April 29 2008
The Coast Guard Authorization Act of 2008 explained
Law firm Winston & Strawn has prepared an advisory that summarizes key features of the Coast Guard Authorization Act of 2008 (until recently, the "Act of 2007").
The 360 page Act was passed by the U.S. House of Representatives on April 24 by 395 to 7, despite the threat of a veto.
What the Bush Administration liked least in the bill was its language on LNG security—and this is the element of the measure that's received the most public attention.
However, as Winston & Strawn points out "the bill, as passed by the House, proposes significant changes to the law affecting virtually every aspect of the maritime industry doing business in the United States."
Here's what the Winston & Strawn advisory says about some the most important elements of the bill.
1. LNG Vessel/Terminal Security. One of the most controversial aspects of the bill, and the provision that generated the veto threat, relates to LNG vessel and LNG terminal security. The bill includes a provision ostensibly intended to improve security. The Coast Guard has strongly opposed the provision because, in their view, it shifts security responsibility from owners and operators to the Coast Guard and will force the Coast Guard to draw security resources from other important tasks to concentrate on LNG security. Many terminal owners oppose the provision, especially those with terminals under development, because the newly proposed burdens would fall heaviest on such terminals.
The bill requires the Coast Guard to take over enforcement of security zones established around any tanker containing LNG. The bill also appears to prevent the Coast Guard from approving any terminal security plan coming for review after the date of enactment of the legislation if it depends in part on security provided by a state or local government unless there is a contract between the terminal operator and that government and the Coast Guard finds that such state or local government security personnel have the training and resources sufficient "to deter to the maximum extent practicable" a security incident. Finally, no new terminal security plan can be approved by the Coast Guard for the construction of any terminal which commences after the date of enactment unless the Coast Guard determines that it has available "to the sector in which the terminal is located the resources it needs" for security.
The LNG security provision was amended on the floor of the House pursuant to an amendment offered by Congressman LaTourette, the ranking Member on the Coast Guard Subcommittee, and Congressman Boustany, to alleviate some of the burden on the Coast Guard with respect to new terminals by permitting the Coast Guard to take into account state and local law enforcement resources. It is unclear whether the amendment will remove the veto threat.
2. Ballast Water Treatment. Another provision that has drawn Presidential attention is Title V of the bill entitled the "Ballast Water Treatment Act of 2008." The bill seeks to reauthorize and amend the Nonindigenous Aquatic Nuisance Species Prevention and Control Act of 1990, a goal that has eluded Congress for many years. The title would provide for a national ballast water standard that would preempt the states from implementing their own individual standards, but would still allow the states to pursue independent enforcement schemes not preempted by the legislation. The legislation also leaves unaddressed the regulatory threat presented to the industry by regulation of discharges incident to vessel operation via the Clean Water Act. The Clean Water Act permitting system has been found applicable to vessel discharges in the federal district court decision, Northwest Environmental Advocates v. EPA, 36 Envtl. L. Rep. 20,194, (N.D. Cal. 2006). The decision is now on appeal to the U.S. Court of Appeals for the Ninth Circuit and a decision is expected soon.
Other parts of the bill addressed in the Winston & Strawn advisory include: