Baltimore bridge collapse reveals a critical gap in federal government's port protection powers

• The Dali, which crashed into the Francis Scott Key Bridge and caused its collapse was not piloted by tug boats near the structure as it exited the Port of Baltimore, with some experts saying tugs could have helped to avert disaster.
• The case is being made in the aftermath of the accident that regulation mandating tug boats piloting vessels near critical infrastructure could be sensible, if costly, but federal agencies including CISA, Coast Guard, Department of Homeland Security, and the DOT each individually told CNBC that it is another agency's responsibility.

As the Dali container ship neared the Francis Scott Key Bridge after losing power and with no ability to navigate, there were no tug boats to guide it. Now, as the federal government begins the process of reviewing what went wrong in the leadup to the bridge collapse and potential protections to put in place in the future to avoid a similar port disaster — which has shut down operations at a vital national trade artery — CNBC communications with various federal agencies involved in maritime infrastructure and security reveal that they do not know which would have the authority to create federal regulation making it mandatory for tugs to pilot a vessel around key maritime infrastructure.

The Dali was guided by two 5,000-horsepower tugs out of her berth, but then the tugs peeled off once the Dali was in the channel leaving the port, per normal operating procedures. At the Port of Baltimore, once a vessel is either inside the harbor heading to berth or outside of the harbor heading to the ocean, the tugs peel off. It is unclear if the tugs remained with the Dali, a collision could have been averted. But maritime experts say that new tugboat regulation would be a reasonable response for the government to consider.

As part of its stated mission, the Cybersecurity and Infrastructure Security Agency (CISA) protects the transportation systems sector from "a limitless number of threats and risks."

CISA documentation designates both the Department of Homeland Security and the Department of Transportation as co-sector risk management agencies for transportation systems to ensure that, "The nation's transportation system quickly, safely, and securely moves people and goods through the country and overseas."

But when CNBC asked if the federal government was planning on instituting regulation making it mandatory for tugs to pilot vessels around critical maritime infrastructure, citing the Dali accident, a CISA spokesperson referred the inquiry to the U.S. Coast Guard.

CNBC had already asked the Coast Guard that question on the day of the accident.

On March 26, in an email to the Coast Guard, CNBC asked if the federal government would consider creating a regulation making it mandatory for tugs to accompany vessels around key infrastructure. The next day, the Coast Guard referred CNBC to the Joint Information Center (JIC) for the Key Bridge Casualty 2024 incident in Baltimore. 

A JIC spokesperson told CNBC on March 28 that it was not under their jurisdiction.

On Thursday, the Coast Guard provided an additional comment saying it has authority to require tug escorts for particular classes of vessels in areas that are hazardous to navigation, and authority to require escort tugs for a particular vessel or under certain conditions that make navigation or cargo operations hazardous. Due to the nature of the incident, the Coast Guard's Marine Board of Investigation and the National Transportation Safety Board both have efforts underway to identify causes, and make changes to regulations and procedures to prevent future incidents. "Due to the multimodal nature of the marine casualty, the NTSB is designated as the lead federal agency for this investigation," the Coast Guard spokesman said.

The Department of Transportation did not respond by press time to multiple requests for comment.

The lack of clear direction on regulatory responsibility comes on the heels of the Biden administration recently positioning an executive order on shipping cranes made in China as part of a "whole government approach" in securing the nation's ports. A new White House cabinet-level Supply Chain Resilience Center is working with interagency partners, including the Departments of Commerce, Transportation, and Defense in this mission.

Chad Sweet, former chief of staff to the first DHS Secretary for the United States, Michael Chertoff, and co-founder and CEO of the Chertoff Group, tells CNBC that this passing of regulatory responsibility is a gap in national security revealed by the bridge collapse.

"Just like when the 9/11 Commission learned lessons from that horrific event, gaps were identified on the clear accountability and authority of which agency and department were in charge in dealing with that potential threat vector," said Sweet. "I fear we may see from this incident yet another gap that is clearly allocated between different departments and agencies and the need for Congress to clarify clear delineation of when tug boats should be used or not used around critical infrastructure."

Aaron Roth, retired Coast Guard captain and Chertoff Group principal, said a tugboat regulation is worth government consideration, but there is unlikely to be quick action and there could be pushback from the maritime sector.

"This would require a regulatory process which would take time as well as added costs on the industry that some might fight," Roth said.

Ocean carriers would be charged the cost of the tug. The use of tugs is then folded into the ocean freight charges, which are paid by shippers.

In addition, Roth said, "If the government would be compelled to require it, you would have to define what's critical infrastructure and what isn't."

At least in the case of Baltimore, Sweet said the fact the distance from the berth to the bridge was not far makes the costs associated with using tug boats more compelling. The Port of Baltimore is smaller than the nation's largest ports, such as the ports of Los Angeles, Long Beach and New York.

"If the berth was miles away from the bridge you could make the argument it is too costly, but given the proximity of the berth to the bridge, a cost-benefit analysis on the use of tugs versus the cost of the amount of damage and rebuilding of this bridge will make the use of tugs more attractive.