Since the 113th Congress passed the Water Resources Reform and Development Act of 2014 ("WRRDA," Pub. L. 113-121), Congress has not been able to accomplish much. A variety of bills are left to be considered, if at all, during the lame duck session that is scheduled to begin the day after Veterans Day (November 12, 2014), according to Majority Leader Harry Reid. Any legislation not considered and passed by the end of this year will have to be reintroduced in the next Congress, the 114th, which begins in January 2015. (Each Congress lasts two years; legislation not passed by the end of the second year of a Congress dies.)
The Continuing Resolution
A Continuing Resolution ("CR") will keep the U.S. government open through December 11, 2014, after Congress returns from the mid-term elections. The CR includes a three percent acrossthe- board cut in all discretionary spending. The CR also includes authorization for the President to support Syrian rebels with air strikes aimed at the Islamic State of Iraq and the Levant ("ISIL").
As of this writing, it is impossible to predict whether the leadership of the Senate will change hands in the next Congress. If it does, however, the CR is likely to be extended into next year, leaving specific budget decisions with a new Congress.
The Coast Guard Authorization Bill
The perennial Coast Guard Authorization bill passed the House on April 1, 2014 (H.R. 4005). Its companion bill, S. 2444, is left hanging in the Senate, however, as a result of Senate Commerce Committee Chairman Jay Rockefeller's wanting to incorporate language to increase federal oversight of cruise passenger protections against the objections of the cruise industry.
There are several key differences between the two Coast Guard bills. Some of the more pertinent provisions of interest to the concrete maritime industry in the House bill include: extending assistance to small shipyards through 2016; allowing third-party classification societies to issue certificates of inspection, or any other certificates issued by the Coast Guard, to offshore supply vessels; a mandate to equip new build vessels that operate in cold waters with survival craft to ensure that no part of an individual is immersed in water; and requiring that 75 percent of food aid cargo must be carried on vessels owned by U.S. citizens, thereby restoring the cut that took place in last year's Defense Authorization bill. The House bill also authorizes a report on the effect LNG exports would have on U.S. job creation.
The Senate bill also contains different provisions, which prominently feature safety and information, including: mandating the Coast Guard to publish a final rule on Automatic Identification Systems ("AIS"), which would have to be consistent with existing statutory provisions on vessel operations, and create a permitting process to allow a vessel traffic information service to use AIS to transmit navigation and safety information to vessels; mandating the federal government to provide notice of marine casualties to state and tribal government officials; and creating a fund to ensure the protection and fair treatment of seafarers during investigations.
Pollution and response legislation is also considered in the Senate bill, which would mandate the Coast Guard to make public all written incident plans within 12 hours of an oil spill. The vessel response plan for Mobile Offshore Drilling Units ("MODU") would have to incorporate information for a planned response to a worst-case discharge from its facility response plan.
New Seafarers Fund Proposed
Another major topic addressed in both the Senate and House bills is the treatment of foreign seafarers that have been abandoned in the U.S. or are required to remain in the U.S. to appear as witnesses at Coast Guard or other criminal enforcement proceedings. The Coast Guard has been advocating for this legislation for some time. The House was initially reticent, but has now included a provision in its bill (Section 310); the Senate bill also has a section on the protection and fair treatment of seafarers (Section 503). The concept is to provide, through a system of payments paid into a new Abandoned Seafarers' Fund established in the Treasury, for the care of seafarers who have been abandoned in the U.S. by their ship owners and operators, or who have to remain in the U.S. as witnesses to potential federal crimes. The Fund is funded in the House bill by penalties assessed against ship owners for violations of the Act to Prevent Pollution from Ships. The Senate bill has a broader payment scheme but, in contrast to the House bill, allows for the provision of a bond or surety by a vessel owner in lieu of detaining a vessel in port. Both bills would allow the Fund to reimburse ship owners who have provided support for seafarers paroled into the U.S. to assist in Coast Guard investigations.
House Hearings on the Arctic and the Merchant Marine
The House Coast Guard and Maritime Transportation Subcommittee (Coast Guard Subcommittee) held hearings on the Arctic and the State of the Merchant Marine on July 23, 2014, and September 10, 2014, respectively. The focus of the Arctic hearing was on the Coast Guard's role in implementing the National Strategy for the Arctic Region and whether other agencies would contribute to the cost of a new polar icebreaker—highly unlikely. (For further information on the status of the Coast Guard icebreakers, see "Is the U.S. Prepared Legally and Operationally to Protect Its Arctic Interests?" on page 5 of this newsletter.) The focus of the hearing on the merchant marine was the impact of food aid and other cargo cuts on the U.S. flag fleet. The hearing also discussed legislation introduced by Chairman Duncan Hunter and Ranking Member Garamendi (H.R. 5270), which would require that liquefied natural gas exports be shipped on ships built in the U.S.
Chairman Hunter stated at the hearing on the merchant marine that he would ask MARAD Administrator "Chip" Jaenichen to appear before the Subcommittee after MARAD releases its long-awaited maritime strategy. The strategy, a result of two public meetings, is expected to be released sometime this year. We expect that industry will be given an opportunity to comment on the strategy.
The Future of Freight
In the meantime, the Department of Transportation ("DOT") held a series of webinars on developing a vision for transportation for the next 30 years, called "The Future of Freight" and "Moving America Forward." Comments on the DOT future agenda can be submitted to: email@example.com . Led by the DOT Policy office, the discussion identified the need to include ports in the next highway bill. Congress did pass a short-term extension of the highway bill through May 2015, but hasn't addressed the long-term funding issues.
Funding for the Maritime Security Program
We are also waiting for the outcome of the debate on funding for the Maritime Security Program ("MSP"). The Administration requested $186 million to fully fund MSP in FY2015. Although the Senate Transportation/Housing and Urban Development ("THUD") Appropriations Bill provided the full amount requested for MSP, the House THUD Appropriations bill contains only $166 million for the program. At this writing, the House and Senate Appropriations Committees have not yet settled on the level of funding for MSP or worked out a final version of the FY2015 THUD bill.
The issue of MSP funding was also raised during the House Coast Guard Subcommittee hearing, mentioned above. Two witnesses, one representing a MSP carrier and the other a U.S. maritime labor organization, urged for an increase in the per vessel support levels currently authorized for ships in the MSP. The witnesses cited declining Department of Defense ("DOD") and non-DOD government cargoes, and a need to achieve a more level playing field and commercial viability for MSP vessels, when competing against foreign flag vessels as justification for the MSP per vessel stipend increase.
TIGER Grants Announced
While the outcome of the FY2015 budget is unclear, agencies are continuing to spend FY2014 dollars. For example, DOT just announced the award of 72 TIGER grants in 46 states and the District of Columbia. The awards for intermodal projects of national and regional significance included a number of port related projects, including $20 million for a modernization project at the Port of Seattle, $15 million for a new international terminal at the Virginia Port Authority, and $10.84 million for the rehabilitation of a terminal in Charleston, South Carolina. Looking ahead to 2015, there is a major discrepancy in the budget for this very popular infrastructure grant program between the House ($100 million) and the Senate ($600 million) bills, which will have to be resolved in any final FY2015 spending bill.
In conclusion, in a disappointing performance, the 113th Congress has been one of the least active Congresses in recent history. This has meant gaps in the passage of maritime and maritime security legislation. Hope springs eternal that after the mid-terms, Congress will focus its attention for the rest of the year on needed legislation, including funding for the Maritime Security Program and needed authorization of Coast Guard programs. Do not hold your breath, however, as there is good chance that we will have to wait until next year to see any action on key maritime legislation. P
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.