113th Congress Addresses Arctic Maritime Transportation Needs
On December 18, 2014, President Obama signed into law the Howard Coble Coast Guard and Maritime Transportation Act of 2014 (CGMTA). The Act authorized just over $8.7 billion in fiscal year 2015 appropriations for the Coast Guard, while reducing the service’s active duty strength from 47,000 to 43,000. It includes authority for the Coast Guard to enter into multiyear contracts to procure the new class of Offshore Patrol Cutter (OPC) – requiring that some of the planned 25 OPCs be capable of operating in sea state 5 – and called for a plan to decommission the service’s fourteen remaining 210 foot Reliance-class medium endurance cutters not later than 2029. At the same time, the Act requires the Coast Guard to extend the service life of the thirteen 270 foot Famous-class cutters as necessary to maintain the level of capability that existed in 2013 until the final OPC is commissioned.
The Act also enjoins the Coast Guard from dismantling or disposing of the existing LORAN system infrastructure until a determination is made as to whether the equipment might be used to provide an e-LORAN backup to the vulnerable global positioning system (GPS).
Finally, section 603 of the Act requires the Secretary of Transportation and Secretary of Homeland Security to submit to Congress by February 17, 2015, a national maritime strategy that addresses a number of U.S.-flag competitiveness issues of concern to the Congress.
Title V of the 2014 CGMTA is devoted to arctic maritime transportation. It consists of six sections addressing arctic maritime transportation and domain awareness, the IMO Polar Code, forward operating facilities, icebreakers and icebreaking in polar regions. Readers familiar with the White House’s 2013 National Strategy for the arctic Region and its 2014 Implementation Plan will recognize that Title V codifies many elements of the President’s strategy and implementation plan. That implementation plan assigns 36 specific taskings to executive branch departments and agencies. Of the 36 taskings, the Coast Guard is the lead agency for 7 and a supporting agency for 19 more.
Arctic Maritime Transportation Provisions
Section 501 of the CGMTA adds a new section 90 (“Arctic maritime transportation”) to Title 14 of the U.S. Code. Its purpose is to “ensure safe and secure maritime shipping in the arctic including the availability of aids to navigation, vessel escorts, spill response capability, and maritime search and rescue in the Arctic.” It encourages the Secretary of Homeland Security to coordinate internationally through the International Maritime Organization (IMO) and domestically through the US Committee on the Maritime Transportation System, and to conclude and execute agreements among the US, Russia, Canada, Iceland, Norway and Denmark, along with other seafaring and arctic nations, to achieve the statute’s arctic safety of navigation purposes. It also expressly calls upon the secretary to promote safe maritime navigation by means of icebreaking where necessary, feasible, and effective to carry out those purposes.
Closely related to section 501 of the 2014 CGMTA is section 2105 of the Water Resources Reform and Development Act of 2014, which was Congress’s carefully measured attempt to address the need for a US arctic deep water port by authorizing a federal “partnership” approach. More specifically, it authorizes the Secretary of the Army (through the Corps of Engineers) to provide technical assistance to non-federal public entities, including Indian tribes, “for the development, construction, operation, and maintenance of channels, harbors, and related infrastructure associated with deep draft ports for purposes of dealing with arctic development and security needs.”
Maritime Domain Awareness Provisions
Section 502 of the CGMTA requires the Coast Guard to improve maritime domain awareness in the arctic region by promoting interagency cooperation and coordination; employing joint, interagency and international capabilities; and facilitating the sharing of information, intelligence and data related to the arctic maritime domain. It also requires preparation of a five-year strategic plan to guide interagency and international cooperation and coordination for the purpose of improving arctic maritime domain awareness, with the first such plan due in 2016. In a related provision, the secretary is authorized by section 504 to establish forward operating facilities in the arctic to, among other things, support and provide shelter for forward-deployed aircraft over the next 20 years.
Polar Code Provisions
Section 503 of the Act requires periodic reports to Congress on the status of the IMO’s International Code for Ships Operating in Polar Waters (the Polar Code) negotiations. It also requires the Coast Guard to report on actions the secretary must take to implement the Code and the impacts of the Code on arctic coastal communities, with particular reference to the costs of delivering fuel and freight and the safety of maritime transportation.
The IMO’s work on the Polar Code is nearing completion. The Maritime Safety Committee adopted Part I – the safety provisions of the Code – and the related amendments to the SOLAS Convention at its November 2014 meeting. The Marine Environment Protection Committee is expected to adopt the Part II governing prevention of pollution and the related MARPOL Convention amendments during its May 2015 meeting. The Code will then go before the IMO’s Council and Assembly. If all goes as planned, the Code will enter into force on January 1, 2017. However, the current working version of the Code is far leaner and less protective than many hoped, and it appears likely that a number of safety and environmental protection concerns will need to be addressed in future amendment sessions.
Polar Icebreaking Provisions
The Obama Administration’s highest priority in the 2014 arctic Strategy Implementation Plan is to protect the American people, our sovereign territory and rights and the natural resources and other interests of the nation by, among other things, sustaining the federal capability to conduct maritime operations in ice-impacted waters. The implementation plan required DHS, as the department in which the Coast Guard operates, to develop by the end of 2014 a document that lists the capabilities needed to support federal activities in the polar regions and emergent sovereign responsibilities over the next 10 to 20 years. Moreover, by the end of 2017, the secretary must develop long-term plans to be able to physically access the arctic with sufficient capability to support US interests.
A 2010 High Latitude Region Mission Analysis prepared by ABS Consulting for the Coast Guard determined that the service needs three heavy and three medium icebreakers to fulfill its statutory duties. The same study concluded that to maintain the continuous presence called for by the Naval Operations Concept, the Coast Guard would need six heavy and four medium icebreakers.
Presently, it has two Polar-class icebreakers: the 38-year-old heavy icebreaker Polar Star (WAGB-10), which was returned to service in 2013 for an additional 7 to 10 years after extensive repairs, and the medium icebreaker Healy (WAGB-20), which was commissioned in 2000. A third breaker, the 37-year-old heavy icebreaker Polar Sea (WAGB-11), was taken out of service in 2010 following major engine failures. Although Vice Commandant Vice Admiral Peter Neffenger recently expressed the view that Polar Sea should be repaired and restored to service, its future remains uncertain.
Given that Polar Star is scheduled to be retired (a second time) sometime between 2020 and 2023, that it would take 8 to 10 years and more than $1 billion to design and build a new heavy icebreaker, and that key members of Congress have already ruled out funding for such a replacement in the current budget climate, the Coast Guard’s inclination to repair and return Polar Sea to service has likely strengthened. Section 505 of the 2014 CGMTA leaves that option open.
Section 505 is among the most elaborate in Title V. It preserves the Coast Guard’s authority to decide whether to repair and return Polar Sea to active service or decommission the vessel. In doing so, it amended the section of the Coast Guard and Maritime Transportation Act of 2012, where Congress previously addressed the vessel’s future. The amended provision authorizes the Commandant of the Coast Guard to decommission Polar Sea if he determines that it would not be cost-effective to reactivate the vessel. If, on the other hand, he determines that it would be cost-effective, and the Coast Guard submits a service life extension plan to Congress, the Act authorizes the service to expend previously authorized funds to extend the vessel’s service life by 7-10 years.
Relatedly, section 505 of the 2014 Act adds a new “strategies” section setting out detailed requirements for strategies to meet arctic and Antarctic icebreaking needs through 2050. The strategies must include a business case analysis comparing leasing and purchasing options. According to congressional testimony by Vice Admiral Peter Neffenger on July 23, 2014, the Coast Guard has already determined that there are no heavy icebreakers available for rent, and that leasing a ship is only a short-term solution with no competitive advantage or cost advantage over building one.
Section 506 of the Act adds new section 87 (“Icebreaking in Polar Regions”) to Title 14 of the US Code. It provides that:
The President shall facilitate planning for the design, procurement, maintenance, deployment, and operation of icebreakers as needed to support the statutory missions of the Coast Guard in the polar regions by allocating all funds to support icebreaking operations in such regions, except for recurring incremental costs associated with specific projects, to the Coast Guard.
Section 506 seeks to clarify which agency is to be allocated funds for polar icebreaking, at least with regard to the Coast Guard’s 11 statutory missions, a key point of contention during a July 23, 2014 hearing of the House Transportation Committee’s Coast Guard and Maritime Transportation subcommittee.
Title V of the Howard Coble Coast Guard and Maritime Transportation Act of 2014 codifies many of the important elements of the White House’s 2013 arctic Strategy and its 2014 Implementation Plan. Although the Act does little to remedy what Congress itself has characterized as the “dismal state” of the nation’s icebreaking capacity, it has at least provided an updated framework for the Coast Guard to make a prompt determination on the fate of the presently inactive Polar Sea.
The Act adds a new section to the US Code to expressly address arctic maritime transportation safety. It also authorizes measures to improve maritime domain awareness and develop forward operating facilities in the arctic. Congress has also once again voiced its support for the IMO Polar Code while also calling for an assessment of the Code’s likely impact on arctic coastal communities.
Craig H. Allen, Sr. is the Judson Falknor Professor of Law and of Marine and Environmental Affairs at the University of Washington where he serves as Director of the university’s arctic Law and Policy Institute.