President Trump Signs the "Save Our Seas Act of 2018"
December 1, 2018
In a bipartisan White House ceremony on October 10, 2018, President Trump signed the Save Our Seas Act ("SOS Act") of 2018 into law. The act, which passed both houses of congress unanimously, is divided into three titles. Title I amends the Marine Debris Act. Title II requires important maritime safety improvements, to address safety deficiencies identified in the aftermath of the 2015 SS El Faro tragedy. Title III authorizes the Coast Guard to establish a Blue Technology Center of Expertise. The purpose of the various provisions is explained in Senate Report 115-135.
Marine Debris Act amendments
The Marine Debris Research, Prevention, and Reduction Act was first enacted in 2006. It is codified in 33 U.S.C. §§ 1952 –1958. The act seeks to identify, determine the sources of, assess, prevent, reduce, and remove marine debris from the oceans with a particular focus on marine debris posing a threat to living marine resources or navigation safety. Lost or discarded fishing gear is a problem of particular concern. Responsibility for implementation is divided between NOAA and the Coast Guard; the latter through its MARPOL Annex V enforcement program.
Title VI of the 2012 Coast Guard and Maritime Transportation Act officially shortened the act's title to the Marine Debris Act. The 2012 amendments also sought, among other things, to address two "severe marine debris events": the 2011 Tōhoku earthquake and tsunami in Japan and Hurricane Sandy in 2012.
Title I of the 2018 SOS Act, introduced by Senator Dan Sullivan (R-Alaska), chairman of the Senate Subcommittee on Oceans, Atmosphere, and Fisheries, renews the marine debris program for five years and authorizes $10 million/year for the NOAA program for FY 2018 through 2022, along with up to $2 million/year for the Coast Guard. A newly added provision now expressly authorizes the governor of a state affected by a severe marine debris event to request that the NOAA Administrator determine whether such an event has indeed occurred. If the NOAA Administrator agrees, the amendment includes provisions for the federal government to "assist in the cleanup and response" and to fund up to 100 percent of the response costs.
The Ocean Conservancy estimates that more than half of the estimated eight million metric tons of plastic polluting the world's oceans comes from a handful of nations. Acknowledging the international nature of the problem, the SOS Act calls upon the US Department of State to engage other nations to redouble research efforts to reduce marine debris and to negotiate one or more international agreements aimed at, among other things, mitigating the discharge of land-based solid waste into the sea. A final paragraph of the international engagement section suggests that the US Trade Representative should consider other nations' responses to the marine debris problem in negotiating future trade agreements. In the SOS Act signing ceremony, President Trump touted the recently concluded US-Mexico-Canada trade agreement for including, for the first time, commitments by all three nations to cooperate in addressing sea-based pollution and improving waste management practices.
Maritime Safety amendments
Title II of the SOS Act, titled the "Hamm Alert Maritime Safety Act of 2018," originated in House Bill 6175. The bill was introduced by Congressman Duncan Hunter (R-California), the former chairman of the House Subcommittee on the Coast Guard and Maritime Transportation, in response to the October 1, 2015, sinking of the US flag off the Bahamas during Hurricane Joaquin. The act is named after Frank Hamm, a 49-year old El Faro crewman who perished, along with 32 other crewmembers, in the worst US commercial vessel casualty in nearly 40 years. Mr. Hamm's widow, Rochelle, and the nonprofit organization "Hamm Alert" she founded were instrumental in petitioning congress to take action to prevent such disasters in the future.
Title II adopts many of the recommendations of the National Transportation Safety Board and the Commandant of the Coast Guard's final action memo on the Marine Board of Investigation's report on the sinking of the El Faro. It addresses identified shortfalls in commercial vessel inspections and calls for more rigorous Coast Guard oversight of authorized third-party "recognized organizations" operating under the Coast Guard's Alternative Compliance Program (the October 2018 Coast Guard Maritime Commerce Strategic Outlook does, in fact, commit the service to "robust auditing" of the third-party organizations upon which it increasingly relies to execute its regulatory missions). It also requires additional vessel safety equipment, an audit of the implementation and effectiveness of the Coast Guard's oversight and enforcement of vessel safety management plans, and establishment of an anonymous safety alert pilot program. It directs the Coast Guard to work with the IMO to require high-water alarm sensors in the cargo holds of freight vessels and to amend SOLAS to require that timely and synoptic graphical weather forecasts be provided to vessels and that all IMO-required voyage data recorders (VDRs) be installed in a float-free arrangement and contain an integrated Emergency Position Indicating Radio Beacon (EPRIB). The act also requires the Coast Guard to review its policies and procedures for approving major conversions to inspected vessels. Finally, it directs the Commandant to establish enhanced training programs for Coast Guard marine inspectors and take certain other measures to improve the service's marine inspection program, including possibly tripling the size of the Coast Guard's traveling inspector staff and extending tour-lengths for Coast Guard marine safety officers assigned to inspection billets. Other safety enhancement measures that had been proposed, including a requirement for existing vessels to carry fully-enclosed lifeboats, were not included in the final act. As has become common in such legislation, the act imposes strict deadlines and requires periodic status reports to congress.
A Blue Technology Center of Excellence?
The Coast Guard Blue Technology Center of Expertise Act (Title III of the SOS Act) originated in a bill introduced by Congressman John Garamendi (D-California), the ranking member of the House Subcommittee on the Coast Guard and Maritime Transportation. It broadly defines "blue technology" to include any technology, system, or platform that: (1) is designed for use or application above, on, or below the sea surface or that is otherwise applicable to Coast Guard operational needs, including such a technology, system, or platform that provides continuous or persistent coverage; and (2) supports or facilitates maritime domain awareness, information technology and communications, search and rescue, emergency response, maritime law enforcement, marine inspections and investigations, or protection and conservation of the marine environment. Congressman Garamendi's goal in introducing the bill was to promote awareness and adoption of technologies, such as autonomous drones and ocean observation platforms, in order to improve Coast Guard mission performance, allow for more efficient use of resources, and help preserve fragile marine ecosystems. The final version of the act authorizes (but does not require) the Coast Guard to establish a Blue Technology Center of Expertise.
With the 2018 Save our Seas Act congress has enhanced the Coast Guard's (and NOAA's) ability to provide for the nation's maritime safety, security, and stewardship. Yet, much remains to be done when the 115th Congress returns from its pre-election recess, including enacting a comprehensive Coast Guard authorization act (Senate Democrats filibustered the senate authorization bill last April over objections to a provision that would preempt state regulation of vessel Ballast Water discharges) and Coast Guard appropriations for the 2019 fiscal year. The current continuing resolution expires December 7, 2018. Doubts also remain over whether congress will approve the president's request for $750 million to construct a new Coast Guard polar class icebreaker (now referred to by the Commandant as "Polar Security Cutters"). Congress authorized up to six polar class icebreakers in the recently enacted John McCain National Defense Authorization Act, but it has yet to actually appropriate the funds necessary to construct even a single vessel, leaving the Coast Guard's icebreaker replacement program in limbo.
Craig H. Allen is the Judson Falknor Professor of Law and of Marine and Environmental Affairs at the University of Washington, where he directs the arctic Law and Policy Institute.