Legislative/Regulatory

Washington Waves: July 9, 2018

Washington, D.C.—The U.S. Environmental Protection Agency and the Army are taking formal action to clear up apparent confusion over their year-long effort to repeal the controversial 2015 Waters of the United States (WOTUS) rule.

Responding to public feedback, the two agencies are issuing a supplemental notice to their 2017 notice, and the public will have 30 days to comment once it is published in the Federal Register.

So far, the new action is not expected to delay EPA’s current timetable on WOTUS, which calls for its effort to be completed by the end of this year

“By issuing today’s supplemental proposal, we are responding to public feedback, expanding opportunities for comment, and providing clarity and transparency in the rulemaking process,” EPA Administrator Scott Pruitt said.

“We are making it clear that we are proposing to permanently and completely repeal the 2015 WOTUS rule and keep the pre-2015 regulatory framework in place as we work on a new, improved WOTUS definition.”

R.D. James, assistant secretary of the Army-civil works, added: “This supplemental proposal reflects our continued commitment to common sense in the rulemaking process.”

According to the new information, some of those responding to the 2017 notice indicated they believed it restricted them from picking a side on whether the 2015 rule should be repealed while others appeared confused over whether the repeal of the 2015 rule would be temporary or permanent.

Specifically, the supplemental notice asks for additional public comment on the legal basis of the 2015 rule.

EPA said the new notice also would broaden the scope of the earlier request for comment and cover details not discussed in last year’s notice.

“Commenters do not need to resubmit comments already provided to the agencies in response to the July 2017 proposal,” the agency stated.

Last month, “Step 2” of the two-step process to repeal WOTUS 2015 was sent to the Office of Management and Budget for review; once that interagency review is complete, the proposal is expected to be submitted to the public for comment.

Defense Bill Conference

Congressional leaders from both parties continued to name additional members to the conference on the National Defense Authorization Act during the recent week-long Independence Day recess.

Before passing its version of the NDAA, the Senate followed custom by including the Marine Authorization and Enhancement Act advanced by the Senate Commerce, Science and Transportation Committee.

Those provisions reauthorize the Maritime Administration, address recommendations to improve protections and incident reporting related to sexual assault and ensure merchant mariners opportunities for on-the-job experiences.

MRRIC Nominations

The U.S. Army Corps of Engineers has extended the deadline for submitting applications to fill stakeholder vacancies on the Missouri River Recovery Implementation Committee (MRRIC) because of an error in its previous notice.

Applications and endorsement letters now must be submitted by August 2.

Published in the June 4 Federal Register, the earlier notice omitted three stakeholder categories.

For additional information, contact Lisa Rabbe at 816-389-3837.

CBP Port Staffing

The U.S. Government Accountability Office recommended that Customs and Border Protection (CBP) address problems with reaching staffing levels at ports of entry by collecting and analyzing information on why employees end up quitting.

“DHS (Department of Homeland Security) concurred with this recommendation,” GAO stated in a recently released study of the issue.

Despite enhancing efforts to address retention challenges, the GAO stated, CBP consistently has remained below target levels, ending fiscal year 2017 more than 1,100 officers short.

High attrition rates in certain locations, a protracted hiring process and competition from other law enforcement agencies have been blamed for the agency’s problems with attaining target staffing levels, stated the GAO, which was asked to review the matter.

GAO stated it was too early to gauge the impact of a contractor hired late last year to help target potential applicants and utilize data to enhance recruitment efforts.

Hiring new CBP officers has been a consistent goal pushed by the American Association of Port Authorities.

“In the maritime environment alone, AAPA advocates that a minimum of 500 new CBP officers are needed annually,” the organization stated when expressing support for the 2018 omnibus fund bill passed earlier this year.

FMC Vacancies

Federal Maritime Commission member Daniel Maffei left the agency after his one-year holdover period ended without a nomination and confirmation of a successor.

That brings to three the number of vacancies on the five-member commission.

As the FMC explained in its press release, commissioners are nominated by the president and confirmed by the Senate.

They are allowed to remain in office one year after their five-year term expires if a successor has not been nominated and confirmed.

A former member of the U.S. House from New York, Maffei joined the FMC on July 18, 2016, after being nominated to complete an unexpired term by then-President Barack Obama.

“My two years here have been an honor, a pleasure, and a true education in both the importance of international shipping and the very deep structural challenges it faces,” he said in a statement to FMC employees.

Acting FMC Chairman Michael Khouri and Commissioner Rebecca Dye commended Maffei’s service.

He is the third commissioner to depart in less than two years.

House Maritime Bill

A House committee passed legislation to enhance maritime safety in response to the El Faro tragedy in 2015, establish a Blue Technology Center of Expertise to help the Coast Guard with emerging maritime technologies and revise the Marine Debris Program to help address international sources of debris and fund response by the National Oceanic and Atmospheric Administration to severe marine debris events.

Introduced by Rep. Duncan Hunter (R-Calif.), who cited support from the industry for the bill, the Maritime Safety Act of 2018 implements the final action memo of the recently departed Coast Guard commandant and includes provisions to require the Coast Guard to ensure proper vessel inspections are undertaken, that vessels and crew have necessary safety equipment and timely weather forecast charts and that voyage data recorders float free following an accident.

Hunter’s bill, the Coast Guard Blue Technology Center of Expertise Act and the Save Our Seas Act were advanced by voice vote by the House Transportation and Infrastructure Committee.

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