit the House Transportation and Infrastructure Committee’s webpage on America’s Water Infrastructure Act of 2018.

Negotiated by both parties in both chambers of Congress, the more-than-300-page bill passed the House on September 13, 2018. This was the second time that the House overwhelmingly passed water resources legislation this year. The bill awaits a final vote in the Senate, which is expected to happen soon. Another issue holding up the vote on S. 3021 is the need to reauthorize funding for the Federal Aviation Administration (“FAA”), which was set to expire on October 30. The Senate passed a short-term extension for the FAA legislation, pushing back the vote on America’s Water Infrastructure Act of 2018. The Senate chamber also just voted on the full five-year FAA Reauthorization bill, which should enable it to turn its attention to S. 3021.

U.S. Coast Guard Authorization Act of 2019

The House has already passed the Coast Guard authorizing measure for fiscal year (“FY”) 2019, but the bill is awaiting final floor action in the Senate due primarily to disagreements over the Commercial Vessel Incidental Discharge Act (“CVIDA”) provisions in the Senate-reported bill (S. 1129). CVIDA, if enacted, would grant greater authority to the Coast Guard to regulate ballast water discharges from commercial vessels, almost preempting state and EPA regulation of these discharges under the Clean Water Act. Lawmakers from the Great Lakes states in particular have objected to the provisions because they would impose a nationwide standard for the discharging of ship ballast water, which would supersede state laws. The disputed provision was spurred by concern that invasive species—such as zebra mussels in ship ballast water—may harm sources of fresh water. Without solving the CVIDA issue or removing the provision, the U.S. Coast Guard Authorization bill will not be enacted this year.

Major Maritime Safety and Marine Debris Legislation Sent to the President for Signature

While waiting for final action on the Coast Guard Authorization bill, Congress did enact major maritime safety legislation and sent the enrolled bill to the president on October 2, 2018. The bill, S. 3508, is titled the “Save Our Seas Act of 2018” and contains three important titles, described below.

Title I: Marine Debris Program Reauthorization

Title I reauthorizes the marine debris program administered by the National Oceanic and Atmospheric Administration (“NOAA”) at a level of $10 million for each of fiscal years 2018–2022 and authorizes two million dollars for the Coast Guard. The title also encourages NOAA to work with other federal agencies to address sources of marine debris; promote international action to reduce the incidence of marine debris, including providing technical assistance to expand waste management systems internationally; and respond to severe marine debris incidences.

Title II: The Hamm Alert Maritime Safety Act of 2018

Title II was named after a petition to Congress to enact legislation to address the tragic sinking of the M/V El Faro cargo ship in 2015, and was initiated by the wife of one of the 33 crew members and captain aboard—all of whom perished in the incident. The Maritime Safety Act adopts many of the recommendations of the Commandant of the Coast Guard’s final action memo regarding the sinking of the El Faro, in addition to those of the National Transportation Safety Board (“NTSB”). In sum, the key provisions of the legislation would:

  • no later than 60 days after enactment, publish flag-state detention rates of each type of inspected vessel and identify any recognized classification society that inspected or surveyed a vessel that was subject to a major control action attributable to a major nonconformity;
  • direct the GAO to conduct an audit of the Coast Guard’s oversight and enforcement of safety management plans required under the International Safety Management Code, and report to Congress in 18 months on the program’s effectiveness and provide recommendations;
  • require that all inspected freight vessels carry enhanced distress signals and location technology, and require companies to maintain records of all incremental weight changes made to inspected freight vessels;
  • direct the Coast Guard to work with the International Maritime Organization (“IMO”) to require a high-water alarm sensor in each cargo hold of a freight vessel, and amend the Safety of Life at Sea Convention to require that all voyage data recorders be installed in a float-free arrangement and contain an integrated Emergency Position Indicating Radio Beacon;
  • direct the Coast Guard, subject to the availability of appropriations, to identify and procure equipment to provide search-and-rescue units with the ability to attach a radio or Automatic Identification System (“AIS”) or beacon to an object that is not immediately retrievable;
  • require the Commandant of the Coast Guard to establish enhanced training programs for Coast Guard marine inspectors, and take other actions to improve the marine inspection program of the Coast Guard;
  • direct the Coast Guard to review its policies and procedures for making major conversion determinations;
  • direct the Commandant of the Coast Guard to 1) conduct an assessment of its oversight of recognized (third-party) organizations and the impact on compliance by and safety of vessels inspected by such organizations, 2) establish within the Coast Guard an office to conduct comprehensive and targeted oversight of all such recognized organizations, and 3) review its procedures for delegating to recognized organizations to ensure that these authorities are being conducted in a manner that ensures safe maritime transportation;
  • create a single United States Supplement to rules of recognized classification societies for classification and inspection of vessels;
  • task the Commandant with working with the IMO to ensure that vessels receive timely and graphical weather forecasts; and
  • no later than December 19, 2018, and every two years thereafter, direct the Commandant to report to Congress on the Coast Guard’s implementation of each action outlined in the Commandant’s final action memo dated December 19, 2017.

Title III: The Coast Guard Blue Technology Center of Expertise Act

Title III of S. 3508 authorizes the Commandant of the Coast Guard, subject to the availability of appropriations, to establish a Blue Technology Center of Expertise to help promote awareness within the Coast Guard of the range and diversity of so-called Blue Technologies—new and emerging maritime domain awareness technologies, especially more cost-effective unmanned technologies—and how the use of such technologies could enhance Coast Guard mission readiness and performance. This title also enables the sharing and dissemination of Blue Technology information between the private sector, academia, nonprofits, and the Coast Guard.

USCG Icebreaker Funding Held Up until after the Midterms

The Trump administration requested $750 million for a new heavy polar icebreaker vessel in its FY 2019 budget request. The John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) awarded the Coast Guard procurement authority for additional icebreaker vessels; however, unless and until the project receives adequate funding in an appropriations bill, the Department of Homeland Security (“DHS”) will not be able to procure a new icebreaker, which is badly needed. The House version of funding for the DHS would reallocate funding for the Coast Guard icebreaker to cover a funding gap in a veterans’ program and allocate five billion dollars for the border wall sought by President Trump. In sum, the 115th Congress has enacted major maritime safety legislation in response to the tragic sinking of the El Faro, but authorization for the Coast Guard’s basic programs has yet to pass and will not likely be enacted after the midterm elections unless disagreements over CVIDA are resolved.

*Genevieve Cowan is a legislative analyst for Blank Rome Government Relations LLC.