Friday, September 3, 2010

South Korean Ambassador Tours Tacoma Port, Talks Trade Deal

South Korean Ambassador to the United States Han Duk-soo toured several maritime facilities at the Port of Tacoma Tuesday.

Han's visit, arranged through the Tacoma-Pierce County Chamber and US Chamber of Commerce, was also an opportunity for the ambassador to drum up support for ratification of the Republic of Korea-United States Free Trade Agreement, also known as the KORUS FTA.

Negotiations on the agreement began in February, 2006 and were completed in April, 2007. The treaty was signed by President George Bush on June 30, 2007 but has yet to be ratified by the US Congress.

If ratified, the agreement would lift roughly 85 percent of each nation's tariffs on industrial goods, and also create new protections for multinational financial services and other firms. The agreement would also, if ratified, become the first free trade agreement between the United States and a major Asian economy.

In June, President Obama and South Korean President Lee Myung-Bak gave a November 2010 deadline for the two governments to resolve any outstanding issues regarding the agreement.

Last year, the Port of Tacoma handled more than $2.5 billion worth of Korean-related trade.

US imports of Korean goods totaled $22.5 billion in the first half of the year, a 35 percent increase over the same period last year. US exports to Korea totaled $20.4 billion in the first six months of the year, a 40 percent increase over the same period last year.

Korea, the third largest international trading partner with the United States, is also one of the largest export markets for US agricultural products.

The KORUS FTA would add $10 billion to $12 billion a year to the U.S. Gross Domestic Product, according to estimates by the US International Trade Commission. The commission also estimated that the agreement, if ratified, would increase annual US exports to Korea by $10 billion.

Industry Solutions Help to Cut Truck Wait Times at SoCal Ports

Container terminal truck queuing times at the Southern California ports of Long Beach and Los Angeles appear to be abating according to members of the industry.

Queuing times became an issue last year after most Southern California terminals eliminated a weeknight or weekend gate citing financial concerns. Trucking and terminal officials have said that trucking calls at some terminals fell as much as 30 percent following the global economic meltdown that began in late 2008. Removing the gates in the face of declining volumes was seen as a viable cost-cutting measure.

However, as container volumes began to spring back late last year, trucks began to pile up outside of the existing gates – especially during the 5 p.m. to 6 p.m. period as truckers waited for nighttime gates to open. Many truckers are instructed to wait for the nighttime gates to avoid a daytime traffic congestion fee.

By some estimates truck wait times around the crunch periods – when the nighttime gates open at 6 p.m. and when the gates open first thing in the morning – were reaching as 45 minutes or longer.

Trucks are not allowed under state law to queue within the terminal for more than 20 minutes, so many line up just outside the ports or sit on the side of nearby streets.

In the early summer, an industry stakeholder group was organized to develop solutions to the problem. The group, which first met in late July, came up with several recommendations.

One, which was implemented following the group's July 29 meeting by 11 of 13 terminals, was to reinstate the gates eliminated last year.

In addition, several terminals are also running a so-called flex gate between the 5 p.m. to 6 p.m. period when terminals are normally closed as the terminals move from day to night shifts.

Numerous trucking firms have said that the restoration of the additional gates has decreased the waiting times.

A study conducted through the University of California, Santa Barbara appears to back up the anecdotal evidence, albeit based on moves at a single terminal. The study found that at the single terminal studied 56 percent of trucks waited less than 10 minutes, 34 percent waited 10-30 minutes, and only 10 percent of the sampled trucks waited more than 30 minutes.

The stakeholders group plans to continue meeting and have already suggested several longer-term solutions to gate congestion such as a port-wide truck appointment system.

LA Port to Move Quickly to Put Full Truck Plan Into Effect

Just days after a federal judge upheld the Port of Los Angeles Clean Trucks Program, port officials have indicated they will move quickly to implement previously-blocked components of the truck plan – including a contentious component requiring port-servicing trucking firms to hire only per-hour employee drivers.

Last week, Judge Snyder ruled that the Clean Truck Program, including an access license scheme that uses port-defined criteria to determine who can and cannot enter the port, was exempt from federal laws because the landlord port operated as a market participant in the trucking industry.

The American Trucking Associations sued the port in July 2008 on the grounds that certain portions of the access license scheme violated the United States Constitution and other federal laws.

On Tuesday, port attorneys filed a "final form of judgment" with Judge Christina Snyder of the US District Court for the Central District of California.
The final form lists the port's requested final terms of the suit.

The port is asking the court to take four actions: a judgment in favor of the Los Angeles port and other defendants; a dismissal of any "claims of relief" by the ATA; the removal of the injunctions currently blocking portions of the truck program; and, an order for the ATA to pay all defendant legal costs.

Judge Snyder issued the injunction in April 2009 after the Ninth Circuit Court of Appeals overturned her September 2008 denial of an injunction to the ATA.

Judge Snyder is expected to sign the port-drafted judgment within the next several weeks. The ATA will then have a 14-day period to appeal the ruling and ask the Ninth Circuit to maintain the injunction until the full appeals process is completed. The injunction will stay in effect during this 14-day period.

The ATA has confirmed it will appeal Judge Snyder's ruling.

Port of Los Angeles Executive Director Knatz, while not mentioning the possibility of a Ninth Circuit stay on the current injunction, said she would consider implementing the previously-blocked portions of the truck plan as soon as the next harbor commission meeting, which is anticipated to take place on Sept. 16. Knatz also said that a plan to offer an extended compliance period – during which trucking firms would be required to attain compliance with the previously-blocked portions of the truck plan, including the employee-only mandate – may be considered.

Tuesday, August 31, 2010

Appeal Filed Over SoCal Ports' Bridge Replacement Project

A pair of Southern California environmental groups have asked the Long Beach City Council to overturn and reject the Gerald Desmond Bridge replacement project adopted by Port of Long Beach officials on Aug. 9.

The Coalition For A Safe Environment (CFASE) and the Long Beach Coalition For A Safe Environment (LBCFASE) filed the appeal with the City Council on Aug. 23, alleging that the $1.13 billion bridge replacement project will "seriously, negatively and irreversibly" impact the groups' members, residents and the public at large.

The appeal claims that the impacts of the project as proposed will extend to, "life, health, welfare, safety, public mobility, public transportation infrastructure, economic resources, future sustainability, quality of life, environment, global warming concerns, aquatic life, wildlife and wildlife habitats."

The two groups also allege in their appeal that the port's governing board failed to "perform due diligence in making their decision, approving the resolution, determining legal compliance, seeking expert & legal opinion, protecting the public’s interests and upholding applicable California and federal laws."

The appeal, which is unlikely to move a City Council that has expressed solid support for the project, was brought on behalf of the two groups by local environmental gadfly Jessie Marquez and the executive director of the LBCFASE, Gabrielle Weeks.

The Gerald Desmond Bridge replacement has been described as one of the port-area's most critical infrastructure needs. The new bridge will be taller, wider and safer than the current bridge, according to port officials.

The 156-foot-tall Gerald Desmond Bridge, which is named after a former City official, links the port-area Terminal Island to Long Beach proper. The 40-year-old steel and concrete structure is a main egress point for trucks into the port.

Upwards of 60,000 vehicles a day cross it's five-lane, 1,200-foot-long span over the port's main channel.

According to port officials, more than 15 percent of the nation's seaborne cargo moves over the bridge each year.

In addition to lacking adequate capacity and having insufficient height to allow the newest container vessels to pass underneath, the current bridge is deteriorating rapidly leading to more frequent and costly repair costs.

Of the total $1.13 billion in estimated costs for the replacement project, about $900 million from various sources have been earmarked, including: about $570 million from federal sources, $250 million in state funding, $29 million from Los Angeles County sources, and $55 million from port funds. According to port documents, just under $200 million in federal funds have yet to be identified.

Barring any legal actions against the project, preliminary work on the new bridge could begin within a few months, though an actual ground breaking on construction could be more than a year away. Construction is expected to take at least six years.

Suit Filed Against Seattle Port for Rail Corridor Purchase

Three King County taxpayers have filed suit against the Port of Seattle alleging that port officials overstepped their authority when they used tax dollars last year to purchase an abandoned rail corridor between Renton and Snohomish.

The lawsuit, filed by taxpayers John Allerton, Kenneth Gorohoff and Arthur Lane in King County Superior Court, asks the court to reverse the sale and return any tax money used to pay for it.

Allerton, Gorohoff and Lane claim that Washington state law prohibits port officials from purchasing rail lines outside their port districts unless the rail link is needed to connect the port to interstate tracks. The three allege that the Eastside rail corridor extends outside the King County port district and the port already has connections to the interstate rail system.

The port purchased the 42-mile-long rail corridor last year for roughly $100 million, primarily to keep developers from buying the land, but has yet to determine what to do with it. The port purchase was approved by the Federal Surface Transportation Board.

Port officials have looked at numerous planned uses for the corridor, with the most commonly cited being a plan to develop a pedestrian and bicycle trail along side the track, which would carry interurban commuter trains.

To date, the port has recovered all but $9 million of the purchase price, mainly from selling the rights to various portions of the corridor to local agencies.

The suit names the port, King County, Class I railroad BNSF, Redmond, and port rail operator GNP Rly, Inc as defendants.

California Harbor Commissioner's Noble Gesture Backfires

File this under "Know the rules before being noble – all the rules."
When two incumbents on the five-member San Mateo County Harbor Commission announced earlier this year that they would run for re-election on the November ballot, only one non-incumbent filed to run against them.

The day before the closing of the candidate filing period for the ballot, Commissioner Ken Lundie, who was running for his fourth four-year term on the board, decided to save the Harbor District the $500,000 to $700,000 in county election fees for the election by withdrawing his name from the ballot.

This would have left incumbent three-term veteran Jim Tucker and newcomer Bill Klear to take the Harbor Commission seats.

It would have except for a law stating that when an incumbent fails to file or withdraws, the filing period is extended – in this case by five-days.

During this five-day extension, and with three-term incumbent Lundie no longer in the race, two additional candidates filed to run forcing the issue back on to the ballot.

Voters in November will now choose two commissioners from the pool of Tucker, Klear, and last minute additions Sabrina Brennan and Robert Bernardo.

Sitting Harbor Commission President Sally Campbell has already endorsed Tucker, but doesn't sound too keen on the other candidates. "What I’ve heard so far is that they’re know-it-alls, so I have a bad taste in my mouth so far,” Campbell told the Half Moon Bay Review. “But whoever wins, we’ll work with them.”

Klear is a retired aircraft production supervisor, Brennan owns her own printing and graphics business, and Bernardo is a former San Francisco planning commission member.

Commission President Campbell told the Half Moon Bay Review that the cost of the election is "going to hurt [the district] very badly. But I can’t say who can and cannot run for election – that’s part of a democracy."

The Harbor District runs the Pillar Point Harbor at the northern end of Half Moon Bay and Oyster Bay Marina Park in southwestern Bay Area.

Judge Upholds Los Angeles Port Truck Plan, ATA to Appeal

A federal judge on Thursday ruled against the trucking industry in a two-year-old suit that sought to block a trucking re-regulation scheme proposed by the Port of Los Angeles.

In her ruling against the American Trucking Associations, District Court Judge Christina Snyder said that while portions of the port truck plan did violate federal law, the port plan was exempt because the landlord port, in her opinion, is an economic participant in the trucking industry.

Her ruling paves the way for the port to fully implement the trucking plan, portions of which began in October 2008.

The ruling was greeted with surprise by many in the transportation industry and cheers by environmental, labor and “social justice” groups.

Many members of the industry who followed the case had expected Judge Snyder to uphold certain previously-blocked portions of the truck plan, including an access license scheme that would require truckers to adhere to various port-defined criteria to obtain port access. However, the conventional wisdom was that the judge would also strike down the most contentious of those criteria – a requirement that trucking firms servicing the port only hire employee drivers.

This employee-only mandate would open the doors for port truck drivers to be unionized, a situation not relished by a transportation industry all too familiar with the longshore and railroad unions.

While proponents of the truck plan praised the judge's ruling, the legal actions surrounding it appear far from over. The ATA said Friday it will file an appeal to the Ninth Circuit Court of Appeals.

The origins of the case date back to 2000 when an air quality study revealed the scope of the Southern California diesel emissions problem. In response to public outrage at, and legal action related to, the emission problem, the ports in 2002 began funding a local quasi-governmental effort to replace the oldest and dirtiest trucks working in the ports. Truck replacement was identified by the ports as the most viable means to cut truck emissions.

While the ports-funded program never replaced more than 600 of the more than 19,000 trucks estimated at the time to visit the ports frequently, the nearly $11 million program proved to be a test bed for concepts later used in the ports’ own program.

In 2006, the two ports began to work together on an omnibus ports-wide environmental program called the Clean Air Action Plan. Included in the CAAP were numerous options for dealing with the problem of diesel truck emissions. Early in 2006, industry members, state air regulators and port staff met to discuss details of proposed state regulations aimed at curbing diesel truck emissions. According to attendees at the time, progress was made toward a comprehensive program to deal with ports-generated trucking emissions.

At this time the port officials were considering a plan that would essentially see the ports pay for the replacement of about 16,000 trucks.

However, in mid-2006, International Brotherhood of Teamsters President James Hoffa met with Los Angeles Mayor Antonio Villaraigosa and presented the union's vision of a truck replacement program.

Unlike original plans by the ports that simply called for providing money to expand the already operating truck replacement program, the Teamsters’ plan diverged sharply into social engineering, including criteria that would define the labor status of truck drivers.

Meetings on the cooperative plan with the industry stalled immediately after the Teamsters meeting, and at some point were ended altogether.

The joint truck plan ultimately developed by the two ports in 2007 mirrored the Teamsters' plan and included provisions that would force trucking firms to hire drivers as employees, not as independent owner operators. More than 80 percent of port truckers at the time were independent owner-operators. Under federal deregulation laws, only employee drivers can be unionized, not owner-operators.

However, in late 2007, the two ports – who until then had developed the truck plan jointly – split ways, mainly over the employee-only mandate. The Port of Los Angeles chose to adopt a truck plan including the employee-only provision, while the neighboring Port of Long Beach chose to allow both employees and owner-operators to continue servicing Long Beach facilities.

At the center of both plans were two main components. The first was a rolling multi-year ban that would incrementally bar older-model trucks through 2012 when only 2007-or-newer model year trucks would be allowed to enter. According to some estimates, 2007 model year trucks produce up to 90 percent fewer emissions than their older counterparts.

The second component was requiring trucking firms to obtain access licenses for trucks working for them. The ports planned to mandate certain criteria, such as the employee-only mandate, as a requirement of obtaining an access license.

In July, 2008, after both ports had formally adopted their versions of the truck plan, the American Trucking Association – which represents 37,000 trucking firms nationwide – sued to block the access license components of the two plans.

The ATA argued in federal District Court that while the group did not oppose the purely environmental portions of the truck plans such as the incremental model year bans, the access license portions violated federal law. Specifically, the Supremacy Clause of the United States Constitution and the Federal Aviation Administration Authorization Act of 1994 (FAAAA).

The Supremacy Clause of the US Constitution provides that federal laws “shall be the supreme law of the land.” Thus, when state and federal law conflict, federal law trumps – or preempts – the state law.

The FAAAA, also known as F4A, includes a federal statue regarding preemption that states, “A State, political subdivision of a State, or political authority of two or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier.”

The ATA also argued that the access license scheme was preempted by federal interstate commerce laws because it placed an undue burden on and prevented trucking firms from engaging in interstate commerce.

The ports argued that the issue was one of safety, security and environmental remediation.

In September 2008, Judge Christina Snyder rejected the ATA request for an injunction. While Judge Snyder found merit in some of the ATA's arguments, she ruled that the ports were exempt from the federal interstate commerce laws under the F4A "safety exemption" because the ports' trucking plans were at heart related to safety and security issues.

“The public has a significant interest in ensuring that the ports are safe from security concerns,” wrote Judge Snyder in her ruling. “Enjoining the [access license component] would have the potential to compromise security measures contained therein, which could significantly harm the public interest in secure ports.”

She also found that the ATA had not proved that an undue burden would be placed on the trucking industry by implementation of the ports' trucking plans.

The ATA immediately filed an appeal with the Ninth Circuit Court of Appeals, asking for an emergency injunction against the access license components. The court refused the emergency injunction, instead setting a full hearing for a preliminary injunction for early 2009.

In October 2008, the two ports implemented their individual trucking plans, including the first ban, which prevented all pre-1989 model year trucks from entering the ports. Because a scrapping component of the truck plans was never fully realized and only destroyed a handful of trucks, the first ban is estimated to have shifted, rather than eliminated, more than 2,200 pre-1989 model year trucks to work outside the ports.

In March 2009, the Ninth Circuit ruled against the ports, blasting the earlier lower court ruling by Judge Snyder.

The three-member Ninth Circuit panel said in its ruling that the truck program devised by the two adjacent ports "is likely to result in at least some irreparable harm to the motor carriers, and, on balance, the district court abused its discretion when it denied a preliminary injunction as to significant parts of the [access license] agreements."

The appeals panel also took exception to the ports' safety and security argument, ruling, "the record demonstrates that the ports' concern was increasing efficiency and regulating the drayage market," rather than motor vehicle safety.

The panel also found that contrary to Judge Snyder's ruling, the ATA had demonstrated a likelihood of irreparable harm and that "the balance of the equities and the public interest do weigh in favor of preliminary injunction in this case as to at least portions of the [access license] agreements."

The appeals panel did not issue an injunction, but sent the case back to Judge Snyder with strict instructions on how to handle the case and with implicit orders to issue an injunction on at least portions of the access license component.

On April 28, 2009, Judge Snyder issued a preliminary injunction against seven components of the access license scheme, including the employee-only mandate.

Keep in mind that these cases were only regarding an injunction against portions of the truck plan and the ATA still had a full suit against the ports sitting in District Court.

In October 2009, the Port of Long Beach reached an agreement with the ATA removing the port from the lawsuit. The port agreed to replace the access license component of the truck plan with a registration system that provided port officials with nearly the same information and control as the access license agreements.

Late in 2009 it was revealed that diesel emissions from port trucking had declined by an estimated 70 percent during the first year of the truck plan.

More Litigation
The trial for the full ATA suit, sans Long Beach, was held between April 20 and April 29, 2010 before Judge Snyder.

In the full trial, the ATA argued against five components of the Port of Los Angeles access license scheme: the employee-only mandate; a requirement for each trucking firm to have an off-street parking plan for each truck; a requirement that each trucking firm have a full maintenance plan for each truck; a requirement that each truck display a placard with certain contact information; and, a requirement that each trucking firm prove it has the financial capability to perform its obligations under the access license agreement with the port.

On August 26, Judge Snyder issued her ruling on the case. She found that the federal F4A of 1994 preempted the employee-only mandate and the off-site parking plan requirement. She also found that the ATA failed to make a case in the instance of the maintenance plan, placard, and financial capability requirements.

However, Judge Snyder then ruled that the employee-only mandate and off-street parking requirement, while preempted by federal law, were in turn exempted from such preemption because the port was operating as a business when it enacted the truck plan.

She pointed out that the law distinguishes between when a state or local government (in this case the port authority) operates as a regulator and as a market participant. Preemption only applies when the state or local government is operating as a regulator. Judge Snyder determined that the port, in implementing the truck plan and access license scheme, was acting as a business, not as a regulator. Therefore, the entire plan is exempted from preemption by federal law.

The ATA had argued to Judge Snyder that because the port does not actually participate in the operation of the facilities it leases to private entities, including the hiring of trucks, the port is not a market participant in the trucking industry.

It is worth noting that the port operates as a landlord, leasing port property to private firms that in turn operate the various marine facilities. The port is, in essence, a property management company. The port does not engage in any day-to-day business dealings related to the movement of goods, other than to set policies, lease terms, docking fees, and other regulatory actions that set guidelines and limitations on the private firms.

Judge Snyder found that the port does not need to be the actual purchaser of trucking services to establish that it is a market participant – it only need establish that it is taking the action "in pursuit of profit maximization," much as a private company would do.

Surprise Basis
The decision to base the ruling on market participation struck many as odd, especially considering the previous actions of Judge Snyder and the Ninth Circuit.
"While I am disappointed but not surprised that the Judge ruled in favor of [the port], I am surprised that she used market participation as the legal rationale," said Curtis Whalen, executive director of the ATA's Intermodal Motor Carriers Conference.

In the injunction cases both Judge Snyder and the Ninth Circuit gave little weight to the market participation argument and said that the argument did not apply. In fact, the Ninth Circuit appeared to lean toward the ports operating in a regulatory manner, ruling that the motivating factor behind the truck plan was the ports gaining better "efficiency and regulating the drayage market."

In addition, in her 43-page April 2009 ruling issuing an injunction against portions of the truck plan, Judge Snyder never mentioned the market participation issue.

The Port of Los Angeles is expected to file papers this week to make Judge Snyder's Thursday ruling final. Once this is done, the ATA plans to appeal Judge Snyder's ruling and ask the courts to keep the current injunction in place while the Ninth Circuit reviews the case.

"Inasmuch as all parties agreed at trial that the benefits of the clean truck and clean air elements of the Clean Trucks Plan have been fully realized with the injunction in place, neither the Port nor the people of California have been harmed by the preliminary injunction, and we hope that request will be granted," said the ATA's Whalen.

Los Angeles Mayor Antonio Villaraigosa and Port of Los Angeles Executive Director Geraldine Knatz both expressed their satisfaction with the court ruling.

Villaraigosa said the ruling was "evidence that we are making real progress on growing and greening our port," while Knatz said that the ability to implement the full truck plan would "help provide a safer and secure trucking system for the long term."

Numerous port authorities such as Oakland and New York/New Jersey have been watching the case closely as they consider trucking plans of their own.

Despite the access license component of the plan being enjoined almost from day one, the truck plans have been by all accounts an environmental success for the ports. Officials from both ports estimate that as many as 12,000 older trucks have been banned from operating at the two ports and that nearly 90 percent of all cargo is now handled by 2007-or-newer model year trucks.

In addition, both ports have managed to save a tremendous amount of money over the original predictions of the truck plans' costs. The ports originally estimated that the truck plans would cost upward of $2.4 billion, but two years into the plans, the ports have spent roughly $100 million. The rest of the cost has been borne by the trucking industry.

Monday, August 30, 2010

Opinion: Resourcing Oil Spill Response: The School of Experience

“We know nothing of what will happen in the future, but by the analogy of experience.”
– Abraham Lincoln, Springfield, Illinois, 1839

By Clay Maitland

A number of panels, commissions and committees are starting the process of examining the lessons learned from the precedent-shattering Gulf of Mexico oil spill.

Adequacy of funding is one problem. Sufficiency and design of equipment is another.

As an American official recently observed “The hard decisions are always about resources.” Since the wreck of the Torrey Canyon in 1967, governments, industry and the public have struggled to prepare for, and cope with, “a discharge, or threat of discharge, of oil or a hazardous substance from a vessel, offshore facility, or onshore facility,” as Rear Admiral Brian Salerno of the US Coast Guard puts it.

The European Maritime Safety Agency (EMSA), and national oil spill and environmental protection departments, have potential resourcing problems, similar to those now being seen in the United States. The cost of response, cleanup and remediation is going up, at the same time that fiscal reform has become a number one priority. In Europe, this is called the “Greece effect.” While the continuous flow of oil from the Macondo well has been termed a “black swan” event, without precedent in the history of oil spills, the record tells a somewhat different story. Statistically, there have been 44 notable blowouts of offshore wells, resulting in 79 deaths, with one event in 1979 causing massive pollution. In the 55-year period from 1955-2010, the mean time between such blowouts was about 15 months.

Within the Gulf of Mexico, in the 37-year period from 1964-2001, 10 offshore blowouts, or 23 percent of those that occurred world-wide, took place. These resulted in 27 deaths, or 34 percent of those suffered globally. In one such event, involving the Sedco 135F rig, a spill of between 455 to 480 thousand tons of oil. By comparison, from 1955 to 2010 in the United Kingdom-North Sea sector, two blowouts took place, one in 1977 on a fixed installation, and one in 1988 on a semi-submersible, with one fatality.

In February, two months before the Gulf of Mexico disaster, the Obama administration proposed a three percent cut in the Coast Guard’s budget, reducing it to about $10 billion. With the benefit of experience, it seems that the timing of this proposal was unfortunate.

In attempting to contain the flow of oil from the stricken well, the Coast Guard, BP, other US agencies, and state and local authorities, have deployed inflatable containment booms, absorbent booms and other floating obstructions, skimmer boats, barges, tugs, remotely operated vehicles, modified buoy tenders and specialized ships like the A Whale and Helix Producer. Because every spill has its own special features, a particular type of equipment may be found to be more effective in some cases than it is in others.

Nineteen Coast Guard cutters and two-dozen aircraft of various types are reportedly in use as well.

The Coast Guard has on duty a total of about 42,000 active servicemen and women, plus 7,500 reservists; by early July, nearly 3,000 people – mostly reservists – were present at or near the oil spill area. Under present policy, reservists can serve only two 60-day tours of duty, at most, and then can’t be recalled for two years. During the current emergency, to plug the staffing gap, members of the Coast Guard Auxiliary have been asked to volunteer for at least 30 days. A call has also gone out for Coast Guard civilian employees to go to the Gulf for one month of twelve-hour days.

The withdrawal of Coast Guard personnel and equipment from law enforcement, search and rescue, homeland security, environmental protection and safety at sea duties elsewhere, while understandable in an emergency, has raised the awareness of Congress that the response effort in the Gulf comes at a cost, in terms of mission readiness and efficient use of resources. For example, the transfer of equipment and ships to the oil spill zone has meant the removal, from “normal” assignment, of nearly half of the Coast Guard’s buoy tender fleet, because these vessels are useful for skimming oil. This has meant a cutback in maintaining aids to navigation. Other cutters, aircraft and personnel have been subtracted from drug and migrant interdiction in the Caribbean.

In spite of this, the resource-stretched Coast Guard has for some reason not been exempted, unlike the other four uniformed services, from the proposed federal budget spending freeze.

A thorough assessment of the effectiveness of this process, and whether adequate resources are being devoted to response and remediation, is necessary. This is not because a similar blowout may be likely or conceivable, in other parts of the United States or elsewhere. It is because a variety of issues, including the effectiveness of the measures taken and resources required for future use must be planned for in light of “battlefield” experience.

At NAMEPA, we are concerned about these “lessons learned;” the management of risk, in terms of oil spill prevention, means among other things that the right measures be taken to avoid disaster in the first place. Prevention and remediation go hand in hand. Planning therefore begins before the spill, to avoid it and to have a seamless response process in place. What was done after April 20, why and how the process worked, and what needs rethinking, will be studied and debated for some years to come.

New York admiralty lawyer Clay Maitland is a managing partner of International Registries, Inc., as well as the founding chairman of the North American Marine Environment Protection Association (NAMEPA), since 2007. Mr. Maitland will be providing closing comments at the GreenPacific conference ( September 21-22, 2010 in Seattle, Washington.