[Senate Report 111-95]
[From the U.S. Government Publishing Office]
111th Congress Report
SENATE
1st Session 111-95
_______________________________________________________________________
Calendar No. 193
COAST GUARD AUTHORIZATION ACT FOR FISCAL YEARS 2010 AND 2011
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 1194
October 30, 2009.--Ordered to be printed
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred eleventh congress
first session
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota JOHN ENSIGN, Nevada
BARBARA BOXER, California JIM DeMINT, South Carolina
BILL NELSON, Florida JOHN THUNE, South Dakota
MARIA CANTWELL, Washington ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey GEORGE LeMIEUX, Florida
MARK PRYOR, Arkansas JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri DAVID VITTER, Louisiana
AMY KLOBUCHAR, Minnesota SAM BROWNBACK, Kansas
TOM UDALL, Colorado MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
Ellen Doneski, Chief of Staff
James Reid, Deputy Chief of Staff
Bruce Andrews, General Counsel
Ann Begeman, Acting Republican Staff Director
Brian Hendricks, Republican Chief Counsel
Todd Bertoson, Republican Senior Counsel
Calendar No. 193
111th Congress Report
SENATE
1st Session 111-95
======================================================================
COAST GUARD AUTHORIZATION ACT FOR FISCAL YEARS 2010 AND 2011
_______
October 30, 2009.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 1194]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 1194) to reauthorize the Coast
Guard for fiscal years 2010 and 2011, and for other purposes,
having considered the same, reports favorably thereon with an
amendment (in the nature of a substitute) and recommends that
the bill (as amended) do pass.
Purpose of the Bill
S. 1194, the Coast Guard Authorization Act for Fiscal Years
2010 and 2011, as amended, would make a number of changes to
current law affecting the Coast Guard and its statutory
missions, and would serve two very important purposes. First,
it would authorize appropriations for the Coast Guard for
fiscal year (FY) 2010 and FY 2011 covering six accounts: (1)
operation and maintenance expenses; (2) acquisition,
construction, and improvement of facilities and equipment
(AC&I); (3) retired pay; (4) environmental compliance and
restoration; (5) research, development, testing, and evaluation
(RDT&E); and (6) the reserve program. Second, it would provide
for comprehensive reform to the Coast Guard's major systems
acquisition processes and procedures.
Background and Needs
The Coast Guard was established on January 28, 1915, as part
of the Department of the Treasury, through the consolidation of
the Revenue Cutter Service (established in 1790) and the
Lifesaving Service (established in 1848). The Coast Guard later
assumed the duties of three other agencies: the Lighthouse
Service (established in 1789), the Steamboat Inspection Service
(established in 1838), and the Bureau of Navigation
(established in 1884).
The Coast Guard remained a part of the Department of the
Treasury until 1967, when it was transferred to the newly
created Department of Transportation. On March 1, 2003,
pursuant to the Homeland Security Act of 2002 (Public Law 107-
296), the Coast Guard was transferred to the newly constituted
Department of Homeland Security. The Coast Guard provides many
critical services for our Nation which can be grouped into five
fundamental categories: maritime security; maritime safety;
maritime mobility; protection of natural resources; and
national defense.
The Coast Guard is the Federal government's principal
maritime law-enforcement agency, and is also a branch of the
United States armed forces. As such, the Coast Guard maintains
defense readiness to operate as a specialized service in the
Navy upon the declaration of war or when the President so
directs. The Coast Guard has defended the nation in every war
since 1790. During the recent combat operations in Iraq, the
Coast Guard deployed two 378-foot high endurance cutters, one
225-foot ocean going buoy tender, and one Port Security Team.
It continues to operate six 110-foot Island Class patrol boats
in the Persian Gulf. This was the first deployment of Coast
Guard cutters in support of a wartime contingency since the
Vietnam War.
Under title 14, United States Code, the Coast Guard has
primary responsibility for enforcing or assisting in the
enforcement of all applicable Federal laws on, under, and over
the high seas and waters subject to the jurisdiction of the
United States; ensuring the safety of life and property at sea;
protecting the marine environment; carrying out domestic and
international icebreaking activities; and ensuring the safety
and security of vessels, ports, waterways, and related
facilities. In carrying out these responsibilities, the Coast
Guard's activities include commercial and recreational vessel
safety inspection, the rescue of lives and property at sea,
enforcement of fisheries laws, marine environmental protection,
and the interdiction of drug traffickers and smugglers of
illegal migrants. Since September 11, 2001, the Coast Guard's
security responsibilities have increased significantly, with
new authorities provided under the Maritime Transportation
Security Act of 2002 (MTSA, Public Law 107-295).
The Coast Guard is composed of 41,950 active duty military
personnel, 7,500 reservists, 7,700 civilian employees, and
29,000 Coast Guard Auxiliary volunteers. In 2008, the Coast
Guard responded to more than 24,000 calls for assistance,
boarded 70,000 vessels, saved 4,000 lives, seized 370,000
pounds of cocaine, and stopped 5,000 illegal migrants from
reaching our shores. The Coast Guard conducted also waterborne,
aerial, and shore-side security patrols, including
approximately 84,000 patrols of critical infrastructure and key
assets. Additionally, the Coast Guard conducted more than
20,700 security zone patrols near critical infrastructure. The
Coast Guard escorted approximately 5,900 naval vessels, vessels
engaged in military outloads, vessels carrying certain
dangerous cargoes in bulk, and high capacity passenger vessels,
including cruise ships and ferry vessels. Coast Guard assets
also patrolled to protect our fisheries stocks and responded to
14,647 pollution incidents (4,474 from vessels and 10,173 from
facilities and other sources).
Oil pollution from vessels continues to pose major
environmental risks to our Nation. In 2007, the most recent
year for which complete information is currently available from
the Energy Information Administration, the United States had
net imports of 12.2 million barrels of oil per day, more than
twice as much as Japan (4.9 million barrels) and more than
three times as much as China (3.7 million barrels), the world's
next largest importers. The transport of crude oil into the
United States occurs primarily by sea with ports throughout the
United States receiving tens of thousands of shipments of oil
each year. The Maritime Administration reported that the United
States received over 8,400 shipments of crude oil via Tanker
Vessels with at least 70,000 dead weight tons in 2007--a 33
percent increase from 2002. In addition, vessels not
transporting oil, such as cargo and freight vessels, fishing
vessels, and passenger ships, often carry tens of thousands of
gallons of fuel oil to power their engines. According to Coast
Guard data, while the number of oil spills from vessels has
decreased notably since passage of the Oil Pollution Act of
1990 (OPA 90), the volume of oil spilled nationwide is still
significant. The Government Accountability Office (GAO), in its
September 2007 report entitled ``Major Oil Spills Occur
Infrequently, but Risks to the Federal Oil Spill Fund Remain''
(GAO-07-1085), found that 51 spills with costs above $1 million
have occurred since 1990, costing a total of between $860
million and $1.1 billion.
A comparison of data from 1992 and 2004 is telling. In 1992,
there were 5,310 reported vessel spills in U.S. waters,
amounting to 665,432 gallons of oil; in 2004, the total was
higher, at 722,768 gallons, and a considerable number of spills
are still occurring. In 2004, there were 3,897 reported vessel
spills in U.S. waters, including 35 spills from tank ships, 143
spills from barges, and 1,527 spills from other vessels,
including cargo ships. Another 1,055 were from unknown sources.
Furthermore, even though the number of spills from tankers
declined from 193 spills in 1992 to 35 spills in 2004, a single
incident from a vessel like the Exxon Valdez can be
devastating, both environmentally and economically.
Further improvements in the Coast Guard's authority will
better enable it to achieve its environmental protection and
response mission and other statutory missions. Improvements in
the Coast Guard's authorizing statute are also needed to ensure
it can successfully acquire the assets it needs to accomplish
these missions. The Coast Guard is struggling right now to
replace its rapidly aging fleet of ships, aircraft, and
facilities. With current cost estimates ranging from $24
billion to $26 billion, the Integrated Deepwater System Program
is the largest and most complex acquisition program in the
Coast Guard's history. The primary purpose of the Deepwater
program is to modernize its aging fleet of 90 cutters and 200
aircraft used for missions that occur beyond 50 miles from the
shoreline through a mix of new acquisitions and retrofits to
existing ``legacy assets.''
In 2002, the Coast Guard selected Integrated Coast Guard
Systems (ICGS), a joint venture between Lockheed Martin and
Northrop Grumman, as its primary contractor, with ICGS using a
lead systems integrator (LSI) approach intended to develop new
assets as an integrated ``system of systems.'' This LSI
approach provided the contractor with significant decision-
making and management authority over many aspects of the
acquisition, including decisions on whether to ``make or buy''
assets to be delivered. The LSI approach also did not require
competition for subcontracts.
In 1998, the Coast Guard's initial estimated cost for the
Deepwater project was $17 billion, with an estimated delivery
date for all new and retrofitted assets of 2018. The Coast
Guard submitted a revised Deepwater implementation plan to
Congress in February, 2005, to address increased costs, and to
account for new security capabilities and the service's new
missions following its shift from the Department of
Transportation to the Department of Homeland Security (DHS)
subsequent to the events of September 11, 2001. Under this
revised plan, the overall program cost increased to $24
billion, with the final assets scheduled for delivery in 2027.
Problems with the Deepwater program, many of which have been
documented in reports from the DHS Inspector General and the
GAO, have raised serious concerns about specific acquisitions
under the program, as well as more fundamental problems with
the program as a whole. The GAO issued a report in March 2004
(GAO-04-380) citing significant risks with the use of the LSI
contracting model and recommending changes to address three
broad areas of concern: (1) improving program management; (2)
strengthening contractor accountability; and (3) promoting cost
control through greater competition among potential
subcontractors. A GAO report (GAO-06-764) issued in June of
2006 detailed problems with the design of one of the three
major new vessel assets to be acquired, the Fast Response
Cutter (FRC), that led the Coast Guard to issue a stop-work
order to ICGS. On November 30, 2006, the Coast Guard announced
the decision to suspend all operations of the eight 110-foot
patrol boats that had been converted to 123-foot patrol boats,
due to structural damage and safety concerns. A report (OIG-07-
23) of the DHS IG issued on January 23, 2007, found that the
largest new vessel to be delivered under the contract, the
National Security Cutter (NSC), would not meet the Coast
Guard's performance requirements and had design flaws that
could result in significant additional costs. Another report
(OIG-07-27) from the DHS IG dated February 9, 2007, found that
ICGS failed to install low-smoke cable and other elements of
the command, control, communications, computers, intelligence,
surveillance, and reconnaissance (C4ISR) system on the
converted 123-foot vessels, as required by the contract
specifications.
The Defense Acquisition University, housed within the
Department of Defense (DOD), released a study on February 5,
2007, which found problems with nearly every aspect of the
Deepwater program, including the implementation of the
``system-of-systems'' approach; the LSI contractual
arrangement; and Coast Guard management, workforce and
organizational structure, financial management, and logistics.
As problems with the Deepwater program continued to grow in
2007, the Coast Guard began to transition away from the system-
of-systems approach and use of a private sector entity as an
LSI, toward a more conventional approach focused on
acquisitions at the asset level, with the Coast Guard serving
as the systems integrator for each acquisition program. In the
last two years, the Coast Guard has assumed the role of systems
integrator for the overall Deepwater program, reduced the work
being performed under contract by ICGS, and has undertaken a
reassessment of needs with regard to Deepwater asset
capabilities and numbers. The Coast Guard also is applying more
rigorous processes and procedures contained in its revised
Major Systems Acquisition Manual, although it has bypassed
these requirements in more than one instance.
On April 22, 2009, GAO provided testimony (GAO-09-620T) to
Congress in which it estimated that the cost of the Deepwater
program could increase by as much as $2.1 billion, bringing the
total cost of the program to an estimated $26.3 billion. At
that time GAO also noted that, as the Coast Guard continues to
assume the role of systems integrator for the acquisition of
various Deepwater assets and gains increased insight into what
it is buying, further cost growth may be observed. More
recently, on July 14, 2009, GAO released a report (GAO-09-682)
which included a revised estimated Deepwater cost increase of
$2.7 billion, bringing the total cost to an estimated $26.9
billion.
The Coast Guard has made, and continues to make, changes in
its management of the Deepwater program and its major systems
acquisition requirements more broadly in order to address
Congressional concerns. However, evidence of departures from
those new requirements, coupled with ever-growing cost
projections and project timelines, continue to be significant
sources of apprehension.
Summary of Provisions
S. 1194, as reported, would authorize appropriations in Title
I for the Coast Guard accounts covered in the bill totaling
approximately $9.4 billion for each of FY 2010 and FY 2011.
Operating Expenses--The Coast Guard uses over two-thirds of
its total budget conducting operations in support of its
primary mission areas: protecting public safety and the marine
environment; safeguarding our ports, waterways, and coastal
areas; enforcing laws and treaties, including preventing
illegal drug trafficking, interdicting illegal aliens and
enforcing fisheries laws; maintaining aids to navigation; and
preserving defense readiness. For each of FY 2010 and FY 2011,
S. 1194 would authorize $6.556 billion for operating expenses,
an increase of approximately $326 million from the FY 2009
appropriated level. Of that amount, $24.5 million would be
transferred from the Oil Spill Liability Trust Fund to the
Operating Expenses account.
AC&I--AC&I funds are used to pay for major capital
improvements, including vessel and aircraft acquisition and
rehabilitation, information management, and construction
programs at selected facilities. Major AC&I projects include
arming helicopters; recapitalizing the National Distress and
Response System; implementing the vessel Automatic
Identification System (AIS); aircraft sensor, avionics, and
engine upgrades; the Integrated Deepwater System project; and
various shore facility upgrades to those units in need. For
each of FY 2010 and FY 2011, S. 1194 would authorize $1.384
billion. The AC&I authorization directs that $20 million would
be transferred from the Oil Spill Liability Trust Fund to the
AC&I account.
Retired Pay--Funds from this account are used for retired
pay, annuities, and medical care for retired military personnel
and former Lighthouse Service members, their dependents, and
their survivors under chapter 55 of title 10, United States
Code. S. 1194 would authorize $1.361 billion for this account
for each of FY 2010 and FY 2011.
Environmental Compliance and Restoration--This account
provides resources to bring current and former Coast Guard
facilities into compliance with national environmental
standards. S. 1194 would authorize $13.198 million for this
account for each of FY 2010 and FY 2011.
RDT&E--Funds from this account are used for applied
scientific research that aids in the development of hardware,
procedures, and systems that directly contribute to increasing
the productivity of Coast Guard operating and regulatory
programs. S. 1194 would authorize $19.745 million for this
account.
Reserve Program--The Coast Guard Reserve Forces provide
trained and qualified personnel available for active duty in
time of war or national emergency and at such other times as
the national security requires. Reserve personnel maintain
their readiness through realistic coordinated mobilization
exercises, formal military training and duty alongside regular
Coast Guard members during routine and emergency operations. S.
1194 would authorize $133.6 million to provide resources to
fully train, support, and sustain a reserve force of
approximately 8,100 members.
Title II of S. 1194, as reported, would authorize the Coast
Guard to enter into beneficial public-private partnerships,
address administrative needs of the Coast Guard, and increase
the authorities of the Coast Guard with respect to maritime
authorities and activities with foreign governments.
Title III of S. 1194, as reported, would improve the
organizational flexibility of the Coast Guard.
Title IV of S. 1194, as reported, would authorize several
significant changes in the way the Coast Guard utilizes its
Reserve personnel, conducts officer promotions, and retains
personnel leave.
Title V of S. 1194, as reported, contains provisions that
would address the need for comprehensive reform of the Coast
Guard's major systems acquisition processes and procedures. It
would establish a leadership structure, direct accountability,
and clear roles and responsibilities with regard to major
acquisitions throughout the Coast Guard's chain of command by,
among other things, creating a Chief Acquisition Officer at the
Assistant Commandant level with mandatory acquisition and
contracting qualifications and training. It would also prohibit
the Coast Guard's continued use of a ``lead systems
integrator'' throughout the entire Coast Guard on the date of
enactment, except in limited instances in which the mechanism
will instead be phased out by the end of 2012.
Title VI of S. 1194, as reported, includes several provisions
that would aid in improving navigation of vessels and the
authority of the Coast Guard to regulate shipping.
Title VII of S. 1194, as reported, would require that, when
the Coast Guard is authorized by law to transfer ownership of a
vessel to an eligible entity for use for educational, cultural,
historical, charitable, recreational, or other public purposes,
such a transfer must be conducted through the General Services
Administration.
Title VIII of S. 1194, as reported, includes several
provisions found in S. 684, the Oil Pollution Prevention and
Response Act of 2009, that would provide the Coast Guard and
the National Oceanic and Atmospheric Administration (NOAA) with
additional authorities to deal with oil spills under OPA 90.
Title IX of S. 1194, as reported, includes several
miscellaneous provisions that relate to the Coast Guard and
Coast Guard missions.
Legislative History
S. 1194 was introduced on June 4, 2009, by Senator Cantwell,
Senator Snowe, Senator Rockefeller, and Senator Hutchison, and
was referred to the Committee on Commerce, Science, and
Transportation. An oversight hearing on Coast Guard issues was
held on July 7, 2009. On July 8, 2009, the Committee ordered
that S. 1194 be reported with an amendment in the nature of a
substitute.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
September 24, 2009.
Hon. John D. Rockefeller IV,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1194, the Coast
Guard Authorization Act for Fiscal Years 2010 and 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Deborah Reis.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 1194--Coast Guard Authorization Act for Fiscal Years 2010 and 2011
Summary: S. 1194 would amend various laws that govern the
activities of the U.S. Coast Guard (USCG). The bill also would
authorize appropriations totaling nearly $16.4 billion through
fiscal year 2014, primarily for ongoing USCG operations during
2010 and 2011. CBO estimates that appropriating the amounts
specifically authorized by the bill (or estimated to be
necessary to carry out title V) would result in discretionary
spending of about $16 billion over the 2010-2014 period.
Implementing title V, which addresses the Coast Guard's
acquisition practices, could result in future savings in
discretionary spending, but CBO cannot estimate such savings or
clearly identify how much of that savings should be attributed
to the legislation rather than to reforms that the Coast Guard
has already begun implementing under existing authority.
Enacting S. 1194 would increase direct spending by an
estimated $6 million over the 2010-2019 period. First, the bill
would increase certain annual payments made from the Oil Spill
Liability Trust Fund (OSLTF) by $4 million over the 2010-2019
period. The bill also would reduce offsetting receipts (a
credit against direct spending) by directing the Coast Guard to
donate--rather than sell--certain properties to local
governments in Michigan. We estimate that the resulting loss of
receipts would total about $2 million over the 2010-2019
period. Enacting S. 1194 would not affect revenues.
S. 1194 contains intergovernmental and private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
because it would increase the costs of complying with existing
mandates related to active-duty personnel in the Coast Guard.
The bill also would impose additional intergovernmental
mandates by preempting state laws. CBO estimates that the
compliance costs for public entities would not exceed the
annual threshold established in UMRA for intergovernmental
mandates ($69 million in 2009, adjusted annually for
inflation). In addition, the bill would impose additional
private-sector mandates on owners and operators of certain
vessels and facilities. The cost of most of the mandates on
private entities would be small; however, the costs of some
mandates are uncertain and would depend on future regulations.
Therefore, CBO cannot determine whether the aggregate cost of
the mandates in the bill would exceed the annual threshold
established in UMRA for private-sector mandates ($139 million
in 2009, adjusted annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary effects of S. 1194 are summarized in the following
table. The costs of this legislation fall within budget
functions 300 (natural resources and environment) and 400
(transportation).
Basis of estimate: For this estimate, CBO assumes that S.
1194 will be enacted early in fiscal year 2010 and that the
amounts specifically authorized by the bill or estimated to be
necessary will be appropriated for each year. Estimated outlays
are based on historical spending patterns for the authorized
activities.
Spending subject to appropriation
The proposed authorization levels shown in the table are
those specified by S. 1194 for ongoing Coast Guard activities
and for certain new or existing programs of the Department of
Transportation (DOT) and the National Oceanic and Atmospheric
Administration (NOAA). The table excludes $24 million to be
derived from the OSLTF for USCG operating expenses because that
amount is already authorized under existing law.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
------------------------------------------------------------------
2010 2011 2012 2013 2014 2010-2014 2010-2019
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
USCG authorizations:\1\
Authorization level...................... 8,083 8,083 0 0 0 16,166 16,166
Estimated outlays........................ 5,489 6,886 1,987 927 449 15,738 16,166
USCG acquisition reform:
Estimated authorization level............ 5 0 0 0 0 5 5
Estimated outlays........................ 3 2 0 0 0 5 5
LORAN-C:
Authorization level...................... 37 37 0 0 0 74 74
Estimated outlays........................ 29 35 7 2 1 74 74
Grants to tribes for oil spill recovery:
Authorization level...................... 1 1 1 1 1 3 3
Estimated outlays........................ 1 1 1 1 1 3 3
NOAA authorizations:\2\
Authorization level...................... 26 25 25 25 25 126 251
Estimated outlays........................ 17 22 24 25 25 113 238
Total proposed changes:
Estimated authorization level........ 8,152 8,146 26 26 26 16,374 16,499
Estimated outlays.................... 5,539 6,946 2,019 955 476 15,933 16,486
CHANGES IN DIRECT SPENDING
Estimated budget authority................... 0 * * * * 2 6
Estimated outlays............................ 0 * * * * 2 6
----------------------------------------------------------------------------------------------------------------
\1\The USCG received appropriations totaling over $8.3 billion for fiscal year 2009, including $240 million
under the American Recovery and Reinvestment Act of 2009.
\2\NOAA authorizations and outlays of $25 million a year would continue over the 2015-2019 period.
Notes: USCG = U.S. Coast Guard; NOAA = National Oceanic and Atmospheric Administration; LORAN-C = Long-Range Aid
to Navigation; * = less than $500,000; numbers may not add up to totals because of rounding.
USCG Authorizations. Title I would reauthorize funding for
ongoing USCG activities for 2010 and 2011. Specifically, for
each of the two years, title I would authorize the
appropriation of about $6.7 billion for USCG operations
(including $134 million for reserve training and $13 million
for environmental compliance), about $1.4 billion for capital
acquisitions, and nearly $20 million for research programs. Of
the amounts authorized by title I for each year, $44 million
would be derived from the OSLTF.
CBO estimates that appropriating the amounts specified in
title I for ongoing USCG activities would cost nearly $5.5
billion in 2010 and by about $15.7 billion over the 2010-2014
period.
Title I also would authorize the appropriation of about
$1.4 billion for Coast Guard retirement benefits in each of
fiscal years 2010 and 2011, but those amounts are excluded from
this estimate because such benefits are considered an
entitlement under current law and are not subject to
appropriation. Thus, authorizing those amounts would have no
additional budgetary impact.
USCG Acquisition Reform. Title V addresses the contracting
practices used by the Coast Guard to acquire capital assets
such as vessels and aircraft. Assuming appropriation of the
necessary amounts, CBO estimates that implementing title V
would cost the USCG about $5 million over the next two years,
mostly to develop life-cycle cost estimates for current
acquisition initiatives. We estimate that other administrative
costs for additional testing and certification (and to develop
life-cycle cost estimates for major acquisition initiatives in
the future) would not significantly affect the agency's annual
budget.
Title V would restrict the Coast Guard's reliance on
private entities to manage major acquisitions and would require
the agency to revise other procurement practices to rectify
problems identified by the Department of Defense (DoD) and
other federal agencies. It also would require that many future
acquisitions be open to competition and be subject to specified
testing, analysis, and certification requirements. Finally, the
title would require the Coast Guard to hire additional
contracting and management personnel and to produce various
reports on its acquisition activities.
The contracting reforms required by S. 1194 could result in
lower procurement expenditures in the future. Much of the long-
term savings, however, might occur even in the absence of the
legislation because the Coast Guard is already implementing
many of those reforms, including hiring additional contracting
personnel. CBO cannot estimate the likely size of cost savings
from improving procurement practices or clearly identify what
proportion of such savings would be attributable to the
legislation and what share would result from changes that the
Coast Guard is already implementing.
Any savings realized by the Coast Guard as a result of the
legislation would depend on future changes in the level of
discretionary appropriations for capital acquisitions. Annual
funding for Coast Guard acquisition has risen rapidly in recent
years--from about $640 million in fiscal year 2002 to nearly
$1.6 billion for 2009. (The 2009 figure includes nearly $100
million provided by the American Recovery and Reinvestment Act
of 2009.) Most of the increase over this period stems from new
funding for the Integrated Deepwater Initiative, which will
provide for the replacement of many of the agency's vessels,
aircraft, and other assets at an estimated cost of between $25
billion to $30 billion over the next 25 years.
LORAN-C. Title VI would authorize the appropriation of $37
million for each of fiscal years 2010 and 2011 to the
Department of Transportation to reimburse the Coast Guard for
operating the current system of long-range aids to navigation
(known as LORAN-C). Appropriating the authorized amounts would
cost $74 million over the 2010-2014 period.
Grants to Tribes for Oil Spill Recovery. Title VII would
authorize the appropriation of $500,000 a year through 2014 for
grants and other assistance to tribal governments. The funding
would be used by the tribes to help respond to oil spills.
Appropriating the authorized amounts would cost about $3
million over the 2010-2014 period.
NOAA Authorizations. S. 1194 would authorize appropriations
for certain programs carried out by NOAA. CBO estimates that
appropriating those amounts would cost $113 million over the
2010-2014 period. The authorizations for NOAA include:
$15 million a year from the OSLTF for oil-
spill response and damage assessments;
$10 million a year through 2014 for a
program to prevent oil spills from small vessels; and
$0.7 million in 2010 to conduct an emergency
drill in the Olympic Coast National Marine Sanctuary.
Changes in direct spending
Enacting section 814 would increase the annual payment made
from the Oil Spill Liability Trust Fund to OSRI (an Alaska-
based research institute) by an estimated $400,000, resulting
in additional direct spending of about $4 million over the
2010-2019 period.
Under current law, OSRI receives an annual payment from the
OSLTF equal to the interest credited (in the previous year) on
$22.5 million of that fund's unspent balances. Such payments--
about $1 million a year--are not subject to appropriation
action and are used by the institute to carry out research on
oil spills.
Section 814 would increase the portion of the trust fund's
principal that would be held on behalf of OSRI by about $13
million, resulting in the increase in annual payments beginning
in 2011.
Title IX would direct the USCG to donate certain real and
personal property located in Michigan to local governments. CBO
estimates that one of the affected assets--a 5.5-acre parcel of
land in the city of Marquette--has significant market value.
Based on local property values and on information provided by
the General Services Administration regarding disposals of
surplus USCG property, we estimate that donating the Marquette
parcel to the city (rather than selling it under existing
authority) would result in a loss of offsetting receipts of
about $2 million over the next 10 years. We expect that all of
the other affected property would either be retained by the
Coast Guard or eventually donated to local governments under
current law; therefore, donating those assets would result in
no loss of offsetting receipts.
Intergovernmental and private-sector impact: S. 1194 would
impose mandates, as defined in UMRA, because it would increase
the costs of complying with existing intergovernmental and
private-sector mandates related to active-duty personnel in the
Coast Guard. The bill also would impose additional
intergovernmental mandates by preempting state laws. CBO
estimates that the compliance costs for public entities would
not exceed the annual threshold established in UMRA for
intergovernmental mandates ($69 million in 2009, adjusted
annually for inflation).
The bill also would impose additional new safety
requirements on private entities. The costs to private entities
to comply with some of the mandates in the bill are uncertain
and would depend, in part, on future regulations. Therefore,
CBO cannot determine whether the aggregate cost of the mandates
in the bill would exceed the annual threshold established in
UMRA for private-sector mandates ($139 million in 2009,
adjusted annually for inflation).
Mandates that apply to both public and private entities
Increasing Authorized Coast Guard Personnel. The bill would
increase the costs of complying with existing intergovernmental
and private-sector mandates by increasing the number of active-
duty personnel in the Coast Guard. The additional personnel
would be eligible for protections under the Servicemembers
Civil Relief Act (SCRA). Under SCRA, servicemembers have the
right to maintain a single state of residence for purposes of
paying state and local personal income taxes. They also have
the right to request a deferral in the payment of certain state
and local taxes and fees. SCRA also requires creditors to
charge no more than 6 percent interest on servicemembers'
obligations when such obligations predate active-duty service
and allows courts to temporarily stay certain civil
proceedings, such as evictions, foreclosures, and
repossessions. Extending these existing protections to
additional servicemembers would constitute mandates as defined
in UMRA and could result in lost revenues to government and
private-sector entities.
The number of active-duty servicemembers covered by SCRA
would increase by less than 1 percent, CBO estimates.
Servicemembers' utilization of the various provisions of the
SCRA depends on a number of uncertain factors, including how
often and how long they are deployed. CBO expects, however,
that relatively few of the added servicemembers would take
advantage of the deferrals in certain state and local tax
payments; the lost revenues to those governments thus would be
insignificant. Moreover, because the increase in the number of
active-duty servicemembers covered by SCRA would be so small,
CBO expects that the increased costs for private-sector
entities also would be small.
Mandates that apply to public entities only
In addition to the mandates discussed above, the bill would
preempt state and local authority governing vessels
transferring oil. The bill also could preempt state authority
by granting privately owned watercraft equal access to the
Atlantic Intracoastal Waterway. Because preemptions limit the
authority of state and local governments, they are considered
intergovernmental mandates under UMRA, but CBO estimates that
those preemptions would not impose significant additional costs
on state, local, or tribal governments as regulators.
Mandates that apply to private entities only
Standards for Facilities and Vessels that Transfer Oil. S.
1194 would require certain facilities and vessels to meet new
safety standards when transferring oil. The bill would direct
the Coast Guard to issue regulations to reduce the risk of oil
spills in such operations. In implementing the standards, the
Secretary would have to consider updating equipment
requirements and operational procedures in high-risk areas. The
costs of those requirements are uncertain and would depend upon
future actions of the Secretary.
Extension of Financial Responsibility Requirements. The
bill would extend to tank vessels weighing more than 100 gross
tons the current requirement that vessels establish and
maintain evidence of financial responsibility sufficient to
meet their liability in the event of an oil spill. According to
the Coast Guard, such evidence is usually established through
an insurance guarantee. In effect, this provision would require
owners and operators to show proof of the insurance that they
are already required to carry under current law. Consequently,
CBO estimates that the cost to comply with this requirement
would be small.
Inspection Requirements for Towing Vessels. The bill would
require the Secretary of Homeland Security to issue a final
rule for inspections of towing vessels within two years of the
date of enactment. Current law requires the Secretary to issue
regulations for the inspection of towing vessels and authorizes
the Secretary to establish a safety management system. To the
extent that the bill would accelerate the implementation of any
of those requirements, the bill would impose a private-sector
mandate. Based on information from the Coast Guard, CBO expects
that the cost of the mandate, if imposed, would be relatively
small.
Estimate prepared by: Federal Spending: Deborah Reis;
Impact on State, Local, and Tribal Governments: Ryan Miller;
Impact on the Private Sector: Amy Petz and Jacob Kuipers.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 1194 as reported by the Committee would authorize
appropriations to continue existing Coast Guard programs and
make a number of changes to current law. The bill would have
little, if any, regulatory impact. It would require changes to
the contracting approach used by the Coast Guard in its current
and future major systems acquisitions, and improvements to the
Coast Guard's management of this program.
ECONOMIC IMPACT
S. 1194 would enhance existing Coast Guard authorities and
authorize funding for Coast Guard activities that have a
positive impact on the U.S. economy by ensuring the safety and
security of maritime commerce and enforcing our fisheries laws.
For example, the provisions of title VIII would improve oil
spill prevention and response capabilities that could assist in
avoiding future incidents with a negative economic impact at
the local, State, and Federal levels. The legislation also
contains changes to the contracting approach used by the Coast
Guard in its current and future major acquisitions, including
requirements that will increase competition and improve
contractor oversight, all of which are aimed at reducing
unnecessary costs to taxpayers and the Federal government.
PRIVACY
The reported bill would have little, if any, impact on the
personal privacy of individuals.
PAPERWORK
The reported bill should not significantly increase paperwork
requirements for individuals and businesses.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides the
following identification of congressionally directed spending
items contained in the bill, as reported:
----------------------------------------------------------------------------------------------------------------
Section Provision Member
----------------------------------------------------------------------------------------------------------------
Sec. 805 Olympic Senator
Coast Cantwell
National
Marine
Sanctuary
----------------------------------------------------------------------------------------------------------------
Sec. 814 Oil spill Senator
liability Begich
trust fund
investment
amount
----------------------------------------------------------------------------------------------------------------
Section-by-Section Analysis
title i--authorization
Section 101. Authorization of appropriations
This section would authorize funds for each of fiscal years
2010 and 2011 at the following levels: $6.556 billion for
operating expenses; $1.384 billion for AC&I; $1.361 billion for
retired pay; $13.2 million for environmental compliance and
restoration; $91.7 million for RDT&E; and $133.6 million for
the reserve program.
Section 102. Authorized Levels of Military Strength and Training
This section would authorize a Coast Guard end-of-year
strength of 49,954 active duty military personnel for fiscal
year 2010 and 52,452 active duty military personnel for fiscal
year 2011. The authorized strength does not include members of
the Ready Reserve called to active duty for special or
emergency augmentation of regular Coast Guard forces for
periods of 180 days or less. This section also would authorize
average military training student loads for fiscal year 2010
and 2011 as follows:
----------------------------------------------------------------------------------------------------------------
FY 2010 FY 2011
Training Student Student
Years Years
----------------------------------------------------------------------------------------------------------------
Recruit/Special 2,500 2,625
----------------------------------------------------------------------------------------------------------------
Flight 170 179
----------------------------------------------------------------------------------------------------------------
Professional 350 368
----------------------------------------------------------------------------------------------------------------
Officer Acquisition 1,300 1,365
----------------------------------------------------------------------------------------------------------------
title ii--administration
Section 201. Authority to distribute funds through grants, cooperative
agreements, and contracts to maritime authorities and
organizations
This section would give the Coast Guard limited authority to
provide financial support (approx. $100,000 per year) to
international maritime authorities and organizations that
collect and maintain databases in order to obtain information
on foreign vessels and ports that is directly linked to
maintaining and enhancing United States maritime safety and
security. The provision requires the Commandant to consult with
the Secretary of State when providing such support to
international authorities and organizations. In order to access
global safety and security information on foreign vessels, the
U.S. entered into an agreement with six foreign maritime
authorities to form EQUASIS, a global clearinghouse for Port
State Control information from all countries. However, current
statutory authority does not permit the Coast Guard to use
appropriated funds to support, maintain, and expand these
international Port State Control efforts of EQUASIS and other
similar systems.
Section 202. Assistance to foreign governments and maritime authorities
Section 202 of the Coast Guard and Maritime Transportation
Act of 2006 amended 14 U.S.C. 149, which authorizes the Coast
Guard to provide technical assistance, including law
enforcement and maritime safety and security training, to
foreign maritime authorities in conjunction with regular Coast
Guard operations. The Coast Guard may provide such technical
assistance in coordination with the Secretary of State.
This section would clarify the Coast Guard's authority to
expend funds to assist foreign governments and maritime
authorities, including the detail of personnel, convening
conferences and seminars, and distributing publications
designed to develop the maritime capabilities of key partner
nations, all of which might be considered outside the scope of
traditional ``technical assistance.''
Section 203. Cooperative agreements for industrial activities
This section would simplify accounting requirements by
authorizing appropriations to remain available for payment
beyond the year in which they are appropriated for industrial
work performed by the Coast Guard for the Department of Defense
or Department of Homeland Security.
Section 204. Defining Coast Guard vessels and aircraft
This section would amend title 14, United States Code, by
adding section 638a. The new section would define ``Coast Guard
vessels and aircraft'' for the purposes of 14 U.S.C. 637 and
638. The new definition would include non-traditional vessels
and aircraft from which Coast Guard personnel may conduct Coast
Guard missions and exercise Coast Guard authority. This would
expand the type of assets from which the Coast Guard may
exercise its authority to enforce U.S. law, while ensuring that
the men and women of the Coast Guard are given the appropriate
statutory protections.
title iii--organization
Section 301. Vice commandant; vice admirals
This section would increase the organizational flexibility of
the current Coast Guard command structure as well as increase
alignment with other armed forces.
Section 301(a) would change the vice commandant position from
a 3-star position to a 4-star position, which will increase the
Coast Guard's alignment with other armed forces.
Section 301(b) would create a new structure for vice
admirals. Section 50(a)(1) of title 14, United States Code,
authorizes the President to appoint no more than four
``positions of importance and responsibility.'' This provision
would not set a percentage distribution of commissioned
officers on active duty in general officer or flag officer
grades as in the other armed forces. Instead, the provision
would parallel the command structure of the Marine Corps,
fixing the number of vice admirals at no more than four.
Section 50(a)(2) of title 14, United States Code, would
retain the existing scheme for the nomination, appointment and
confirmation of officers. However, this provision contemplates
the reappointment of officers and expressly provides for Senate
confirmation prior to such reappointment.
Section 50(b)(1) of title 14, United States Code, would carry
forward the language of 14 U.S.C. 50(b) and 50a(b) with regard
to the effective and termination dates that the officer assumes
and attaches from duty.
Section 50(b)(2) of title 14, United States Code, would
provide the treatment of grade of officers who are transferred
from one appointment, hospitalized, or awaiting retirement.
Section 50(c) of title 14, United States Code, would adopt like
treatment of permanency of grade and promotion afforded to such
officers of the other armed forces. Section 50(d) of title 14,
United States Code, would borrow the notification and
recommendation concept of 10 U.S.C. 601(d)(2).
Section 302. Number and distribution of commissioned officers on the
Active Duty Promotion List
This section would amend section 42 of title 14, United
States Code, to permit the Secretary to continue the 6,700
Coast Guard commissioned officer cap beyond FY 2006, applicable
only to the commissioned officers on the Coast Guard Active
Duty Promotion List, and provide guidance for the management of
these commissioned officers.
Subsection (a), in addition to continuing the 6,700 beyond FY
2006, would provide a temporary two percent (2%) increase, or
buffer, to accommodate a recurrent and temporary, annual spike
in the number of Coast Guard commissioned officers. Current
officer management practice is to incorporate a buffer of
approximately 200 into the officer cap to accommodate the
number of commissioned officers the Coast Guard Academy
graduates annually, thereby ensuring the statutory cap of 6,700
is not exceeded.
title iv--personnel
Section 401. Leave retention authority
This section would give the Secretary, and all other service
secretaries, the authority to allow service members to retain
leave they would otherwise forfeit due to support of major
disasters or other emergencies declared by the President under
the Robert T. Stafford Disaster Relief and Emergency Assistance
Act (Public Law 93-288, 42 U.S.C. 5121 et seq.).
In recent years, several major events such as the September
11, 2001, attacks and Hurricanes Katrina, Rita, and Wilma
prevented many Coast Guard members from taking leave that they
had accrued before the end of a fiscal year. Since only 60 days
of leave may be carried over from one fiscal year to the next,
this resulted in Coast Guard members losing leave they earned.
Section 402. Legal assistance for Coast Guard reservists
Currently, Coast Guard reservists are not covered under 10
U.S.C. 1044, which allows for legal assistance in connection
with their personal civil affairs. This provision would amend
10 U.S.C. 1044(a)(4) to establish parity among all similarly
situated reservists by making Coast Guard reservists who have
served on active duty for more than 30 days under mobilization
authority eligible for legal assistance upon release from
active duty.
Section 403. Reimbursement for certain medical related expenses
This section would amend 10 U.S.C. 1074i to allow for the
reimbursement of travel-related expenses when a service member
is stationed on an INCONUS island and his/her family member is
referred to a specialty care provider off-island that is less
than 100 miles from the primary care provider. Currently, there
is an authorization for the reimbursement of travel-related
expenses incurred by the beneficiaries of active duty military
personnel when their primary care physician refers such
beneficiary to a specialty care provider who provides services
more than 100 miles from the location in which the primary care
physician provides services. Although the medical-related
travel costs are covered for active duty members receiving
treatment, such expenses incurred by family members are
currently not reimbursable because the travel distance is less
than 100 miles.
Section 404. Reserve commissioned warrant officer to lieutenant program
Currently, the Coast Guard has more commissioned warrant
officers (CWOs) than vacant billets on the Reserve Personnel
Allowance List; inversely, there are fewer junior officers than
authorized billets. Also, there is no presidential authority to
appoint temporary commissioned officers in the Reserves (in a
grade not above lieutenant) from among the Reserve CWOs.
This section would expand the President's existing authority
to appoint temporary commissioned officers in the Regular Coast
Guard from among CWOs to cover the appointment of temporary
commissioned officers in the Reserves (in a grade not above
lieutenant) from among Reserve CWOs. The qualifications and
requirements that apply to appointments from among the CWOs in
the Regular Coast Guard would apply to those appointments from
the Reserve CWOs.
Section 405. Enhanced status quo officer promotion system
This section would address a deficiency in the existing Coast
Guard officer promotion system regarding the Coast Guard's
ability to fulfill specialty needs of its officer corps which
may arise from time to time. It would preserve the ``best
qualified'' promotion system while affording the Commandant the
flexibility, when needed, to furnish selection boards with
specific direction to consider the specialty needs of the
officer corps during the selection programs. Such specialty
needs selections would be limited, as are ``below promotion
zone'' selections.
Section 406. Appointment of civilian Coast Guard judges
This section would provide a limited authority to enable the
Secretary to appoint civilian judges to the Coast Guard Court
as vacancies occur. As part of our armed forces, the Coast
Guard is required to operate an Appellate Court to hear appeals
from courts-martial. In accordance with Article 66(a) of the
Uniform Code of Military Justice, the judges on this court are
a mixture of military and civilian personnel.
Section 407. Coast Guard participation in the Armed Forces Retirement
Home System
This section would provide the Coast Guard parity with
veterans of the other military services and allow Coast Guard
enlisted and warrant officer personnel eligibility for
admission into the Armed Forces Retirement Home (AFRH) system.
The AFRH system is funded by a trust fund that receives
revenues from small monthly contributions from all active duty
enlisted and warrant officer personnel and a portion of all
enlisted and warrant officer Uniform Code of Military Justice
fines and forfeitures. Under current law (24 U.S.C. 401), only
retirees from the Army, Navy, Air Force, and Marine Corps are
eligible for admission into the AFRH. The Coast Guard is
currently excluded, except when it operates as a service in the
Navy.
Section 408. Crew wages on passenger vessels
This section would impose a three year limitation on class
action suits that are the subject of violations of Section
10313 and Section 10504 of title 46, United States Code.
Further, the provision permits the employer of a seaman to make
payments to a seaman by direct deposit into a checking, savings
or other such account of the seaman's choosing and with the
seaman's explicit written authorization.
title v--acquisition reform
Section 501. Chief acquisition officer
This section would authorize the establishment of a chief
acquisition officer who has acquisition management as their
primary duty, to ensure that the Coast Guard acquires and
delivers assets and capabilities in the best interest of the
federal government and increases the Agency's operational
readiness and performance. This section would require, at
minimum, that the Chief Acquisition Officer serve at the level
of Assistant Commandant with a rank of Rear Admiral or be a
career reserved civilian from the Senior Executive Service.
This section also would require that the Chief Acquisition
Officer satisfy a list of qualifications, primary among them
having the highest Department of Homeland Security Level III
acquisition certification, with ten years of acquisition
experience, four of which were spent as either the program
executive officer, program or deputy program manager of a Level
I or Level II project or program, or a combination of such
positions. Further, this section would define the functions of
the Chief Acquisition Officer. The Chief Acquisition Officer
will serve as the component acquisition executive for the Coast
Guard. The Chief Acquisition Officer should also perform the
duties of the Component Acquisition Executive pursuant to
Departmental policies and procedures.
Section 502. Acquisitions
This section would create a new chapter 15 in title 14 of the
United States Code, with the following subchapters:
subchapter 1--general provisions
Section 561. Acquisition directorate
New section 561 of Title 14 would establish an acquisition
directorate to provide oversight for the implementation and
management of all Coast Guard acquisition processes, programs,
and projects.
Section 562. Senior acquisition leadership team
New section 562 would mandate that the Commandant establish a
leadership team to advise, inform, and support acquisition
processes, programs, and projects that comprises the Vice
Commandant, Deputy and Assistant Commandants, appropriate
senior staff members, and any other Coast Guard officer or
employee as designated by the Commandant.
Section 563. Improvements in Coast Guard acquisition management
New section 563 would define the roles and responsibilities
of program and project managers, as well as specify the level
of certification required in order to be assigned to manage a
program or project. In addition, this section would mandate
that the Commandant issue guidance for program and project
managers on tenure and accountability. Further, this section
would specify positions that require certain competencies and
functions to ensure that the Agency has the relevant expertise
and responsibilities to carry out acquisition program
functions. Also, this section would establish management
information capabilities to improve workforce management, and
identifies specific career paths to enable effective
procurement activities. The requirements are intended to
leverage Department-wide initiatives to improve acquisition
management, while allowing for additional tailored measures to
meet specific needs of the Coast Guard.
Sec. 564. Recognition of Coast Guard personnel for excellence in
acquisition
New section 564 would require the Commandant to implement a
program to recognize individuals and teams that contribute to
successful acquisition program performance. It would mandate
the establishment of specific award categories, criteria, and
eligibility, in addition to procedures for the award of cash
bonuses for civilian career employees.
Section 565. Prohibition on use of lead systems integrators
New section 565 would prohibit the use of a Lead Systems
Integrator on the date of enactment of the Act. It would
require full and open competition for any acquisition contract
in accordance with Federal Acquisition Regulations. In
addition, this section would ensure that the Coast Guard can
continue, through contract closeout, to use a Lead Systems
Integrator only for delivery orders and task orders for
National Security Cutters 2 and 3, the C4ISR projects directly
related to the Integrated Deepwater Program, and for the
completion of the National Distress and Response System
Modernization Program if the Commandant certifies that in so
doing, the execution of such task orders and delivery orders is
in the best interest of the government and is in accordance
with Federal Acquisition Regulations. These exceptions would
only be permitted through September 30, 2012.
Section 566. Required contract terms
New section 566 would apply to all major system acquisition
projects or programs. It would prohibit self certification by a
contractor or subcontractor, and require that all capabilities
or assets under contract have a third party certification or be
certified directly by the Commandant. Further, this section
would require that contractor and subcontractor performance be
based on the status of all work performed. In addition, this
section would require that all contracts for the acquisition of
air, surface, or shore capabilities be in compliance with the
air, surface, or shore standard used by the Department of the
Navy. This section also would require that any contract awarded
to acquire an Offshore Patrol Cutter includes provisions
specifying the service life, fatigue life, maximum range and
speed, and days underway in general Atlantic and North Pacific
sea conditions that the cutter will be built to achieve.
Lastly, this section would require that the Commandant
establish and maintain Integrated Product teams and Technical
Authorities to establish, approve and maintain technical
requirements.
Section 567. Department of Defense consultation
New section 567 would require the Commandant to arrange for
the Department of Defense to have a supporting role of
contracting and management of Coast Guard acquisition programs.
This section would allow the Coast Guard to enter into a
memorandum of understanding or agreement with the Secretary of
the Navy to leverage and obtain their research, development,
and acquisition resources. Arrangements made with the Secretary
of Defense shall be made with the concurrence of the Secretary.
Section 568. Undefinitized contractual actions
New section 568 would prohibit the use of undefinitized
contracts by the Coast Guard unless such a contract is directly
approved by the Chief Acquisition Officer of the Coast Guard.
If the Chief Acquisition Officer approves requests for
undefinitized contracts, this section would require agreement
upon contractual terms, specification, and price within 180
days after the submission of the request for approval. Further,
this section would provide a limitation on the obligation of
funds that exceed 50 percent of the negotiated overall ceiling
price until the contractual terms, specification, and overall
price are definitized for such contractual action. This section
would allow the Commandant to waive the application of this
section if such a contract is necessary to support a
contingency operation, a transportation security incident, an
operation in response to an unacceptable threat to human health
or safety, or an operation in response to a natural, major or
emergency disaster as designated by the President.
subchapter 2--improved acquisition process and procedures
Section 571. Identification of major systems acquisitions
New section 571 would require the Commandant to develop and
implement mechanisms to support operational requirements for
major systems acquisition programs and projects. Further, this
section would stipulate that the Commandant may not initiate a
major systems acquisition program or project until the
following requirements are met:
A mission analysis to identify a clear mission need to
address gaps in capability;
A mission needs statement;
An affordability assessment that includes an assessment of
trade-offs;
A concept-of-operations document;
A capability development plan; and
A resource funding proposal.
Also, this section would require the Commandant to develop
staffing predictions, establish performance initiatives, and
determine preliminary training needs.
Section 572. Acquisition
New section 572 would mandate that the Commandant complete
the objectives listed below prior to establishing a major
systems acquisition program or project:
Establish clear operational requirements;
Develop an acquisition program or project baseline;
Conduct a life-cycle cost estimate; and
Complete an alternatives analysis conducted by a third
party.
In addition, this section would mandate the development and
use of a Test and Evaluation Master Plan. This plan would
require the establishment of a strategy to verify capability
design and development, and require that adequate developmental
and operational tests and evaluations are conducted. The Test
and Evaluation Master Plan also would identify critical
operational issues, operational test and evaluation phases,
require early operational assessments, and would estimate the
resources required for the test and evaluation activities. The
Coast Guard may not move forward with a major systems
acquisition program or project or award any production contract
until the Test and Evaluation Master Plan is approved by the
Chief Acquisition Officer. These procedures are consistent with
the Department of Homeland Security's acquisition procedures.
Further, this section would mandate that, upon completion of
the objectives above, and the development and approval of the
Test and Evaluation Plan, a major systems acquisition program
or project may not enter into the obtain phase until approval
is granted by the Department of Homeland Security Acquisition
Review Board or the Joint Review Board.
Section 573. Preliminary development and demonstration
New section 573 would require that all developmental and
operational tests and evaluations are conducted in accordance
with the master plan developed under section 572(c)(1), and
would require the Commandant to ensure that during the
preliminary development and demonstration phase major systems
acquisition programs or projects demonstrate the following:
The design, manufacturing, and production solution is based
upon a stable and cost-effective design;
The design is mature enough to commit to full scale
production; and
The product capabilities meet contract specifications,
acceptable operational performance requirements, and system
security requirements.
In addition, this section would require that the Coast Guard
use third parties with expertise in testing and evaluating the
capabilities or assets being acquired whenever the Coast Guard
lacks the capability to do so. It would also mandate that
communication concerns identified during the development and
demonstration phase be communicated no later than 30 days after
completion of the test, evaluation, or both as the case may be,
to the program or project manager and to the Chief Acquisition
Officer.
This section also contains specific requirements that are to
be met with regard to technical certification of major systems
acquisition programs or projects. The Coast Guard would be
mandated to certify major systems acquisition programs or
projects through the Coast Guard's technical authority after
review by an independent third party. This review would be
satisfied by the test and evaluation requirements described in
subsection (b). This review requirement is not intended to
diminish, limit, or otherwise affect the authority or
responsibility of the Coast Guard technical authority, nor is
it intended to make the Coast Guard technical authority
subordinate to an independent third party or to impose a review
requirement when the Coast Guard possesses the capability to
conduct the tests and evaluations required by a master plan.
All electronics on any asset that requires TEMPEST
certification would be tested and certified in accordance with
the Master Plan standards by an independent third party
authorized by the federal government.
Lastly, this section would mandate that all cutters acquired
by the Coast Guard be classed by the American Bureau of
Shipping before final acceptance, and that the Commandant may
not proceed to full scale production, deployment, and support
of a major systems acquisition program or project until
approval is granted by the Department of Homeland Security
Acquisition Review Board or the Joint Review Board.
Section 574. Acquisition production, deployment, and support
New section 574 would require the Commandant to conduct
follow-on testing, monitor performance, and correct
deficiencies for assets or systems acquired. In addition, the
Commandant would be mandated to conduct acceptance tests and
trials upon the delivery of each asset or system to ensure full
operational capability is achieved.
In addition, this section makes clear that the Commandant
would be required to execute the production contracts, make
sure the delivered products meet cost and schedule requirements
in accordance with the acquisition program baseline, validate
manpower and training requirements to support the operation of
the acquired product or system, and prepare transition plans
for programmatic sustainment, operations, and support.
Section 575. Acquisition program baseline breach
New section 575 would direct the Commandant to submit a
report to Congress not later than 30 days after the date the
Chief Acquisition Officer of the Coast Guard becomes aware of a
breach of an acquisition program baseline for any Level I or
Level II acquisition program. The breach would be defined as a
likely cost overrun greater than 15 percent of the acquisition
program baseline, a delay of more than 180 days in the delivery
schedule or an anticipated failure for any individual asset or
class of assets to satisfy any key performance threshold or
parameter under the Acquisition Program Baseline. If
substantial variances of greater than a 25 percent cost overrun
or a delay of more than one year are likely, additional
information would be required from the Commandant.
subchapter 3--definitions
Section 581. Definitions
New section 581 would define key terms used in the new
chapter created by Sec. 502 of the Act.
Section 503. Report and regulations on excess pass-through charges
This section would require a report from the Comptroller
General not later than 180 days after the date of enactment of
the Act on pass-through charges on contracts, subcontracts,
delivery orders, and task orders that were executed by a Lead
Systems Integrator to the Coast Guard during the 3 calendar
years preceding the date of enactment of this Act. In addition,
this section would require the Commandant to prescribe
regulations to ensure that such pass-through charges are not
excessive in relation to the cost of work performed, and set
forth clear standards for determining when no value has been
added to a contract by a contractor or subcontractor. Also the
regulations would set forth procedures for preventing the
payment by the government of excessive pass through charges,
and identify any exceptions determined by the Commandant to be
in the best interest of the Government.
title vi--shipping and navigation
Section 601. Technical amendments to Chapter 313 of title 46, United
States Code
This section would make two technical corrections to Chapter
313 of title 46, United States Code. The first correction would
clean up the Chapter by replacing references to the Secretary
of Transportation (SECDOT) with the Secretary of the Department
of Homeland Security (SECDHS), as appropriate. Replacing SECDOT
with SECDHS is necessary to avoid confusion since certain
Chapter functions and responsibilities were transferred, along
with the responsible agency (i.e., the U.S. Coast Guard), to
the Department of Homeland Security. The second would involve
the Chapter's penalty provision, section 31330, and its
incorrect application of punishment for a mortgagor.
Section 602. Clarification of rulemaking authority
Section 102(a) of the Maritime Transportation Security Act of
2002 (P. L. No. 107-295), codified in Chapter 701 of title 46,
United States Code, forms the framework for the port security
regulations which are an integral component of the Nation's
maritime security efforts. The authority necessary to implement
Chapter 701 is found in section 102(d) of that Act, which would
provide the Secretary with an interim final rule authority, as
well as authority to ``initiate'' a rulemaking necessary to
implement that Chapter. This subsection was not codified, most
likely because its intended purpose was merely to expedite the
Chapter 701 rulemaking process under extraordinary
circumstances.
Since publication of the final rule, section 102(d)
supplemented, rather than defined, the Secretary's regulatory
authority to implement Chapter 701, while being unclear to the
regulated public. There is some potential to read Section
102(d) as limiting the Secretary's ability to implement Chapter
701 beyond one year, rather than to give the Secretary an APA
waiver. This section would clarify that the Secretary may issue
regulations to implement, as necessary, Chapter 701 at any
time.
Section 603. Coast Guard maintenance of LORAN-C navigation system
This section would put in place certain requirements related
to the LORAN-C navigation system. LORAN-C is a terrestrial
navigation system maintained by the Coast Guard for use by
general aviators, recreational boaters, commercial fishermen,
and the military as a back-up to the satellite-based Global
Positioning System (GPS). GPS has been shown to be vulnerable
to jamming and other interference. The eLORAN system is already
in use in other countries and is considered by many to be a
logical choice to replace LORAN-C as a GPS back-up. Despite the
vulnerabilities of GPS, the President's budget proposal for FY
2010 includes no funding request for the phasing out of LORAN-C
or for the development and deployment of a next generation GPS
back-up, such as eLORAN. Furthermore, the Coast Guard has
indicated that after LORAN-C is terminated, it plans to sell
the 24 LORAN-C station sites located throughout the United
States, even though similar sites will be required to deploy a
new terrestrial back-up to GPS like eLORAN.
This section would require the Secretary of the Department of
Transportation to maintain the LORAN-C navigation system until
the Secretary of the Department in which the Coast Guard is
operating is authorized by statute to stop operations of LORAN-
C but expedite modernization projects necessary for transition
to eLORAN technology. It would authorize appropriations to the
Secretary of the Department of Transportation in the amount of
$37 million for each of FY 2010 and 2011 for capital expenses
related to the LORAN-C infrastructure, in addition to funds
authorized to the Coast Guard under section 101 of this Act for
continued operation of the LORAN-C system. Finally, it would
require the Secretary of Transportation, in cooperation with
the Secretary of the Department in which the Coast Guard is
operating, to provide a report to Congress no later than six
months after the date of enactment of the Act providing a
detailed 5-year plan for transition from LORAN-C to eLORAN
technology as a national back-up to GPS.
Section 604. Icebreakers
This section would require the Coast Guard to perform an
analysis comparing the costs and benefits of rebuilding,
renovating, or improving its existing polar icebreaker fleet
with the costs and benefits of constructing a new polar
icebreaker fleet. It would also require the Coast Guard to
perform an analysis of the impact on mission capacity and US
presence in the polar regions over the next 10 years if
recapitalization of the polar icebreaker fleet is not fully
funded. These analyses would be required to be based on the
independent assessment of needs currently being undertaken as
part of the High Latitude Study commissioned by the Coast
Guard. Not later than one year after the date of enactment of
this Act, the Commandant of the Coast Guard would be required
to submit reports to Congress containing the results of the
analyses required under this section.
Section 605. Vessel size limits
Section 605 would amend vessel documentation law to provide
flexibility for owners of fishing and fish processing vessels
eligible under provisions of the American Fisheries Act (AFA)
to participate in the rationalized Bering Sea/Aleutian Island
Alaska pollock fishery to rebuild or replace AFA-eligible
vessels without limits on vessel length, tonnage or horsepower.
The provision would further provide that any catcher vessel
delivering its catch to the onshore sector as defined in
section 208(a) of the AFA can be removed from the fishery and
that the catch history for any such vessel shall be assigned in
the manner specified by the vessel owner to another vessel or
vessels participating in the same fishery cooperative. The
vessel, or vessels, to which the catch history is assigned
would remain in the fishery cooperative for at least one year
after the date on which the vessel being removed leaves the
directed pollock fishery.
Section 605(a)(5) and section 605(a)(7)(B) state that any
vessel that is replaced or removed under these amendments would
be permanently ineligible for a fishery endorsement. These
provisions would further provide, however, that a replaced or
removed vessel can be designated to replace another AFA-
eligible vessel. The Committee intends that the implementing
regulations issued by the Coast Guard provide a reasonable time
period for a replaced or removed vessel that forfeits its
fishery endorsement to reclaim a fishery endorsement if that
vessel is to serve as a replacement vessel under this
provision.
Section 606. Phaseout of vessels supporting oil and gas development
This section would extend the current authorization of
vessels to support oil and gas operations on the U.S. Outer
Continental Shelf (OCS) in the Beaufort Sea and the Chukchi Sea
and provide for a flexible transition to the use of U.S.-flag
anchor handling vessels in certain exploration activities for a
limited period of time. Specifically, the language provides
that, if the Secretary of Transportation certifies that a U.S.-
flag anchor handling vessel is not reasonably available and
suitable for these operations, then a foreign-flag anchor
handling vessel may be used until the end of 2012, by an OCS
lessee that has entered into a binding agreement to use a
suitable anchor handling vessel documented as a U.S.-flag
vessel or to be so documented upon completion of construction
of that vessel. Further, the provision states that, if a
binding agreement to employ another U.S.-flag anchor handling
vessel is signed by or on behalf of a lessee as of December 31,
2012, and there are insufficient U.S.-flag anchor handling
vessels to support operations, then a foreign-flag anchor
handling vessel can be used until the end of 2014.
title vii--vessel conveyance
This Title would authorize the Coast Guard to transfer
ownership of any vessel to an eligible entity for use for
educational, cultural, historical, charitable, recreational, or
other public purposes. The transfer of ownership would be
conducted by the General Services Administration. In this
title, the term ``eligible entity'' means a State or local
government, nonprofit corporation, educational agency,
community development organization, or other entity that agrees
to comply with the conditions established under this section.
title viii--oil pollution prevention
Section 801. Rulemakings
This section would address the issue of certain Coast Guard
rulemakings which are required by current law, but for which a
final rule has yet to be issued. Subsection (a) would require
the Coast Guard to provide a report to Congress on the status
of all rulemakings required but not yet finalized under Section
311 of the Federal Water Pollution Control Act (33 U.S.C.
1321). With respect to each such rulemaking, the report would
include a detailed explanation of what steps have been
completed, what areas remain to be addressed, the cause of any
delays, and the date by which a final rule may reasonably be
expected to be issued. Subsection (b) would require that, in
the case of each rulemaking to which subsection (a) applies, a
final rule must be issued as soon as practicable, but in no
event later than 18 months after the date of enactment of this
Act. Subsection (c) would require that, no later than one year
after the date of enactment of this Act, the Secretary must
issue a notice of proposed rulemaking regarding inspection
requirements for towing vessels as described in section 3306(j)
of title 46, United States Code. It also would require the
Secretary to issue a final rule pursuant to that rulemaking no
later than 2 years after the date of enactment of this Act.
Section 802. Oil spill response capability
This section would amend existing federal pilot requirements
under 46 U.S.C. 8502 to address specific tank vessel pilotage
issues related to Buzzards Bay, Massachusetts. Subsection (a)
would require that in any area of Buzzards Bay, Massachusetts,
where a single-hull tank vessel carrying 5,000 or more barrels
of oil or other hazardous material is required to be under the
direction and control of a federal pilot, the pilot may not be
a member of the crew of that vessel, and must be a pilot
licensed by the Commonwealth of Massachusetts who is operating
under a federal license. Subsection (b) would require the
Secretary to transmit an annual report to Congress on the
extent to which tank vessels on Buzzards Bay are using routes
recommended by the Coast Guard.
Section 803. Oil transfers from vessels
This section would direct the Coast Guard to promulgate
regulations to reduce the incidence of oil spills in operations
involving the transfer of oil from or to tank vessels. It would
require the Coast Guard, in doing so, to take into account the
safety of personnel and the effectiveness of available
procedures and equipment--a process which should include
consultation with relevant advisory bodies. For example, the
Coast Guard should consult with the Towing Safety Advisory
Committee to ensure any proposed oil transfer rules will
maintain or enhance safety while also reflecting operational
realities and limitations associated with the transfer of oil
from or to a tank vessel.
Section 804. Improvements to reduce human errors and near-miss
incidents
This section would require the Coast Guard to provide a
report to Congress on the most frequent sources of human error
that have led to oil spills from vessels, as well as on the
most significant types of ``near miss'' incidents. It also
would require the Coast Guard to make recommendations for
reducing such incidents and to take appropriate action to
reduce the risk of oil spills from human error. In order to
encourage and facilitate voluntary disclosure of such
information, this section includes important protections
relating to the confidentiality and judicial discovery of
voluntarily submitted information.
Section 805. Olympic Coast National Marine Sanctuary
This section would expand the application of the voluntary
Area to Be Avoided (ATBA) encompassing the Olympic Coast
National Marine Sanctuary so that it would apply to all non-
tank vessels greater than 400 gross tons, other than fishing or
research vessels engaged in fishing or research within the
ATBA. This section also would authorize $700,000 for the Coast
Guard and the NOAA to conduct a ``Safe Seas'' oil spill drill
in the Olympic Coast National Marine Sanctuary in fiscal year
2010. This drill would be coordinated with Federal agencies and
State, local, and tribal governments and other appropriate
entities.
Section 806. Prevention of small oil spills
This section would require the Under Secretary of Commerce
for Oceans and Atmosphere, in consultation with the Secretary
of the Department of Homeland Security, the Coast Guard, and
other appropriate agencies, to establish an assessment,
outreach, training, and voluntary compliance program to prevent
oil spills from smaller boats such as fishing boats, pleasure
craft, or small commercial vessels. The Under Secretary would
be authorized to provide grants to Sea Grant Colleges, State
and tribal governments, and other appropriate entities to carry
out this program. The provision would authorize $10,000,000
annually for each of fiscal years 2010 through 2012 to carry
out this section.
Section 807. Improved coordination with tribal governments
This section would require the Coast Guard to improve its
consultation and coordination process with Federally-recognized
tribes with respect to oil spill prevention, preparedness, and
response. It also would require the Coast Guard to include
tribes whose natural and cultural resources are likely to be
impacted by a spill as part of the incident response team for
such spill, thus ensuring that the tribe would have an integral
role in decision-making related to the response effort and be
appropriately recognized as a major stakeholder alongside
local, State, and Federal entities. It would authorize the
Coast Guard to enter into cooperative agreements with tribes
for oil spill prevention, preparedness, and response. This
section would authorize $500,000 for the establishment and
implementation of such agreements for each of fiscal years 2010
through 2014.
Section 808. Report on availability of technology to detect the loss of
oil
This section would require the Secretary to submit a report
to Congress within one year after the date of enactment of this
Act, on the availability, feasibility, and potential cost of
technology that can detect the loss of oil carried as cargo or
fuel on tank and non-tank vessels greater than 400 gross tons.
Section 809. Use of oil spill liability trust fund
This section would authorize the National Oceanic and
Atmospheric Administration to directly access up to $15 million
annually from the Oil Spill Liability Trust Fund to carry out
its functions relating to natural damage assessment and
environmental restoration under OPA 90. Currently, NOAA must
seek reimbursement from the Fund for expenses after the costs
are incurred.
Section 810. International efforts on enforcement
This section would help ensure that the Coast Guard pursues
stronger enforcement standards in the International Maritime
Organization (IMO) relating to oil discharges, including joint
enforcement operations, training, and stronger compliance
mechanisms.
Section 811. Higher volume port area regulatory definition change
Section 811 would change the definition of ``higher volume
port area'' for Puget Sound to make the westerly boundary begin
at Cape Flattery, WA, the entry to the Strait of Juan de Fuca,
given the volume of vessel traffic and the risk of oil spills
throughout the entire length of the Strait of Juan de Fuca. It
also would require the Coast Guard to complete its review of
any changes to emergency response plans resulting from the
definition change, within five years after the date of
enactment.
Section 812. Tug escorts for laden oil tankers
This section would address several important issues relating
to the need for adequate tug escorts for oil tankers in high
traffic or high risk waterways. Subsection (a) would direct the
Secretary of State, in consultation with the Commandant of the
Coast Guard, to enter into negotiations with the Government of
Canada to ensure that tug escorts are required for tank ships
greater than 40,000 dead weight tons transiting the Strait of
Juan de Fuca, Strait of Georgia, and Haro Straight. Vancouver,
British Columbia, is Canada's largest port, with more than
2,600 vessel calls annually, and the traffic separation scheme
in the region places much of this in-bound traffic in U.S.
waters. The Commandant would be required to consult with the
State of Washington and affected tribal governments during
negotiations with Canada. Subsection (b) would require a report
to Congress within one year of the date of enactment of this
Act on the costs and benefits to require escort by at least two
towing vessels, for vessels over 5,000 gross tons transporting
oil in bulk in Rosario Strait and Puget Sound, Washington,
including those portions of the Strait of Juan de Fuca east of
Port Angeles, Haro Strait, and the Strait of Georgia which are
subject to United States jurisdiction.
Section 813. Extension of financial responsibility
This section would extend current requirements of financial
responsibility in section 1016(a) of OPA 90 (33 U.S.C. 2716(a))
to all tank vessels over 100 gross tons, except non-self
propelled vessels not carrying oil as cargo. This extension
would ensure that responsible parties for vessels of this size-
range are able to pay for claims related to spills.
Section 814. Oil spill liability trust fund investment amount
This section would increase the principal amount of funds
that support the Oil Spill Recovery Institute by $12.851
million to account for reduced funding due to low interest
rates and inflation. The OSRI conducts research and develops
technologies to prevent and mitigate the effects of oil spills,
and has a unique capability to conduct such research in Arctic
and sub-Arctic regions. As resources are developed in these
regions, new research will be needed to mitigate potential
spills in extreme cold water and icy conditions.
Section 815. Liability for use of single-hull vessels
This section would include in the definition of ``responsible
party'' under section 1001(32) of OPA 90 (33 U.S.C. 2701(32))
the owner of oil products being transported by a single-hull
tank vessel (other than certain vessels described in
3703a(b)(3) of title 46, United States Code).
title ix--miscellaneous provisions
Section 901. Homeporting of the BIGELOW
This section would require the Administrator of the National
Oceanic and Atmospheric Administration to submit a report to
Congress within 90 days of enactment of the Act regarding the
agency's progress in determination of a homeport for the FSV
HENRY B BIGELOW, and would direct the agency to give special
consideration to specific factors as a part of its decision
making process. It also would require the Administrator to
notify Congress of its proposed final decision, and the
rationale upon which that proposed decision is based, at least
45 days before a final decision is implemented. The agency
would be required to make a final decision on the homeport for
the BIGELOW no later than December 31, 2009.
Section 902. Vessel Determination
This section would provide that the documented United States
vessels with official numbers 981472 and 988333 shall be deemed
new vessels following the completion of their major shipyard
reconstruction projects. The certificates of documentation
showing the ``new vessel'' status for those vessels may not be
issued until there are no encumbrances on record for those
vessels with the Coast Guard National Vessel Documentation
Center at the time of issuance. The vessels would retain their
official numbers of 981472 and 988333, and this section would
not change U.S. Coast Guard vessel safety and inspection
requirements applicable to each vessel prior to the enactment
of this section.
Section 903. Conveyance of the Presque Isle Light Station Fresnel Lens
to Presque Isle Township, Michigan
This section would authorize the Commandant of the Coast
Guard to convey ownership of the fresnel lens from the historic
Presque Isle Light Station Lighthouse, Michigan, to the
Township of Presque Isle, Michigan, for operation as an aid to
navigation.
Section 904. Land Conveyance, Coast Guard Property in Marquette County,
Michigan, to the City of Marquette, Michigan
This section would authorize the Commandant of the Coast
Guard to convey approximately 5.5 acres of real property and
any improvements thereon, located in Marquette County,
Michigan, and commonly referred to as Coast Guard Station
Marquette and Lighthouse Point, to the City of Marquette,
Michigan.
Section 905. Large offshore supply vessels
This section would require the Commandant of the Coast Guard
to submit a report to Congress within one year after the date
of enactment of the Act on the design, inspection,
certification, manning, operation, and credentialing
requirements for offshore supply vessels greater than 500 gross
tons or an alternate tonnage as measured under specific
sections of title 46, United States Code. In developing the
required report to Congress, the Commandant would have the
discretion to request the participation of senior
representatives of any other Federal department or agency, as
appropriate, and would be required to consider all applicable
provisions of U.S. law and international conventions and
agreements.
Section 906. Conveyance of Decommissioned Coast Guard Cutters STORIS,
IRIS, and PLANETREE
This section would authorize the conveyance, without
consideration, of the Coast Guard Cutters STORIS, IRIS, and
PLANETREE to certain nonprofit entities upon being
decommissioned. Specifically, the Commandant of the Coast Guard
would be authorized to convey the STORIS to the Storis Museum
in Juneau, Alaska, provided the museum agrees to use the vessel
as a historic memorial, to make the cutter available to the
public as a museum, and to work cooperatively with other
museums to provide education and memorialize the maritime
heritage of the STORIS and other maritime activities in Alaska,
the Pacific Northwest, the Arctic Ocean, and adjacent oceans
and seas. Similarly, the Commandant would be authorized to
convey the IRIS and PLANETREE to the Anchor Program in
Richmond, California, provided the Anchor Program agrees to use
the vessels as job training sites, primarily in the San
Francisco Bay and Puget Sound, leading to employment in the
merchant marine and associated shore-side occupations. Certain
other provisos would apply in the case of each conveyance
authorized by this section, including: that the vessels not be
used for commercial transportation purposes; and that the
vessels be made available to the U.S. Government if needed in
time of war or national emergency. The Commandant would also be
authorized to convey to the recipient of a vessel under this
section any excess equipment or parts from other decommissioned
Coast Guard vessels for use to enhance the vessel's operability
and function for purposes of a public museum and historical
display.
Section 907. Access for Personal Watercraft
This section would require that personal watercraft have
access to the Atlantic Intracoastal Waterway equal to all other
vessels and rafts permitted on the Waterway. The access
requirement would take effect 150 days after the date of
enactment of the Act, and would remain in effect unless and
until the Commandant of the Coast Guard, after a public
hearing, concludes that personal watercraft have an
environmental impact on the Atlantic Intracoastal Waterway that
is more disparate than all other vessels and rafts permitted in
the Waterway. The Commandant would be required to complete an
environmental assessment regarding the impact of personal
watercraft within 150 after the date of enactment of the Act.
This section would also establish a working group consisting of
representatives from the Coast Guard, the National Park
Service, and other authorities and stakeholders with an
interest in the Waterway access issue, for the purpose of
developing recommendations concerning reasonable requirements
for access to the Waterway. It also includes language
preserving the authority of the Coast Guard to enforce safety
regulations, and of the National Park Service and the
Department of the Interior to ensure that watercraft observe
all boating safety and marine mammal protections.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
HOMELAND SECURITY ACT OF 2002
SEC. 875. MISCELLANEOUS AUTHORITIES.
[6 U.S.C. 455]
(a) Seal.--The Department shall have a seal, whose design is
subject to the approval of the President.
(b) Participation of Members of the Armed Forces.--With
respect to the Department, the Secretary shall have the same
authorities that the Secretary of Transportation has with
respect to the Department of Transportation under section 324
of title 49, United States Code.
(c) Appointment of Judges.--The Secretary may appoint
civilian employees of the Department of Homeland Security as
appellate military judges, available for assignment to the
Coast Guard Court of Criminal Appeals as provided for in
section 866(a) of title 10, United States Code.
[(c)] (d) Redelegation of Functions.--Unless otherwise
provided in the delegation or by law, any function delegated
under this Act may be redelegated to any subordinate.
TITLE 10. ARMED FORCES
SUBTITLE A. GENERAL MILITARY LAW
PART II. PERSONNEL
CHAPTER 40. LEAVE
Sec. 701. Entitlement and accumulation
(a) A member of an armed force is entitled to leave at the
rate of 2\1/2\ calendar days for each month of active service,
excluding periods of--
(1) absence from duty without leave;
(2) absence over leave;
(3) confinement as the result of a sentence of a
court-martial; and
(4) leave required to be taken under section 876a of
this title.
Full-time training, or other full-time duty for a period of
more than 29 days, performed under section 316, 502, 503, 504,
or 505 of title 32 by a member of the Army National Guard of
the United States or the Air National Guard of the United
States in his status as a member of the National Guard, and for
which he is entitled to pay, is active service for the purposes
of this section.
(b) Except as provided in subsections (d), (f), and (g), a
member may not accumulate more than 60 days' leave. However,
leave taken during a fiscal year may be charged to leave
accumulated during that fiscal year without regard to this
limitation.
(c) A member who retired after August 9, 1946, who is
continued on, or is recalled to, active duty, may have his
leave which accumulated during his service before retirement
carried over to his period of service after retirement.
(d) Notwithstanding subsection (b), during the period
beginning on October 1, 2008, through December 31, 2010, a
member may accumulate up to 75 days of leave.
(e) Leave taken before discharge is considered to be active
service.
(f)(1)(A) The Secretary concerned, under uniform regulations
to be prescribed by the Secretary of Defense, may authorize a
member described in subparagraph (B) who, except for this
paragraph, would lose at the end of the fiscal year any
accumulated leave in excess of the number of days of leave
authorized to be accumulated under subsection (b) or (d), to
retain an accumulated total of 120 days leave.
(B) This subsection applies to a member who--
(i) serves on active duty for a continuous period of
at least 120 days in an area in which the member is
entitled to special pay under section 310(a) of title
37;
(ii) is assigned to a deployable ship or mobile unit
or to other duty designated for the purpose of this
section; or
(iii) on or after August 29, 2005, performs duty
designated by the Secretary of Defense as qualifying
duty for purposes of this subsection.
(C) Except as provided in paragraph (2), leave in excess of
the days of leave authorized to be accumulated under subsection
(b) or (d) that are accumulated under this paragraph is lost
unless it is used by the member before the end of the third
fiscal year (or fourth fiscal year, if accumulated while
subsection (d) is in effect) after the fiscal year in which the
continuous period of service referred to in subparagraph (B)
terminated.
(2) Under the uniform regulations referred to in paragraph
(1), a member of an armed force who serves on active duty in a
duty assignment in support of a contingency operation or a
declaration of a major disaster or emergency by the President
under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (Public Law 93-288, 42 U.S.C. 5121 et seq.)
during a fiscal year and who, except for this paragraph, would
lose at the end of that fiscal year any accumulated leave in
excess of the number of days of leave authorized to be
accumulated under subsection (b) or (d), shall be permitted to
retain such leave until the end of the second fiscal year after
the fiscal year in which such service on active duty is
terminated.
* * * * * * *
CHAPTER 53. MISCELLANEOUS RIGHTS AND BENEFITS
Sec. 1044. Legal Assistance
(a) Subject to the availability of legal staff resources, the
Secretary concerned may provide legal assistance in connection
with their personal civil legal affairs to the following
persons:
(1) Members of the armed forces who are on active
duty.
(2) Members and former members entitled to retired or
retainer pay or equivalent pay.
(3) Officers of the commissioned corps of the Public
Health Service who are on active duty or entitled to
retired or equivalent pay.
(4) Members of reserve components not covered by
paragraph (1) or (2) following release from active duty
under a call or order to active duty for more than 30
days issued under a mobilization authority [(as
determined by the Secretary of Defense),] (as
determined by the Secretary of Defense and the
Secretary of the department in which the Coast Guard is
operating, with respect to the Coast Guard when it is
not operating as a service of the Navy), for a period
of time, [prescribed by the Secretary of Defense,]
prescribed by the Secretary of Defense and the
Secretary of the department in which the Coast Guard is
operating, with respect to the Coast Guard when it is
not operating as a service of the Navy, that begins on
the date of the release and is not less than twice the
length of the period served on active duty under that
call or order to active duty.
(5) Dependents of members and former members
described in paragraphs (1), (2), (3), and (4).
(6) Survivors of a deceased member or former member
described in paragraphs (1), (2), (3), and (4) who were
dependents of the member or former member at the time
of the death of the member or former member, except
that the eligibility of such survivors shall be
determined pursuant to regulations prescribed by the
Secretary concerned.
(7) Civilian employees of the Federal Government
serving in locations where legal assistance from non-
military legal assistance providers is not reasonably
available, except that the eligibility of civilian
employees shall be determined pursuant to regulations
prescribed by the Secretary concerned.
(b) Under such regulations as may be prescribed by the
Secretary concerned, the Judge Advocate General (as defined in
section 801(1) of this title) under the jurisdiction of the
Secretary is responsible for the establishment and supervision
of legal assistance programs under this section.
(c) This section does not authorize legal counsel to be
provided to represent a member or former member of the
uniformed services described in subsection (a), or the
dependent of such a member or former member, in a legal
proceeding if the member or former member can afford legal fees
for such representation without undue hardship.
(d)(1) Notwithstanding any law regarding the licensure of
attorneys, a judge advocate or civilian attorney who is
authorized to provide military legal assistance is authorized
to provide that assistance in any jurisdiction, subject to such
regulations as may be prescribed by the Secretary concerned.
(2) Military legal assistance may be provided only by a judge
advocate or a civilian attorney who is a member of the bar of a
Federal court or of the highest court of a State.
(3) In this subsection, the term ``military legal
assistance'' includes--
(A) legal assistance provided under this section; and
(B) legal assistance contemplated by sections 1044a,
1044b, 1044c, and 1044d of this title.
(e) The Secretary concerned shall define ``dependent'' for
the purposes of this section.
CHAPTER 55. MEDICAL AND DENTAL CARE
1074i. Reimbursement for certain travel expenses
(a) In General.--(1) In any case in which a covered
beneficiary is referred by a primary care physician to a
specialty care provider who provides services more than 100
miles from the location in which the primary care provider
provides services to the covered beneficiary, the Secretary
shall provide reimbursement for reasonable travel expenses for
the covered beneficiary and, when accompaniment by an adult is
necessary, for a parent or guardian of the covered beneficiary
or another member of the covered beneficiary's family who is at
least 21 years of age.
(2) In any case in which a covered beneficiary resides on an
INCONUS island that lacks public access roads to the mainland
and is referred by a primary care physician to a specialty care
provider on the mainland who provides services less than 100
miles from the location in which the beneficiary resides, the
Secretary shall reimburse the reasonable travel expenses of the
covered beneficiary, and, when accompaniment by an adult is
necessary, for a parent or guardian of the covered beneficiary
or another member of the covered beneficiary's family who is at
least 21 years of age.
(b) Outreach Program and Travel Reimbursement for Follow-on
Specialty Care and Related Services.--The Secretary concerned
shall ensure that an outreach program is implemented for each
member of the uniformed services who incurred a combat-related
disability and is entitled to retired or retainer pay, or
equivalent pay, so that--
(1) the progress of the member is closely monitored;
and
(2) the member receives the travel reimbursement
authorized by subsection (a) whenever the member
requires follow-on specialty care, services, or
supplies.
(c) Definitions.--In this section:
(1) The term ``specialty care provider'' includes a
dental specialist.
(2) The term ``dental specialist'' means an oral
surgeon, orthodontist, prosthodontist, periodontist,
endodontist, or pediatric dentist, and includes such
other providers of dental care and services as
determined appropriate by the Secretary of Defense.
(3) The term ``combat-related disability'' has the
meaning given that term in section 1413a of this title.
PART IV. SERVICE, SUPPLY, AND PROCUREMENT
CHAPTER 165. ACCOUNTABILITY AND RESPONSIBILITY
Sec. 2772. Share of fines and forfeitures to benefit Armed Forces
retirement homes
(a) Deposit required. The Secretary [of the military
department] concerned shall deposit in the Armed Forces
Retirement Home Trust Fund a percentage (determined under
subsection (b)) of the following amounts:
(1) The amount of forfeitures and fines adjudged
against an enlisted member, warrant officer, or limited
duty officer of the armed forces by sentence of a court
martial or under authority of section 815 of this title
(article 15) over and above any amount that may be due
from the member, warrant officer, or limited duty
officer for the reimbursement of the United States or
any individual.
(2) The amount of forfeitures on account of the
desertion of an enlisted member, warrant officer, or
limited duty officer of the armed forces.
(b) Determination of percentage. The [Armed Forces Retirement
Home Board] Chief Operating Officer of the Armed Forces
Retirement Home shall determine, on the basis of the financial
needs of the Armed Forces Retirement Home, the percentage of
the amounts referred to in subsection (a) to be deposited in
the trust fund referred to in such subsection.
[(c) Application to Coast Guard. In this section, the term
``armed forces'' does not include the Coast Guard when it is
not operating as a service in the Navy.]
TITLE 14. COAST GUARD
PART I. REGULAR COAST GUARD
CHAPTER 3. COMPOSITION AND ORGANIZATION
[Sec. 42. Number and distribution of commissioned officers]
[(a) The total number of commissioned officers, excluding
commissioned warrant officers, on active duty in the Coast
Guard shall not exceed 6,700 in each fiscal year 2004, 2005,
and 2006.
[(b) The commissioned officers on the active duty promotion
list shall be distributed in grade in the following
percentages, respectively: rear admiral 0.375; rear admiral
(lower half) 0.375; captain 6.0; commander 15.0; lieutenant
commander 22.0. The Secretary shall prescribe the percentages
applicable to the grades of lieutenant, lieutenant (junior
grade), and ensign. The Secretary may, as the needs of the
Coast Guard require, reduce the percentage applicable to any
grade above lieutenant commander, and in order to compensate
for such reduction increase correspondingly the percentage
applicable to any lower grade.
[(c) The Secretary shall, at least once each year, make a
computation to determine the number of officers on the active
duty promotion list authorized to be serving in each grade. The
number in each grade shall be computed by applying the
applicable percentage to the total number of such officers
serving on active duty on the date the computation is made. In
making computations under this section the nearest whole number
shall be regarded as the authorized number in any case where
there is a fraction in the final result.]
Sec. 42. Number and distribution of commissioned officers on the active
duty promotion list
(a) The total number of Coast Guard commissioned officers on
the active duty promotion list, excluding warrant officers,
shall not exceed 7,200. This total number may be temporarily
increased up to 2 percent for no more than the 60 days that
follow the commissioning of a Coast Guard Academy class.
(b) The total number of commissioned officers authorized by
this section shall be distributed in grade not to exceed the
following percentages:
(1) 0.375 percent for rear admiral.
(2) 0.375 percent for rear admiral (lower half).
(3) 6.0 percent for captain.
(4) 15.0 percent for commander.
(5) 22.0 percent for lieutenant commander.
The Secretary shall prescribe the percentages applicable to the
grades of lieutenant, lieutenant (junior grade), and ensign.
The Secretary may, as the needs of the Coast Guard require,
reduce any of the percentages set forth in paragraphs (1)
through (5) and apply that total percentage reduction to any
other lower grade or combination of lower grades.
(c) The Secretary shall, at least once a year, compute the
total number of commissioned officers authorized to serve in
each grade by applying the grade distribution percentages of
this section to the total number of commissioned officers
listed on the current active duty promotion list. In making
such calculations, any fraction shall be rounded to the nearest
whole number. The number of commissioned officers on the active
duty promotion list serving with other departments or agencies
on a reimbursable basis or excluded under the provisions of
section 324(d) of title 49, shall not be counted against the
total number of commissioned officers authorized to serve in
each grade.
(d) The numbers resulting from such computations shall be for
all purposes the authorized number in each grade, except that
the authorized number for a grade is temporarily increased
during the period between one computation and the next by the
number of officers originally appointed in that grade during
that period and the number of officers of that grade for whom
vacancies exist in the next higher grade but whose promotion
has been delayed for any reason.
[(e) Officers who are not included in the active duty
promotion list, officers serving as extra numbers in grade
under sections 432 and 433 of this title , and officers serving
with other departments or agencies on a reimbursable basis or
excluded under the provisions of section 324(d) of title 49,
shall not be counted in determining authorized strengths under
subsection (c) and shall not count against those strengths. The
number of officers authorized to be serving on active duty in
each grade of the permanent commissioned teaching staff of the
Coast Guard Academy and of the Reserve serving in connection
with organizing, administering, recruiting, instructing, or
training the reserve components shall be prescribed by the
Secretary.]
(e) The number of officers authorized to be serving on active
duty in each grade of the permanent commissioned teaching staff
of the Coast Guard Academy and of the Reserve serving in
connection with organizing, administering, recruiting,
instructing, or training the reserve components shall be
prescribed by the Secretary.
Sec. 47. Vice Commandant; assignment
The President may appoint, by and with the advice and consent
of the Senate, one Vice Commandant who shall rank next after
the Commandant, shall perform such duties as the Commandant may
prescribe and shall act as Commandant during the absence or
disability of the Commandant or in the event that there is a
vacancy in the office of Commandant. The Vice Commandant shall
be selected from the officers on the active duty promotion list
serving above the grade of captain. The Commandant shall make
recommendation for such appointment. The Vice Commandant shall,
while so serving, have the grade of [vice admiral] admiral with
pay and allowances of that grade. The appointment and grade of
a Vice Commandant shall be effective on the date the officer
assumes that duty, and shall terminate on the date the officer
is detached from that duty, except as provided in [subsection]
section 51(d) of this title.
[50. Area commanders
[(a) The President may appoint, by and with the advice and
consent of the Senate, a Commander, Atlantic Area, and a
Commander, Pacific Area, each of whom shall be an intermediate
commander between the Commandant and the district commanders in
his respective area and shall perform such duties as the
Commandant may prescribe. The area commanders shall be
appointed from officers on the active duty promotion list
serving above the grade of captain. The Commandant shall make
recommendations for such appointments.
[(b) An area commander shall, while so serving, have the
grade of vice admiral with pay and allowances of that grade.
The appointment and grade of an area commander shall be
effective on the date the officer assumes that duty, and shall
terminate on the date the officer is detached from that duty,
except as provided in subsection 51(d) of this title.]
Sec. 50. Vice admirals
(a)(1) The President may designate no more than 4 positions
of importance and responsibility that shall be held by officers
who--
(A) while so serving, shall have the grade of vice
admiral, with the pay and allowances of that grade; and
(B) shall perform such duties as the Commandant may
prescribe.
(2) The President may appoint, by and with the advice and
consent of the Senate, and reappoint, by and with the advice
and consent of the Senate, to any such position an officer of
the Coast Guard who is serving on active duty above the grade
of captain. The Commandant shall make recommendations for such
appointments.
(b)(1) The appointment and the grade of vice admiral shall be
effective on the date the officer assumes that duty and, except
as provided in paragraph (2) of this subsection or in section
51(d) of this title, shall terminate on the date the officer is
detached from that duty.
(2) An officer who is appointed to a position designated
under subsection (a) shall continue to hold the grade of vice
admiral--
(A) while under orders transferring the officer to
another position designated under subsection (a),
beginning on the date the officer is detached from that
duty and terminating on the date before the day the
officer assumes the subsequent duty, but not for more
than 60 days;
(B) while hospitalized, beginning on the day of the
hospitalization and ending on the day the officer is
discharged from the hospital, but not for more than 180
days; and
(C) while awaiting retirement, beginning on the date
the officer is detached from duty and ending on the day
before the officer's retirement, but not for more than
60 days.
(c)(1) An appointment of an officer under subsection (a) does
not vacate the permanent grade held by the officer.
(2) An officer serving in a grade above rear admiral who
holds the permanent grade of rear admiral (lower half) shall be
considered for promotion to the permanent grade of rear admiral
as if the officer was serving in the officer's permanent grade.
(d) Whenever a vacancy occurs in a position designated under
subsection (a), the Commandant shall inform the President of
the qualifications needed by an officer serving in that
position or office to carry out effectively the duties and
responsibilities of that position or office.
[50a. Chief of Staff
[(a) The President may appoint, by and with the advice and
consent of the Senate, a Chief of Staff of the Coast Guard who
shall rank next after the area commanders and who shall perform
duties as prescribed by the Commandant. The Chief of Staff
shall be appointed from the officers on the active duty
promotion list serving above the grade of captain. The
Commandant shall make recommendations for the appointment.
[(b) The Chief of Staff shall have the grade of vice admiral
with the pay and allowances of that grade. The appointment and
grade of the Chief of Staff shall be effective on the date the
officer assumes that duty, and shall terminate on the date the
officer is detached from that duty, except as provided in
section 51(d) of this title.]
Sec. 51. Retirement
[(a) An officer who, while serving in the grade of vice
admiral, is retired for physical disability shall be placed on
the retired list with the grade of vice admiral.
[(b) An officer who is retired while serving in the grade of
vice admiral, or who, after serving at least two and one-half
years in the grade of vice admiral, is retired while serving in
a lower grade, may in the discretion of the President, be
retired with the grade of vice admiral.
[(c) An officer who, after serving less than two and one-half
years in the grade of vice admiral, is retired while serving in
a lower grade, shall be retired in his permanent grade.]
(a) An officer, other than the Commandant, who, while serving
in the grade of admiral or vice admiral, is retired for
physical disability shall be placed on the retired list with
the highest grade in which that officer served.
(b) An officer, other than the Commandant, who is retired
while serving in the grade of admiral or vice admiral, or who,
after serving at least 2\1/2\ years in the grade of admiral or
vice admiral, is retired while serving in a lower grade, may in
the discretion of the President, be retired with the highest
grade in which that officer served.
(c) An officer, other than the Commandant, who, after serving
less than 2\1/2\ years in the grade of admiral or vice admiral,
is retired while serving in a lower grade, shall be retired in
his permanent grade.
(d) An officer serving in the grade of admiral or vice
admiral shall continue to hold that grade--
(1) while being processed for physical disability
retirement, beginning on the day of the processing and
ending on the day that officer is retired, but not for
more than 180 days; and
(2) while awaiting retirement, beginning on the day
that officer is relieved from the position of
Commandant, Vice Commandant, [Area Commander, or Chief
of Staff] or Vice Admiral and ending on the day before
the officer's retirement, but not for more than 60
days.
* * * * * * *
Sec. 55. Chief Acquisition Officer
(a) In General.--There shall be in the Coast Guard a Chief
Acquisition Officer selected by the Commandant who shall be a
Rear Admiral or civilian from the Senior Executive Service
(career reserved). The Chief Acquisition Officer shall serve at
the Assistant Commandant level and have acquisition management
as that individual's primary duty.
(b) Qualifications.--The Chief Acquisition Officer shall be
an acquisition professional with a Level III certification and
must have at least 10 years experience in an acquisition
position, of which at least 4 years were spent as--
(1) the program executive officer;
(2) the program manager of a Level 1 or Level 2
acquisition project or program;
(3) the deputy program manager of a Level 1 or Level
2 acquisition; or
(4) a combination of such positions.
(c) Functions of the Chief Acquisition Officer.--The
functions of the Chief Acquisition Officer include--
(1) monitoring the performance of programs and
projects on the basis of applicable performance
measurements and advising the Commandant, through the
chain of command, regarding the appropriate business
strategy to achieve the missions of the Coast Guard;
(2) maximizing the use of full and open competition
at the prime contract and subcontract levels in the
acquisition of property, capabilities, and services by
the Coast Guard by establishing policies, procedures,
and practices that ensure that the Coast Guard receives
a sufficient number of competitive proposals from
responsible sources to fulfill the Government's
requirements, including performance and delivery
schedules, at the lowest cost or best value considering
the nature of the property or service procured;
(3) making acquisition decisions in concurrence with
the technical authority, or technical authorities, as
appropriate, of the Coast Guard, as designated by the
Commandant, consistent with all other applicable laws
and decisions establishing procedures within the Coast
Guard;
(4) ensuring the use of detailed performance
specifications in instances in which performance based
contracting is used;
(5) managing the direction of acquisition policy for
the Coast Guard, including implementation of the unique
acquisition policies, regulations, and standards of the
Coast Guard;
(6) developing and maintaining an acquisition career
management program in the Coast Guard to ensure that
there is an adequate acquisition workforce;
(7) assessing the requirements established for Coast
Guard personnel regarding knowledge and skill in
acquisition resources and management and the adequacy
of such requirements for facilitating the achievement
of the performance goals established for acquisition
management;
(8) developing strategies and specific plans for
hiring, training, and professional development; and
(9) reporting to the Commandant, through the chain of
command, on the progress made in improving acquisition
management capability.
* * * * * * *
CHAPTER 7. COOPERATION WITH OTHER AGENCIES
Sec. 149. Assistance to foreign governments and maritime authorities
(a) Detail of members to assist foreign governments.--The
President may upon application from the foreign governments
concerned, and whenever in his discretion the public interests
render such a course advisable, detail members of the Coast
Guard to assist foreign governments in matters concerning which
the Coast Guard may be of assistance. Members so detailed may
accept, from the government to which detailed, offices and such
compensation and emoluments thereunder appertaining as may be
first approved by the Secretary. While so detailed such members
shall receive, in addition to the compensation and emoluments
allowed by such governments, the pay and allowances to which
they are entitled in the Coast Guard and shall be allowed the
same credit for longevity, retirement, and for all other
purposes that they would receive if they were serving with the
Coast Guard.
(b) Technical Assistance to Foreign Maritime Authorities.--
The Commandant, in coordination with the Secretary of State,
may provide, in conjunction with regular Coast Guard
operations, technical assistance (including law enforcement and
maritime safety and security training) to foreign navies, coast
guards, and other maritime authorities.
(c) Grants to International Maritime Organizations.--The
Commandant may, after consultation with the Secretary of State,
make grants to, or enter into cooperative agreements,
contracts, or other agreements with, international maritime
organizations for the purpose of acquiring information or data
about merchant vessel inspections, security, safety and
environmental requirements, classification, and port state or
flag state law enforcement or oversight.
(d) Authorized Activities.--
(1) The Commandant may transfer or expend funds from
any appropriation available to the Coast Guard for--
(A) the activities of traveling contact
teams, including any transportation expense,
translation services expense, or administrative
expense that is related to such activities;
(B) the activities of maritime authority
liaison teams of foreign governments making
reciprocal visits to Coast Guard units,
including any transportation expense,
translation services expense, or administrative
expense that is related to such activities;
(C) seminars and conferences involving
members of maritime authorities of foreign
governments;
(D) distribution of publications pertinent to
engagement with maritime authorities of foreign
governments; and
(E) personnel expenses for Coast Guard
civilian and military personnel to the extent
that those expenses relate to participation in
an activity described in subparagraph (C) or
(D).
(2) An activity may not be conducted under this
subsection with a foreign country unless the Secretary
of State approves the conduct of such activity in that
foreign country.
Sec. 151. Contracts with Government-owned establishments for work and
material
(a) In General._All orders or contracts for work or material,
under authorization of law, placed with Government-owned
establishments by the Coast Guard, shall be considered as
obligations in the same manner as provided for similar orders
or contracts placed with private contractors, and
appropriations for such work or material shall remain available
for payment therefor as in the case of orders or contracts
placed with private contractors.
(b) Orders and Agreements for Industrial Activities.--Under
this section, the Coast Guard industrial activities may accept
orders and enter into reimbursable agreements with
establishments, agencies, and departments of the Department of
Defense and the Department of Homeland Security.
CHAPTER 11. PERSONNEL
Sec. 214. Appointment of temporary officers
[(a) The President may appoint temporary commissioned
officers in the Regular Coast Guard in a grade, not above
lieutenant, appropriate to their qualifications, experience,
and length of service, as the needs of the Coast Guard may
require, from among the commissioned warrant officers, warrant
officers, and enlisted members of the Coast Guard, and from
licensed officers of the United States merchant marine.]
(a) The President may appoint temporary commissioned
officers--
(1) in the Regular Coast Guard in a grade, not above
lieutenant, appropriate to their qualifications,
experience, and length of service, as the needs of the
Coast Guard may require, from among the commissioned
warrant officers, warrant officers, and enlisted
members of the Coast Guard, and from licensed officers
of the United States merchant marine; and
(2) in the Coast Guard Reserve in a grade, not above
lieutenant, appropriate to their qualifications,
experience, and length of service, as the needs of the
Coast Guard may require, from among the commissioned
warrant officers of the Coast Guard Reserve.
(b) Temporary appointments under this section do not change
the permanent, probationary, or acting status of persons so
appointed, prejudice them in regard to promotion or
appointment, or abridge their rights or benefits. A person who
is appointed under this section may not suffer any reduction in
the rate of pay and allowances to which he would have been
entitled had he remained in his former grade and continued to
receive the increases in pay and allowances authorized for that
grade.
(c) An appointment under this section, or a subsequent
promotion appointment of a temporary officer, may be vacated by
the appointing officer at any time. Each officer whose
appointment is so vacated shall revert to his permanent status.
(d) Appointees under this section shall take precedence in
the grade to which appointed in accordance with the dates of
their appointments as officers in such grade. Appointees whose
dates of appointment are the same shall take precedence with
each other as the Secretary shall determine.
Sec. 253. Selection boards; notice of convening; communication with
board
(a) Before a board is convened under section 251 of this
title, notice of the convening date, the promotion zone to be
considered, and the officers eligible for [consideration, and
the number of officers the board may recommend for promotion]
consideration shall be given to the service at large.
(b) Each officer eligible for consideration by a selection
board convened under section 251 of this title may send a
communication through official channels to the board, to arrive
not later than the date the board convenes, inviting attention
to any matter of record in the armed forces concerning himself.
A communication sent under this section may not criticize any
officer or reflect upon the character, conduct, or motive of
any officer.
Sec. 258. Selection boards; information to be furnished boards
(a) The Secretary shall furnish the appropriate selection
board convened under section 251 of this title with:
(1) the number of officers that the board may
recommend for promotion to the next higher grade; and
(2) the names and records of all officers who are
eligible for consideration for promotion to the grade
to which the board will recommend officers for
promotion.
(b) In addition to the information provided pursuant to
subsection (a), the Secretary may furnish the selection board--
(1) specific direction relating to the needs of the
service for officers having particular skills,
including direction relating to the need for a minimum
number of officers with particular skills within a
specialty; and
(2) such other guidance that the Secretary believes
may be necessary to enable the board to properly
perform its functions.
Selections made based on the direction and guidance provided
under this subsection shall not exceed the maximum percentage
of officers who may be selected from below the announced
promotion zone at any given selection board convened under
section 251 of this title.
Sec. 259. Officers to be recommended for promotion
(a) A selection board convened to recommend officers for
promotion shall recommend those eligible officers whom the
[board] board, giving due consideration to the needs of the
service for officers with particular skills so noted in the
specific direction furnished pursuant to section 258 of this
title, considers best qualified of the officers under
consideration for promotion. No officer may be recommended for
promotion unless he receives the recommendation of at least a
majority of the members of a board composed of five members, or
at least two-thirds of the members of a board composed of more
than five members.
(b) The number of officers that a board convened under
section 251 of this title may recommend for promotion to a
grade below rear admiral (lower half) from among eligible
officers junior in rank to the junior officer in the
appropriate promotion zone may not exceed--
(1) 5 percent of the total number of officers that
the board is authorized to recommend for promotion to
the grade of lieutenant or lieutenant commander;
(2) 7\1/2\ percent of the total number of officers
that the board is authorized to recommend for promotion
to the grade of commander; and
(3) 10 percent of the total number of officers that
the board is authorized to recommend for promotion to
the grade of captain;
unless such percentage is a number less than one, in which case
the board may recommend one such officer for promotion.
(c)(1) After selecting the officers to be recommended for
promotion, a selection board may recommend officers of
particular merit, from among those officers chosen for
promotion, to be placed at the top of the list of selectees
promulgated by the Secretary under section 271(a) of this
title. The number of officers that a board may recommend to be
placed at the top of the list of selectees may not exceed the
percentages set forth in subsection (b) unless such a
percentage is a number less than one, in which case the board
may recommend one officer for such placement. No officer may be
recommended to be placed at the top of the list of selectees
unless he or she receives the recommendation of at least a
majority of the members of a board composed of five members, or
at least two-thirds of the members of a board composed of more
than five members.
(2) The Secretary shall conduct a survey of the Coast Guard
officer corps to determine if implementation of this subsection
will improve Coast Guard officer retention. A selection board
may not make any recommendation under this subsection before
the date on which the Secretary publishes a finding, based upon
the results of the survey, that implementation of this
subsection will improve Coast Guard officer retention.
(3) The Secretary shall submit any finding made by the
Secretary pursuant to paragraph (2) to the Committee on
Transportation and Infrastructure of the House of
Representatives and the Committee on Commerce, Science, and
Transportation of the Senate.
Sec. 260. Selection boards; reports
(a) Each board convened under section 251 of this title shall
submit a report in writing, signed by all the members thereof,
containing the names of the officers recommended for promotion
and the names of those officers recommended to be advanced to
the top of the list of selectees established by the Secretary
under section 271(a) of this title.
(b) A board convened under section 251 of this title shall
certify that, in the opinion of at least a majority of the
members if the board has five members, or in the opinion of at
least two-thirds of the members if the board has more than five
members, the officers recommended for promotion are the best
qualified for promotion to meet the needs of the service (as
noted in the specific direction furnished the board under
section 258 of this title) of those officers whose names have
been furnished to the board.
* * * * * * *
CHAPTER 15. ACQUISITIONS
Subchapter 1--General Provisions
Sec.
561. Acquisition directorate
562. Senior acquisition leadership team
563. Improvements in Coast Guard acquisition management
564. Recognition of Coast Guard personnel for excellence in acquisition
565. Prohibition on use of lead systems integrators
566. Required contract terms
567. Department of Defense consultation
568. Undefinitized contractual actions
Subchapter 2--Improved Acquisition Process and Procedures
Sec.
571. Identification of major system acquisitions
572. Acquisition
573. Preliminary development and demonstration
574. Acquisition, production, deployment, and support
575. Acquisition program baseline breach
Subchapter 3--Definitions
Sec.
581. Definitions
Subchapter 1--General Provisions
Sec. 561. Acquisition directorate
(a) Establishment.--The Commandant of the Coast Guard shall
establish an acquisition directorate to provide guidance and
oversight for the implementation and management of all Coast
Guard acquisition processes, programs, and projects.
(b) Mission.--The mission of the acquisition directorate is--
(1) to acquire and deliver assets and systems that
increase operational readiness, enhance mission
performance, and create a safe working environment; and
(2) to assist in the development of a workforce that
is trained and qualified to further the Coast Guard's
missions and deliver the best value products and
services to the Nation.
Sec. 562. Senior acquisition leadership team
(a) Establishment.--The Commandant shall establish a senior
acquisition leadership team within the Coast Guard comprised
of--
(1) the Vice Commandant;
(2) the Deputy and Assistant Commandants;
(3) appropriate senior staff members of each Coast
Guard directorate;
(4) appropriate senior staff members for each
assigned field activity or command; and
(5) any other Coast Guard officer or employee
designated by the Commandant.
(b) Function.--The senior acquisition leadership team shall--
(1) meet at the call of the Commandant at such places
and such times as the Commandant may require;
(2) provide advice and information on operational and
performance requirements of the Coast Guard;
(3) identify gaps and vulnerabilities in the
operational readiness of the Coast Guard;
(4) make recommendations to the Commandant and the
Chief Acquisition Officer to remedy the identified gaps
and vulnerabilities in the operational readiness of the
Coast Guard; and
(5) contribute to the development of a professional,
experienced acquisition workforce by providing
acquisition-experience tours of duty and educational
development for officers and employees of the Coast
Guard.
Sec. 563. Improvements in Coast Guard acquisition management
(a) Project and Program Managers.--
(1) Project or program manager defined.--In this
section, the term ``project or program manager'' means
an individual designated--
(A) to develop, produce, and deploy a new
asset to meet identified operational
requirements; and
(B) to manage cost, schedule, and performance
of the acquisition or project or program.
(2) Level 1 projects.-- An individual may not be
assigned as the project or program manager for a Level
1 acquisition unless the individual holds a Level III
acquisition certification as a program manager.
(3) Level 2 projects.--An individual may not be
assigned as the project or program manager for a Level
2 acquisition unless the individual holds a Level II
acquisition certification as a program manager.
(b) Guidance on Tenure and Accountability of Program and
Project Managers.--Not later than one year after the date of
enactment of the Coast Guard Authorization Act for Fiscal years
2010 and 2011, the Commandant shall issue guidance to address
the qualifications, resources, responsibilities, tenure, and
accountability of program and project managers for the
management of acquisition programs and projects. The guidance
shall address, at a minimum--
(1) the qualifications required for project or
program managers, including the number of years of
acquisition experience and the professional training
levels to be required of those appointed to project or
program management positions; and
(2) authorities available to project or program
managers, including, to the extent appropriate, the
authority to object to the addition of new program
requirements that would be inconsistent with the
parameters established for an acquisition program.
(c) Acquisition Workforce.--
(1) In general.--The Commandant shall designate a
sufficient number of positions to be in the Coast
Guard's acquisition workforce to perform acquisition-
related functions at Coast Guard headquarters and field
activities.
(2) Required positions.--The Commandant shall ensure
that members of the acquisition workforce have
expertise, education, and training in at least 1 of the
following acquisition career fields:
(A) Acquisition logistics.
(B) Auditing.
(C) Business, cost estimating, and financial
management.
(D) Contracting.
(E) Facilities engineering.
(F) Industrial or contract property
management.
(G) Information technology.
(H) Manufacturing, production, and quality
assurance.
(I) Program management.
(J) Purchasing.
(K) Science and technology.
(L) Systems planning, research, development,
and engineering.
(M) Test and evaluation.
(3) Acquisition workforce expedited hiring
authority.--
(A) In general.--For purposes of sections
3304, 5333, and 5753 of title 5, the Commandant
may--
(i) designate any category of
acquisition positions within the Coast
Guard as shortage category positions;
and
(ii) use the authorities in such
sections to recruit and appoint highly
qualified person directly to positions
so designated.
(B) Limitation.--The Commandant may not
appoint a person to a position of employment
under this paragraph after September 30, 2012.
(d) Management Information System.--
(1) In general.--The Commandant shall establish a
management information system capability to improve
acquisition workforce management and reporting.
(2) Information maintained.--Information maintained
with such capability shall include the following
standardized information on individuals assigned to
positions in the workforce:
(A) Qualifications, assignment history, and
tenure of those individuals assigned to
positions in the acquisition workforce or
holding acquisition-related certifications.
(B) Promotion rates for officers and members
of the Coast Guard in the acquisition
workforce.
(e) Career Paths.--To establish acquisition management as a
core competency of the Coast Guard, the Commandant shall--
(1) ensure that career paths for officers, members,
and employees of the Coast Guard who wish to pursue
careers in acquisition are identified in terms of the
education, training, experience, and assignments
necessary for career progression of those officers,
members, and employees to the most senior positions in
the acquisition workforce; and
(2) publish information on such career paths.
Sec. 564. Recognition of Coast Guard personnel for excellence in
acquisition
(a) In General.--Not later than 180 days after the date of
enactment of the Coast Guard Authorization Act for Fiscal Years
2010 and 2011, the Commandant shall commence implementation of
a program to recognize excellent performance by individuals and
teams comprised of officers, members, and employees of the
Coast Guard that contributed to the long-term success of a
Coast Guard acquisition project or program.
(b) Elements.--The program shall include--
(1) specific award categories, criteria, and
eligibility and manners of recognition;
(2) procedures for the nomination by personnel of the
Coast Guard of individuals and teams comprised of
officers, members, and employees of the Coast Guard for
recognition under the program; and
(3) procedures for the evaluation of nominations for
recognition under the program by one or more panels of
individuals from the Government, academia, and the
private sector who have such expertise and are
appointed in such manner as the Commandant shall
establish for the purposes of this program.
(c) Award of Cash Bonuses.--As part of the program required
by subsection (a), the Commandant, subject to the availability
of appropriations, may award to any civilian employee
recognized pursuant to the program a cash bonus to the extent
that the performance of such individual so recognized warrants
the award of such bonus.
Sec. 565. Prohibition on use of lead systems integrators
(a) In General.--
(1) Use of lead systems integrator.--Except as
provided in subsection (b), the Commandant may not use
a private sector entity as a lead systems integrator
for an acquisition contract awarded or delivery order
or task order issued after the date of enactment of the
Coast Guard Authorization Act for Fiscal Years 2010 and
2011.
(2) Full and open competition.--The Commandant and
any lead systems integrator engaged by the Coast Guard,
pursuant to the exceptions described in subsection (b),
shall use full and open competition for any acquisition
contract awarded after the date of enactment of that
Act, unless otherwise excepted in accordance with the
Competition in Contracting Act of 1984 (41 U.S.C. 251
note), the amendments made by that Act, and the Federal
Acquisition Regulations.
(3) No effect on small business act.--Nothing in this
subsection shall be construed to supersede or otherwise
affect the authorities provided by and under the Small
Business Act (15 U.S.C. 631 et seq.).
(b) Exceptions.--
(1) National distress and response system
modernization program; national security cutters 2 and
3.--Notwithstanding subsection (a), the Commandant may
use a private sector entity as a lead systems
integrator for the Coast Guard to complete the National
Distress and Response System Modernization Program, the
C4ISR projects directly related to the Integrated
Deepwater Program, and National Security Cutters 2 and
3 if the Secretary of Homeland Security certifies
that--
(A) the acquisition is in accordance with the
Competition in Contracting Act of 1984 (41
U.S.C. 251 note), the amendments made by that
Act, and the Federal Acquisition Regulations;
and
(B) the acquisition and the use of a private
sector entity as a lead systems integrator for
the acquisition is in the best interest of the
Federal Government.
(2) Termination date for exceptions.--Except for the
modification of delivery or task orders pursuant to
Parts 4 and 42 of the Federal Acquisition Regulations,
the Commandant may not use a private sector entity as a
lead systems integrator after the earlier of--
(A) September 30, 2012; or
(B) the date on which the Commandant
certifies in writing to the appropriate
congressional committees that the Coast Guard
has available and can retain sufficient
contracting personnel and expertise within the
Coast Guard, through an arrangement with other
Federal agencies, or through contracts or other
arrangements with private sector entities, to
perform the functions and responsibilities of
the lead system integrator in an efficient and
cost-effective manner.
Sec. 566. Required contract terms
(a) In General.--The Commandant shall ensure that a contract
awarded or a delivery order or task order issued for an
acquisition of a capability or an asset with an expected
service life of 10 years and with a total acquisition cost that
is equal to or exceeds $10,000,000 awarded or issued by the
Coast Guard after the date of enactment of the Coast Guard
Authorization Act for Fiscal Years 2010 and 2011--
(1) provides that all certifications for an end-state
capability or asset under such contract, delivery
order, or task order, respectively, will be conducted
by the Commandant or an independent third party, and
that self-certification by a contractor or
subcontractor is not allowed;
(2) requires that the Commandant shall maintain the
authority to establish, approve, and maintain technical
requirements;
(3) requires that any measurement of contractor and
subcontractor performance be based on the status of all
work performed, including the extent to which the work
performed met all performance, cost, and schedule
requirements;
(4) specifies that, for the acquisition or upgrade of
air, surface, or shore capabilities and assets for
which compliance with TEMPEST certification is a
requirement, the standard for determining such
compliance will be the air, surface, or shore standard
then used by the Department of the Navy for that type
of capability or asset; and
(5) for any contract awarded to acquire an Offshore
Patrol Cutter, includes provisions specifying the
service life, fatigue life, and days underway in
general Atlantic and North Pacific Sea conditions,
maximum range, and maximum speed the cutter will be
built to achieve.
(b) Prohibited Contract Provisions.--The Commandant shall
ensure that any contract awarded or delivery order or task
order issued by the Coast Guard after the date of enactment of
the Coast Guard Authorization Act for Fiscal Years 2010 and
2011 does not include any provision allowing for equitable
adjustment that is not consistent with the Federal Acquisition
Regulations.
(c) Integrated Product Teams.--Integrated product teams, and
all teams that oversee integrated product teams, shall be
chaired by officers, members, or employees of the Coast Guard.
(d) Deepwater Technical Authorities.--The Commandant shall
maintain or designate the technical authorities to establish,
approve, and maintain technical requirements. Any such
designation shall be made in writing and may not be delegated
to the authority of the Chief Acquisition Officer established
by section 55 of this title.
Sec. 567. Department of Defense consultation
(a) In General.--The Commandant shall make arrangements as
appropriate with the Secretary of Defense for support in
contracting and management of Coast Guard acquisition programs.
The Commandant shall also seek opportunities to make use of
Department of Defense contracts, and contracts of other
appropriate agencies, to obtain the best possible price for
assets acquired for the Coast Guard.
(b) Inter-service Technical Assistance.--The Commandant shall
seek to enter into a memorandum of understanding or a
memorandum of agreement with the Secretary of the Navy to
obtain the assistance of the Office of the Assistant Secretary
of the Navy for Research, Development, and Acquisition,
including the Navy Systems Command, with the oversight of Coast
Guard major acquisition programs. The memorandum of
understanding or memorandum of agreement shall, at a minimum,
provide for--
(1) the exchange of technical assistance and support
that the Assistant Commandants for Acquisition, Human
Resources, Engineering, and Information technology may
identify;
(2) the use, as appropriate, of Navy technical
expertise; and
(3) the exchange of personnel between the Coast Guard
and the Office of the Assistant Secretary of the Navy
for Research, Development, and Acquisition, including
Naval Systems Commands, to facilitate the development
of organic capabilities in the Coast Guard.
(c) Technical Requirement Approval Procedures.--The Chief
Acquisition Officer shall adopt, to the extent practicable,
procedures modeled after those used by the Navy Senior
Acquisition Official to approve all technical requirements.
Sec. 568. Undefinitized contractual actions
(a) In General.--The Coast Guard may not enter into an
undefinitized contractual action unless such action is directly
approved by the Head of Contracting Activity of the Coast
Guard.
(b) Requests for Undefinitized Contractual Actions.--Any
request to the Head of Contracting Activity for approval of an
undefinitized contractual action shall include a description of
the anticipated effect on requirements of the Coast Guard if a
delay is incurred for the purposes of determining contractual
terms, specifications, and price before performance is begun
under the contractual action.
(c) Requirements for Undefinitized Contractual Actions.--
(1) Deadline for agreement on terms, specifications,
and price.--A contracting officer of the Coast Guard
may not enter into an undefinitized contractual action
unless the contractual action provides for agreement
upon contractual terms, specification, and price by the
earlier of--
(A) the end of the 180-day period beginning
on the date on which the contractor submits a
qualifying proposal to definitize the
contractual terms, specifications, and price;
or
(B) the date on which the amount of funds
obligated under the contractual action is equal
to more than 50 percent of the negotiated
overall ceiling price for the contractual
action.
(2) Limitation on obligations.--
(A) In general.--Except as provided in
subparagraph (B), the contracting officer for
an undefinitized contractual action may not
obligate under such contractual action an
amount that exceeds 50 percent of the
negotiated overall ceiling price until the
contractual terms, specifications, and price
are definitized for such contractual action.
(B) Exception.--Notwithstanding subparagraph
(A), if a contractor submits a qualifying
proposal to definitize an undefinitized
contractual action before an amount that
exceeds 50 percent of the negotiated overall
ceiling price is obligated on such action, the
contracting officer for such action may not
obligate with respect to such contractual
action an amount that exceeds 75 percent of the
negotiated overall ceiling price until the
contractual terms, specifications, and price
are definitized for such contractual action.
(3) Waiver.--The Commandant may waive the application
of this subsection with respect to a contract if the
Commandant determines that the waiver is necessary to
support--
(A) a contingency operation (as that term is
defined in section 101(a)(13) of title 10);
(B) operations to prevent or respond to a
transportation security incident (as defined in
section 70101(6) of title 46);
(C) an operation in response to an emergency
that poses an unacceptable threat to human
health or safety or to the marine environment;
or
(D) an operation in response to a natural
disaster or major disaster or emergency
designated by the President under the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121 et seq.).
(4) Limitation on application.--This subsection does
not apply to an undefinitized contractual action for
the purchase of initial spares.
(d) Inclusion of Nonurgent Requirements.--Requirements for
spare parts and support equipment that are not needed on an
urgent basis may not be included in an undefinitized
contractual action by the Coast Guard for spare parts and
support equipment that are needed on an urgent basis unless the
Commandant approves such inclusion as being--
(1) good business practice; and
(2) in the best interests of the United States.
(e) Modification of Scope.--The scope of an undefinitized
contractual action under which performance has begun may not be
modified unless the Commandant approves such modification as
being--
(1) good business practice; and
(2) in the best interests of the United States.
(f) Allowable Profit.--The Commandant shall ensure that the
profit allowed on an undefinitized contractual action for which
the final price is negotiated after a substantial portion of
the performance required is completed reflects--
(1) the possible reduced cost risk of the contractor
with respect to costs incurred during performance of
the contract before the final price is negotiated; and
(2) the reduced cost risk of the contractor with
respect to costs incurred during performance of the
remaining portion of the contract.
(g) Definitions.--In this section:
(1) Undefinitized contractual action.--
(A) In general.--Except as provided in
subparagraph (B), the term ``undefinitized
contractual action'' means a new procurement
action entered into by the Coast Guard for
which the contractual terms, specifications, or
price are not agreed upon before performance is
begun under the action.
(B) Exclusion.--The term ``undefinitized
contractual action'' does not include
contractual actions with respect to--
(i) foreign military sales;
(ii) purchases in an amount not in
excess of the amount of the simplified
acquisition threshold; or
(iii) special access programs.
(2) Qualifying proposal.--The term ``qualifying
proposal'' means a proposal that contains sufficient
information to enable complete and meaningful audits of
the information contained in the proposal as determined
by the contracting officer.
Subchapter 2--Improved Acquisition Process and Procedures
Sec. 571. Identification of major system acquisitions
(a) In General.--
(1) Support mechanisms.--The Commandant shall develop
and implement mechanisms to support the establishment
of mature and stable operational requirements for
acquisitions under this subchapter.
(2) Mission analysis; affordability assessment.--The
Commandant may not initiate a Level 1 or Level 2
acquisition project or program until the Commandant--
(A) completes a mission analysis that--
(i) identifies any gaps in
capability; and
(ii) develops a clear mission need;
and
(B) prepares a preliminary affordability
assessment for the project or program.
(b) Elements.--
(1) Requirements.--The mechanisms required by
subsection (a) shall ensure the implementation of a
formal process for the development of a mission-needs
statement, concept-of-operations document, capability
development plan, and resource proposal for the initial
project or program funding, and shall ensure the
project or program is included in the Coast Guard
Capital Investment Plan.
(2) Assessment of trade-offs.--In conducting an
affordability assessment under subsection (a)(2)(B),
the Commandant shall develop and implement mechanisms
to ensure that trade-offs among cost, schedule, and
performance are considered in the establishment of
preliminary operational requirements for development
and production of new assets and capabilities for Level
1 and Level 2 acquisitions projects and programs.
(c) Human Resource Capital Planning.--The Commandant shall
develop staffing predictions, define human capital performance
initiatives, and identify preliminary training needs for any
such project or program.
(d) DHS Acquisition Approval.--A Level 1 or Level 2
acquisition project or program may not be implemented unless it
is approved by the Department of Homeland Security Acquisition
Review Board or the Joint Review Board.
Sec. 572. Acquisition
(a) In General.--The Commandant may not establish a Level 1
or Level 2 acquisition project or program approved under
section 571(d) until the Commandant--
(1) clearly defines the operational requirements for
the project or program;
(2) establishes the feasibility of alternatives;
(3) develops an acquisition project or program
baseline;
(4) produces a life-cycle cost estimate; and
(5) assesses the relative merits of alternatives to
determine a preferred solution in accordance with the
requirements of this section.
(b) Analysis of Alternatives.--
(1) In general.--The Commandant shall conduct an
analysis of alternatives for the asset or capability to
be acquired in an analyze and select phase of the
acquisition process.
(2) Requirements.--The analysis of alternatives shall
be conducted by a federally funded research and
development center, a qualified entity of the
Department of Defense, or a similar independent third
party entity that has appropriate acquisition expertise
and has no substantial financial interest in any part
of the acquisition project or program that is the
subject of the analysis. At a minimum, the analysis of
alternatives shall include--
(A) an assessment of the technical maturity,
and technical and other risks;
(B) an examination of capability,
interoperability, and other disadvantages;
(C) an evaluation of whether different
combinations or quantities of specific assets
or capabilities could meet the Coast Guard's
overall performance needs;
(D) a discussion of key assumptions and
variables, and sensitivity to change in such
assumptions and variables;
(E) when an alternative is an existing asset
or prototype, an evaluation of relevant safety
and performance records and costs;
(F) a calculation of life-cycle costs
including--
(i) an examination of likely research
and development costs and the levels of
uncertainty associated with such
estimated costs;
(ii) an examination of likely
production and deployment costs and
levels of uncertainty associated with
such estimated costs;
(iii) an examination of likely
operating and support costs and the
levels of uncertainty associated with
such estimated costs;
(iv) if they are likely to be
significant, an examination of likely
disposal costs and the levels of
uncertainty associated with such
estimated costs; and
(v) such additional measures as the
Commandant or the Secretary of Homeland
Security determines to be necessary for
appropriate evaluation of the asset;
and
(G) the business case for each viable
alternative.
(c) Test and Evaluation Master Plan.--
(1) In general.--For any Level 1 or Level 2
acquisition project or program the Chief Acquisition
Officer shall approve a test and evaluation master plan
specific to the acquisition project or program for the
capability, asset, or subsystems of the capability or
asset and intended to minimize technical, cost, and
schedule risk as early as practicable in the
development of the project or program.
(2) Test and evaluation strategy.--The master plan
shall--
(A) set forth an integrated test and
evaluation strategy that will verify that
capability-level or asset-level and subsystem-
level design and development, including
performance and supportability, have been
sufficiently proven before the capability,
asset, or subsystem of the capability or asset
is approved for production; and
(B) require that adequate developmental tests
and evaluations and operational tests and
evaluations established under subparagraph (A)
are performed to inform production decisions.
(3) Other components of the master plan.--At a
minimum, the master plan shall identify--
(A) the key performance parameters to be
resolved through the integrated test and
evaluation strategy;
(B) critical operational issues to be
assessed in addition to the key performance
parameters;
(C) specific development test and evaluation
phases and the scope of each phase;
(D) modeling and simulation activities to be
performed, if any, and the scope of such
activities;
(E) early operational assessments to be
performed, if any, and the scope of such
assessments;
(F) operational test and evaluation phases;
(G) an estimate of the resources, including
funds, that will be required for all test,
evaluation, assessment, modeling, and
simulation activities; and
(H) the Government entity or independent
entity that will perform the test, evaluation,
assessment, modeling, and simulation
activities.
(4) Update.--The Chief Acquisition Officer shall
approve an updated master plan whenever there is a
revision to project or program test and evaluation
strategy, scope, or phasing.
(5) Limitation.--The Coast Guard may not--
(A) proceed beyond that phase of the
acquisition process that entails approving the
supporting acquisition of a capability or asset
before the master plan is approved by the Chief
Acquisition Officer; or
(B) award any production contract for a
capability, asset, or subsystem for which a
master plan is required under this subsection
before the master plan is approved by the Chief
Acquisition Officer.
(d) Life-cycle Cost Estimates.--
(1) In general.--The Commandant shall implement
mechanisms to ensure the development and regular
updating of life-cycle cost estimates for each Level 1
or Level 2 acquisition to ensure that these estimates
are considered in decisions to develop or produce new
or enhanced capabilities and assets.
(2) Types of estimates.--In addition to life-cycle
cost estimates that may be developed by acquisition
program offices, the Commandant shall require that an
independent life-cycle cost estimate be developed for
each Level 1 or Level 2 acquisition project or program.
(3) Required updates.--For each Level 1 or Level 2
acquisition project or program the Commandant shall
require that life-cycle cost estimates shall be updated
before each milestone decision is concluded and the
project or program enters a new acquisition phase.
(e) DHS Acquisition Approval.--A project or program may not
enter the obtain phase under section 573 unless the Department
of Homeland Security Acquisition Review Board or the Joint
Review Board (or other entity to which such responsibility is
delegated by the Secretary of Homeland Security) has approved
the analysis of alternatives for the project. The Joint Review
Board may also approve the low rates initial production
quantity for the project or program if such an initial
production quantity is planned by the acquisition project or
program and deemed appropriate by the Joint Review Board.
Sec. 573. Preliminary development and demonstration
(a) In General.--The Commandant shall ensure that
developmental test and evaluation, operational test and
evaluation, life cycle cost estimates, and the development and
demonstration requirements are met to confirm that the projects
or programs meet the requirements described in the mission-
needs statement and the operational-requirements document and
the following development and demonstration objectives:
(1) To demonstrate that the most promising design,
manufacturing, and production solution is based upon a
stable, producible, and cost-effective product design.
(2) To ensure that the product capabilities meet
contract specifications, acceptable operational
performance requirements, and system security
requirements.
(3) To ensure that the product design is mature
enough to commit to full production and deployment.
(b) Tests and Evaluations.--
(1) In general.--The Commandant shall ensure that the
Coast Guard conducts developmental tests and
evaluations and operational tests and evaluations of a
capability or asset and the subsystems of the
capability or asset for which a master plan has been
prepared under section 572(c)(1).
(2) Use of third parties.--The Commandant shall
ensure that the Coast Guard uses independent third
parties with expertise in testing and evaluating the
capabilities or assets and the subsystems of the
capabilities or assets being acquired to conduct
developmental tests and evaluations and operational
tests and evaluations whenever the Coast Guard lacks
the capability to conduct the tests and evaluations
required by a master plan.
(3) Communication of safety concerns.--The Commandant
shall require that safety concerns identified during
developmental or operational tests and evaluations or
through independent or Government-conducted design
assessments of capabilities or assets and subsystems of
capabilities or assets to be acquired by the Coast
Guard shall be communicated as soon as practicable, but
not later than 30 days after the completion of the test
or assessment event or activity that identified the
safety concern, to the program manager for the
capability or asset and the subsystems concerned and to
the Chief Acquisition Officer.
(4) Asset already in low, initial, or full-rate
production.--If operational test and evaluation on a
capability or asset already in low, initial, or full-
rate production identifies a safety concern with the
capability or asset or any subsystems of the capability
or asset not previously identified during developmental
or operational test and evaluation, the Commandant
shall--
(A) notify the program manager and the Chief
Acquisition Officer of the safety concern as
soon as practicable, but not later than 30 days
after the completion of the test and evaluation
event or activity that identified the safety
concern; and
(B) notify the Chief Acquisition Officer and
include in such notification--
(i) an explanation of the actions
that will be taken to correct or
mitigate the safety concern in all
capabilities or assets and subsystems
of the capabilities or assets yet to be
produced, and the date by which those
actions will be taken;
(ii) an explanation of the actions
that will be taken to correct or
mitigate the safety concern in
previously produced capabilities or
assets and subsystems of the
capabilities or assets, and the date by
which those actions will be taken; and
(iii) an assessment of the adequacy
of current funding to correct or
mitigate the safety concern in
capabilities or assets and subsystems
of the capabilities or assets and in
previously produced capabilities or
assets and subsystems.
(c) Technical Certification.--
(1) In general.--The Commandant shall--ensure that
any Level 1 or Level 2 acquisition project or program
is certified by the technical authority of the Coast
Guard after review by an independent third party with
capabilities in the mission area, asset, or particular
asset component.
(2) TEMPEST testing.--The Commandant shall--
(A) cause all electronics on all aircraft,
surface, and shore assets that require TEMPEST
certification and that are delivered after the
date of enactment of the Coast Guard
Authorization Act for Fiscal Years 2010 and
2011 to be tested in accordance with master
plan standards and communications security
standards by an independent third party that is
authorized by the Federal Government to perform
such testing; and
(B) certify that the assets meet all
applicable TEMPEST requirements.
(3) Vessel classification.--The Commandant shall
cause each cutter, other than the National Security
Cutter, acquired by the Coast Guard and delivered after
the date of enactment of the Coast Guard Authorization
Act for Fiscal Years 2010 and 2011 is to be classed by
the American Bureau of Shipping before final
acceptance.
(d) Acquisition Decision.--The Commandant may not proceed to
full scale production, deployment, and support of a Level 1 or
Level 2 acquisition project or program unless the Department of
Homeland Security Acquisition Review Board has verified that
the delivered asset or system meets the project or program
performance and cost goals.
Sec. 574. Acquisition, production, deployment, and support
(a) In General.--The Commandant shall--
(1) ensure there is a stable and efficient production
and support capability to develop an asset or system;
(2) conduct follow on testing to confirm and monitor
performance and correct deficiencies; and
(3) conduct acceptance tests and trails upon the
delivery of each asset or system to ensure the
delivered asset or system achieves full operational
capability.
(b) Elements.--The Commandant shall--
(1) execute the productions contracts;
(2) ensure the delivered products meet operational
cost and schedules requirements established in the
acquisition program baseline;
(3) validate manpower and training requirements to
meet system needs to operate, maintain, support, and
instruct the system; and
(4) prepare a project or program transition plan to
enter into programmatic sustainment, operations, and
support.
Sec. 575. Acquisition program baseline breach
(a) In General.--The Commandant shall submit a report to the
appropriate congressional committees as soon as possible, but
not later than 30 days, after the Chief Acquisition Officer of
the Coast Guard becomes aware of the breach of an acquisition
program baseline for any Level 1 or Level 2 acquisition
program, by--
(1) a likely cost overrun greater than 15 percent of
the acquisition program baseline for that individual
capability or asset or a class of capabilities or
assets;
(2) a likely delay of more than 180 days in the
delivery schedule for any individual capability or
asset or class of capabilities or assets; or
(3) an anticipated failure for any individual
capability or asset or class of capabilities or assets
to satisfy any key performance threshold or parameter
under the acquisition program baseline.
(b) Content.--The report submitted under subsection (a) shall
include--
(1) a detailed description of the breach and an
explanation of its cause;
(2) the projected impact to performance, cost, and
schedule;
(3) an updated acquisition program baseline and the
complete history of changes to the original acquisition
program baseline;
(4) the updated acquisition schedule and the complete
history of changes to the original schedule;
(5) a full life-cycle cost analysis for the
capability or asset or class of capabilities or assets;
(6) a remediation plan identifying corrective actions
and any resulting issues or risks; and
(7) a description of how progress in the remediation
plan will be measured and monitored.
(c) Substantial Variances in Costs or Schedule.--If a likely
cost overrun is greater than 25 percent or a likely delay is
greater than 12 months from the costs and schedule described in
the acquisition program baseline for any Level 1 or Level 2
acquisition project or program of the Coast Guard, the
Commandant shall include in the report a written certification,
with a supporting explanation, that--
(1) the capability or asset or capability or asset
class to be acquired under the project or program is
essential to the accomplishment of Coast Guard
missions;
(2) there are no alternatives to such capability or
asset or capability or asset class which will provide
equal or greater capability in both a more cost-
effective and timely manner;
(3) the new acquisition schedule and estimates for
total acquisition cost are reasonable; and
(4) the management structure for the acquisition
program is adequate to manage and control performance,
cost, and schedule.
Subchapter 3--Definitions
Sec. 581. Definitions
In this chapter:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means the
House of Representatives Committee on Transportation
and Infrastructure and the Senate Committee on
Commerce, Science, and Transportation.
(2) Chief acquisition officer.--The term ``Chief
Acquisition Officer'' means the officer appointed under
section 55 of this title.
(3) Commandant.--The term ``Commandant'' means the
Commandant of the Coast Guard.
(4) Joint review board.--The term ``Joint Review
Board'' means the Department of Homeland Security's
Investment Review Board, Joint Requirements Council, or
other entity within the Department designated by the
Secretary as the Joint Review Board for purposes of
this chapter.
(5) Level 1 acquisition.--The term ``Level 1
acquisition'' means--
(A) an acquisition by the Coast Guard--
(i) the estimated life-cycle costs of
which exceed $1,000,000,000; or
(ii) the estimated total acquisition
costs of which exceed $300,000,000; or
(B) any acquisition that the Chief
Acquisition Officer of the Coast Guard
determines to have a special interest--
(i) due to--
(I) the experimental or
technically immature nature of
the asset;
(II) the technological
complexity of the asset;
(III) the commitment of
resources; or
(IV) the nature of the
capability or set of
capabilities to be achieved; or
(ii) because such acquisition is a
joint acquisition.
(6) Level 2 acquisition.--The term ``Level 2
acquisition'' means an acquisition by the Coast Guard--
(A) the estimated life-cycle costs of which
are equal to or less than $1,000,000,000, but
greater than $300,000,000; or
(B) the estimated total acquisition costs of
which are equal to or less than $300,000,0000,
but greater than $100,000,000.
(7) Life-cycle cost.--The term ``life-cycle cost''
means all costs for development, procurement,
construction, and operations and support for a
particular capability or asset, without regard to
funding source or management control.
(8) Safety concern.--The term ``safety concern''
means any hazard associated with a capability or asset
or a subsystem of a capability or asset that is likely
to cause serious bodily injury or death to a typical
Coast Guard user in testing, maintaining, repairing, or
operating the capability, asset, or subsystem or any
hazard associated with the capability, asset, or
subsystem that is likely to cause major damage to the
capability, asset, or subsystem during the course of
its normal operation by a typical Coast Guard user.
* * * * * * *
CHAPTER 17. ADMINISTRATION
Sec. 638a. Coast Guard vessels and aircraft defined
For the purposes of sections 637 and 638 of this title, the
term Coast Guard vessels and aircraft means--
(1) any vessel or aircraft owned, leased, transferred
to, or operated by the Coast Guard and under the
command of a Coast Guard member; or
(2) any other vessel or aircraft under the tactical
control of the Coast Guard on which one or more members
of the Coast Guard are assigned and conducting Coast
Guard missions.
ARMED FORCES RETIREMENT HOME ACT OF 1991
SEC. 1502. DEFINITIONS.
[24 U.S.C. 401]
For purposes of this title:
(1) The term ``Retirement Home'' includes the
institutions established under section 1511, as
follows:
(A) The Armed Forces Retirement Home--
Washington.
(B) The Armed Forces Retirement Home--
Gulfport.
(2) The term ``Local Board''means a Local Board of
Trustees established under section 1516.
(3) The terms ``Armed Forces Retirement Home Trust
Fund'' and ``Fund'' mean the Armed Forces Retirement
Home Trust Fund established under section 1519(a).
(4) The term ``Armed Forces'' [does not include the
Coast Guard when it is not operating as a service in
the Navy.] has the meaning given such term in section
101(4) of title 10.
(5) The term ``chief personnel officers'' means--
(A) the Deputy Chief of Staff for Personnel
of the Army;
(B) the Chief of Naval Personnel;
(C) the Deputy Chief of Staff for Personnel
of the Air Force; [and]
(D) the Deputy Commandant of the Marine Corps
for Manpower and Reserve [Affairs.] Affairs;
and
(E) the Assistant Commandant of the Coast
Guard for Human Resources.
(6) The term ``senior noncommissioned officers''
means the following:
(A) The Sergeant Major of the Army.
(B) The Master Chief Petty Officer of the
Navy.
(C) The Chief Master Sergeant of the Air
Force.
(D) The Sergeant Major of the Marine Corps.
(E) The Master Chief Petty Officer of the
Coast Guard.
OIL POLLUTION ACT OF 1990
SEC. 1001. DEFINITIONS
[33 U.S.C. 2701]
For the purposes of this Act, the term--
(1) ``act of God'' means an unanticipated grave
natural disaster or other natural phenomenon of an
exceptional, inevitable, and irresistible character the
effects of which could not have been prevented or
avoided by the exercise of due care or foresight;
(2) ``barrel'' means 42 United States gallons at 60
degrees fahrenheit;
(3) ``claim'' means a request, made in writing for a
sum certain, for compensation for damages or removal
costs resulting from an incident;
(4) ``claimant'' means any person or government who
presents a claim for compensation under this title;
(5) ``damages'' means damages specified in section
1002(b) of this Act, and includes the cost of assessing
these damages;
(6) ``deepwater port'' is a facility licensed under
the Deepwater Port Act of 1974 (33 U.S.C. 1501-1524);
(7) ``discharge'' means any emission (other than
natural seepage), intentional or unintentional, and
includes, but is not limited to, spilling, leaking,
pumping, pouring, emitting, emptying, or dumping;
(8) ``exclusive economic zone'' means the zone
established by Presidential Proclamation Numbered 5030,
dated March 10, 1983, including the ocean waters of the
areas referred to as ``eastern special areas'' in
Article 3(1) of the Agreement between the United States
of America and the Union of Soviet Socialist Republics
on the Maritime Boundary, signed June 1, 1990;
(9) ``facility'' means any structure, group of
structures, equipment, or device (other than a vessel)
which is used for one or more of the following
purposes: exploring for, drilling for, producing,
storing, handling, transferring, processing, or
transporting oil. This term includes any motor vehicle,
rolling stock, or pipeline used for one or more of
these purposes;
(10) ``foreign offshore unit'' means a facility which
is located, in whole or in part, in the territorial sea
or on the continental shelf of a foreign country and
which is or was used for one or more of the following
purposes: exploring for, drilling for, producing,
storing, handling, transferring, processing, or
transporting oil produced from the seabed beneath the
foreign country's territorial sea or from the foreign
country's continental shelf;
(11) ``Fund'' means the Oil Spill Liability Trust
Fund, established by section 9509 of the Internal
Revenue Code of 1986 (26 U.S.C. 9509);
(12) ``gross ton'' has the meaning given that term by
the Secretary under part J of title 46, United States
Code;
(13) ``guarantor'' means any person, other than the
responsible party, who provides evidence of financial
responsibility for a responsible party under this Act;
(14) ``incident'' means any occurrence or series of
occurrences having the same origin, involving one or
more vessels, facilities, or any combination thereof,
resulting in the discharge or substantial threat of
discharge of oil;
(15) ``Indian tribe'' means any Indian tribe, band,
nation, or other organized group or community, but not
including any Alaska Native regional or village
corporation, which is recognized as eligible for the
special programs and services provided by the United
States to Indians because of their status as Indians
and has governmental authority over lands belonging to
or controlled by the tribe;
(16) ``lessee'' means a person holding a leasehold
interest in an oil or gas lease on lands beneath
navigable waters (as that term is defined in section
2(a) of the Submerged Lands Act (43 U.S.C. 1301(a))) or
on submerged lands of the Outer Continental Shelf,
granted or maintained under applicable State law or the
Outer Continental Shelf Lands Act (43 U.S.C. 1331 et
seq.);
(17) ``liable'' or ``liability'' shall be construed
to be the standard of liability which obtains under
section 311 of the Federal Water Pollution Control Act
(33 U.S.C. 1321);
(18) ``mobile offshore drilling unit'' means a vessel
(other than a self-elevating lift vessel) capable of
use as an offshore facility;
(19) ``National Contingency Plan'' means the National
Contingency Plan prepared and published under section
311(d) of the Federal Water Pollution Control Act, as
amended by this Act, or revised under section 105 of
the Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C. 9605);
(20) ``natural resources'' includes land, fish,
wildlife, biota, air, water, ground water, drinking
water supplies, and other such resources belonging to,
managed by, held in trust by, appertaining to, or
otherwise controlled by the United States (including
the resources of the exclusive economic zone), any
State or local government or Indian tribe, or any
foreign government;
(21) ``navigable waters'' means the waters of the
United States, including the territorial sea;
(22) ``offshore facility'' means any facility of any
kind located in, on, or under any of the navigable
waters of the United States, and any facility of any
kind which is subject to the jurisdiction of the United
States and is located in, on, or under any other
waters, other than a vessel or a public vessel;
(23) ``oil'' means oil of any kind or in any form,
including petroleum, fuel oil, sludge, oil refuse, and
oil mixed with wastes other than dredged spoil, but
does not include any substance which is specifically
listed or designated as a hazardous substance under
subparagraphs (A) through (F) of section 101(14) of the
Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. 9601) and which is subject to
the provisions of that Act;
(24) ``onshore facility'' means any facility
(including, but not limited to, motor vehicles and
rolling stock) of any kind located in, on, or under,
any land within the United States other than submerged
land;
(25) the term ``Outer Continental Shelf facility''
means an offshore facility which is located, in whole
or in part, on the Outer Continental Shelf and is or
was used for one or more of the following purposes:
exploring for, drilling for, producing, storing,
handling, transferring, processing, or transporting oil
produced from the Outer Continental Shelf;
(26) ``owner or operator''--
(A) means--
(i) in the case of a vessel, any
person owning, operating, or chartering
by demise, the vessel;
(ii) in the case of an onshore or
offshore facility, any person owning or
operating such facility;
(iii) in the case of any abandoned
offshore facility, the person who owned
or operated such facility immediately
prior to such abandonment;
(iv) in the case of any facility,
title or control of which was conveyed
due to bankruptcy, foreclosure, tax
delinquency, abandonment, or similar
means to a unit of State or local
government, any person who owned,
operated, or otherwise controlled
activities at such facility immediately
beforehand;
(v) notwithstanding subparagraph
(B)(i), and in the same manner and to
the same extent, both procedurally and
substantively, as any nongovernmental
entity, including for purposes of
liability under section 1002, any State
or local government that has caused or
contributed to a discharge or
substantial threat of a discharge of
oil from a vessel or facility ownership
or control of which was acquired
involuntarily through--
(I) seizure or otherwise in
connection with law enforcement
activity;
(II) bankruptcy;
(III) tax delinquency;
(IV) abandonment; or
(V) other circumstances in
which the government
involuntarily acquires title by
virtue of its function as
sovereign;
(vi) notwithstanding subparagraph
(B)(ii), a person that is a lender and
that holds indicia of ownership
primarily to protect a security
interest in a vessel or facility if,
while the borrower is still in
possession of the vessel or facility
encumbered by the security interest,
the person--
(I) exercises decision making
control over the environmental
compliance related to the
vessel or facility, such that
the person has undertaken
responsibility for oil handling
or disposal practices related
to the vessel or facility; or
(II) exercises control at a
level comparable to that of a
manager of the vessel or
facility, such that the person
has assumed or manifested
responsibility--
(aa) for the overall
management of the
vessel or facility
encompassing day-to-day
decision making with
respect to
environmental
compliance; or
(bb) over all or
substantially all of
the operational
functions (as
distinguished from
financial or
administrative
functions) of the
vessel or facility
other than the function
of environmental
compliance; and
(B) does not include--
(i) A unit of state or local
government that acquired ownership or
control of a vessel or facility
involuntarily through--
(I) seizure or otherwise in
connection with law enforcement
activity;
(II) bankruptcy;
(III) tax delinquency;
(IV) abandonment; or
(V) other circumstances in
which the government
involuntarily acquires title by
virtue of its function as
sovereign;
(ii) a person that is a lender that
does not participate in management of a
vessel or facility, but holds indicia
of ownership primarily to protect the
security interest of the person in the
vessel or facility; or
(iii) a person that is a lender that
did not participate in management of a
vessel or facility prior to
foreclosure, notwithstanding that the
person--
(I) forecloses on the vessel
or facility; and
(II) after foreclosure,
sells, re-leases (in the case
of a lease finance
transaction), or liquidates the
vessel or facility, maintains
business activities, winds up
operations, undertakes a
removal action under section
311(c) of the Federal Water
Pollution Control Act (33
U.S.C. 1321(c)) or under the
direction of an on-scene
coordinator appointed under the
National Contingency Plan, with
respect to the vessel or
facility, or takes any other
measure to preserve, protect,
or prepare the vessel or
facility prior to sale or
disposition, if the person
seeks to sell, re-lease (in the
case of a lease finance
transaction), or otherwise
divest the person of the vessel
or facility at the earliest
practicable, commercially
reasonable time, on
commercially reasonable terms,
taking into account market
conditions and legal and
regulatory requirements;
(27) ``person'' means an individual, corporation,
partnership, association, State, municipality,
commission, or political subdivision of a State, or any
interstate body;
(28) ``permittee'' means a person holding an
authorization, license, or permit for geological
exploration issued under section 11 of the Outer
Continental Shelf Lands Act (43 U.S.C. 1340) or
applicable State law;
(29) ``public vessel'' means a vessel owned or
bareboat chartered and operated by the United States,
or by a State or political subdivision thereof, or by a
foreign nation, except when the vessel is engaged in
commerce;
(30) ``remove'' or ``removal'' means containment and
removal of oil or a hazardous substance from water and
shorelines or the taking of other actions as may be
necessary to minimize or mitigate damage to the public
health or welfare, including, but not limited to, fish,
shellfish, wildlife, and public and private property,
shorelines, and beaches;
(31) ``removal costs'' means the costs of removal
that are incurred after a discharge of oil has occurred
or, in any case in which there is a substantial threat
of a discharge of oil, the costs to prevent, minimize,
or mitigate oil pollution from such an incident;
(32) ``responsible party'' means the following:
(A) Vessels.--In the case of a vessel, any
person owning, operating, or demise chartering
the vessel. In the case of a vessel, the term
``responsible party'' also includes the owner
of oil being transported in a tank vessel with
a single hull after December 31, 2010 (other
than a vessel described in section 3703a(b)(3)
of title 46, United States Code).
(B) Onshore facilities.--In the case of an
onshore facility (other than a pipeline), any
person owning or operating the facility, except
a Federal agency, State, municipality,
commission, or political subdivision of a
State, or any interstate body, that as the
owner transfers possession and right to use the
property to another person by lease,
assignment, or permit.
(C) Offshore facilities.--In the case of an
offshore facility (other than a pipeline or a
deepwater port licensed under the Deepwater
Port Act of 1974 (33 U.S.C. 1501 et seq.)), the
lessee or permittee of the area in which the
facility is located or the holder of a right of
use and easement granted under applicable State
law or the Outer Continental Shelf Lands Act
(43 U.S.C. 1301-1356) for the area in which the
facility is located (if the holder is a
different person than the lessee or permittee),
except a Federal agency, State, municipality,
commission, or political subdivision of a
State, or any interstate body, that as owner
transfers possession and right to use the
property to another person by lease,
assignment, or permit.
(D) Deepwater ports.--In the case of a
deepwater port licensed under the Deepwater
Port Act of 1974 (33 U.S.C. 1501-1524), the
licensee.
(E) Pipelines.--In the case of a pipeline,
any person owning or operating the pipeline.
(F) Abandonment.--In the case of an abandoned
vessel, onshore facility, deepwater port,
pipeline, or offshore facility, the persons who
would have been responsible parties immediately
prior to the abandonment of the vessel or
facility.
(33) ``Secretary'' means the Secretary of the
department in which the Coast Guard is operating;
(34) ``tank vessel'' means a vessel that is
constructed or adapted to carry, or that carries, oil
or hazardous material in bulk as cargo or cargo
residue, and that--
(A) is a vessel of the United States;
(B) operates on the navigable waters; or
(C) transfers oil or hazardous material in a
place subject to the jurisdiction of the United
States;
(35) ``territorial seas'' means the belt of the seas
measured from the line of ordinary low water along that
portion of the coast which is in direct contact with
the open sea and the line marking the seaward limit of
inland waters, and extending seaward a distance of 3
miles;
(36) ``United States'' and ``State'' mean the several
States of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, Guam, American Samoa,
the United States Virgin Islands, the Commonwealth of
the Northern Marianas, and any other territory or
possession of the United States;
(37) ``vessel'' means every description of watercraft
or other artificial contrivance used, or capable of
being used, as a means of transportation on water,
other than a public vessel;
(38) ``participate in management''--
(A)(i) means actually participating in the
management or operational affairs of a vessel
or facility; and
(ii) does not include merely having the
capacity to influence, or the unexercised right
to control, vessel or facility operations; and
(B) does not include--
(i) performing an act or failing to
act prior to the time at which a
security interest is created in a
vessel or facility;
(ii) holding a security interest or
abandoning or releasing a security
interest;
(iii) including in the terms of an
extension of credit, or in a contract
or security agreement relating to the
extension, a covenant, warranty, or
other term or condition that relates to
environmental compliance;
(iv) monitoring or enforcing the
terms and conditions of the extension
of credit or security interest;
(v) monitoring or undertaking one or
more inspections of the vessel or
facility;
(vi) requiring a removal action or
other lawful means of addressing a
discharge or substantial threat of a
discharge of oil in connection with the
vessel or facility prior to, during, or
on the expiration of the term of the
extension of credit;
(vii) providing financial or other
advice or counseling in an effort to
mitigate, prevent, or cure default or
diminution in the value of the vessel
or facility;
(viii) restructuring, renegotiating,
or otherwise agreeing to alter the
terms and conditions of the extension
of credit or security interest,
exercising forbearance;
(ix) exercising other remedies that
may be available under applicable law
for the breach of a term or condition
of the extension of credit or security
agreement; or
(x) conducting a removal action under
311(c) of the Federal Water Pollution
Control Act (33 U.S.C. 1321(c)) or
under the direction of an on-scene
coordinator appointed under the
National Contingency Plan, if such
actions do not rise to the level of
participating in management under
subparagraph (A) of this paragraph and
paragraph (26)(A)(vi);
(39) ``extension of credit'' has the meaning provided
in section 101(20)(G)(i) of the Comprehensive
Environmental Response, Compensation and Liability Act
of 1980 (42 U.S.C. 9601(20)(G)(i));
(40) ``financial or administrative function'' has the
meaning provided in section 101(20)(G)(ii) of the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. 9601(20)(G)(ii));
(41) ``foreclosure'' and ``foreclose'' each has the
meaning provided in section 101(20)(G)(iii) of the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. 9601(20)(G)(iii));
(42) ``lender'' has the meaning provided in section
101(20)(G)(iv) of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42
U.S.C. 9601(20)(G)(iv));
(43) ``operational function'' has the meaning
provided in section 101(20)(G)(v) of the Comprehensive
Environmental Response, Compensation and Liability Act
of 1980 (42 U.S.C. 9601(20)(G)(v)); and
(44) ``security interest'' has the meaning provided
in section 101(20)(G)(vi) of the Comprehensive
Environmental Response, Compensation and Liability Act
of 1980 (42 U.S.C. 9601(20)(G)(vi)).
SEC. 1012. USES OF THE FUND.
[33 U.S.C. 2712]
(a) Uses Generally.--The Fund shall be available to the
President for--
(1) the payment of removal costs, including the costs
of monitoring removal actions, determined by the
President to be consistent with the National
Contingency Plan--
(A) by Federal authorities; or
(B) by a Governor or designated State
official under subsection (d);
(2) the payment of costs incurred by Federal, State,
or Indian tribe trustees in carrying out their
functions under section 1006 for assessing natural
resource damages and for developing and implementing
plans for the restoration, rehabilitation, replacement,
or acquisition of the equivalent of damaged resources
determined by the President to be consistent with the
National Contingency Plan;
(3) the payment of removal costs determined by the
President to be consistent with the National
Contingency Plan as a result of, and damages resulting
from, a discharge, or a substantial threat of a
discharge, of oil from a foreign offshore unit;
(4) the payment of claims in accordance with section
1013 for uncompensated removal costs determined by the
President to be consistent with the National
Contingency Plan or uncompensated damages;
(5) the payment of Federal administrative,
operational, and personnel costs and expenses
reasonably necessary for and incidental to the
implementation, administration, and enforcement of this
Act (including, but not limited to, sections
1004(d)(2), 1006(e), 4107, 4110, 4111, 4112, 4117,
5006, 8103, and title VII) and subsections (b), (c),
(d), (j), and (l) of section 311 of the Federal Water
Pollution Control Act (33 U.S.C. 1321), as amended by
this Act, with respect to prevention, removal, and
enforcement related to oil discharges, provided that--
(A) not more than $25,000,000 in each fiscal
year shall be available to the Secretary for
operating expenses incurred by the Coast Guard;
(B) not more than $15,000,000 in each fiscal
year shall be available to the Under Secretary
of Commerce for Oceans and Atmosphere for
expenses incurred by, and activities related
to, response and damage assessment capabilities
of the National Oceanic and Atmospheric
Administration;
[(B)] (C) not more than $30,000,000 each year
through the end of fiscal year 1992 shall be
available to establish the National Response
System under section 311(j) of the Federal
Water Pollution Control Act, as amended by this
Act, including the purchase and prepositioning
of oil spill removal equipment; and
[(C)] (D) not more than $27,250,000 in each
fiscal year shall be available to carry out
title VII of this Act; and
(6) the making of loans pursuant to the program
established under section 1013(f).
(b) Defense to Liability for Fund.--The Fund shall not be
available to pay any claim for removal costs or damages to a
particular claimant, to the extent that the incident, removal
costs, or damages are caused by the gross negligence or willful
misconduct of that claimant.
(c) Obligation of Fund by Federal Officials.--The President
may promulgate regulations designating one or more Federal
officials who may obligate money in accordance with subsection
(a).
(d) Access to Fund by State officials.--
(1) Immediate removal.--In accordance with
regulations promulgated under this section, the
President, upon the request of the Governor of a State
or pursuant to an agreement with a State under
paragraph (2), may obligate the Fund for payment in an
amount not to exceed $250,000 for removal costs
consistent with the National Contingency Plan required
for the immediate removal of a discharge, or the
mitigation or prevention of a substantial threat of a
discharge, of oil.
(2) Agreements.--
(A) In general.--The President shall enter
into an agreement with the Governor of any
interested State to establish procedures under
which the Governor or a designated State
official may receive payments from the Fund for
removal costs pursuant to paragraph (1).
(B) Terms.--Agreements under this paragraph--
(i) may include such terms and
conditions as may be agreed upon by the
President and the Governor of a State;
(ii) shall provide for political
subdivisions of the State to receive
payments for reasonable removal costs;
and
(iii) may authorize advance payments
from the Fund to facilitate removal
efforts.
(e) Regulations.--The President shall--
(1) not later than 6 months after the date of the
enactment of this Act, publish proposed regulations
detailing the manner in which the authority to obligate
the Fund and to enter into agreements under this
subsection shall be exercised; and
(2) not later than 3 months after the close of the
comment period for such proposed regulations,
promulgate final regulations for that purpose.
(f) Rights of Subrogation.--Payment of any claim or
obligation by the Fund under this Act shall be subject to the
United States Government acquiring by subrogation all rights of
the claimant or State to recover from the responsible party.
[(g) Audits.--The Comptroller General shall audit all
payments, obligations, reimbursements, and other uses of the
Fund, to assure that the Fund is being properly administered
and that claims are being appropriately and expeditiously
considered. The Comptroller General shall submit to the
Congress an interim report one year after the date of the
enactment of this Act. The Comptroller General shall thereafter
audit the Fund as is appropriate. Each Federal agency shall
cooperate with the Comptroller General in carrying out this
subsection.]
(g) Audits.--
(1) In general.--The Comptroller General of the
United States shall conduct an audit, including a
detailed accounting of each disbursement from the Fund
in excess of $500,000 that is--
(A) disbursed by the National Pollution Fund
Center; and
(B) administered and managed by the receiving
Federal agencies, including final payments made
to agencies and contractors and, to the extent
possible, subcontractors.
(2) Frequency.--The audits shall be conducted--
(A) at least once every 3 years after the
date of enactment of the Coast Guard
Authorization Act for Fiscal Years 2010 and
2011 until 2016; and
(B) at least once every 5 years after the
last audit conducted under subparagraph (A).
(3) Submission of results.--The Comptroller shall
submit the results of each audit conducted under
paragraph (1) to--
(A) the Senate Committee on Commerce,
Science, and Transportation;
(B) the House of Representatives Committee on
Transportation and Infrastructure; and
(C) the Secretary or Administrator of each
agency referred to in paragraph (1)(B).
(h) Reports.--
(1) In general.--Within one year after the date of
enactment of the Coast Guard Authorization Act for
Fiscal Years 2010 and 2011, and annually thereafter,
the President, through the Secretary of the Department
in which the Coast Guard is operating, shall--
(A) provide a report on disbursements for the
preceding fiscal year from the Fund, regardless
of whether those disbursements were subject to
annual appropriations, to--
(i) the Senate Committee on Commerce,
Science, and Transportation; and
(ii) the House of Representatives
Committee on Transportation and
Infrastructure: and
(B) make the report available to the public
on the National Pollution Funds Center Internet
website.
(2) Contents.--The report shall include--
(A) a list of each disbursement of $250,000
or more from the Fund during the preceding
fiscal year; and
(B) a description of how each such use of the
Fund meets the requirements of subsection (a).
(3) Agency recordkeeping.--Each Federal agency that
receives amounts from the Fund shall maintain records
describing the purposes for which such funds were
obligated or expended in such detail as the Secretary
may require for purposes of the report required under
paragraph (1).
(i) Authorizations.--There are authorized to be appropriated
such sums as may be necessary to carry out subsections (g) and
(h).
[(h)] (j) Period of Limitations for Claims.--
(1) Removal costs.--No claim may be presented under
this title for recovery of removal costs for an
incident unless the claim is presented within 6 years
after the date of completion of all removal actions for
that incident.
(2) Damages.--No claim may be presented under this
section for recovery of damages unless the claim is
presented within 3 years after the date on which the
injury and its connection with the discharge in
question were reasonably discoverable with the exercise
of due care, or in the case of natural resource damages
under section 1002(b)(2)(A), if later, the date of
completion of the natural resources damage assessment
under section 1006(e).
(3) Minors and incompetents.--The time limitations
contained in this subsection shall not begin to run--
(A) against a minor until the earlier of the
date when such minor reaches 18 years of age or
the date on which a legal representative is
duly appointed for the minor, or
(B) against an incompetent person until the
earlier of the date on which such incompetent's
incompetency ends or the date on which a legal
representative is duly appointed for the
incompetent.
[(i)] (k) Limitation on Payment for Same Costs.--In any case
in which the President has paid an amount from the Fund for any
removal costs or damages specified under subsection (a), no
other claim may be paid from the Fund for the same removal
costs or damages.
[(j)] (l) Obligation in Accordance with Plan.--
(1) In general.--Except as provided in paragraph (2),
amounts may be obligated from the Fund for the
restoration, rehabilitation, replacement, or
acquisition of natural resources only in accordance
with a plan adopted under section 1006(c).
(2) Exception.--Paragraph (1) shall not apply in a
situation requiring action to avoid irreversible loss
of natural resources or to prevent or reduce any
continuing danger to natural resources or similar need
for emergency action.
[(k)] (m) Preference for Private Persons in Area Affected by
Discharge.--
(1) In general.--In the expenditure of Federal funds
for removal of oil, including for distribution of
supplies, construction, and other reasonable and
appropriate activities, under a contract or agreement
with a private person, preference shall be given, to
the extent feasible and practicable, to private persons
residing or doing business primarily in the area
affected by the discharge of oil.
(2) Limitation.--This subsection shall not be
considered to restrict the use of Department of Defense
resources.
SEC. 1016. FINANCIAL RESPONSIBILITY.
[33 U.S.C. 2716]
(a) Requirement.--The responsible party for--
(1) any vessel over 300 gross tons (except a non-
self-propelled vessel that does not carry oil as cargo
or fuel) using any place subject to the jurisdiction of
the United States; [or]
(2) any vessel using the waters of the exclusive
economic zone to transship or lighter oil destined for
a place subject to the jurisdiction of the United
States; or
(3) any tank vessel over 100 gross tons (except a
non-self-propelled vessel that does not carry oil as
cargo) using any place subject to the jurisdiction of
the United States;
shall establish and maintain, in accordance with regulations
promulgated by the Secretary, evidence of financial
responsibility sufficient to meet the maximum amount of
liability to which the responsible party could be subjected
under section 1004(a) or (d) of this Act, in a case where the
responsible party would be entitled to limit liability under
that section. If the responsible party owns or operates more
than one vessel, evidence of financial responsibility need be
established only to meet the amount of the maximum liability
applicable to the vessel having the greatest maximum liability.
(b) Sanctions.--
(1) Withholding clearance.--The Secretary of the
Treasury shall withhold or revoke the clearance
required by section 4197 of the Revised Statutes of the
United States of any vessel subject to this section
that does not have the evidence of financial
responsibility required for the vessel under this
section.
(2) Denying entry to or detaining vessels.--The
Secretary may--
(A) deny entry to any vessel to any place in
the United States, or to the navigable waters,
or
(B) detain at the place, any vessel that,
upon request, does not produce the evidence of
financial responsibility required for the
vessel under this section.
(3) Seizure of vessel.--Any vessel subject to the
requirements of this section which is found in the
navigable waters without the necessary evidence of
financial responsibility for the vessel shall be
subject to seizure by and forfeiture to the United
States.
(c) Offshore Facilities.--
(1) In general.--
(A) Evidence of financial responsibility
required.--Except as provided in paragraph (2),
a responsible party with respect to an offshore
facility that--
(i)(I) is located seaward of the line
of ordinary low water along that
portion of the coast that is in direct
contact with the open sea and the line
marking the seaward limit of inland
waters; or
(II) is located in coastal inland
waters, such as bays or estuaries,
seaward of the line of ordinary low
water along that portion of the coast
that is not in direct contact with the
open sea;
(ii) is used for exploring for,
drilling for, producing, or
transporting oil from facilities
engaged in oil exploration, drilling,
or production; and
(iii) has a worst-case oil spill
discharge potential of more than 1,000
barrels of oil (or a lesser amount if
the President determines that the risks
posed by such facility justify it),
shall establish and maintain evidence
of financial responsibility in the
amount required under subparagraph (B)
or (C), as applicable.
(B) Amount required generally.--Except as
provided in subparagraph (C), the amount of
financial responsibility for offshore
facilities that meet the criteria of
subparagraph (A) is--
(i) $35,000,000 for an offshore
facility located seaward of the seaward
boundary of a State; or
(ii) $10,000,000 for an offshore
facility located landward of the
seaward boundary of a State.
(C) Greater amount.--If the President
determines that an amount of financial
responsibility for a responsible party greater
than the amount required by subparagraph (B) is
justified based on the relative operational,
environmental, human health, and other risks
posed by the quantity or quality of oil that is
explored for, drilled for, produced, or
transported by the responsible party, the
evidence of financial responsibility required
shall be for an amount determined by the
President not exceeding $150,000,000.
(D) Multiple facilities.--In a case in which
a person is a responsible party for more than
one facility subject to this subsection,
evidence of financial responsibility need be
established only to meet the amount applicable
to the facility having the greatest financial
responsibility requirement under this
subsection.
(E) Definition.--For the purpose of this
paragraph, the seaward boundary of a State
shall be determined in accordance with section
2(b) of the Submerged Lands Act (43 U.S.C.
1301(b)).
(2) Deepwater ports.--Each responsible party with
respect to a deepwater port shall establish and
maintain evidence of financial responsibility
sufficient to meet the maximum amount of liability to
which the responsible party could be subjected under
section 1004(a) of this Act in a case where the
responsible party would be entitled to limit liability
under that section. If the Secretary exercises the
authority under section 1004(d)(2) to lower the limit
of liability for deepwater ports, the responsible party
shall establish and maintain evidence of financial
responsibility sufficient to meet the maximum amount of
liability so established. In a case in which a person
is the responsible party for more than one deepwater
port, evidence of financial responsibility need be
established only to meet the maximum liability
applicable to the deepwater port having the greatest
maximum liability.
(d) [Not enacted]
(e) Methods of Financial Responsibility.--Financial
responsibility under this section may be established by any
one, or by any combination, of the following methods which the
Secretary (in the case of a vessel) or the President (in the
case of a facility) determines to be acceptable: evidence of
insurance, surety bond, guarantee, letter of credit,
qualification as a self-insurer, or other evidence of financial
responsibility. Any bond filed shall be issued by a bonding
company authorized to do business in the United States. In
promulgating requirements under this section, the Secretary or
the President, as appropriate, may specify policy or other
contractual terms, conditions, or defenses which are necessary,
or which are unacceptable, in establishing evidence of
financial responsibility to effectuate the purposes of this
Act.
(f) Claims Against Guarantor.--
(1) In general.--Subject to paragraph (2), a claim
for which liability may be established under section
1002 may be asserted directly against any guarantor
providing evidence of financial responsibility for a
responsible party liable under that section for removal
costs and damages to which the claim pertains. In
defending against such a claim, the guarantor may
invoke--
(A) all rights and defenses which would be
available to the responsible party under this
Act;
(B) any defense authorized under subsection
(e); and
(C) the defense that the incident was caused
by the willful misconduct of the responsible
party.
The guarantor may not invoke any other defense that
might be available in proceedings brought by the
responsible party against the guarantor.
(2) Further requirement.--A claim may be asserted
pursuant to paragraph (1) directly against a guarantor
providing evidence of financial responsibility under
subsection (c)(1) with respect to an offshore facility
only if--
(A) the responsible party for whom evidence
of financial responsibility has been provided
has denied or failed to pay a claim under this
Act on the basis of being insolvent, as defined
under section 101(32) of title 11, United
States Code, and applying generally accepted
accounting principles;
(B) the responsible party for whom evidence
of financial responsibility has been provided
has filed a petition for bankruptcy under title
11, United States Code; or
(C) the claim is asserted by the United
States for removal costs and damages or for
compensation paid by the Fund under this Act,
including costs incurred by the Fund for
processing compensation claims.
(3) Rulemaking authority.--Not later than 1 year
after the date of enactment of this paragraph, the
President shall promulgate regulations to establish a
process for implementing paragraph (2) in a manner that
will allow for the orderly and expeditious presentation
and resolution of claims and effectuate the purposes of
this Act.
(g) Limitation on Guarantor's Liability.--Nothing in this Act
shall impose liability with respect to an incident on any
guarantor for damages or removal costs which exceed, in the
aggregate, the amount of financial responsibility which that
guarantor has provided for a responsible party pursuant to this
section. The total liability of the guarantor on direct action
for claims brought under this Act with respect to an incident
shall be limited to that amount.
(h) Continuation of Regulations.--Any regulation relating to
financial responsibility, which has been issued pursuant to any
provision of law repealed or superseded by this Act, and which
is in effect on the date immediately preceding the effective
date of this Act, is deemed and shall be construed to be a
regulation issued pursuant to this section. Such a regulation
shall remain in full force and effect unless and until
superseded by a new regulation issued under this section.
(i) Unified Certificate.--The Secretary may issue a single
unified certificate of financial responsibility for purposes of
this Act and any other law.
TITLE 37. PAY AND ALLOWANCES OF THE UNIFORMED SERVICES
CHAPTER 19. ADMINISTRATION
1007. Deductions from pay
(a) The pay of an officer of an armed force may be withheld,
under section 5512 of title 5, only for an indebtedness to the
United States admitted by the officer or shown by the judgment
of a court, or upon a special order issued in the discretion of
the Secretary of Defense (or the Secretary of Homeland
Security, in the case of an officer of the Coast Guard when the
Coast Guard is not operating as a service in the Navy), or upon
the denial of relief of an officer pursuant to section 3527 of
title 31.
(b) An amount due the United States from an enlisted member
of the Army or the Air Force for articles sold to him on credit
under section 4621(a)(1) or 9621(a)(1) of title 10, as the case
may be, shall be deducted from the next pay due him after the
sale is reported.
(c)(1) Under regulations prescribed by the Secretary
concerned, an amount that a member of the uniformed services is
administratively determined to owe the United States or any of
its instrumentalities may be deducted from the member's pay in
monthly installments.
(2) After the deduction of pay forfeited by the sentence of a
court-martial, if any, or otherwise authorized by law to be
withheld, the deductions authorized by this section may not
reduce the pay actually received by a member of the uniformed
services for any month to less than one-third of the member's
pay for that month.
(3) If the indebtedness of a member of the uniformed services
to the United States is due to the overpayment of pay or
allowances to the member through no fault of the member, the
amount of the overpayment shall be recovered in monthly
installments. The amount deducted from the pay of the member
for a month to recover the overpayment amount may not exceed 20
percent of the member's pay for that month unless the member
requests or consents to collection of the overpayment at an
accelerated rate.
(4) If a member of the uniformed services is injured or
wounded under the circumstances described in section
310(a)(2)(C) of this title or, while in the line of duty,
incurs a wound, injury, or illness in a combat operation or
combat zone designated by the Secretary of Defense, any
overpayment of pay or allowances made to the member while the
member recovers from the wound, injury, or illness may not be
deducted from the member's pay until--
(A) the end of the 90-day period beginning on the
date on which the member is notified of the
overpayment; or
(B) such earlier date as may be requested or agreed
to by the member.
(d) Subject to subsection (c), an amount due the United
States from an enlisted member of the Army or the Air Force may
be deducted from his pay on final statement, or from his
savings on his clothing allowance.
(e) The amount of any damage, or cost of repairs, to arms or
equipment caused by the abuse or negligence of a member of the
Army, Navy, Air Force, or Marine Corps, as the case may be, who
had the care of, or was using, the property when it was
damaged, shall be deducted from his pay.
(f) If, upon final settlement of the accounts of an officer
of the Army or the Air Force charged with the issue of an
article of military supply, there is a deficiency of that
article, or if an article of military supply with whose issue
an officer is charged is damaged, the value of the lost article
or the amount of the damage shall be charged against the
officer and deducted from his monthly pay, unless he shows to
the satisfaction of the Secretary of the Army or the Secretary
of the Air Force, as the case may be, by one or more affidavits
setting forth the circumstances, that he was not at fault.
(g) An amount due the United States from an officer of the
Army or the Air Force for rations bought on credit, and for
articles bought on credit under section 4621(a)(1) or
9621(a)(1) of title 10, shall be deducted from the next pay due
that officer after the sale is reported.
(h)(1) Upon request by a service relief society and subject
to paragraph (2), an amount owed by a member of the uniformed
services to the relief society may be deducted from the pay on
final statement of such member and paid to that relief society.
(2) An amount may not be deducted under paragraph (1) from
the pay of a member unless the Secretary concerned makes a
determination of the amount owed in accordance with the
regulations prescribed under subsection (c). Any amount
determined to be owed to a service relief society under this
paragraph shall be considered an amount that the member is
administratively determined to owe the United States under
subsection (c) and shall be collectible in accordance with such
subsection.
(3) The Secretaries concerned shall prescribe regulations to
carry out this subsection.
(4) In this subsection, the term ``service relief society''
means the Army Emergency Relief, the Air Force Aid Society, the
Navy Relief Society, or the Coast Guard Mutual Assistance.
(i)(1) There shall be deducted each month from the pay of
each enlisted member, warrant officer, and limited duty officer
of the armed forces on active duty an amount (determined under
paragraph (3)) not to exceed $1.00.
(2) Amounts deducted under paragraph (1) shall be deposited
in the Armed Forces Retirement Home Trust Fund.
(3) The Secretary of Defense, after consultation with the
[Armed Forces Retirement Home Board,] Chief Operating Officer
of the Armed Forces Retirement Home, shall determine from time
to time the amount to be deducted under paragraph (1) from the
pay of enlisted members, warrant officers and limited duty
officers on the basis of the financial needs of the Armed
Forces Retirement Home. The amount to be deducted may be fixed
at different amounts on the basis of grade or length of
service, or both.
(4) In this subsection, the term ``armed forces'' [does not
include the Coast Guard when it is not operating as a service
in the Navy.] has the meaning given such term in section 101(4)
of title 10.
(5) This subsection does not apply to an enlisted member,
warrant officer, or limited duty officer of a reserve
component.
TITLE 46. SHIPPING
SUBTITLE II. VESSELS AND SEAMEN
PART G. MERCHANT SEAMEN PROTECTION AND RELIEF
CHAPTER 103. FOREIGN AND INTERCOASTAL VOYAGES
CHAPTER 105. COASTWISE VOYAGES
PART H. IDENTIFICATION OF VESSELS
CHAPTER 121. DOCUMENTATION OF VESSELS
SUBCHAPTER II. ENDORSEMENTS AND SPECIAL DOCUMENTATION
Sec. 12113. Fishery endorsement
(a) Requirements.--A fishery endorsement may be issued for a
vessel that--
(1) satisfies the requirements of section 12103 of
this title and, if owned by an entity, the entity
satisfies the ownership requirements in subsection (c);
(2) was built in the United States;
(3) if rebuilt, was rebuilt in the United States;
(4) was not forfeited to the United States Government
after July 1, 2001, for a breach of the laws of the
United States; and
(5) otherwise qualifies under the laws of the United
States to engage in the fisheries.
(b) Authorized Activity.--
(1) In general.--Subject to the laws of the United
States regulating the fisheries, a vessel for which a
fishery endorsement is issued may engage in the
fisheries.
(2) Use by prohibited persons.--A fishery endorsement
is invalid immediately if the vessel for which it is
issued is used as a fishing vessel while it is
chartered or leased to an individual who is not a
citizen of the United States or to an entity that is
not eligible to own a vessel with a fishery
endorsement.
(c) Ownership Requirements for Entities.--
(1) In general.--A vessel owned by an entity is
eligible for a fishery endorsement only if at least 75
percent of the interest in the entity, at each tier of
ownership and in the aggregate, is owned and controlled
by citizens of the United States.
(2) Determining 75 percent interest.--In determining
whether at least 75 percent of the interest in the
entity is owned and controlled by citizens of the
United States under paragraph (1), the Secretary shall
apply section 50501(d) of this title, except that for
this purpose the terms ``control'' or ``controlled''--
(A) include the right to--
(i) direct the business of the
entity;
(ii) limit the actions of or replace
the chief executive officer, a majority
of the board of directors, any general
partner, or any person serving in a
management capacity of the entity; or
(iii) direct the transfer, operation,
or manning of a vessel with a fishery
endorsement; but
(B) do not include the right to simply
participate in the activities under
subparagraph (A), or the exercise of rights
under loan or mortgage covenants by a mortgagee
eligible to be a preferred mortgagee under
section 31322(a) of this title, except that a
mortgagee not eligible to own a vessel with a
fishery endorsement may only operate such a
vessel to the extent necessary for the
immediate safety of the vessel or for repairs,
drydocking, or berthing changes.
(3) Exceptions.--This subsection does not apply to a
vessel when it is engaged in the fisheries in the
exclusive economic zone under the authority of the
Western Pacific Fishery Management Council established
under section 302(a)(1)(H) of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C.
1852(a)(1)(H)) or to a purse seine vessel when it is
engaged in tuna fishing in the Pacific Ocean outside
the exclusive economic zone or pursuant to the South
Pacific Regional Fisheries Treaty, provided that the
owner of the vessel continues to comply with the
eligibility requirements for a fishery endorsement
under the Federal law that was in effect on October 1,
1998. A fishery endorsement issued pursuant to this
paragraph is valid for engaging only in the activities
described in this paragraph.
(d) Requirements Based on Length, Tonnage, or Horsepower.----
(1) Application.--This subsection applies to a vessel
that----
(A) is greater than 165 feet in registered
length;
(B) is more than 750 gross registered tons as
measured under chapter 145 of this title or
1,900 gross registered tons as measured under
chapter 143 of this title; or
(C) has an engine or engines capable of
producing a total of more than 3,000 shaft
horsepower.
(2) Requirements.--A vessel subject to this
subsection is not eligible for a fishery endorsement
unless----
(A)(i) a certificate of documentation was
issued for the vessel and endorsed with a
fishery endorsement that was effective on
September 25, 1997; and
(ii) the vessel is not placed under foreign
registry after October 21, 1998; [and]
[(iii) if the fishery endorsement is
invalidated after October 21, 1998, application
is made for a new fishery endorsement within 15
business days of the invalidation; or]
(B) the owner of the vessel demonstrates to
the Secretary that the regional fishery
management council of jurisdiction established
under section 302(a)(1) of the Magnuson-Stevens
Fishery Conservation and Management Act (16
U.S.C. 1852(a)(1)) has recommended after
October 21, 1998, and the Secretary of Commerce
has approved, conservation and management
measures in accordance with the American
Fisheries Act (Public Law 105-277, div. C,
title II) (16 U.S.C. 1851 note) to allow the
vessel to be used in fisheries under the
council's [authority.] authority; or
(C) the vessel is either a rebuilt vessel or
a replacement vessel under section 208(g) of
the American Fisheries Act (title II of
division C of Public Law 105-277; 112 Stat.
2681-627) and is eligible for a fishery
endorsement under this section.
(e) Vessels Measuring 100 Feet or Greater.--
(1) In general.--The Administrator of the Maritime
Administration shall administer subsections (c) and (d)
with respect to vessels 100 feet or greater in
registered length. The owner of each such vessel shall
file a statement of citizenship setting forth all
relevant facts regarding vessel ownership and control
with the Administrator on an annual basis to
demonstrate compliance with those provisions.
(2) Regulations.--Regulations to implement this
subsection shall conform to the extent practicable with
the regulations establishing the form of citizenship
affidavit set forth in part 355 of title 46, Code of
Federal Regulations, as in effect on September 25,
1997, except that the form of the statement shall be
written in a manner to allow the owner of the vessel to
satisfy any annual renewal requirements for a
certificate of documentation for the vessel and to
comply with this subsection and subsections (c) and
(d), and shall not be required to be notarized.
(3) Transfer of ownership.--Transfers of ownership
and control of vessels subject to subsection (c) or
(d), which are 100 feet or greater in registered
length, shall be rigorously scrutinized for violations
of those provisions, with particular attention given
to--
(A) leases, charters, mortgages, financing,
and similar arrangements;
(B) the control of persons not eligible to
own a vessel with a fishery endorsement under
subsection (c) or (d), over the management,
sales, financing, or other operations of an
entity; and
(C) contracts involving the purchase over
extended periods of time of all, or
substantially all, of the living marine
resources harvested by a fishing vessel.
(f) Vessels Measuring Less Than 100 Feet.--The Secretary
shall establish reasonable and necessary requirements to
demonstrate compliance with subsections (c) and (d), with
respect to vessels measuring less than 100 feet in registered
length, and shall seek to minimize the administrative burden on
individuals who own and operate those vessels.
(g) Vessels Purchased Through Fishing Capacity Reduction
Program.--A vessel purchased by the Secretary of Commerce
through a fishing capacity reduction program under the
Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1801 et seq.) or section 308 of the Interjurisdictional
Fisheries Act of 1986 (16 U.S.C. 4107) is not eligible for a
fishery endorsement, and any fishery endorsement issued for
that vessel is invalid.
(h) Revocation of Endorsements.--The Secretary shall revoke
the fishery endorsement of any vessel subject to subsection (c)
or (d) whose owner does not comply with those provisions.
(i) Regulations.--Regulations to implement subsections (c)
and (d) and sections 12151(c) and 31322(b) of this title shall
prohibit impermissible transfers of ownership or control,
specify any transactions that require prior approval of an
implementing agency, identify transactions that do not require
prior agency approval, and to the extent practicable, minimize
disruptions to the commercial fishing industry, to the
traditional financing arrangements of that industry, and to the
opportunity to form fishery cooperatives.
SUBTITLE III. MARITIME LIABILITY
CHAPTER 313. COMMERCIAL INSTRUMENTS AND MARITIME LIENS
SUBCHAPTER I. GENERAL
31301. Definitions
In this chapter--
(1) ``acknowledge'' means making--
(A) an acknowledgment or notarization before
a notary public or other official authorized by
a law of the United States or a State to take
acknowledgments of deeds; or
(B) a certificate issued under the Hague
Convention Abolishing the Requirement of
Legalisation for Foreign Public Documents,
1961;
(2) ``district court'' means--
(A) a district court of the United States (as
defined in section 451 of title 28);
(B) the District Court of Guam;
(C) the District Court of the Virgin Islands;
(D) the District Court for the Northern
Mariana Islands;
(E) the High Court of American Samoa; and
(F) any other court of original jurisdiction
of a territory or possession of the United
States;
(3) ``mortgagee'' means--
(A) a person to whom property is mortgaged;
or
(B) when a mortgage on a vessel involves a
trust, the trustee that is designated in the
trust agreement;
(4) ``necessaries'' includes repairs, supplies,
towage, and the use of a dry dock or marine railway;
(5) ``preferred maritime lien'' means a maritime lien
on a vessel--
(A) arising before a preferred mortgage was
filed under section 31321 of this title;
(B) for damage arising out of maritime tort;
(C) for wages of a stevedore when employed
directly by a person listed in section 31341 of
this title;
(D) for wages of the crew of the vessel;
(E) for general average; or
(F) for salvage, including contract salvage;
[and]
(6) ``preferred mortgage''--
(A) means a mortgage that is a preferred
mortgage under section 31322 of this title; and
(B) also means in sections 31325 and 31326 of
this title, a mortgage, hypothecation, or
similar charge that is established as a
security on a foreign vessel if the mortgage,
hypothecation, or similar charge was executed
under the laws of the foreign country under
whose laws the ownership of the vessel is
documented and has been registered under those
laws in a public register at the port of
registry of the vessel or at a central
[office.] office; and
(7) ``Secretary'' means the Secretary of the
Department of Homeland Security, unless otherwise
noted.''.
Sec. 31302. Availability of instruments, copies, and information
The Secretary [of Transportation] shall--
(1) make any instrument filed or recorded with the
Secretary under this chapter available for public
inspection;
(2) on request, provide a copy, including a certified
copy, of any instrument made available for public
inspection under this chapter; and
(3) on request, provide a certificate containing
information included in an instrument filed or recorded
under this chapter.
TITLE 46. SHIPPING
SUBTITLE III. MARITIME LIABILITY
CHAPTER 313. COMMERCIAL INSTRUMENTS AND MARITIME LIENS
SUBCHAPTER I. GENERAL
[46 U.S.C. 31306]
Sec. 31306. Declaration of citizenship
(a) Except as provided by the Secretary [of Transportation],
when an instrument transferring an interest in a vessel is
presented to the Secretary of Transportation for filing or
recording, the transferee shall file with the instrument a
declaration, in the form the Secretary may prescribe by
regulation, stating information about citizenship and other
information the Secretary may require to show the transaction
involved does not violate section 56102 or 56103 of this title.
(b) A declaration under this section filed by a corporation
must be signed by its president, secretary, treasurer, or other
official authorized by the corporation to execute the
declaration.
(c) Except as provided by the Secretary, an instrument
transferring an interest in a vessel is not valid against any
person until the declaration required by this section has been
filed.
(d) A person knowingly making a false statement of a material
fact in a declaration filed under this section shall be fined
under title 18, imprisoned for not more than 5 years, or both.
31308. Secretary of Commerce or Transportation as mortgagee
[When the Secretary of Commerce or Transportation is a
mortgagee under this chapter, the Secretary] The Secretary of
Commerce or Transportation, as a mortgagee under this chapter,
may foreclose on a lien arising from a right established under
a mortgage under chapter 537 of this title, subject to section
362(b) of title 11.
SUBCHAPTER II. COMMERCIAL INSTRUMENTS
Sec. 31321. Filing, recording, and discharge
(a)(1) A bill of sale, conveyance, mortgage, assignment, or
related instrument, whenever made, that includes any part of a
documented vessel or a vessel for which an application for
documentation is filed, must be filed with the Secretary [of
Transportation] to be valid, to the extent the vessel is
involved, against any person except--
(A) the grantor, mortgagor, or assignor;
(B) the heir or devisee of the grantor, mortgagor, or
assignor; and
(C) a person having actual notice of the sale,
conveyance, mortgage, assignment, or related
instrument.
(2) Each bill of sale, conveyance, mortgage, assignment, or
related instrument that is filed in substantial compliance with
this section is valid against any person from the time it is
filed with the Secretary.
(3) The parties to an instrument or an application for
documentation shall use diligence to ensure that the parts of
the instrument or application for which they are responsible
are in substantial compliance with the filing and documentation
requirements.
(4) A bill of sale, conveyance, mortgage, assignment, or
related instrument may be filed electronically under
regulations prescribed by the Secretary.
(b) To be filed, a bill of sale, conveyance, mortgage,
assignment, or related instrument must--
(1) identify the vessel;
(2) state the name and address of each party to the
instrument;
(3) state, if a mortgage, the amount of the direct or
contingent obligations (in one or more units of account
as agreed to by the parties) that is or may become
secured by the mortgage, excluding interest, expenses,
and fees;
(4) state the interest of the grantor, mortgagor, or
assignor in the vessel;
(5) state the interest sold, conveyed, mortgaged, or
assigned; and
(6) be signed and acknowledged.
(c) If a bill of sale, conveyance, mortgage, assignment, or
related document is filed that involves a vessel for which an
application for documentation is filed, and the Secretary
decides that the vessel cannot be documented by an applicant--
(1) the Secretary shall send notice of the
Secretary's decision, including reasons for the
decision, to each interested party to the instrument
filed for recording; and
(2) 90 days after sending the notice as provided
under clause (1) of this subsection, the Secretary--
(A) may terminate the filing; and
(B) may return the instrument filed without
recording it under subsection (e) of this
section.
(d) A person may withdraw an application for documentation of
a vessel for which a mortgage has been filed under this section
only if the mortgagee consents.
(e) The Secretary shall--
(1) record the bills of sale, conveyances, mortgages,
assignments, and related instruments of a documented
vessel complying with subsection (b) of this section in
the order they are filed; and
(2) maintain appropriate indexes, for use by the
public, of instruments filed or recorded, or both.
(f) On full and final discharge of the indebtedness under a
mortgage recorded under subsection (e)(1) of this section, a
mortgagee, on request of the Secretary or mortgagor, shall
provide the Secretary with an acknowledged certificate of
discharge of the indebtedness in a form prescribed by the
Secretary. The Secretary shall record the certificate.
(g) The mortgage or related instrument of a vessel covered by
a preferred mortgage under section 31322(d) of this title, that
is later filed under this section at the time an application
for documentation is filed, is valid under this section from
the time the mortgage or instrument representing financing
became a preferred mortgage under section 31322(d).
(h) On full and final discharge of the indebtedness under a
mortgage deemed to be a preferred mortgage under section
31322(d) of this title, a mortgagee, on request of the
Secretary, a State, or mortgagor, shall provide the Secretary
or the State, as appropriate, with an acknowledged certificate
of discharge of the indebtedness in a form prescribed by the
Secretary or the State, as applicable. If filed with the
Secretary, the Secretary shall enter that information in the
vessel identification system under chapter 125 of this title.
Sec. 31329. Court sales of documented vessels
(a) A documented vessel may be sold by order of a district
court only to--
(1) a person eligible to own a documented vessel
under section 12103 of this title; or
(2) a mortgagee of that vessel.
(b) When a vessel is sold to a mortgagee not eligible to own
a documented vessel--
(1) the vessel must be held by the mortgagee for
resale;
(2) the vessel held by the mortgagee is subject to
chapter 563 of this title; and
(3) the sale of the vessel to the mortgagee is not a
sale to a person not a citizen of the United States
under section 12132 of this title.
(c) Unless waived by the Secretary of Transportation, a
person purchasing a vessel by court order under subsection
(a)(1) of this section or from a mortgagee under subsection
(a)(2) of this section must document the vessel under chapter
121 of this title.
(d) The vessel may be operated by the mortgagee not eligible
to own a documented vessel only with the approval of the
[Secretary.] Secretary of Transportation.
(e) A sale of a vessel contrary to this section is void.
(f) This section does not apply to a documented vessel that
has been operated only for pleasure.
Sec. 31330. Penalties
(a)(1) A mortgagor shall be fined under title 18, imprisoned
for not more than 2 years, or both, if the mortgagor--
(A) with intent to defraud, does not disclose an
obligation on a vessel as required by section 31323(a)
of this title;
(B) with intent to defraud, incurs a contractual
obligation in violation of section 31323(b) of this
title; or
(C) with intent to hinder or defraud an existing or
future creditor of the mortgagor or a lienor of the
vessel, files a mortgage with the [Secretary; or]
Secretary.
[(D) with intent to defraud, does not comply with
section 31321(h) of this title.]
(2) A mortgagor is liable to the United States Government for
a civil penalty of not more than $10,000 if the mortgagor--
(A) does not disclose an obligation on a vessel as
required by section 31323(a) of this title;
(B) incurs a contractual obligation in violation of
section 31323(b) of this title; or
(C) files with the Secretary a mortgage made not in
good [faith; or] faith.
[(D) does not comply with section 31321(h) of this
title.]
(b) (1) A person that knowingly violates section 31329 of
this title shall be fined under title 18, imprisoned for not
more than 3 years, or both.
(2) A person violating section 31329 of this title is
liable to the Government for a civil penalty of not
more than $25,000.
(3) A vessel involved in a violation under section
31329 of this title and its equipment may be seized by,
and forfeited to, the Government.
(c) If a person not an individual violates this section, the
president or chief executive of the person also is subject to
any penalty provided under this section.
SUBCHAPTER III. MARITIME LIENS
Sec. 31343. Recording and discharging notices of claim of maritime lien
(a) Except as provided under subsection (d) of this section,
a person claiming a lien on a vessel documented, or for which
an application for documentation has been filed, under chapter
121 may record with the Secretary [of Transportation] a notice
of that person's lien claim on the vessel. To be recordable,
the notice must--
(1) state the nature of the lien;
(2) state the date the lien was established;
(3) state the amount of the lien;
(4) state the name and address of the person; and
(5) be signed and acknowledged.
(b)(1) The Secretary shall record a notice complying with
subsection (a) of this section if, when the notice is presented
to the Secretary for recording, the person having the claim
files with the notice a declaration stating the following:
(A) The information in the notice is true and correct
to the best of the knowledge, information, and belief
of the individual who signed it.
(B) A copy of the notice, as presented for
recordation, has been sent to each of the following:
(i) The owner of the vessel.
(ii) Each person that recorded under
subsection (a) of this section an unexpired
notice of a claim of an undischarged lien on
the vessel.
(iii) The mortgagee of each mortgage filed or
recorded under section 31321 of this title that
is an undischarged mortgage on the vessel.
(2) A declaration under this subsection filed by a person
that is not an individual must be signed by the president,
member, partner, trustee, or other individual authorized to
execute the declaration on behalf of the person.
(c)(1) On full and final discharge of the indebtedness that
is the basis for a notice of claim of lien recorded under
subsection (b) of this section, the person having the claim
shall provide the Secretary with an acknowledged certificate of
discharge of the indebtedness. The Secretary shall record the
certificate.
(2) The district courts of the United States shall have
jurisdiction over a civil action in Admiralty to declare that a
vessel is not subject to a lien claimed under subsection (b) of
this section, or that the vessel is not subject to the notice
of claim of lien, or both, regardless of the amount in
controversy or the citizenship of the parties. Venue in such an
action shall be in the district where the vessel is found or
where the claimant resides or where the notice of claim of lien
is recorded. The court may award costs and attorneys fees to
the prevailing party, unless the court finds that the position
of the other party was substantially justified or other
circumstances make an award of costs and attorneys fees unjust.
The Secretary shall record any such declaratory order.
(d) A person claiming a lien on a vessel covered by a
preferred mortgage under section 31322(d) of this title must
record and discharge the lien as provided by the law of the
State in which the vessel is titled.
(e) A notice of claim of lien recorded under subsection (b)
of this section shall expire 3 years after the date the lien
was established, as such date is stated in the notice under
subsection (a) of this section.
(f) This section does not alter in any respect the law
pertaining to the establishment of a maritime lien, the remedy
provided by such a lien, or the defenses thereto, including any
defense under the doctrine of laches.
SUBTITLE VII. SECURITY AND DRUG ENFORCEMENT
CHAPTER 701. PORT SECURITY
* * * * * * *
Sec. 70122. Regulations
Unless otherwise provided, the Secretary may issue
regulations necessary to implement this chapter.
AMERICAN FISHERIES ACT
SEC. 203. ENFORCEMENT OF STANDARD.
[46 U.S.C. 12102 note]
(a) Effective Date.--The amendments made by section 202 shall
take effect on October 1, 2001.
(b) Regulations.--Final regulations to implement this
subtitle shall be published in the Federal Register by April 1,
2000. Letter rulings and other interim interpretations about
the effect of this subtitle and amendments made by this
subtitle on specific vessels may not be issued prior to the
publication of such final regulations. The regulations to
implement this subtitle shall prohibit impermissible transfers
of ownership or control, specify any transactions which require
prior approval of an implementing agency, identify transactions
which do not require prior agency approval, and to the extent
practicable, minimize disruptions to the commercial fishing
industry, to the traditional financing arrangements of such
industry, and to the opportunity to form fishery cooperatives.
(c) Vessels Measuring 100 Feet and Greater.--(1) The
Administrator of the Maritime Administration shall administer
section 12102(c) of title 46, United States Code, as amended by
this subtitle, with respect to vessels 100 feet or greater in
registered length. The owner of each such vessel shall file a
statement of citizenship setting forth all relevant facts
regarding vessel ownership and control with the Administrator
of the Maritime Administration on an annual basis to
demonstrate compliance with such section. Regulations to
implement this subsection shall conform to the extent
practicable with the regulations establishing the form of
citizenship affidavit set forth in part 355 of title 46, Code
of Federal Regulations, as in effect on September 25, 1997,
except that the form of the statement under this paragraph
shall be written in a manner to allow the owner of each such
vessel to satisfy any annual renewal requirements for a
certificate of documentation for such vessel and to comply with
this subsection and section 12102(c) of title 46, United States
Code, as amended by this Act, and shall not be required to be
notarized.
(2) After October 1, 2001, transfers of ownership and control
of vessels subject to section 12102(c) of title 46, United
States Code, as amended by this Act, which are 100 feet or
greater in registered length, shall be rigorously scrutinized
for violations of such section, with particular attention given
to leases, charters, mortgages, financing, and similar
arrangements, to the control of persons not eligible to own a
vessel with a fishery endorsement under section 12102(c) of
title 46, United States Code, as amended by this Act, over the
management, sales, financing, or other operations of an entity,
and to contracts involving the purchase over extended periods
of time of all, or substantially all, of the living marine
resources harvested by a fishing vessel.
(d) Vessels Measuring Less Than 100 Feet.--The Secretary of
Transportation shall establish such requirements as are
reasonable and necessary to demonstrate compliance with section
12102(c) of title 46, United States Code, as amended by this
Act, with respect to vessels measuring less than 100 feet in
registered length, and shall seek to minimize the
administrative burden on individuals who own and operate such
vessels.
(e) Endorsements Revoked.--The Secretary of Transportation
shall revoke the fishery endorsement of any vessel subject to
section 12102(c) of title 46, United States Code, as amended by
this Act, whose owner does not comply with such section.
(f) [Executed]
(g) Certain Vessels.--The vessels EXCELLENCE (United States
official number 967502), GOLDEN ALASKA (United States official
number 651041) and , OCEAN PHOENIX (United States official
number 296779), [NORTHERN TRAVELER (United States official
number 635986), and NORTHERN VOYAGER (United States official
number 637398) (or a replacement vessel for the NORTHERN
VOYAGER that complies with paragraphs (2), (5), and (6) of
section 208(g) of this Act)] shall be exempt from section
12102(c), as amended by this Act, until such time after October
1, 2001 as more than 50 percent of the interest owned and
controlled in the vessel changes, provided that the vessel
maintains eligibility for a fishery endorsement under the
federal law that was in effect the day before the date of the
enactment of this Act, and unless[, in the case of the NORTHERN
TRAVELER or the NORTHERN VOYAGER (or such replacement), the
vessel is used in any fishery under the authority of a regional
fishery management council other than the New England Fishery
Management Council or Mid-Atlantic Fishery Management Council
established, respectively, under subparagraphs (A) and (B) of
section 302(a)(1) of the Magnuson-Stevens Fishery Conservation
and Management Act (16 U.S.C. 1852(a)(1)(A) and (B)), or in the
case of the EXCELLENCE, GOLDEN ALASKA, or OCEAN PHOENIX,] the
vessel is used to harvest any fish.
SEC. 208. ELIGIBLE VESSELS AND PROCESSORS.
[112 Stat. 2681-624]
(a) Catcher Vessels Onshore.--Effective January 1, 2000, only
catcher vessels which are--
(1) determined by the Secretary--
(A) to have delivered at least 250 metric
tons of pollock; or
(B) to be less than 60 feet in length overall
and to have delivered at least 40 metric tons
of pollock,
for processing by the inshore component in the directed
pollock fishery in any one of the years 1996 or 1997,
or between January 1, 1998 and September 1, 1998;
(2) eligible to harvest pollock in the directed
pollock fishery under the license limitation program
recommended by the North Pacific Council and approved
by the Secretary; and
(3) not listed in subsection (b),
Lshall be eligible to harvest the directed fishing
allowance under section 206(b)(1) pursuant to a federal fishing
permit.
(b) Catcher Vessels to Catcher/Processors.--Effective January
1, 1999, only the following catcher vessels shall be eligible
to harvest the directed fishing allowance under section
206(b)(2) pursuant to a federal fishing permit:
(1) AMERICAN CHALLENGER (United States official
number 615085);
(2) FORUM STAR (United States official number
925863);
(3) MUIR MILACH (United States official number
611524);
(4) NEAHKAHNIE (United States official number
599534);
(5) OCEAN HARVESTER (United States official number
549892);
(6) SEA STORM (United States official number 628959);
(7) TRACY ANNE (United States official number
904859); and
(8) any catcher vessel--
(A) determined by the Secretary to have
delivered at least 250 metric tons and at least
75 percent of the pollock it harvested in the
directed pollock fishery in 1997 to catcher/
processors for processing by the offshore
component; and
(B) eligible to harvest pollock in the
directed pollock fishery under the license
limitation program recommended by the North
Pacific Council and approved by the Secretary.
(c) Catcher Vessels to Motherships.--Effective January 1,
2000, only the following catcher vessels shall be eligible to
harvest the directed fishing allowance under section 206(b)(3)
pursuant to a federal fishing permit:
(1) ALEUTIAN CHALLENGER (United States official
number 603820);
(2) ALYESKA (United States official number 560237);
(3) AMBER DAWN (United States official number
529425);
(4) AMERICAN BEAUTY (United States official number
613847);
(5) CALIFORNIA HORIZON (United States official number
590758);
(6) MAR-GUN (United States official number 525608);
(7) MARGARET LYN (United States official number
615563);
(8) MARK I (United States official number 509552);
(9) MISTY DAWN (United States official number
926647);
(10) NORDIC FURY (United States official number
542651);
(11) OCEAN LEADER (United States official number
561518);
(12) OCEANIC (United States official number 602279);
(13) PACIFIC ALLIANCE (United States official number
612084);
(14) PACIFIC CHALLENGER (United States official
number 518937);
(15) PACIFIC FURY (United States official number
561934);
(16) PAPADO II (United States official number
536161);
(17) TRAVELER (United States official number 929356);
(18) VESTERAALEN (United States official number
611642);
(19) WESTERN DAWN (United States official number
524423); and
(20) any vessel--
(A) determined by the Secretary to have
delivered at least 250 metric tons of pollock
for processing by motherships in the offshore
component of the directed pollock fishery in
any one of the years 1996 or 1997, or between
January 1, 1998 and September 1, 1998;
(B) eligible to harvest pollock in the
directed pollock fishery under the license
limitation program recommended by the North
Pacific Council and approved by the Secretary;
and
(C) not listed in subsection (b).
(d) Motherships.--Effective January 1, 2000, only the
following motherships shall be eligible to process the directed
fishing allowance under section 206(b)(3) pursuant to a Federal
fishing permit:
(1) EXCELLENCE (United States official number
967502);
(2) GOLDEN ALASKA (United States official number
651041); and
(3) OCEAN PHOENIX (United States official number
296779).
(e) Catcher/Processors.--Effective January 1, 1999, only the
following catcher/processors shall be eligible to harvest the
directed fishing allowance under section 206(b)(2) pursuant to
a Federal fishing permit:
(1) AMERICAN DYNASTY (United States official number
951307);
(2) KATIE ANN (United States official number 518441);
(3) AMERICAN TRIUMPH (United States official number
646737);
(4) NORTHERN EAGLE (United States official number
506694);
(5) NORTHERN HAWK (United States official number
643771);
(6) NORTHERN JAEGER (United States official number
521069);
(7) OCEAN ROVER (United States official number
552100);
(8) ALASKA OCEAN (United States official number
637856);
(9) ENDURANCE (United States official number 592206);
(10) AMERICAN ENTERPRISE (United States official
number 594803);
(11) ISLAND ENTERPRISE (United States official number
610290);
(12) KODIAK ENTERPRISE (United States official number
579450);
(13) SEATTLE ENTERPRISE (United States official
number 904767);
(14) US ENTERPRISE (United States official number
921112);
(15) ARCTIC STORM (United States official number
903511);
(16) ARCTIC FJORD (United States official number
940866);
(17) NORTHERN GLACIER (United States official number
663457);
(18) PACIFIC GLACIER (United States official number
933627);
(19) HIGHLAND LIGHT (United States official number
577044);
(20) STARBOUND (United States official number
944658); and
(21) any catcher/processor not listed in this
subsection and determined by the Secretary to have
harvested more than 2,000 metric tons of the pollock in
the 1997 directed pollock fishery and determined to be
eligible to harvest pollock in the directed pollock
fishery under the license limitation program
recommended by the North Pacific Council and approved
by the Secretary, except that catcher/processors
eligible under this paragraph shall be prohibited from
harvesting in the aggregate a total of more than one-
half (0.5) of a percent of the pollock apportioned for
the directed pollock fishery under section 206(b)(2).
Notwithstanding section 213(a), failure to satisfy the
requirements of section 4(a) of the Commercial Fishing
Industry Vessel Anti-Reflagging Act of 1987 (Public Law
100-239; 46 U.S.C. 12108 note) shall not make a
catcher/processor listed under this subsection
ineligible for a fishery endorsement.
(f) Shoreside Processors.--(1) Effective January 1, 2000 and
except as provided in paragraph (2), the catcher vessels
eligible under subsection (a) may deliver pollock harvested
from the directed fishing allowance under section 206(b)(1)
only to--
(A) shoreside processors (including vessels in a
single geographic location in Alaska State waters)
determined by the Secretary to have processed more than
2,000 metric tons round-weight of pollock in the
inshore component of the directed pollock fishery
during each of 1996 and 1997; and
(B) shoreside processors determined by the Secretary
to have processed pollock in the inshore component of
the directed pollock fishery in 1996 or 1997, but to
have processed less than 2,000 metric tons round-weight
of such pollock in each year, except that effective
January 1, 2000, each such shoreside processor may not
process more than 2,000 metric tons round-weight from
such directed fishing allowance in any year.
(2) Upon recommendation by the North Pacific Council, the
Secretary may approve measures to allow catcher vessels
eligible under subsection (a) to deliver pollock harvested from
the directed fishing allowance under section 206(b)(1) to
shoreside processors not eligible under paragraph (1) if the
total allowable catch for pollock in the Bering Sea and
Aleutian Islands Management Area increases by more than 10
percent above the total allowable catch in such fishery in
1997, or in the event of the actual total loss or constructive
total loss of a shoreside processor eligible under paragraph
(1)(A).
[(g) Replacement Vessels.--In the event of the actual total
loss or constructive total loss of a vessel eligible under
subsections (a), (b), (c), (d), or (e), the owner of such
vessel may replace such vessel with a vessel which shall be
eligible in the same manner under that subsection as the
eligible vessel, provided that--
[(1) such loss was caused by an act of God, an act of
war, a collision, an act or omission of a party other
than the owner or agent of the vessel, or any other
event not caused by the willful misconduct of the owner
or agent;
[(2) the replacement vessel was built in the United
States and if ever rebuilt, was rebuilt in the United
States;
[(3) the fishery endorsement for the replacement
vessel is issued within 36 months of the end of the
last year in which the eligible vessel harvested or
processed pollock in the directed pollock fishery;
[(4) if the eligible vessel is greater than 165 feet
in registered length, of more than 750 gross registered
tons, or has engines capable of producing more than
3,000 shaft horsepower, the replacement vessel is of
the same or lesser registered length, gross registered
tons, and shaft horsepower;
[(5) if the eligible vessel is less than 165 feet in
registered length, of fewer than 750 gross registered
tons, and has engines incapable of producing less than
3,000 shaft horsepower, the replacement vessel is less
than each of such thresholds and does not exceed by
more than 10 percent the registered length, gross
registered tons or shaft horsepower of the eligible
vessel; and
[(6) the replacement vessel otherwise qualifies under
federal law for a fishery endorsement, including under
section 12102(c) of title 46, United States Code, as
amended by this Act.]
(g) Vessel Rebuilding and Replacement.--
(1) In general.--
(A) Rebuild or replace.--Notwithstanding any
limitation to the contrary on replacing,
rebuilding, or lengthening vessels or
transferring permits or licenses to a
replacement vessel contained in sections 679.2
and 679.4 of title 50, Code of Federal
Regulations, as in effect on the date of
enactment of the Coast Guard Authorization Act
for Fiscal Years 2010 and 2011 and except as
provided in paragraph (4), the owner of a
vessel eligible under subsection (a), (b), (c),
(d), or (e) (other than paragraph (21)), in
order to improve vessel safety and operational
efficiencies (including fuel efficiency), may
rebuild or replace that vessel (including fuel
efficiency) with a vessel documented with a
fishery endorsement under section 12113 of
title 46, United States Code.
(B) Same requirements.--The rebuilt or
replacement vessel shall be eligible in the
same manner and subject to the same
restrictions and limitations under such
subsection as the vessel being rebuilt or
replaced.
(C) Transfer of permits and licenses.--Each
fishing permit and license held by the owner of
a vessel or vessels to be rebuilt or replaced
under subparagraph (A) shall be transferred to
the rebuilt or replacement vessel.
(2) Recommendations of north pacific council.--The
North Pacific Council may recommend for approval by the
Secretary such conservation and management measures,
including size limits and measures to control fishing
capacity, in accordance with the Magnuson-Stevens Act
as it considers necessary to ensure that this
subsection does not diminish the effectiveness of
fishery management plans of the Bering Sea and Aleutian
Islands Management Area or the Gulf of Alaska.
(3) Special rule for replacement of certain
vessels.--
(A) In general.--Notwithstanding the
requirements of subsections (b)(2), (c)(1), and
(c)(2) of section 12113 of title 46, United
States Code, a vessel that is eligible under
subsection (a), (b), (c), (d), or (e) (other
than paragraph (21)) and that qualifies to be
documented with a fishery endorsement pursuant
to section 203(g) or 213(g) may be replaced
with a replacement vessel under paragraph (1)
if the vessel that is replaced is validly
documented with a fishery endorsement pursuant
to section 203(g) or 213(g) before the
replacement vessel is documented with a fishery
endorsement under section 12113 of title 46,
United States Code.
(B) Applicability.--A replacement vessel
under subparagraph (A) and its owner and
mortgagee are subject to the same limitations
under section 203(g) or 213(g) that are
applicable to the vessel that has been replaced
and its owner and mortgagee.
(4) Special rules for certain catcher vessels.--
(A) In general.--A replacement for a covered
vessel described in subparagraph (B) is
prohibited from harvesting fish in any fishery
(except for the Pacific whiting fishery)
managed under the authority of any regional
fishery management council (other than the
North Pacific Council) established under
section 302(a) of the Magnuson-Stevens Act.
(B) Covered vessels.--A covered vessel
referred to in subparagraph (A) is--
(i) a vessel eligible under
subsection (a), (b), or (c) that is
replaced under paragraph (1); or
(ii) a vessel eligible under
subsection (a), (b), or (c) that is
rebuilt to increase its registered
length, gross tonnage, or shaft
horsepower.
(5) Limitation on fishery endorsements.--Any vessel
that is replaced under this subsection shall thereafter
not be eligible for a fishery endorsement under section
12113 of title 46, United States Code, unless that
vessel is also a replacement vessel described in
paragraph (1).
(6) Gulf of alaska limitation.--Notwithstanding
paragraph (1), the Secretary shall prohibit from
participation in the groundfish fisheries of the Gulf
of Alaska any vessel that is rebuilt or replaced under
this subsection and that exceeds the maximum length
overall specified on the license that authorizes
fishing for groundfish pursuant to the license
limitation program under part 679 of title 50, Code of
Federal Regulations, as in effect on the date of
enactment of the Coast Guard Authorization Act for
Fiscal Years 2010 and 2011.
(7) Authority of pacific council.--Nothing in this
section shall be construed to diminish or otherwise
affect the authority of the Pacific Council to
recommend to the Secretary conservation and management
measures to protect fisheries under its jurisdiction
(including the Pacific whiting fishery) and
participants in such fisheries from adverse impacts
caused by this Act.
(h) Eligibility During Implementation.--In the event the
Secretary is unable to make a final determination about the
eligibility of a vessel under subsection (b)(8) or subsection
(e)(21) before January 1, 1999, or a vessel or shoreside
processor under subsection (a), subsection (c)(21), or
subsection (f) before January 1, 2000, such vessel or shoreside
processor, upon the filing of an application for eligibility,
shall be eligible to participate in the directed pollock
fishery pending final determination by the Secretary with
respect to such vessel or shoreside processor.
(i) Eligibility Not a Right.--Eligibility under this section
shall not be construed--
(1) to confer any right of compensation, monetary or
otherwise, to the owner of any catcher vessel, catcher/
processor, mothership, or shoreside processor if such
eligibility is revoked or limited in any way, including
through the revocation or limitation of a fishery
endorsement or any federal permit or license;
(2) to create any right, title, or interest in or to
any fish in any fishery; or
(3) to waive any provision of law otherwise
applicable to such catcher vessel, catcher/processor,
mothership, or shoreside processor.
SEC. 210. FISHERY COOPERATIVE LIMITATIONS.
[112 Stat. 2681-628]
(a) Public Notice.--(1) Any contract implementing a fishery
cooperative under section 1 of the Act of June 25, 1934 (15
U.S.C. 521) in the directed pollock fishery and any material
modifications to any such contract shall be filed not less than
30 days prior to the start of fishing under the contract with
the North Pacific Council and with the Secretary, together with
a copy of a letter from a party to the contract requesting a
business review letter on the fishery cooperative from the
Department of Justice and any response to such request.
Notwithstanding section 402 of the Magnuson-Stevens Act (16
U.S.C. 1881a) or any other provision of law, but taking into
account the interest of parties to any such contract in
protecting the confidentiality of proprietary information, the
North Pacific Council and Secretary shall--
(A) make available to the public such information
about the contract, contract modifications, or fishery
cooperative the North Pacific Council and Secretary
deem appropriate, which at a minimum shall include a
list of the parties to the contract, a list of the
vessels involved, and the amount of pollock and other
fish to be harvested by each party to such contract;
and
(B) make available to the public in such manner as
the North Pacific Council and Secretary deem
appropriate information about the harvest by vessels
under a fishery cooperative of all species (including
bycatch) in the directed pollock fishery on a vessel-
by-vessel basis.
(b) Catcher Vessels Onshore.--
(1) Catcher vessel cooperatives.--Effective January
1, 2000, upon the filing of a contract implementing a
fishery cooperative under subsection (a) which--
(A) is signed by the owners of 80 percent or
more of the qualified catcher vessels that
delivered pollock for processing by a shoreside
processor in the directed pollock fishery in
the year prior to the year in which the fishery
cooperative will be in effect; and
(B) specifies, except as provided in
paragraph (6), that such catcher vessels will
deliver pollock in the directed pollock fishery
only to such shoreside processor during the
year in which the fishery cooperative will be
in effect and that such shoreside processor has
agreed to process such pollock,
the Secretary shall allow only such catcher vessels (and
catcher vessels whose owners voluntarily participate pursuant
to paragraph (2)) to harvest the aggregate percentage of the
directed fishing allowance under section 206(b)(1) in the year
in which the fishery cooperative will be in effect that is
equivalent to the aggregate total amount of pollock harvested
by such catcher vessels (and by such catcher vessels whose
owners voluntarily participate pursuant to paragraph (2)) in
the directed pollock fishery for processing by the inshore
component during 1995, 1996, and 1997 relative to the aggregate
total amount of pollock harvested in the directed pollock
fishery for processing by the inshore component during such
years and shall prevent such catcher vessels (and catcher
vessels whose owners voluntarily participate pursuant to
paragraph (2)) from harvesting in aggregate in excess of such
percentage of such directed fishing allowance.
(2) Voluntary participation.--Any contract
implementing a fishery cooperative under paragraph (1)
must allow the owners of other qualified catcher
vessels to enter into such contract after it is filed
and before the calender year in which fishing will
begin under the same terms and conditions as the owners
of the qualified catcher vessels who entered into such
contract upon filing.
(3) Qualified catcher vessel.--For the purposes of
this subsection, a catcher vessel shall be considered a
``qualified catcher vessel'' if, during the year prior
to the year in which the fishery cooperative will be in
effect, it delivered more pollock to the shoreside
processor to which it will deliver pollock under the
fishery cooperative in paragraph (1) than to any other
shoreside processor.
(4) Consideration of certain vessels.--Any contract
implementing a fishery cooperative under paragraph (1)
which has been entered into by the owner of a qualified
catcher vessel eligible under section 208(a) that
harvested pollock for processing by catcher/processors
or motherships in the directed pollock fishery during
1995, 1996, and 1997 shall, to the extent practicable,
provide fair and equitable terms and conditions for the
owner of such qualified catcher vessel.
(5) Open access.--A catcher vessel eligible under
section 208(a) the catch history of which has not been
attributed to a fishery cooperative under paragraph (1)
may be used to deliver pollock harvested by such vessel
from the directed fishing allowance under section
206(b)(1) (other than pollock reserved under paragraph
(1) for a fishery cooperative) to any of the shoreside
processors eligible under section 208(f). A catcher
vessel eligible under section 208(a) the catch history
of which has been attributed to a fishery cooperative
under paragraph (1) during any calendar year may not
harvest any pollock apportioned under section 206(b)(1)
in such calendar year other than the pollock reserved
under paragraph (1) for such fishery cooperative.
(6) Transfer of cooperative harvest.--A contract
implementing a fishery cooperative under paragraph (1)
may, notwithstanding the other provisions of this
subsection, provide for up to 10 percent of the pollock
harvested under such cooperative to be processed by a
shoreside processor eligible under section 208(f) other
than the shoreside processor to which pollock will be
delivered under paragraph (1).
(7) Fishery cooperative exit provisions.--
(A) Fishing allowance determination.--For
purposes of determining the aggregate
percentage of directed fishing allowances under
paragraph (1), when a catcher vessel is removed
from the directed pollock fishery, the fishery
allowance for pollock for the vessel being
removed--
(i) shall be based on the catch
history determination for the vessel
made pursuant to section 679.62 of
title 50, Code of Federal Regulations,
as in effect on the date of enactment
of the Coast Guard Authorization Act of
2008; and
(ii) shall be assigned, for all
purposes under this title, in the
manner specified by the owner of the
vessel being removed to any other
catcher vessel or among other catcher
vessels participating in the fishery
cooperative if such vessel or vessels
remain in the fishery cooperative for
at least one year after the date on
which the vessel being removed leaves
the directed pollock fishery.
(B) Eligibility for fishery endorsement.--
Except as provided in subparagraph (C), a
vessel that is removed pursuant to this
paragraph shall be permanently ineligible for a
fishery endorsement, and any claim (including
relating to catch history) associated with such
vessel that could qualify any owner of such
vessel for any permit to participate in any
fishery within the exclusive economic zone of
the United States shall be extinguished, unless
such removed vessel is thereafter designated to
replace a vessel to be removed pursuant to this
paragraph.
(C) Limitations on statutory construction.--
Nothing in this paragraph shall be construed--
(i) to make the vessels AJ (United
States official number 905625), DONA
MARTITA (United States official number
651751), NORDIC EXPLORER (United States
official number 678234), and PROVIDIAN
(United States official number 1062183)
ineligible for a fishery endorsement or
any permit necessary to participate in
any fishery under the authority of the
New England Fishery Management Council
or the Mid-Atlantic Fishery Management
Council established, respectively,
under subparagraphs (A) and (B) of
section 302(a)(1) of the Magnuson-
Stevens Act; or
(ii) to allow the vessels referred to
in clause (i) to participate in any
fishery under the authority of the
Councils referred to in clause (i) in
any manner that is not consistent with
the fishery management plan for the
fishery developed by the Councils under
section 303 of the Magnuson-Stevens
Act.
(c) Catcher Vessels to Catcher/Processors.--Effective January
1, 1999, not less than 8.5 percent of the directed fishing
allowance under section 206(b)(2) shall be available for
harvest only by the catcher vessels eligible under section
208(b). The owners of such catcher vessels may participate in a
fishery cooperative with the owners of the catcher/processors
eligible under paragraphs (1) through (20) of the section
208(e). The owners of such catcher vessels may participate in a
fishery cooperative that will be in effect during 1999 only if
the contract implementing such cooperative establishes
penalties to prevent such vessels from exceeding in 1999 the
traditional levels harvested by such vessels in all other
fisheries in the exclusive economic zone of the United States.
(d) Catcher Vessels to Motherships.--
(1) Processing.--Effective January 1, 2000, the
authority in section 1 of the Act of June 25, 1934 (48
Stat. 1213 and 1214; 15 U.S.C. 521 et seq.) shall
extend to processing by motherships eligible under
section 208(d) solely for the purposes of forming or
participating in a fishery cooperative in the directed
pollock fishery upon the filing of a contract to
implement a fishery cooperative under subsection (a)
which has been entered into by the owners of 80 percent
or more of the catcher vessels eligible under section
208(c) for the duration of such contract, provided that
such owners agree to the terms of the fishery
cooperative involving processing by the motherships.
(2) Voluntary participation.--Any contract
implementing a fishery cooperative described in
paragraph (1) must allow the owners of any other
catcher vessels eligible under section 208(c) to enter
such contract after it is filed and before the calendar
year in which fishing will begin under the same terms
and conditions as the owners of the catcher vessels who
entered into such contract upon filing.
(e) Excessive Shares.--
(1) Harvesting.--No particular individual,
corporation, or other entity may harvest, through a
fishery cooperative or otherwise, a total of more than
17.5 percent of the pollock available to be harvested
in the directed pollock fishery.
(2) Processing.--Under the authority of section
301(a)(4) of the Magnuson-Stevens Act (16 U.S.C.
1851(a)(4)), the North Pacific Council is directed to
recommend for approval by the Secretary conservation
and management measures to prevent any particular
individual or entity from processing an excessive share
of the pollock available to be harvested in the
directed pollock fishery. In the event the North
Pacific Council recommends and the Secretary approves
an excessive processing share that is lower than 17.5
percent, any individual or entity that previously
processed a percentage greater than such share shall be
allowed to continue to process such percentage, except
that their percentage may not exceed 17.5 percent
(excluding pollock processed by catcher/processors that
was harvested in the directed pollock fishery by
catcher vessels eligible under 208(b)) and shall be
reduced if their percentage decreases, until their
percentage is below such share. In recommending the
excessive processing share, the North Pacific Council
shall consider the need of catcher vessels in the
directed pollock fishery to have competitive buyers for
the pollock harvested by such vessels.
(3) Review by maritime administration.--At the
request of the North Pacific Council or the Secretary,
any individual or entity believed by such Council or
the Secretary to have exceeded the percentage in either
paragraph (1) or (2) shall submit such information to
the Administrator of the Maritime Administration as the
Administrator deems appropriate to allow the
Administrator to determine whether such individual or
entity has exceeded either such percentage. The
Administrator shall make a finding as soon as
practicable upon such request and shall submit such
finding to the North Pacific Council and the Secretary.
For the purposes of this subsection, any entity in
which 10 percent or more of the interest is owned or
controlled by another individual or entity shall be
considered to be the same entity as the other
individual or entity.
(f) Landing Tax Jurisdiction.--Any contract filed under
subsection (a) shall include a contract clause under which the
parties to the contract agree to make payments to the State of
Alaska for any pollock harvested in the directed pollock
fishery which is not landed in the State of Alaska, in amounts
which would otherwise accrue had the pollock been landed in the
State of Alaska subject to any landing taxes established under
Alaska law. Failure to include such a contract clause or for
such amounts to be paid shall result in a revocation of the
authority to form fishery cooperatives under section 1 of the
Act of June 25, 1934 (15 U.S.C. 521 et seq.).
(g) Penalties.--The violation of any of the requirements of
this section or section 211 shall be considered the commission
of an act prohibited by section 307 of the Magnuson-Stevens Act
(16 U.S.C. 1857). In addition to the civil penalties and permit
sanctions applicable to prohibited acts under section 308 of
such Act (16 U.S.C. 1858), any person who is found by the
Secretary, after notice and an opportunity for a hearing in
accordance with section 554 of title 5, United States Code, to
have violated a requirement of this section shall be subject to
the forfeiture to the Secretary of Commerce of any fish
harvested or processed during the commission of such act.