LMR Committee Takes Aim At Burdensome Regulations

BY FRANK MCCORMACK
January 15, 2018


Members of the Lower Mississippi River Waterway Safety Advisory Committee (LMRWSAC) met in New Orleans, La., January 9 to finalize the group's recommendations for repealing, replacing or modifying certain U.S. Coast Guard regulations that fall within the committee's purview. LMRWSAC is a federal advisory committee that makes recommendations to the U.S. Department of Homeland Security on matters pertaining to navigation safety on the Lower Mississippi River.

That task of identifying regulations to either strike or modify stems from a trio of executive orders President Donald Trump issued shortly after taking office a year ago.

Executive Order 13771, issued January 30, 2017, and titled “Reducing Regulation and Controlling Regulatory Costs,” says that, for every new regulation, at least two existing regulations have to be identified for repeal.

Executive Order 13777, issued February 24, 2017, builds on the January 30 order, while Executive Order 13783, issued March 28, 2017, deals, in part, with eliminating regulations that impede the development of domestic energy resources.

“In general, the Coast Guard is required to identify at least two existing regulations or guidance documents to be repealed before it publicly issues any new significant proposed rules or new significant final rules, where there was a notice of proposed rule-making already established, or a significant guidance document,” said Cherrie Felder, vice president for Channel Shipyard Companies and LMRWSAC chair.

LMRWSAC members established a regulatory reform subcommittee in August 2017. That subcommittee, chaired by Lester Millet with the Port of South Louisiana, met several times through the end of the year, primarily scouring 33 CFR Subchapter C, Subchapter E and Subchapter P for unnecessary or obsolete regulations.

The subcommittee identified a total of 18 regulations in 33 CFR, along with two in 46 CFR and one in 47 CFR, which Millet presented to the full committee last week.
Many of the recommendations deal with older regulations that, over time, have simply become obsolete or redundant.

For example, the subcommittee recommended modifying the portion of 33 CFR 164.72 that requires towing vessels to carry paper charts or maps of the areas they transit to instead require an up-to-date electronic charting system.

“This is another area where technology has made this regulation either ineffective or obsolete,” Millet said.

The subcommittee also targeted 33 CFR 86.21-23, which requires a bell or gong to sound when at anchor, as a regulation rendered obsolete by technology.

The group also looked at some technology-related regulations that members say actually place more of a burden on vessel crews than is necessary to promote navigation safety. For example, 33 CFR 164.46 currently requires AIS (automatic identification systems) to transmit information “including the vessel’s identity, type, position, course, speed, navigational status and other safety-related information automatically to appropriately equipped shore stations, other ships, and aircraft.”

The Coast Guard also provides an AIS encoding guide to help AIS users input data consistently. The regulatory reform subcommittee recommended that information transmitted via AIS be limited in scope to vessel name, position, vessel type and navigation status. The subcommittee also recommended eliminating the encoding guide altogether.

In both cases, the subcommittee argued the regulation as it currently stands imposes an unnecessary burden on mariners while providing no benefit to navigational safety.

Some other regulations recommended for repeal include 47 CFR 80:409, which deals with station logs; 33 CFR 155.710, which sets qualifications for a person-in-charge aboard a towboat or tank barge; and 33 CFR 26.01, which implements vessel bridge-to-bridge radiotelephone regulations connected to the Communications Act of 1934.

In the first case, the subcommittee recommended repeal because logging radio communications could distract captains from safe vessel operation. With regard to the person-in-charge regulation, the subcommittee recommended repeal, particularly in the case of a small towboat, because it argued that carrying a licensed tankerman on a smaller towboat is an unnecessary financial burden. With regard to the vessel bridge-to-bridge regulation, the subcommittee recommended repeal in order to eliminate the need for an FCC-licensed technician to annually inspect a vessel’s radiotelephone, which it argued is technologically obsolete.

The group also recommended completely removing 33 CFR 165.810 Subsection D, particularly references to South Pass, due to the fact South Pass is not navigable by deep-draft vessels.

The recommendation that drew the most discussion dealt with 33 CFR 165.838, which deals with the Gulf Intracoastal Waterway and Inner Harbor Navigation Canal in New Orleans as they relate to enaction of the Regulated Navigation Area (RNA) during a weather event. The rule requires “all floating vessels” to depart the RNA ahead of a tropical system. The subcommittee would like to see the rule not apply to vessels under a certain size or certain types of vessels—namely certain recreational vessels—so that priority, particularly at the Inner Harbor Navigation Canal Lock, would go to larger vessels leaving the RNA.

Captain of the Port of New Orleans Wayne Arguin, commander of Coast Guard Sector New Orleans and LMRWSAC designated federal officer, said, while the rule as it stands does not distinguish between different types of vessels, he understands the recommendation from the subcommittee.

“If you apply the regulation by word, we don’t have the discretion under regulation to say, ‘Recreational vessels are not a concern,’” he said. “There would need to be a modification to the regulation to eliminate those vessels, but in the interim, I’d like to get a better understanding from the Corps what the risks are.”

The regulation was put in place following Hurricane Katrina, particularly with floodwall failures on the Inner Harbor Navigation Canal in mind.

Arguin said a conversation with Corps of Engineers representatives would shed light on which vessels should have the highest priority for vacating the RNA ahead of a hurricane.

“Let’s have a conversation—Is this the right answer from a risk perspective?—so we can focus our efforts on removing the highest risk vessels or vessels at facilities,” Arguin said. “It’s more of an improvement, but right now we don’t have a whole lot of leeway as the reg is written.”

Members of LMRWSAC voted to approve the regulatory reform committee’s recommendations. Similar recommendations from other federal advisory committees are due to the Department of Homeland Security by March 31, after which time another committee will review all subcommittee recommendations and determine which regulations should be repealed, replaced or modified. A public comment period will follow.

“There certainly will be more bites at the apple for those folks who have questions or want to adjust things,” Arguin said.