Page 14: of Maritime Reporter Magazine (March 2017)

GOVERNMENT UPDATE

Cabotage Rules

About the Author

Dennis L. Bryant is with Bryant’s Mari- time Consulting, and a regular contribu- tor to Maritime Reporter & Engineering

News as well as online at MaritimePro-

Changes Proposed fessional.com. t: 1 352 692 5493 e: [email protected] n January 18, 2017, the US precedent in such a hurried and cavalier cies to communicate with the general public with a reasonable period (general-

Customs and Border Protec- manner. There is nothing to evidence public. Communication by other means, ly 60 days or more) to submit comments tion (CBP) proposed in its that CBP has conducted a cost-bene? t such as has been done in this situation, is that are available for others to consider.

Customs Bulletin & Deci- analysis to determine the economic im- fraught with danger. The proposal may Most reading the notice do not comment.

O sions newsletter a signi? cant change to pact (both long and short term) of this not reach its intended audience – entities Some commenters oppose the change. the U.S. cabotage rules. For many years, proposal. A signi? cant policy change, as and individuals impacted by the planned Some commenters support the change. use of non-coastwise-quali? ed vessels proposed here, deserves such an analy- change, positively or negatively. As a Some of the comments identify ? aws or in the transportation of pipeline repair sis. A similar proposal was made by result, the agency may end up adopting a inconsistencies that the proposing agen- material; anodes; pipeline connectors; CBP in 2009 without a cost-bene? t anal- ? awed policy, one that could have been cy may have overlooked. All of this pro- wellhead equipment, valves, and valve ysis, but eventually abandoned. improved during the planning stage. vides the agency an opportunity to re? ne guards; damaged pipeline; platform re- The Customs Bulletin & Decisions Other agencies that adopted major pol- its proposal so as to avoid unintended pair material; and similar items from a newsletter is not widely read. In fact, icy changes without utilizing the Federal consequences. Further, the notice and

U.S. point to another point within U.S. many have never heard of it. While the Register have had those changes nul- comment process achieves buy-in from waters and/or those on the outer conti- publication serves as a useful means of li? ed by federal courts. The basic test the impacted community, knowing that nental shelf has been ruled by CBP (and highlighting general agency views and for determining whether publication in they were afforded a meaningful oppor- its predecessor US Customs Service) as recent developments, it is not gener- the Federal Register with an opportunity tunity to weigh in and be heard, some- consistent with U.S. cabotage laws (i.e., ally considered an of? cial expression of for notice and comment is whether the thing that is lacking in a notice published the Jones Act) where the transporting signi? cant policy changes, particularly agency could take enforcement action in an agency newsletter.

vessel was directly involved in the repair those with important legal and economic in the absence of the policy change. If I have no stake in the outcome of this or maintenance activity. The January 18 consequences. the answer is no, then the policy change proposed rule change, as I indicated proposal would revoke or greatly modify The proper means of communicating must be published in the Federal Regis- above. I do, though, believe that federal a whole series of prior ruling letters and signi? cant policy changes by a federal ter. Since this proposed policy change agencies have obligations to the public make such activity illegal. The period agency is through the Federal Register. by CBP appears to be intended as the and to the regulated community to keep within which to submit comments on The US Coast Guard does this regularly, basis for future enforcement action, pub- them properly informed of proposed this proposal was originally due to end notifying stakeholders and indeed the lication in the Federal Register, in my changes in long-settled agency policy on February 17, but has since been ex- world of proposed new or revised Navi- opinion, is required. and to fully and openly evaluate their tended to 18 April. We probably will not gation and Vessel Inspection Circulars As illustrated by the US Coast Guard proposals and options before moving know for months after that what the ? nal (NVICs) and policy letters and providing actions as well of those of other agen- forward. Among other bene? ts of such decision of CBP is with regard to this the public with an opportunity to submit cies, use of the Federal Register does not public notice is the reduction in unin- proposal. comments. Other federal agencies take always necessitate of? cial rulemaking, tended breaches and the highlighting of

I do not have a dog in this ? ght, but a similar approach, as does Customs and although it may be appropriate in this new opportunities and options that may

I am concerned with the approach be- Border Protection on occasion. situation. An agency, though, is required not have occurred to the agency. Bu- ing taken by CBP to drastically modify The Federal Register is the only statu- to publish notice of its intended action in reaucrats are referred to as public ser- or revoke more than 40 years of settled torily-approved means for federal agen- the Federal Register and to provide the vants for a reason.

14 Maritime Reporter & Engineering News • MARCH 2017

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