CG Continues Suspension of CDC Reporting Requirement

The Coast Guard published a notice in today’s Federal Register (78 FR 25-27) continuing the current suspension of certain dangerous cargo (CDC) barge reporting requirements (33 CFR 165.830) in the inland waterways of the 8^th Coast Guard District (essentially the US waterways that drain into the Gulf of Mexico). This suspension was originally put into place via a 2011 notice in the Federal Register (76 FR 1360-1362).

RNA Established

The initial establishment of this regulated navigation area (RNA) and its associated reporting requirements was done in 2003 (68 FR 57358-57365). According to the summary of that interim final rule:

“This action is necessary to ensure public safety, prevent sabotage or terrorist acts, and facilitate the efforts of emergency services and law enforcement officers responding to terrorist attacks.” 68 FR 57358

There is a lengthy description of what types of chemicals are included under the term CDC in the definition section of 165.830(c). They include toxic inhalation hazard (TIH) gasses and liquids that are also considered TIH chemicals, as well as a variety of explosives and radioactive materials. In short materials that could be released as improvised chemical weapons or improvised explosive devices if attacked by terrorists.

In the background and purpose of that rule the Coast Guard went on to explain that:

“The RNA affects vessels transporting barges loaded with CDCs that if used as weapons of terrorism could result in substantial loss of life, property, environmental damage, and grave economic consequences.” 68 FR 57359

Reason for Suspension

The reporting requirements of the interim final rule were suspended when the contract for the operation of the CDC Barge Reporting System at the Inland River Vessel Movement Center (IRVMC) expired. Since there was no system available for tracking the reported CDC barge information, the Coast Guard decided that suspending those requirements was appropriate.

The initial suspension was for two years to allow the Coast Guard to “analyze future reporting needs and evaluate possible changes in CDC reporting requirements” (76 FR 1360). At the time the Coast Guard’s stated options were:

• Lift the suspension and restore the obligation of the affected public to comply with the existing reporting requirements;

• Modify those requirements, or

• Repeal the RNA.

According to this notice that review is still on-going and the suspension will continue in effect until September 30, 2013.

Public Comments

The Coast Guard is not actively soliciting public comments on this rule because the Coast Guard expects that “the affected public will have no objection to the extension of the temporary suspension of regulatory requirements” (78 FR 25-26). I would assume that the owner/operators that move CDC barges along the affected waterways are the ‘affected public’ in this case; and no, they would certainly not object to a continuation of the current suspension.

What is not so clear is what the potential concerns are of the people living and working along those waterways that might be affected by a terrorist attack on these CDC barges. Those were the people that the original interim rule was designed to protect. They might have cause to comment and the Coast Guard has made provisions to allow them to do so.

 

Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # USCG-2012-1074). Since the effective date of this temporary final rule is January 15^th, the typical ‘comment by date’ does not apply as the Coast Guard has made no provisions for responding to those comments before this suspension extension goes into place.