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Of course, the Jones Act is broader than just coastwise Agencies will also need to examine how a policy ? ts in the trade, possessing, among other functions, a transactional and structure of a statute as they look to what is delegated to the vessel registry aspect, and issues may emerge in the context of agency to de? ne a term. Industry stakeholders should watch whether parties are operating under a time charter or bareboat for congressional developments and seek assistance if they charter and how control of a vessel is allocated, subject to ap- want to help shape the laws that govern their operations. What provals of the U.S. Department of Transportation Secretary lies on the horizon remains to be seen, but the sea of change and Maritime Administration (MARAD). ushered by Loper is certain.

The Authors

Beyond the Jones Act

Other notable examples of far-reaching laws that provide

Pribyl guideposts to marine operations in the U.S. include those re-

Sean Pribyl is a Partner in Holland & Knight’s lated to protection of the environment and priority for agen-

Washington, D.C. of? ce who focuses on mari- time and customs regulatory compliance, civil cies, such as the Coast Guard, who are authorized under the litigation, and international trade.

Oil Pollution Act’s (OPA) implementing statutes to process claims related to oil spill damages and cleanup actions, a

Roberson function administered by the National Pollution Funds Center

Joel Roberson is a Partner in Holland & Knight’s (NFPC). In the past, plaintiffs such as Protection and Indem-

Washington, D.C. of? ce who focuses on public nity (P&I) clubs have brought actions against the Coast Guard policy development, legislative advocacy and regulatory compliance.

under the APA seeking judicial review of NFPC’s ? nal agency actions denying OPA reimbursement claims in indirect chal- lenges to NPFC’s construction of several OPA statutes.

Skopec

Allison Skopec is a New York-based Holland &

Lastly, an important function of marine safety and environ-

Knight Associate who focuses her practice on mental protection under the Coast Guard’s statuary purview is civil litigation and regulatory compliance mat- the investigation of marine casualties and, while not all such ters often transportation-related in nature.

incidents involve pollution, the scope of the marine casualty investigation authority under 46 U.S. Code § 6301 has not been immune to challenge under the APA.

These are only a discrete sampling of the range of statutes that may have been granted agency deference pre-Loper, but the emphasis will now be on the “best” interpretation of a re- spective authority, with courts looking to agency expertise to assist in deciding what actually is the best interpretation.

Conclusion

The impact of Loper will affect not only interpretation of current law – it will fundamentally change how legislation is drafted going forward and allow prior litigation and rulings to be reevaluated. Typically, Congress reaches a bipartisan compromise that achieves most of what it intends to accom- plish and leaves the rest to the executive branch agencies to “? ll in the gaps.” Loper now puts a great deal of pressure on

Congress to draft new legislation that is much more speci? c regarding the authorities granted – or not granted – and pro- vides opportunities for corporate and legal maritime experts to assist Congress in the drafting process.

Loper may also require Congress to respond to court deci- sions that strike down maritime regulations that enabled the industry to grow, but lacked adequate statutory authority. Also, the legislative drafting changes required by Loper will particu- larly impact transportation and infrastructure stakeholders in a highly regulated marine industry where the regulatory frame- work relies on organic statutes – which are often quite old. www.marinelink.com 15

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