In a sign that the regulatory process sometimes works at least sort of the way that it’s supposed to, the U.S. Coast Guard today published a notice in the Federal Register indicating that they are reconsidering the proposed changes in their original Notice of Proposed Rulemaking (NPRM), which was published last November. It reads in part, “In response to feedback we have received and to the expected adoption of the 2010 amendments to the Convention under development at the IMO, the Coast Guard is reviewing the approach outlined in the NPRM. As such, we are considering publishing a Supplemental NPRM (SNPRM) as a next step. The SNPRM would describe any proposed changes from the NPRM, and seek comments from the public on those proposed changes.”
This is certainly a very welcome development for all concerned, and the Coast Guard is to be commended for doing the right thing and taking another good look at it.
Everyone should also take very careful note of what maritime consultant Capt. Dennis Bryant, USCG (Ret.) had to say about this event on his blog: This development is a clear indication that “notice and comment” rulemaking works. The Coast Guard heard the comments submitted by the regulated community and is reacting appropriately. At the same time, it must be noted that the earlier NPRM was merely trying to implement the 1995 amendments to the STCW Convention, to which the United States is a party. Those 1995 amendments were fully vetted throughout the US maritime community prior to US adoption thereof. The maritime community should have examined the amendments while they were still in draft form, so that unintended adverse impacts could have been avoided. The US Government, particularly the US Coast Guard, devotes much time and effort to seeking advice and recommendations from the public and the regulated community while policies, regulations, and international commitments are under development. The burden is on the regulated community to avail itself of that opportunity before things get too far down the road.
On this key point he’s dead on, and mariners (in particular) have been far too disorganized, apathetic and unaware, both in the past and carrying over into the present. The same can be said for many of the mom ‘n pop towing companies as well. In any case, few things are more tiresome than listening to people who were “too busy” to pay attention or show any real concern about their chosen profession whine about it later on when they find out that changes have occurred that they didn’t know about or took no interest in, and which they don’t like. Both the MTVA and the National Mariners Association have been actively participating on your behalf, but more interest from a greater number of mariners would be welcome.
I generally hold in high regard the opinions of Capt. Bryant and I wish I could honestly say that I hold his view that this particular instance is proof that the system works, but I can’t. At least not yet. A more accurate description might be that it’s evidence that it works some of the time, for some people, depending heavily opon whether or not the Coast Guard thinks they have to be responsive to what you have to say for some reason. History indicates that, at least when it comes to mariners, the Coast Guard just goes through the motions of “listening” to us because they’re required to by the Administrative Procedure Act. They receive comments from mariners, but mostly seem to pay them no mind. “Listening” is not the same thing as giving all due respect and weight to the valid observations, opinions and concerns of those affected by their decisions. Need modern examples? The 30-Day Wonder rulemaking is a good one, and surely you haven’t forgotten the way they totally blew us off regarding the loss of our traditional paper licenses during the phase-in of the new Merchant Mariner Credential.
In this case (STCW), complaints came in a from all corners: mariners, boat operating companies, training institutions and the various marine trade associations (AWO, OMSA, PVA). Just about everyone had a dog in this fight so, for now, there’s no way to know if the arguments made by mariners and their representatives were at all persuasive until the Coast Guard publishes the SNPRM and we can read their responses to them (if any). My gut tells me that it wasn’t primarily, or even partially, the objections of mariners in particular that helped convince the Coast Guard that this rulemaking needed further adjustments, although I would love to be proved wrong about this. The two examples I cited above both serve as good “control” or test cases precisely because mariners were alone in their opposition and, tellingly, we were quickly brushed aside without a second thought. Only when that trend is definitively and consistently reversed will I be able to report that the Coast Guard has changed their ways and that there is indeed a properly functioning regulatory system. Then you must have the determination and stamina to maintain eternal vigilance, lest there be backsliding. It really sucks, but that’s the way it is.
Finally, while all of us could and certainly should do better at this, I don’t think that it’s humanly possible to foresee every single potential pitfall and ramification that may arise from such complex undertakings as the implementation of a steadily-changing STCW Convention. Unintended consequences are always a threat, but not always identifiable in advance. We should endeavor to do the best we can, knowing that some problems may only become apparent later, and then be committed and fully prepared to adjust as necessary in a timely manner, preferably without all the acrimony and having it turn into a knock-down, drag-out fight every time. Both mariners and the rulemaking process deserve better, and it would only enhance the Coast Guard’s standing and reputation.
A final parting thought: maybe we’ve gotten to the point where our systems have simply gotten too damned complicated for our own good…..
Note: the previous post, Look Out…..The STCW Juggernaut Rolls On, provides some background information on the proposed changes. The original NPRM (the 7th item down from the top) and all of the public comments that were submitted are located in docket #USCG-2004-17914. Enjoy…..
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