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12 Proceedings Spring 2014 www.uscg.mil/proceedings of the Coast Guard to review for compliance. This case served as a seminal case for the Coast Guard to assert its authority under §1228. If a tank vessel is found in violation of federal or international pollution laws, it may be indefnitely barred until the Department of Homeland Security secretary is convinced it is no longer a threat to safety or the marine environment. The secretary must establish any measures that the tank vessel owner or operator must take to be granted re-entry and provide notice of those require- ments, but the effect is immediate. As federal budgets get tighter and resources get constricted, barment may become a viable alternative to criminal proceedings in environ- mental cases against tank vessels. About the authors: LCDR Mimi Moon is a U.S. Coast Guard staff judge advocate and deputy of the Envi- ronmental Law Division. Mr. Benjamin Driscoll was an intern when he coauthored this article and is a law stu- dent at the University of Pennsylvania. Endnotes: 1. See 33 U.S.C. §1228. 2. No. 11-2184, 2013 U.S. Dist. WL 1225382; D.D.C. March 27, 2013. 3. Wilmina Shipping. WL 1225382, at 12; D.D.C. March 27, 2013. 4. PL 95-474; Port and Tanker Safety Act of 1978. 5. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542; 1985. 6. See 33 USC §1228. 7. Wilmina Shipping. WL 1225382, at 3; D.D.C. March 27, 2013. The Ports and Waterways Safety Act Authority The PWSA began as the Ports and Water- ways Safety Act of 1972, as an attempt to address increasing hazards and pollution in waterways. Prior to its enactment, two hazardous substance spills occurred in the Chesapeake Bay; and the USS Yancey tore loose from its anchorage slamming into the Chesapeake Bridge, closing it for 21 days. The following May, President Nixon urged for legislation directed at ports and waterways safety. 1 The Coast Guard and Department of Transportation (DOT) presented their version of a Ports and Waterways Safety Act, H.R. 17830, but it was considered unduly vague. During the drafting of alternative legislation, the SS Oregon Standard collided with the SS Arizona Standard in San Francisco Bay, Calif., causing more than 180,000 gallons of oil to spill. 2 While Congress focused on the para- mount imp or t ance of preve nting human casualties, the numerous envi- ronmental disasters sparked a specifc interest in protecting coastal ecosystems from vessel pollution. 3 The legislation attempted to address this issue through prevention, authorizing the DOT secre- tary to take necessary actions to protect the coastal waters against potential damage. Discussion of the legislation repeatedly articulated the broad authority desig- nated to the secretary. Implicit to this authority is the ability to control which vessels gain access to the waterways, an intent indicated by the preventive nature of the legislation and provided within the authority to "take full or partial posses- sion and control" of the vessel. 4 Following the statute's enactment, the Coast Guard faced criticism for moving too slowly implementing the provisions, highlighted by lawsuits mandating more rapid progress. 5 Increases in maritime trafc combined with a specifc rise in oil imports necessitated updates to the regulations. A particular issue was the number of foreign-fagged vessels found to have defciencies, yet not denied entry to port. 6 To address the concerns, Congress amended the Ports and Waterways Safety Act of 1972 with the Port and Tanker Safety Act of 1978. Among several changes to the statute was the addition of §1228, tasking the Coast Guard with prohibiting the entry or operation of tank vessels in U.S. waters in violation of federal and international pollution laws. 7 Endnotes: 1. House of Representatives Reports, Report 92-563; Oct. 12, 1971. 2. House of Representatives Reports, Report 92-563; January 18, 1971. 3. U. S. Congressional and Administrative News 92-339, 2768-2769; 1971. 4. US Congressional and Administrative News 92-339; 1971. 5. House of Representatives Reports, Report 95-1384; 1978. 6. "The Coast Guard has reported that, between January 21, 1977 and June 8, 1977, it has examined 1,262 foreign fag vessels and had found a total of 4,306 defciencies which were eventually corrected. During this period, however, only fve foreign fag tank vessels were extensively detained, and only two foreign fag tankers were denied entry because of their defciencies." Id. 7. 33 U.S.C. §1228. Spring2014_FINAL.indd 12 3/21/14 11:13 AM