The Coast Guard’s Next Decade: An Assessment of Emerging Challenges and Statutory Needs (2023)

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1 Summary One of the United States’ six armed forces, the U.S. Coast Guard carries out many important military and civilian missions as an emergency responder, law enforcement agency, member of the intelligence community, manager of the navigable waterways, protector of maritime safety and security, and steward of the marine environment. To fulfill its many functions, the Coast Guard must be able to anticipate, prepare for, and meet a host of new and changing demands across a vast and increasingly varied maritime domain in a manner that is increasingly agile, adaptive, and digitally adept. In 2021, Congress called for this study to identify emerging issues af- fecting the U.S. maritime domain that are likely to demand Coast Guard “oversight, regulation, or action” over the next decade, and then to assess whether the Coast Guard may need any adjustments or additions to its statutory authority to be able to address the identified issues.1 The study committee formed to carry out this congressional mandate operated under a statement of task that reflected the congressional emphasis on discerning the adequacy of the Coast Guard’s statutory authority. The statement of task also directed the committee to consider whether, in addition to ad- equate statutory authority, the Coast Guard possessed sufficient “related abilities” to respond effectively to issues likely to emerge over the coming decade. 1 William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283, § 8249.

2 THE COAST GUARD’S NEXT DECADE FIGURE S-1 Approach to identifying areas where statutory changes may be needed. STUDY SCOPE AND PROCESS The committee proceeded in three main steps (see Figure S-1). It first identi- fied emerging developments or other evolving aspects of the Coast Guard’s operational environment that are foreseeable and reasonably likely to occur over the next decade. The statement of task specifically called for consid- eration of emerging issues related to technology, industry, cybersecurity, climate and environment, and geopolitics. After identifying key issues, the committee then considered what kinds of actions the Coast Guard would likely need to take to respond. Finally, the committee conducted a high-level examination of the Coast Guard’s legal authority to take each of the types of actions that will likely be needed. To identify foreseeable developments, as well as to identify likely ac- tions needed in response and to assess the adequacy of the Coast Guard’s existing statutory authority, the study committee consulted widely with leaders of the Coast Guard, individuals from outside the Coast Guard with broad maritime domain experience, and experts in a range of relevant technical fields. Drawing on these consultations and committee members’ own expert judgment, the committee identified the following 10 issue areas or developments that will confront the Coast Guard over the next decade: • autonomous systems; • cybersecurity risk; • commercial spaceflight operations; • offshore wind energy; • aquaculture; • the Arctic domain; • ship decarbonization; • disasters; • migration; and • illegal, unreported, and unregulated (IUU) fishing. Some of these issues or developments, many of which are interrelated, are already under way, while others are becoming ever more discernible. All are being spawned by broader global, societal, and environmental forces, including the changing climate, the growing pace and breadth of innovation Foreseeable Developments Coast Guard Actions New or Clarified Statutory Authority

SUMMARY 3 in technology and industry, and global strategic competition on economic and political grounds, with corresponding national security implications. The committee considered more than 30 types of actions—includ- ing regulatory, operational, planning, and procedural responses—that the Coast Guard will likely need to take to prepare for and respond to the 10 developments. In its high-level review of statutes granting authority to the Coast Guard, the committee looked for clear instances where the Coast Guard’s statutory authority to act may be lacking, unduly constrained, or in need of clarification. Based on its review, the committee came to the following conclusions and then, based on these conclusions, developed the three recommendations presented below. CONCLUSIONS AND RECOMMENDATIONS Across decades, the Coast Guard has accrued an abundance of statutory au- thorities that range from those that are narrowly focused to those that are broadly empowering. Questions about the adequacy of statutory authority can arise when older statutes become out of step with contemporary condi- tions, including new technologies, or when the need arises for categorically different and distinct actions than an agency such as the Coast Guard has taken in the past. Nevertheless, with respect to the more than 30 types of actions likely needed to respond to the 10 emerging issues identified in this study, the committee concluded that the Coast Guard generally possesses sufficient statutory authority to respond to foreseeable developments in the maritime domain over the next decade. With respect to two issues, however, the committee concluded that the Coast Guard lacks sufficiently clear authority over the next decade to fully ensure the safety, security, and stewardship of the Marine Transportation System: • Manning requirements for vessels currently call for human opera- tors to be on board all vessels and may thus limit the Coast Guard’s ability to approve, as appropriate, vessels that use autonomous systems in lieu of an onboard crew. • Limitations on the authority to establish spaceflight-related safety zones that are binding on foreign-flagged vessels in the exclusive economic zone (EEZ) may impede the Coast Guard’s ability to protect both those vessels and commercial spaceflight operations in the EEZ. For reasons described in this report, resolution of these limitations will not be straightforward and will require further consideration by the Coast Guard and Congress. In the case of autonomous vessels, further evidence

4 THE COAST GUARD’S NEXT DECADE of their performance will be helpful, and coordination with international standards that currently call for lookouts on vessels will also need to be considered. With spaceflight safety zones, their application to foreign- flagged vessels will be affected by international law, a facet of the Coast Guard’s overall legal environment that cannot be overcome by changes in domestic legislation. In addition to the two clear limitations on the Coast Guard’s authority related to spaceflights and autonomous vessels, the Coast Guard’s author- ity to address cybersecurity risks, while not clearly lacking, is not explicitly addressed in all relevant statutes. Congress has expressly authorized Coast Guard action to address cybersecurity incidents in the Ports and Waterways Safety Act (PWSA), while it has not done so in other statutes, specifically the Maritime Transportation Security Act (MTSA) and the Magnuson Act of 1950. The committee concluded that the broad authorizing language in these latter two statutes is sufficient to encompass cybersecurity risks, but Congress could resolve any doubt by clarifying that the Coast Guard has specific authority to address cyberattacks under the MTSA and the Mag- nuson Act. Ultimately, whether to clarify the Coast Guard’s authority over cyber- security under the MTSA and the Magnuson Act will be a judgment call. A risk exists that if Congress tries to anticipate and clarify general statutory authority for each new risk—such as for cybersecurity—the Coast Guard’s overall authority to respond nimbly and effectively to other new and even unforeseen maritime risks that are not specifically called out in legislation could be undermined. Courts may come to expect Congress always to clarify that older statutes cover newer risks and may decide that the Service lacks the authority to address new risks unless or until Congress provides such specification. One possible way to reduce the risk of such limiting judicial decisions may be for Congress to state explicitly that it intends the general authority it has granted the Coast Guard to encompass a broad range of new and even unforeseen risks to the maritime domain. Based on its assessment of statutory authority to respond to the identi- fied foreseeable developments, the committee recommends the following: Recommendation 1: As part of a broader, ongoing effort to ensure that Coast Guard statutory authority is sufficiently clear, up to date, and adequate to meet future demands, Congress should closely analyze two foreseeable statutory limitations: (a) constraints on the ability of the Coast Guard to approve vessels that use fully autonomous systems in lieu of an onboard crew, and (b) limitations on the Coast Guard’s authority and jurisdiction to establish offshore safety zones for com- mercial spaceflight operations that apply to foreign-flagged vessels in the exclusive economic zone. Furthermore, Congress should examine

SUMMARY 5 whether to make legislative changes affirming the Coast Guard’s au- thority to address cybersecurity risks. Although the Coast Guard must have the requisite statutory author- ity to respond to foreseeable developments, it also needs—perhaps even more—the sustained vision, resources, and leadership commitment to meet future challenges. Even all the necessary statutory authority cannot substi- tute for sufficient resources and operational capacities and capabilities. In its consideration of the “related abilities” that the Coast Guard will need to respond effectively to future challenges, the committee concluded that the Service will need an adequate, well-trained workforce, the ability to marshal and analyze data for decisions, and the capacity to deploy modern- ized assets and advanced technology. The Coast Guard will need to make many choices in balancing and meeting these demands, facilitated where practicable by more efficient and streamlined procurement and acquisition; greater flexibility in data management, sharing, and analysis; and enhanced agility in recruiting, hiring, and retaining personnel.2 Recommendation 2: The Coast Guard will need the mission support capacity and capabilities to meet foreseeable demands and to respond quickly and effectively to developments that may not be foreseen. Con- gress should ensure that the Coast Guard has the requisite statutory authority and flexibility to (a) manage, share, and analyze data; (b) pro- cure and manage assets; and (c) support and develop a workforce, all in a manner that is suited to a fast-changing environment. Because the Coast Guard already has many existing broad authorities for mission support, the Service should continue to review the latitude afforded by these existing authorities, including the procedures and processes used to implement them, to make sure that the authorities are being used in the most effective manner, such as to update internal systems and meet evolving workforce needs. Over the coming decade, the Coast Guard can be expected to face nu- merous demands from the developments that are currently foreseeable as well as from other developments that are difficult, if not impossible, to an- ticipate now. Some of these future demands may also arise from the simul- taneous occurrence of multiple new developments and how they interact 2 The Coast Guard possesses extensive statutory authority to draw on for mission support purposes. It is possible that some discrete statutory changes may still be helpful in increasing the speed and efficacy of technology acquisition or enhancing the Coast Guard’s workforce development and overall force management. Chapter 4 of this report notes areas where statu- tory change may warrant further investigation, but firm conclusions and recommendations about needed changes to mission support authority extend beyond the scope of this report.

6 THE COAST GUARD’S NEXT DECADE with each other. In 2002, the Coast Guard began a scenario-based strategy development process known as Project Evergreen. With its many responsi- bilities in the vast and varied maritime domain, the Coast Guard will need to continue to monitor the horizon for future developments and assess their likely implications for Coast Guard actions, plans, and preparations. No matter what the future holds, it also behooves the Coast Guard to place emphasis on legal foresight and to build strong connections between legal foresight and operational and strategic planning. Legal foresight calls for regular, systematic assessments of statutory authorities to ensure that they will be sufficient to allow the Coast Guard to take needed actions and to build the capacity to carry them out. Such legal foresight would seek to anticipate not only the likely adverse impacts of foreseeable developments, but also the statutory authority needs that the Coast Guard will require to address them. Recommendation 3: The Coast Guard should strengthen and deepen its strategic foresight planning in a manner that can inform decisions across Coast Guard leadership tenures. To obtain additional insight into future developments and plan for responses to challenges, the Coast Guard should leverage experience with its Evergreen process and continue to innovate in its use of foresight by employing state-of-the-art methods such as those explicated herein, considering the prospect of multiple developments occurring in close succession or simultaneously and their potential interactions, and incorporating legal foresight into the strategic foresight process to account for any future statutory needs.