Inspection of Towing Vessels

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Parts 2, 15, 136, 137, 138, 139, 140, 141, 142, 143, and 144

[Docket No. USCG-2006-24412]

RIN 1625-AB06

Inspection of Towing Vessels

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to establish safety regulations governing the inspection, standards, and safety management systems of towing vessels. The proposal includes provisions covering: Specific electrical and machinery requirements for new and existing towing vessels, the use and approval of third-party auditors and surveyors, and procedures for obtaining Certificates of Inspection.

Without making a specific proposal at this time, the Coast Guard also seeks additional data, information and public comment on potential requirements for hours of service or crew endurance management for mariners aboard towing vessels. The Coast Guard would later request public comment on specific hours of service or crew endurance management regulatory text if it seeks to implement such requirements.

The intent of the proposed rulemaking is to promote safer work practices and reduce casualties on towing vessels by requiring that towing vessels adhere to prescribed safety standards and safety management systems or to an alternative, annual Coast Guard inspection regime. The Coast Guard promulgates this proposal in cooperation with the Towing Vessel Safety Advisory Committee and pursuant to the authority granted in section 415 of the Coast Guard and Maritime Transportation Act of 2004.

DATES:

Comments and related material must either be submitted to our online docket via

http://www.regulations.gov

on or before December 9, 2011 or reach the Docket Management Facility by that date. Comments sent to the Office of Management and Budget (OMB) on collection of information must reach OMB on or before November 9, 2011.

ADDRESSES:

You may submit comments identified by docket number USCG-2006-24412 using any one of the following methods:

(1)

Federal eRulemaking Portal: http://www.regulations.gov.

(2)

Fax:

202-493-2251.

(3)

Mail:

Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(4)

Hand delivery:

Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

To avoid duplication, please use only one of these methods. For instructions on submitting comments,

see

the “Public Participation and Request for Comments” portion of the

SUPPLEMENTARY INFORMATION

section below.

Collection of Information Comments:

If you have comments on the collection of information discussed in section VI.D. “Collection of Information” of this NPRM, you must also send comments to the Office of Information and Regulatory Affairs (OIRA), OMB. To ensure that your comments to OIRA are received on time, the preferred methods are by e-mail to

oira_submission@omb.eop.gov

(include the docket number and “Attention: Desk Officer for Coast Guard, DHS” in the subject line of the e-mail) or fax at 202-395-6566. An alternate, though slower, method is by U.S. mail to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard.

Viewing incorporation by reference material:

You may inspect the material proposed for incorporation by reference at Room 1210, U.S. Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-372-1427. Copies of the material are available as indicated in the “Incorporation by Reference” section of this preamble.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, call Michael Harmon, Project Manager, CGHQ-1210, Coast Guard, telephone 202-372-1427. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Public Participation and Request for Comments

A. Submitting Comments

B. Viewing Comments and Documents

C. Privacy Act

D. Public Meeting

II. Abbreviations

III. Background

A. Statutory History

B. Regulatory History

C. American Bureau of Shipping Group (ABSG) Consulting Uninspected Towing Vessel Industry Analysis Report (ABSG Report)

D. Towing Safety Advisory Committee (TSAC)

IV. Discussion of Proposed Rule

A. Summary

B. Applicability

C. Towing Safety Management System (TSMS)

D. Third Parties

E. Machinery & Electrical (Proposed Part 143)

1. Propulsion, Steering, and Controls Reliability

2. Electrical Installations

3. Pilothouse Alerter System

F. Functional Requirements

G. Compliance

H. Part-by-Part Summary

I. User Fees

J. Manning

K. Discussion of Comments

L. Hours of Service and Crew Endurance Management Programs

V. Incorporation by Reference

VI. Regulatory Analyses

A. Regulatory Planning and Review

B. Small Entities

C. Assistance for Small Entities

D. Collection of Information

E. Federalism

F. Unfunded Mandates Reform Act

G. Taking of Private Property

H. Civil Justice Reform

I. Protection of Children

J. Indian Tribal Governments

K. Energy Effects

L. Technical Standards

M. Environment

I. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to

http://www.regulations.gov

and will include any personal information you have provided.

A. Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (USCG-2006-24412), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online, or by fax, mail or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to

http://www.regulations.gov,

select the

Advanced Docket Search option on the right side of the screen, insert “USCG-2006-24412” in the Docket ID box, press Enter, and then click on the balloon shape in the Actions column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8

1/2

by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope.

We will consider all comments and material received during the comment period and may change this proposed rule based on your comments.

B. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to

http://www.regulations.gov,

select the Advanced Docket Search option on the right side of the screen, insert USCG-2006-24412 in the Docket ID box, press Enter, and then click on the item in the Docket ID column. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility. Some articles we have referenced in the preamble are copyrighted and therefore we did not place a copy of these articles in our online docket. You may, however, either use the citation information we provided to obtain a copy of those articles or you may view a copy in room 1210, U.S. Coast Guard Headquarters, 2100 Second Street SW., Washington, DC 20593-0001 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-372-1427.

C. Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,

etc.

). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of the

Federal Register

(73 FR 3316).

D. Public Meeting

We plan to hold public meetings on this NPRM. A notice with the specific dates and locations of the meetings will be published in the

Federal Register

as soon as this information is known. In addition, known interested parties will be contacted via mail, e-mail, or telephone. If you wish to be contacted regarding the public meetings, contact Mr. Michael Harmon, listed under

FOR FURTHER INFORMATION CONTACT

.

II. Abbreviations

ABS American Bureau of Shipping

ABSG American Bureau of Shipping Group

ABYC American Boat and Yacht Council

ACAPT Accredited for Commercial Assistance and Professional Towing

ACOE Army Corps of Engineers

ACP Alternate Compliance Program

AED Automatic External Defibrillator

ANSI American National Standards Institute

AWO American Waterways Operators

CEMS Crew Endurance Management System

CGMTA 2004 The Coast Guard and Maritime Transportation Act of 2004

COI Certificate of Inspection

COLREGS International Regulations for Prevention of Collisions at Sea

COTP Captain of the Port

DHS  Department of Homeland Security

DOD Department of Defense

DOT Department of Transportation

EPIRB Emergency Position Indicating Radio Beacon

FAST Fatigue Avoidance Scheduling Tool

FMCSA Federal Motor Carrier Safety Administration

FR

Federal Register

FRA Federal Railroad Administration

GAO Government Accountability Office

gpm Gallons Per Minute

IMO International Maritime Organization

ISM International Safety Management

ISO International Organization for Standardization

kPa Kilopascals

LBP Length Between Perpendiculars

LCG Longitudinal Center of Gravity

LORAN Long Range Aid to Navigation

LPM Liters Per Minute

MMC Merchant Mariner Credential

MOU Memorandum of Understanding

MSHA Mine Safety and Health Administration

MTSA Maritime Transportation Security Act of 2002

NARA National Archives and Records Administration

NEC National Electric Code

NFPA National Fire Protection Association

NIOSH National Institute for Occupational Safety and Health

NPRM Notice of Proposed Rulemaking

NTSB National Transportation Safety Board

OCMI Officer in Charge, Marine Inspection

OIRA Office of Information and Regulatory Affairs

OMB Office of Management and Budget

PA Public-Address

PE Professional Engineer

PPE Personal Protective Equipment

psi pounds per square inch

§  Section

SAE Society of Automotive Engineers

SIR and SIRE Ship Inspection Report

SOLAS International Convention for the Safety of Life at Sea, 1974

TSAC Towing Safety Advisory Committee

TSMS Towing Safety Management System

TVR Towing Vessel Record

UL Underwriters Laboratories Standard

U.S.C. United States Code

UWILD Underwater Inspection in Lieu of Dry Docking

VCG Vertical Center of Gravity

VHF-FM Very High Frequency-Frequency Modulated

VTS Vessel Traffic Service

WSE Water Surface Elevations

III. Background

A. Statutory History

The Coast Guard and Maritime Transportation Act of 2004 (CGMTA 2004), Public Law 108-293, 118 Stat. 1028, (Aug. 9, 2004), established new authorities for towing vessels as follows:

Section 415 added towing vessels, as defined in section 2101 of title 46, United States Code (U.S.C.), as a class of vessels that are subject to safety inspections under chapter 33 of that title (

Id.

at 1047).

Section 415 also added new section 3306(j) of title 46, authorizing the Secretary of Homeland Security to establish, by regulation, a safety management system appropriate for the characteristics, methods of operation, and nature of service of towing vessels (

Id.

).

Section 409 added new section 8904(c) of title 46, U.S.C., authorizing the Secretary to establish, by regulation, “maximum hours of service (including recording and recordkeeping of that service) of individuals engaged on a towing vessel that is at least 26 feet in length measured from end to end over the deck (excluding the sheer).” (

Id.

at 1044-45).

The House of Representatives published a Conference Report discussing these provisions, and in particular noted the Coast Guard's broad authority to regulate not just maximum hours of service but also provide predictable work and rest schedules, while considering circadian rhythms and human sleep and rest requirements. H.R. Conf. Rep. 108-617, 2004 U.S.C.C.A.N. 936, 951.

B. Regulatory History

On December 30, 2004, the Coast Guard published a Notice; request for comments, and notice of public meetings titled “Inspection of Towing Vessels” in the

Federal Register

(69 FR 78471). The notice asked seven questions regarding how the Coast Guard should move forward with the rulemaking to implement the statutory provisions from the CGMTA 2004, listed

above in section III.A. “Statutory History.” The Coast Guard then held four public meetings, one each in Washington, DC, Oakland, CA, New Orleans, LA, and St. Louis, MO. In addition to the comments the Coast Guard received at the public meetings, there were 117 comments submitted to the docket, which can be found in docket [USCG-2004-19977] at

http://www.regulations.gov/search/index.jsp.

A majority of the comments answered the seven questions; however, some brought up issues outside the scope of the questions. These seven questions, as well as the summary of the comments that the Coast Guard received in response, can be found below in section IV.K. “Discussion of Comments.”

C. American Bureau of Shipping Group (ABSG) Consulting Uninspected Towing Vessel Industry Analysis Report (ABSG Report)

The Coast Guard contracted with American Bureau of Shipping Group (ABSG) Consulting in the summer of 2006 for assistance with gathering data and categorizing the vessels that make up the towing industry. The 1-year effort included an analysis of casualty data, evaluating towing vessel accident history data from 1994 to 2003. ABSG evaluated the effects of the current policy (having no formal Coast Guard inspection program) on the various categories of towing vessels, and forecasted the effects Coast Guard inspections might have for the same vessels. This included preliminary costs of known regulatory alternatives.

To complete the ABSG Report, ABSG and Coast Guard personnel conducted visits to various towing companies, met with company officials and mariners, boarded towing vessels, and reviewed existing safety management systems. The companies visited varied in size and industry segment and included those operating on the West, Gulf, and Atlantic coasts, and along the Western Rivers. The final report was used to draft portions of the proposal published in this document. The final ABSG Report is available in the docket for this NPRM, and can be found by following the instructions listed above in section I.B. “Viewing comments and documents.”

D. Towing Safety Advisory Committee (TSAC)

In the fall of 2004, the Coast Guard requested that the Towing Safety Advisory Committee (TSAC) assist in developing an inspection regimen for towing vessels. The TSAC is a Federal advisory committee to the Coast Guard that represents the towing and barge industry, with members from the mineral and oil supply vessel industry, port districts, authorities and terminal operators, maritime labor, shippers, and the general public. TSAC members come from large towing companies as well as the small business towing community, and represent a wide cross section of viewpoints from the industry.

TSAC established a working group that consisted of individuals from across the industry. Since 2004, nearly 200 individuals contributed to the deliberations of this working group, which were compiled into four reports, all of which were approved by the TSAC. The Coast Guard carefully reviewed each report, drafted concept documents, and submitted notional regulatory language for review with TSAC. Each submission of the Coast Guard's concepts and TSAC's subsequent reports prompted revisions that allowed the concepts to evolve to form the basis of the proposals published in this document. Each TSAC report is available in the docket for this NPRM, and can be found by following the instructions listed above in section I.B. “Viewing comments and documents.”

While this process lengthened the overall time it took to complete this NPRM, it enabled the Coast Guard to achieve specific goals. First, the process allowed the Coast Guard to review ideas from industry representatives and discuss their issues and concerns. Furthermore, it allowed the towing industry to participate in the rulemaking process from the initial planning stages, as opposed to waiting until after the publication of an NPRM. This process also helped the Coast Guard create a comprehensive set of rules that the Coast Guard believes will ensure greater safety within the industry and that better represent the industry's uniqueness.

IV. Discussion of Proposed Rule

A. Summary

The Coast Guard proposes to establish a comprehensive safety system that includes company compliance, vessel compliance, vessel standards, and oversight in a new Code of Federal Regulations subchapter dedicated to towing vessels.

At the management level, organizations that operate towing vessels subject to inspection would be required to select a compliance option for the managed fleet. Those compliance options are a Safety Management System, including the development and implementation of that system, or an alternative annual Coast Guard inspection regime, leaving those vessels or fleets subject to an annual Coast Guard inspection. The safety management system would describe procedures for ensuring how its vessels and employees would comply with all applicable requirements prescribed in this subchapter. Management would tailor its safety management system to take into consideration its size, organizational structure, and vessel types and services. Towing Safety Management System (TSMS) compliance would be verified through audits and surveys conducted by third-party organizations approved by the Coast Guard and would be documented by the issuance of a TSMS Certificate.

At the vessel level, towing vessels operating under the TSMS option would receive audits and surveys by the approved third-party organizations, at a frequency delineated in part 138. In addition, the Coast Guard would conduct compliance examinations at least once every 5 years, along with additional random compliance checks based on risk. That risk would be determined through analysis of management and vessel safety histories. Certificates of Inspection (COIs) would be issued by the Coast Guard to vessels based on evidence of a vessel's successful compliance with the subchapter.

The Coast Guard would provide direct oversight of the third-party organizations that conduct TSMS audits and surveys, through approval and observation. This would include review and approval of the organization's application to become an approved third party, as well as review of the individual auditors and surveyors they employ. Random visits to their offices and direct observation of their activities would also be used. The Coast Guard would be able to consider an organization's history when evaluating requests for renewal of their status as an approved third party every 5 years and would also have the authority to revoke approval for failure to comply with conditions of approval and applicable standards.

Overall, this proposal would allow each towing vessel organization to customize its approach to meeting the requirements of the regulations, while providing continuous oversight using audits, surveys, inspections, and reviews of safety data. This would improve the safety of towing vessels and provide a more efficient means to use the resources of towing vessel operators, safety professionals in the approved third-party organizations, and the Coast Guard.

The Coast Guard understands that the majority of towing vessel accidents are related to human factors. We are proposing to address human factors in several ways. First, we propose to require that towing vessels be operated pursuant to a safety management system or be subject to an alternative, annual Coast Guard inspection regime. Second, we propose the establishment of new requirements directed at crew and vessel operational safety standards. As indicated below, in section IV.L. of the preamble, we are considering including hours of service standards and crew endurance management requirements but are not proposing such requirements at this time.

Equipment failures also contribute to towing accidents. We would address these non-human factors casualties by establishing vessel equipment and system standards appropriate for towing vessels, and by establishing procedures and schedules for routine tests and inspections of the vessels and their onboard equipment and systems.

In the remainder of this section (IV.), we summarize some of the significant portions of the NPRM, including the proposed applicability of the NPRM, the safety management system, the use of third parties, and the machinery and electrical provisions. After those summaries, we have broken down the proposed regulation in a part-by-part summary. We have included brief discussions on the topics of user fees and manning, as the NPRM contains changes to those already existing provisions in our regulations. Lastly, we have included a discussion of the comments we received in response to our December 30, 2004 request for comments (69 FR 78471).

B. Applicability

Congress did not expressly provide the Coast Guard with the authority to exempt from inspection any subset of vessels that perform towing (46 U.S.C. 3301(15)). However, Congress intended that the Coast Guard prescribe different standards for the various types of towing vessels based on size, horsepower, type of operation, or area of operation (H.R. Conf. Rep. 108-617, 2004 U.S.C.C.A.N. 936, 953), including requiring safety management systems appropriate for the characteristics, methods of operation, and nature of service of towing vessels.

See

46 U.S.C. 3306(j).

After consulting with towing vessel industry representatives and analyzing data, the Coast Guard believes that focusing our initial efforts on inspecting those towing vessels moving commercial barges, especially those towing oil or other dangerous and combustible cargoes, and/or providing harbor assist services to large commercial ships, is reasonable because the preponderance of casualties reviewed by the Coast Guard involved these vessels, and the potential for casualties that cause permanent injury or death to humans, economic impact to the maritime transportation sector, and/or environmental damage is greatest due to the nature of their service. Therefore, the Coast Guard proposes that this rule not apply to: Towing vessels less than 26 feet in length, unless towing a barge carrying oil or other dangerous or combustible cargo in bulk; workboats that do not engage in commercial towing for hire, but may intermittently move a piece of equipment within a work site such as a dredging or construction site; and towing vessels performing assistance towing as currently defined in 46 CFR 10.107. Regulations covering these towing vessels would be proposed in a future regulatory project. The Coast Guard believes that staggering implementation of inspection requirements for towing vessels in this way allows us to focus our initial regulatory efforts on the characteristics that the groups have in common and the risks, noted above, that can lead to marine casualties.

Also, the proposed regulations for 46 CFR subchapter M, consisting of parts 136 through 144, would not apply to seagoing towing vessels of over 300 gross tons, as they are already subject to inspection as seagoing motor vessels under 46 CFR subchapter I. In 46 CFR 90.05-1 for subchapter I, and in other 46 CFR subchapters with a table that identifies what subchapter a vessel is inspected under, the Coast Guard will conform the table to reflect the change in towing vessels moving from an uninspected vessel class to a class of vessel inspected under 46 CFR subchapter M.

C. Towing Safety Management System (TSMS)

In this NPRM, the Coast Guard proposes to require towing vessels subject to this rulemaking to be part of a safety management system or be subject to an alternative, annual Coast Guard inspection regime. For the purposes of this proposed rule, a safety management system for towing vessels will be a Towing Safety Management System (TSMS). The objectives of a TSMS are to ensure the safety of the vessel and crew, prevent human injury or loss of life, avoid environmental and property damage, and ensure continuous compliance with applicable regulations. To accomplish these objectives, a TSMS would require management, in this case an owner or managing operator of a towing vessel, to implement safety management practices for both their shoreside management and vessel operations.

Congress provided authority to the Coast Guard to establish a safety management system appropriate for the characteristics, methods of operation, and nature of service of towing vessels (46 U.S.C. 3306(j)) and in section 701(c) of the Coast Guard Authorization Act of 2010 (Pub. L. 111-281), it directed the issuance of an NPRM based on that authority. The National Transportation Safety Board recommended establishing a safety management system appropriate for towing vessels (NTSB Safety Recommendation M-07-6). Furthermore, in its September 7, 2006 report on Towing Vessel Inspection, the Towing Safety Advisory Committee Working Group stated that a requirement for a safety management system should be “* * * the cornerstone of the new inspection regime for towing vessels * * *” (A copy of this document may be found in the docket for this rulemaking. Instructions for accessing the docket are found in section I.B. “Viewing comments and documents.”)

The ABSG report, discussed in section III.C, recommended alternative inspection approaches for some companies stating, in part, that “* * * a safety management system may not [be] a very cost-effective way to achieve safer operations, * * *” and suggested a more traditional inspected vessel option be considered. In addition, pages 2-8 of the ABSG report stated “* * * the industry personnel were clear that effective implementation of a safety management system was a very difficult task for a company that had not previously been highly structured and had not formally documented its policies and procedures.” Also, page 21 of the TSAC Economic Working Group report stated “[A SMS] will likely have a larger and more devastating impact on smaller companies who do not have the economic means, manpower, or even time to implement a system.”

However, considering the strong recommendations of both the NTSB and TSAC, and considering that towing vessels operate within the same areas as other vessels, many of which also use a safety management system, sharing busy waterways and overworked infrastructure, interacting within the supply chain and marine transportation system, and at times, sharing crewmembers, it is appropriate to propose that all towing vessels subject to this rulemaking have the option of

operating within a company-implemented TSMS.

All towing companies, whether they are aware of it or not, already operate under some form of management-implemented policies and procedures, often developed over time and passed on through on-the-job training. A TSMS collates these policies and procedures into an organized, reviewable document, where procedures become uniform and consistent. This provides a company with the ability to review and discuss their procedures internally, uniformly adjust them as necessary, and enables auditors to verify that all vessels and employees within the company follow written protocol. These reviews establish a means to identify weaknesses in those policies and procedures, as well as provide a benchmark for continual improvement.

A company can describe safe work practices and thus lay out specific procedures for its crewmembers and shoreside personnel that will most likely ensure safe operations and proper maintenance procedures and actions.

By establishing policies and procedures, the criteria for all to follow are clear, so personnel know what would be expected, and training can be consistent, measurable, and repeatable. Actions necessary to document the performance of specific tasks can be implemented and verified through audits. This leads to confidence on the part of regulators, charterers, employees, managers, and others that the company and its vessels operate within a safety system and comply with regulatory requirements. This also provides an important tool for managing the operations of a company.

The Coast Guard believes that through the process of pulling together and formalizing a towing company's operating procedures and implementing a process of ensuring that all of its employees follow the established procedures, the risk of harm to people, property, and the environment will be reduced. As proposed in this NPRM, a TSMS would provide instructions and procedures for the safe operation of the vessel, document authorities, detail reporting requirements, establish quality procedures, and establish and document internal and external auditing. The elements that would be required in an acceptable TSMS are included in the proposed regulatory text.

The complexity of the TSMS would be based upon the number of vessels, type of operation, area of operation, and the nature of the risk associated with the towing operations covered by the TSMS. The Coast Guard understands that full compliance with an elaborate TSMS designed for large operations may be impractical for owners or managing operators with small operations. In these cases, the Coast Guard, through a third party, may approve a significantly scaled down TSMS that is tailored to the operation.

Some owners or managing operators already comply with the International Safety Management (ISM) Code due to the nature of their service. The ISM Code is an internationally mandated safety management system for vessels subject to the International Convention for the Safety of Life at Sea, 1974, as amended (SOLAS). The U.S. regulations that implement the ISM Code may be found in 33 CFR part 96. The Coast Guard is proposing to accept compliance with the ISM Code as an equivalent to the TSMS requirements. In many cases, towing vessels that engage in foreign (international) voyages are required to use the ISM Code. As a result, these vessels should not have to use two separate safety management systems, one exclusively for domestic operation and one for foreign voyages at additional cost. The ISM Code can and does work for these vessels, regardless of where they are operating. The Coast Guard believes that the processes and procedures in place for compliance with the ISM Code will ensure that towing vessels comply with proposed Subchapter M, including the elements of the TSMS.

The Coast Guard considered proposing that all towing vessels comply with 33 CFR part 96, Rules for the Safe Operation of Vessels and Safety Management Systems, in lieu of developing the TSMS. However, through consultation with TSAC, it was determined that development of a safety management system specifically for U.S. towing vessels is appropriate. Most U.S. towing vessels operate on inland waters of the U.S. or on coastwise domestic voyages. The proposed TSMS was developed as an integral part of the subchapter and tailored to these U.S. domestic towing vessel operations. The Coast Guard believes that the opportunity to use this tailored system and related procedures is appropriate for this group of vessels. However, the ISM Code requires compliance with mandatory rules and regulations, including relevant national and international regulations, standards, codes, and maritime industry guidelines that are appropriate for towing vessels operating on international voyages. Therefore the Coast Guard believes that companies following the ISM Code will achieve compliance with the proposed Subchapter M without having to implement another safety management system.

Auditing would play an integral part in the proposed TSMS. Audits would ensure that a TSMS functions as designed. A properly designed TSMS, as proposed, would incorporate both internal and external audits to ensure a constantly functioning system that both identifies and corrects problems before they lead to casualties. Companies that comply with the ISM Code should already incorporate both internal and external audits, with the latter performed by recognized classification societies.

The Coast Guard intends to broaden the available pool of auditors to include organizations that meet prescribed standards, which would include professional qualifications, formal training, past experience, and membership in organizations that oversee quality systems, or any combination thereof. Further discussion about third parties is contained below in section IV.D. “Third Parties.”

The Coast Guard is proposing that third parties be external of the towing organization to be audited to provide independent review. Prospective auditors that are not “recognized classification societies” under 46 CFR part 8 would be required to apply to the Coast Guard for approval and be placed on a list of similarly qualified organizations. The list would be made available to towing vessel owners and managing operators.

The Coast Guard has proposed a traditional inspection scheme as one option for towing vessels. This option includes scheduled annual/periodic inspections by Coast Guard marine inspectors. The other option the Coast Guard has proposed is to establish a TSMS regime that would create new and different requirements and procedures. A TSMS would require detailed processes, procedures, recordkeeping, and auditing. It would also provide methods to document compliance with the TSMS, which may include logbooks, non-conformity reports, and/or reports of audits. It is through this documentation that the vessel owner or operator is able to demonstrate compliance.

The Coast Guard is seeking comments on the costs and benefits of the SMS requirement. We are particularly interested in these topics:

(1) Additional compliance options, in addition to the proposed TSMS and Coast Guard inspection regime, that could provide similar benefits at a lower cost;

(2) Flexibilities to the proposed SMS requirements that could provide relief to

small entities while providing similar benefits;

(3) The economic impact on small entities if implementing an SMS became a requirement rather than an option; and

(4) Modifications that could reduce the paperwork and recordkeeping requirements contained in the SMS requirements.

D. Third Parties

The Coast Guard proposes to establish approval procedures for third-party TSMS auditors and surveyors, to carry out routine compliance activities under Coast Guard oversight. The Coast Guard believes that using third parties to carry out compliance activities provides the maximum flexibility in that it reduces vessel downtime, provides greater flexibility in scheduling inspections, and provides greater flexibility in meeting required standards. Using third parties to oversee routine compliance activities would also provide the Coast Guard with more flexibility to apply its resources when and where they are needed most. Third-party auditors would review and approve the TSMS and ensure that it complies with the proposed requirements. Third-party auditors would also conduct required external audits of a TSMS to verify that the system functions as intended. In instances when the regulations require the use of a surveyor, an approved third-party surveyor would be required, providing independent technical expertise to examine the vessel, its systems, and equipment.

Prospective organizations that seek approval as a third party would be required to submit an application to the Coast Guard. Approved third parties would be placed on a publicly-available list maintained by the Coast Guard that would state their qualifications as a surveyor, auditor, or both. Third parties would be subject to rigorous Coast Guard oversight to ensure their reports and other documentation are reliable and the approval would be subject to renewal every 5 years. The Coast Guard would also have the authority to suspend or revoke approval of third-party organizations that do not comply with the proposed standards.

Some companies already employ classification societies. Classification societies have significant expertise with both auditing safety management systems and surveying vessels. The Coast Guard proposes to permit classification societies recognized under 46 CFR part 8 to conduct the audits and surveys required by proposed subchapter M, without further approval.

The Coast Guard also proposes to rely on registered Professional Engineers (P.E.s) to verify compliance with construction and arrangement standards as described in proposed part 144.

The Coast Guard has the authority to rely on third parties in the manner proposed in this NPRM under 46 U.S.C. 3103, which provides authority to the Coast Guard to rely on reports, documents, and records of other persons determined to be reliable, as evidence of compliance with Subtitle II of title 46 of the U.S. Code. In the legislative reports associated with this statute, Congress provided clear guidance on entities they felt could comprise the “other persons” mentioned in the statute. These “other persons” include surveyors, professional engineering societies, marine chemists, shipyards, the National Cargo Bureau and “other persons that the Secretary believes may be relied upon to professionally inspect or review a vessel to ensure compliance” with vessel inspection laws (S. Report 104-160, 1996 U.S.C.C.A.N. 4239, 4269). Title 46 U.S.C. 3308 also provides authority to rely on third-party inspectors by stating that the Secretary shall examine “or have examined” vessels subject to inspection. This allows the Coast Guard to use reports and other records as evidence of compliance with vessel inspection requirements.

The Coast Guard has a long history of relying on third parties to perform inspection and survey functions on its behalf. In some cases, these third parties are classification societies that are “recognized” by the Coast Guard to carry out certain functions. Authority to permit these recognized classification societies to conduct activities is provided by statute (46 U.S.C. 3316) and regulations (46 CFR part 8). These recognized classification societies are instrumental in conducting vessel inspection activities as part of the Alternate Compliance Program (ACP) (46 CFR part 8, subpart B). Examples where the Coast Guard relies on third parties are when the American Bureau of Shipping (ABS) conducts load line surveys (46 CFR part 42), tonnage measurements (46 CFR part 69), and issues international convention certificates (46 CFR part 8, subpart C).

The Coast Guard's use of third parties has not been confined to recognized classification societies. The Coast Guard uses surveyors and P.E.s by adopting a third-party standard through incorporation by reference, such as the Underwriters Laboratories (UL) standard for fire extinguishers (46 CFR 162.028-5). The Coast Guard also uses surveyors or similar entities as “accepted organizations” (46 CFR 28.73) and “similarly qualified organizations” (46 CFR 28.76) to conduct examinations of commercial fishing vessels (46 CFR 28.76). Finally, third parties play an important role as “designated examiners” who qualify personnel who can operate towing vessels (46 CFR subchapter B). “Designated examiners” are not employed by the Coast Guard but are trained or instructed to assess and evaluate candidates for a license or license endorsement on behalf of the Coast Guard.

In each of these cases, incorporating third parties into the inspection process has expedited the process and allowed Coast Guard inspection resources to be reinvested. The Coast Guard expects that the use of third parties proposed in this NPRM would provide the Coast Guard with more flexibility in applying its resources when and where they are needed most.

E. Machinery & Electrical (Proposed Part 143)

While developing 46 CFR part 143, the Coast Guard considered the reports provided by ABSG Consulting and TSAC, discussed in sections III.C. and III.D., respectively, earlier in this preamble. These reports were generated by selecting sample marine casualty cases, identifying their main causes, and summarily grouping them into broad categories based on those causes. The reports also proposed a subchapter outline that highlighted general areas on which to focus. For each area pertaining to machinery and electrical systems, the Coast Guard conducted a more in-depth analysis. This included a detailed review of every casualty used in the ABSG Consulting and TSAC reports. For each casualty, the Coast Guard identified both the specific cause included within the broad report category as well as subsequent and contributory causes. When review of the cases was complete, regulations were developed to prevent or mitigate these causes and patterns, with emphasis placed on high risk causes that take into account both consequence and frequency of occurrence. The casualty reports used to conduct this review are all located in the docket for this rulemaking, where listed above in section I.B. “Viewing comments and documents.”

In most areas, the Coast Guard followed the recommendations in the TSAC report; accepting American Bureau of Shipping (ABS) Rules as the default standard for new towing vessels, and following the TSAC proposed subchapter outline for existing towing vessels. ABS rules provide the towing industry with a comprehensive set of standards appropriate to towing vessels

that are widely accepted and already in use by many towing companies.

However, the Coast Guard's in-depth analysis uncovered three areas where the Coast Guard believes additional standards are required for existing towing vessels beyond what is outlined in these reports. These areas are: (1) Propulsion, steering and related controls reliability, (2) electrical installations, and (3) a pilothouse alerter system. This section addresses these three areas only; the remaining requirements from proposed part 143 are straightforward and may be found in the proposed regulatory text.

1.

Propulsion, steering and related controls reliability.

The intent of proposed subpart D of part 143 is to eliminate the possibility of a single equipment failure leaving the operator with no control of the tow. This would be accomplished by requiring these inspected towing vessels to have alternative methods of maintaining propulsion, steering, and related controls. These methods are to be independent, so that failure of one does not affect another.

When developing proposed subpart D of part 143, the Coast Guard also created proposed regulations that address concerns expressed in comments received in response to its December 2004 Notice and Request for Comments, discussed below in section IV.K. “Discussion of Comments.” (69 FR 78471). Many commenters supported exemptions for certain vessel types, expressed concern about requiring existing towing vessels to be modified, and supported tying regulations to high risk areas. As noted earlier in section IV.B. “Applicability”, the Coast Guard is proposing to limit the applicability of these proposed rules and address additional types of towing vessels in a later rulemaking effort. We are also proposing to provide an additional 5-year compliance period for affected tow vessels, and proposing to further limit the bulk of the propulsion and steering reliability requirements to long distance oil and hazardous materials tows that we believe present the highest risk of damage to the environment. Additionally, because the requirements would apply to some existing towing vessels, the Coast Guard proposes to provide an additional compliance period of 5 years after the date a vessel obtains its COI to comply, which will result in a gradual phase-in to full compliance between 7 and 11 years after the date of publication of the final rule. This compliance period is discussed in more detail below in Section IV.G. “Compliance.”

Requiring alternative, independent methods of maintaining propulsion, steering, and related control is not a new concept for vessels transporting significant amounts of cargo. The Coast Guard requires alternative, independent steering on cargo ships (including oil tankers), with more robust requirements for oil tankers. Cargo ships are also required to have either alternate, independent methods of propulsion or alternate, independent vital auxiliaries critical to propulsion. Additionally, when cargo ships' engine rooms are minimally or periodically unattended—almost universally the case on towing vessels—alternate, independent propulsion and steering control methods are required. Classification societies also require alternative, independent methods of maintaining propulsion, steering, and related control; the ABS rules referred to in proposed § 143.435 are an example of this.

The Coast Guard notes Congressional interest in harmonizing requirements for oil tankers and vessels towing oil and hazardous materials in bulk. The Senate version of the Coast Guard Authorization Act for Fiscal Year 2008 (S. 1892), Section 702(a)(2), states: “In promulgating regulations for towing vessels under chapter 33 of title 46, United States Code, the Secretary of the Department in which the Coast Guard is operating shall consider the possible application of standards that, as of the date of enactment of this Act, apply to self-propelled tank vessels, and any modifications that may be necessary for application to towing vessels due to ship design, safety, and other relevant factors.” The proposed rule meets this requirement, by, in part, requiring alternative, independent methods of maintaining propulsion, steering, and related control similar to those required of self-propelled tank vessels.

As mentioned earlier, the Coast Guard considered the casualty data contained in the TSAC and ABSG reports when developing proposed subpart D. In its report, TSAC stated that equipment failures accounted for 31 percent of the medium and high severity incidents and about 45 percent of the low severity incidents. Failures in the propulsion or steering accounted for 30 percent of the medium and high severity incidents involving equipment. This tells us that a significant number of medium and high severity towing vessel incidents—roughly 1 in 10—are due to failures in propulsion, steering, and/or related controls. However, this only gives a partial picture.

When considering the risk posed by a particular type of casualty one has to consider low severity incidents as well, because risk includes not only the consequence of a single type of casualty but also the frequency,

i.e.

how often that type of casualty occurs. For example, TSAC reported that human factors accounted for 54 percent of the medium and high severity incidents and about 40 percent of the low severity incidents. If one only considers medium and high severity incidents, human factors account for 23 percent more towing vessel incidents than equipment failures. If one only considers low severity incidents, equipment failures account for 5 percent more towing vessel incidents than human factors. If one considers all incidents regardless of severity, equipment failures account for 2 percent more incidents than human factors because low consequence incidents occur eight times more often than medium and high severity incidents.

Unfortunately, because the TSAC report did not give statistics on the causes of the low consequence incidents, one is not able to determine from the report the relative percentage of all incidents caused by failures of propulsion, steering, and related controls. However, the ABSG report gives statistics on both high and low consequence incidents. That report categorized roughly 1 percent of towing vessel incidents as high consequence and 99 percent as low consequence and stated that 23 percent of high consequence incidents and 40 percent of low consequence incidents were due to equipment failures. Failures in propulsion, steering, or related controls accounted for 20 percent of the high consequence and 87 percent of the low consequence incidents involving equipment failures. This indicates that roughly 35 percent of all towing vessel incidents are caused by failures of propulsion, steering, or related controls.

When developing proposed subpart D, the Coast Guard considered the impact on industry. A potentially significant impact involves making redundant systems already installed on existing towing vessels “independent,” as defined in proposed § 136.110. The Coast Guard notes that a large majority of vessels subject to these regulations are already equipped with redundant systems; the cost to make these redundant systems independent is both reasonable and justified. For example, the Inland River Record, published annually by the Waterways Journal, indicates about 90 percent of inland vessels have two or more propulsion engines and shafts. (A copy of this document has been placed in the docket for this rulemaking, where listed above

in section I.B. “Viewing comments and documents.”) The majority of the remaining 10 percent, listed in the Inland River Record as having a single shaft, are vessels not included in the applicability of this NPRM. Currently, vessels with two or more propulsion engines and shafts may have some or all of their fuel, oil, and cooling water piping/pumps or controls (air, mechanical, electrical) common to multiple engines. In order to comply with proposed § 143.410, some vessels may require modification to provide duplicate, independent components to achieve system independence. Other common examples of modifications to make redundant systems independent include separate electronic control circuitry on generators and separate sumps for steering gear hydraulic fluid. As many of the towing vessels currently comply with aspects of the proposed sections, modifications are not expected to require a major overhaul of the vessel. Costs to make modifications are discussed in the separate regulatory assessment for this NPRM, but the Coast Guard proposes to minimize costs by allowing owners and operators up to additional 5 years to bring their vessels into compliance with this requirement, to provide sufficient time to plan for and incorporate these modifications into the vessel's scheduled maintenance period.

2.

Electrical installations.

The Electrical installation requirements are in proposed §§ 143.305 and 143.340-143.360 of subparts B and C of part 143. These sections would require towing vessels to meet specific standards for electrical installations and provide a deferment period for existing towing vessels. The Coast Guard believes that poorly wired and insufficiently maintained electrical systems pose sufficient risk to justify establishing the proposed electrical requirements.

When developing these sections, the Coast Guard consulted the ABSG Consulting and TSAC reports. These reports recommended that electrical installations on existing towing vessels be suitable for the purpose intended and maintained in good operating condition. The Coast Guard agreed with the recommendations and incorporated specific standards dealing with wiring methods, overcurrent protection, electrical connections, grounding, and ground detection into the proposed rule.

The TSAC report stated that 4 percent of high consequence incidents involved electrical failures, but was silent on low consequence incidents. The ABSG report did not have an electrical category. The lack of discussion on electrical incidents in these reports is not unexpected because the reports focused on the primary cause of an incident, not contributory ones.

However, the Coast Guard conducted its own in-depth analysis of the cases reviewed for the ABSG report, along with deficiency reports from examinations of towing vessels during compliance exams, conducted pursuant to 33 CFR part 104 as part of the implementation of the Maritime Transportation Security Act of 2002 (MTSA) (46 U.S.C. chapter 701). These reports provided anecdotal evidence that poor electrical installation and maintenance is a concern on towing vessels. From January 2006 through August 2008, the Coast Guard conducted 768 of these MTSA compliance examinations and issued 2949 deficiencies. Electrical deficiencies involving poor installation and maintenance accounted for 8 percent (226) of the deficiencies. This 8 percent deficiency rate highlights the need to establish more specific standards for electrical installations on towing vessels.

During its in-depth analysis of the ABSG report, the Coast Guard noted several instances where an electrical failure was either the primary cause or a contributory factor even though the report listed some other cause. For example, a significant number of incidents categorized as propulsion, steering, or generator failures were caused by an electrical problem that eliminated the operator's ability to maneuver the tow. Additionally, many cases were attributed to corrosion induced hull failure; however, the improper grounding of electrical systems, which is known to contribute to corrosion induced hull failure, was not investigated.

When developing proposed §§ 143.305 and 143.340-143.360, the Coast Guard sought to create regulations that address concerns noted in comments received on its December 2004 Notice and request for comments, discussed below in Section IV.K. “Discussion of Comments.” In response to these comments, the Coast Guard proposes to limit the applicability of §§ 143.340-143.360, opting to cover towing vessels of limited route or service in a later regulation. We also propose providing a longer compliance period for these requirements, providing for a deadline of 5 years from the date of the issuance of the initial Certificate of Inspection. The Coast Guard minimized prescriptive material requirements, such as UL listed cable or circuit breakers, which would require expensive replacements and thus increase the cost to tow vessel owners and operators. The most significant material requirement proposed in §§ 143.340-143.360 is found in proposed § 143.340(a)(3) and (b)(9). It would require two sources of power for certain critical systems typically reliant on electrical power such as navigation equipment, radios, and emergency lighting.

3.

Pilothouse alerter system.

Pilothouse alerter systems detect potential operator incapacitation and alert other crewmembers. A variety of methods are used to detect this, such as a lack of personnel movement or rudder commands for a specified interval. After detection, an alarm sounds in the pilothouse. If it is not acknowledged for a specific interval, another alarm alerts crewmembers in other areas of the vessel.

The pilothouse alerter system requirements are found in proposed § 143.325. The Coast Guard considered the NTSB report of the Robert Y. Love allision with the I-40 Bridge, which killed 14 people and caused more than $60 million in bridge damage. (A copy of this report has been placed in the docket for this rulemaking, where listed above in section I.B. “Viewing comments and documents.”) The report stated that the master became incapacitated by a medical condition 4 minutes before the bridge allision, and listed a pilothouse alerter as an appropriate preventative measure (

See

Report at 63).

The Coast Guard reviewed its data from 1993 to 2003 for related incidents, and uncovered eight incidents where the operator died while navigating the vessel. Other cases also indicated probable incapacitation of the operator. Towing vessels often operate with large tows in congested or confined waterways and near critical infrastructure such as bridges, often with only the operator in the pilothouse. A towing vessel and its tow, out of control because the only operator becomes incapacitated, is capable of doing significant damage to bridges, other vessels, or shoreside facilities; it may also run aground and lose cargo or obstruct the waterway. Even in open water an out-of-control tug risks a grounding or collision. Therefore, the Coast Guard is proposing a requirement for a pilothouse alerter system with the exception that it is not necessary if a second person is provided in the pilothouse.

F. Functional Requirements

The Coast Guard is providing an alternate format in two of the parts included in proposed subchapter M: Lifesaving (proposed part 141) and

Machinery and Electrical (proposed part 143). This format includes the use of functional requirements in appropriate sections. Functional requirements indicate what the section is trying to achieve in the most non-prescriptive manner possible; they provide performance standards stating what to do, and not how to do it. Where appropriate, each regulation section also contains a prescriptive option that does not need to be followed, but following it guarantees compliance with the section. This prescriptive option represents one way to comply with the functional requirements (performance standard) in the section; industry is free to propose alternative methods of compliance to a cognizant Officer in Charge, Marine Inspection (OCMI) or an approved third party. We are specifically seeking comments on whether this format is preferred to the more traditional formats, found in the other parts of proposed subchapter M.

G. Compliance

We are proposing a compliance scheme that we believe would provide adequate time for industry to develop their TSMS, implement it on their vessels, and obtain COIs and spread out the cost of doing so over several years. Owners and managing operators who selected the TSMS option would have 2 years from the effective date of a final rule to create their TSMS, have a third party approve their TSMS, and have a third party issue their TSMS Certificate. They would have 4 years from the date of that TSMS Certificate to bring all vessels under their ownership or management into the TSMS and obtain Certificates of Inspection. We are proposing a requirement that owners and managing operators bring 25 percent of their fleet into compliance in each one of those 4 years, so as to avoid a strain on Coast Guard and third-party resources at year four.

Owners and managing operators of towing vessels subject to Subchapter M requirements would need to select the annual Coast Guard inspection option 2 years from the effective date of a final rule, if they have not created a TSMS by that point. Towing vessels without a TSMS would be subject to the annual Coast Guard inspection regime 2 years from the effective date of the final rule. They would have 4 years from that date to obtain Certificates of Inspection for all vessels under their ownership or management. We are proposing that owners and managing operators bring 25 percent of their fleet into compliance in each one of those 4 years, to avoid straining Coast Guard resources and those of owners and managing operators.

The machinery and electrical requirements discussed above in Section IV.E., “Machinery and Electrical,” would have even longer compliance periods. We are proposing to allow for an additional 5-year period after the issuance of the first Certificate of Inspection (COI) to a vessel. This would allow the vessel owners or managing operators who choose the TSMS option to plan for compliance within their TSMS, and to work it into the regular scheduled maintenance periods for the vessel.

H. Part-by-Part Summary

In this section, we briefly outline the several parts that we propose to add as subchapter M. We have not detailed the proposals for each part; instead, we strove to draft regulatory text that is easily understandable. This section highlights the requirements that can be found in each part.

Part 136, “Certification,” outlines procedures and requirements for obtaining, amending, and renewing a COI, permits to proceed, and permits to carry an excursion party. Part 136 defines the terms used in the subchapter, and provides a description of vessels that are subject to these regulations. The applicability provisions discussed above in section IV.B. “Applicability” may be found in this part.

Part 137, “Vessel Compliance,” describes how to come into compliance with the requirements of Subchapter M, including how to conduct, and the frequency of, TSMS surveys and audits, including a summary of the items to be examined. It also outlines alternative methods for carrying out vessel compliance activities. It proposes the contents of required reports and the qualifications required for the various personnel who carry out compliance activities.

Part 138, “Towing Safety Management System (TSMS),” proposes requirements for towing vessels subject to inspection that select the TSMS option. Such vessels must be operated in compliance with a safety management system, to be known as the TSMS. This part describes the contents to be required of a TSMS, including management policies and procedures that serve as operational protocol. Also described are procedures related to the approval of a TSMS, internal and external audits of a TSMS, and documentation and oversight. The TSMS provisions discussed above in section IV.C. “Towing Safety Management Systems (TSMS)” may be found in this part.

Part 139, “Third-Party Organizations,” describes the qualifications and procedures for organizations that audit TSMSs and/or survey vessels. An organization seeking to perform audits and/or surveys would be required to submit an application to the Coast Guard for approval. Approvals would be valid for 5 years with procedures for renewal provided in this part. The Coast Guard would also review relevant information concerning individuals within the organization that would conduct the audits or surveys. Also described in this part are procedures relative to Coast Guard continuing oversight of third-party organizations. This includes procedures for suspension and revocation of approval. The third-party provisions discussed above in section IV.D. “Third-Party Organizations” may be found in this part.

Part 140, “Operations,” describes health, safety, and operational requirements for vessels and crewmembers serving onboard the vessels. This includes crewmember training and drills. This part would also establish recordkeeping requirements for towing vessels required to comply with subchapter M, requiring the recording of certain drills, training, and operational activities. Navigation and towing safety requirements are also described in this part. To develop this part, the Coast Guard considered the recommendations of the Towing Safety Advisory Committee, reviewed requirements that currently apply to uninspected towing vessels, and reviewed requirements for other types of inspected vessels.

Workplace safety and health requirements onboard uninspected towing vessels are enforced by the Occupational Safety and Health Administration (OSHA) (29 CFR parts 1910 and 1915). However, under a 1983 Memorandum of Understanding (MOU) between the Coast Guard and OSHA, once the Coast Guard prescribes regulations for a class of vessel that is subject to inspection under 46 U.S.C. 3301, OSHA will not enforce its standards against owners and operators of those vessels with respect to the working conditions of seamen. The Coast Guard believes that crewmember safety and health requirements aboard towing vessels should not be lost due to the change in status from uninspected to inspected vessels, and thus proposes safety and health standards that would apply on inspected towing vessels. To develop these standards, the Coast Guard reviewed the OSHA standards and considered adopting them whole cloth. We also considered the

recommendations contained in the reports provided by TSAC. The regulations proposed in this NPRM use elements of both. We believe they are appropriate for the nature and service of towing vessels. Workplace safety and health requirements may be found in subpart E of part 140.

Under provisions in §§ 136.170 and 136.203 of this proposed rule, there would be a number of years between the effective date of a final rule in this rulemaking and when a vessel subject to subchapter M would need to obtain a certificate of inspection. Note, however, that once a final rule becomes effective, the requirements in it would be enforced by the Coast Guard. As with these COI provisions, certain part 140 provisions as proposed would provide a period of time before compliance is required. While § 140.500 would provide 3 years after the effective date to implement a health and safety plan, compliance with the regulations on which that plan would be based—

e.g.,

using vessel equipment in accordance with the manufacturer's recommended practice and in a manner that minimizes risk of injury or death, and making appropriate personal protective equipment (PPE) available and on hand for all personnel engaged in an activity that requires the use of PPE—would be required as soon as the rule became effective. Once an inspection of towing vessels final rule became effective, vessels subject to it would become “inspected vessels” under the USCG-OSHA MOU, and Coast Guard regulations would apply. Note, however, that OSHA will continue to enforce its requirements on shipyard employers that perform shipyard employment subject to 29 CFR 1915 on inspected and uninspected vessels.

In proposed § 140.655, Prevention of oil and garbage pollution, we state that towing vessels must comply with 33 CFR parts 151, 155, and 156, as applicable. We request comments on whether we should require all towing vessels subject to Subchapter M to track oily waste disposal in the towing vessel's record book or limit recording requirements to existing requirements in 33 CFR parts 151 or 155 and to vessels subject to those parts.

Part 141, “Lifesaving,” describes requirements for lifesaving equipment, arrangements, systems, and procedures. Included in this section are readiness and testing requirements for lifesaving equipment on inspected towing vessels as well as minimum lifesaving requirements based on the route of the vessel. To arrive at these proposed standards, we considered the recommendations of the Towing Safety Advisory Committee and reviewed standards that apply to other types of inspected vessels in comparable operating areas and consulted with Coast Guard subject matter experts; and are proposing additional requirements that would provide lifesaving protections similar to other classes of inspected vessels.

Part 142, “Fire Protection,” describes the requirements for fire suppression and detection equipment and arrangements. This part would establish requirements for portable and fixed fire extinguishing equipment, and related inspection and testing requirements. It also proposes crewmember training and drills with the required fire protection equipment. The fire protection standards proposed in this part substantially retain fire protection regulations that currently apply to most towing vessels and are contained in Title 46 CFR Parts 25 and 27. To arrive at these proposed standards we considered the recommendations of the Towing Safety Advisory Committee, reviewed subchapters for other classes of inspected vessel, and consulted Coast Guard subject matter experts. In a separate rulemaking, entitled “Carbon Dioxide Fire Suppression Systems on Commercial Vessels” (RIN 1625-AB44), the Coast Guard has proposed new fire suppression standards for commercial vessels in general.

See

75 FR 8432, February 24, 2010. In § 142.235 of this Towing Vessels NPRM, which deals with fixed fire-extinguishing systems, we make reference to requirements in 46 CFR subpart 76.15. Please note that the Carbon Dioxide Fire Suppression NPRM proposes to revise subpart 76.15.

See

75 FR 8443. Also, please note that the Carbon Dioxide Fire Suppression NPRM would revise the definition of “fixed fire-extinguishing system” in 46 CFR 27.101.

See

75 FR at 8438.

Part 143, “Machinery and Electrical Systems and Equipment,” describes requirements for the design, installation, and operation of primary and auxiliary machinery and electrical systems and equipment on certain towing vessels. The machinery and electrical provisions discussed previously in section IV.E. “Machinery & Electrical” may be found in this part.

Part 144, “Construction and Arrangement,” describes the requirements for design, construction, and arrangement of towing vessels which would be inspected under subchapter M, including plan review and approval. The procedures for plan review are proposed, as are qualifications for persons conducting plan review. The part describes different requirements for existing towing vessels and new towing vessels and provides descriptions of requirements for subdivision and stability, visibility, and vessel arrangements related to crew safety such as rails, guards, and escapes. To arrive at these proposed standards, we considered the recommendations of the Towing Safety Advisory Committee, reviewed other subchapters, consulted with Coast Guard subject matter experts and reviewed current Coast Guard processes and procedures relative to vessel construction and arrangement; and are proposing requirements that are similar to other classes of inspected vessels.

I. User Fees

Under 46 U.S.C. 2110, the Coast Guard is required to charge vessel inspection user fees. The regulations contained in 46 CFR 2.10 prescribe procedures and fees for vessels required to have a Certificate of Inspection (COI). We intend to establish a user fee, as required by law, for those vessels required to comply with subchapter M; however we have not included a proposed fee in this NPRM. Once we have received comments on our proposal, and are closer to issuing a final rule, we will propose a user fee through an appropriate analysis of Coast Guard activities related to certification of towing vessels. The Coast Guard will not inspect towing vessels or issue COIs to towing vessels until user fees are established.

Currently, “sea-going towing vessel” is defined in 46 CFR part 2 as a “* * * sea-going commercial vessel engaged in or intending to engage in the service of pulling, pushing or hauling alongside * * *”. However, only towing vessels over 300 gross tons operating beyond the boundary line are currently subject to inspection, and consequently these are the only towing vessels subject to user fees. Without a change to the definition in part 2, smaller towing vessels operating beyond the boundary line would also be subject to inspection and the corresponding user fee, whereas smaller towing vessels not operating beyond the boundary line would not be subject to the user fee.

In order to ensure that only those towing vessels that currently pay a user fee will need to continue to do so, the Coast Guard is proposing to revise the definition for “sea-going towing vessel” in part 2, to clarify user fee applicability for certain seagoing towing vessels. The Coast Guard proposes to revise the existing definition by adding the words “issued a certificate of inspection under the provisions of subchapter I of this chapter” to the end of the existing definition.

J. Manning

The Coast Guard is proposing to amend the regulations contained in 46 CFR subchapter B to clarify the regulatory requirements for manning of inspected towing vessels. Part 15 of subchapter B contains separate subparts for inspected and uninspected vessels.

With this amendment, we are copying current requirements for uninspected towing vessels, contained in subpart E (Manning Requirements; Uninspected Vessels), into subpart D (Manning Requirements; Inspected Vessels). This ensures that the current qualification requirements for mariners serving aboard towing vessels continue to apply.

Manning requirements for uninspected towing vessels must remain in subpart E because certain towing vessels will remain uninspected vessels for the near future.

K. Discussion of Comments

As stated above in section III.B. “Regulatory History,” on December 30, 2004, the Coast Guard published a “Notice; request for comments, and notice of public meetings.” (69 FR 78471). The notice asked seven specific questions, which are replicated below, along with a summary of the comments we received on each.

Most of the commenters were generally agreeable to creating new regulations and a safety management system for towing vessels. While some promoted either regulations or a safety management system, others called for a balance between the two items. Several commenters criticized the creation of new regulations and a safety management system, stating that vessels are already subject to regulations and citing the superior safety record of the towing industry as a whole.

The Coast Guard received a large number of comments from industry representatives who are members of the American Waterways Operators (AWO). Many AWO members' comments were similar to one another. Additionally, comments were received from organizations that represent environmental groups, mariners, passenger vessel organizations, former Coast Guard members, government entities and officials, and other sectors of the industry. Some of these comments supported AWO's positions, while others completely disagreed. Overall, many commenters said the towing industry was unique, and some discussed unique ways to regulate the industry.

Question One: Towing vessels of a certain size (300 or more gross tons) are already inspected vessels and are subject to a variety of existing requirements. Should the Coast Guard use any of these existing standards (or standards for other types of inspected vessels) for incorporation into the new regulations regarding the inspection of towing vessels? If so, which regulations or standards should be incorporated into these new regulations?

A majority of the responses indicated the Coast Guard should not use existing standards when developing the regulations for towing vessel inspections. The commenters stated the towing industry is “unique” and fills a variety of functions from assistance towing to towing certain dangerous cargos. Additionally, towing vessels work in a variety of locations, such as inland waterways and coastal areas, and come in a large assortment of shapes and sizes. Instead of the traditional regulations, many of these commenters suggested using a safety management system.

Commenters noted that safety management systems are flexible in nature and allow the industry members to tailor programs to their specific needs based on real-time operations, risk analysis, and casualty statistics. They indicated that focusing on a safety management system may allow deviation from “prescriptive” standards and create a system that is “reasonable, effective, and necessary * * *”.

However, other commenters expressed openness to using existing standards when creating the new regulations. Commenters who argued in favor of using existing standards said there were some existing standards that could easily be applied to the towing industry. A few of these commenters stated that the House of Representatives Conference Report to the CGMTA 2004 (“House Report”) mandated the use of existing standards. We were unable to substantiate the claim that the House Report on the CGMTA 2004 mandated the use of existing standards. Furthermore, commenters declared that while a safety management system is the best way to ensure that all segments of the industry are covered, it is not intended to take the place of traditional inspections and regulations.

Some of the existing regulations cited were those outlined in the Gulf Coast Mariners' Association's Report R-276, Revision 8. This report can be found in the docket for the request for comments [USCG-2004-19977] as item 14; to access this report, use the procedures listed in section I.B. “Viewing comments and documents.” Commenters also listed several subchapters of Title 46 as potential sources for the tow vessel regulations, including subchapters C, D, F, H, I, J, K, L, and T.

The Coast Guard carefully considered input received in response to Question One and has decided to both use existing standards/regulations and to develop new towing vessel-specific standards and regulations. For example, we adopted all of the existing fire-suppression requirements from 46 CFR part 27 into part 142 of these proposed regulations. Inclusion of these existing regulations is also supported by TSAC. An example of a towing-specific standard is the creation of the TSMS option and its use throughout these proposed regulations. This requirement and the regulations pertaining to it, which can be found in proposed part 138, were created exclusively for this rulemaking, based on the comments the Coast Guard received from our Notice (and is also supported by TSAC).

Question Two: Title 46, United States Code, specifies the items covered with regard to inspected vessels including lifesaving, firefighting, hull, propulsion equipment, machinery, and vessel equipment. However, the legislation that added towing vessels to the list of inspected vessels, authorized that the Coast Guard may prescribe different standards for towing vessels than for other types of inspected vessels. What, if any, different standards should be considered with regard to inspected towing vessel requirements from other inspected vessels?

Most responses treated Question Two as part of, or an extension of, Question One. Some commenters answered the questions together; others gave very similar answers to both questions. Where possible, we separated the commenters' answers to best reflect their statements and avoid repetition of the issues.

Beyond the subchapters mentioned in the previous question, some commenters suggested the standards covering manning and the particular subchapters applicable to the barges being towed were important. Some commenters disagreed and stated since towing vessels do not actually carry cargo (or passengers), they should not follow the standards applicable to the barge. One commenter suggested a new “classification system” should be created to cover the wide variety of towing vessels in operation.

Title 33 CFR part 96 was cited as containing standards that could be applicable to towing vessels. This part contains the standards for safety management systems for other types of vessels and could be used as a model for safety management systems for towing

vessels. Some specific sections cited were §§ 96.100 through 96.250, and creating “new §§ 96.225, 96.235, 96.245, and 96.255.”

Many commenters called for new and unique regulations and a safety management system. Several commenters said that a safety management system should be based on risk and casualty data, rather than on existing regulations. A couple of commenters cautioned not to rely strictly on accident data because some accidents and “near-misses” may not be reported. The main concern expressed by many commenters was that a safety management system should be easy to implement for both large and small companies alike.

Other systems, such as the TSAC-Industry Working Group's “straw man,” AWO's Responsible Carriers Program (RCP), American Bureau of Shipping (ABS) standards, the oil companies' Ship Inspection Report (SIR and SIRE) Programs, the Streamline Inspection Program, and the 8th Coast Guard District boarding form were discussed as models for a safety management system. The TSAC “straw man” document, available in the docket for the request for comments [USCG-2004-19977] as item 32 (to access this document, use the procedures listed in section I.B. “Viewing comments and documents.”) was cited most frequently, with the AWO's RCP and International Safety Management (ISM) close behind. A few commenters said several different systems could be combined to fill in any gaps that may exist.

After carefully considering the comments received for Question Two, the Coast Guard decided not to just rely on standards or regulations found in other, existing vessel inspection subchapters. The Coast Guard decided that the unique nature of the towing industry and towing operations warranted the development of some new standards and regulations that would pertain exclusively to towing vessels. In addition to the TSMS cited in our discussion in Question One, the Coast Guard also proposes other towing vessel-specific provisions including expansion of the use of third-party organizations as part of the Coast Guard's proposed TSMS-based towing vessel inspection for certification regime. Third-party organization requirements are found in proposed part 139. Expanding the use of third-party organizations would provide greater flexibility to owners and managing operators of inspected towing vessels that choose the TSMS option to schedule various vessel-related activities and meet the Coast Guard's proposed requirements.

Question Three: Towing vessels vary widely in terms of size, horsepower, areas of operation, and type of operation. Under what circumstances, if any, should a towing vessel be exempt from the requirements as an inspected vessel?

Some commenters believed exemptions should be given to vessels under 26 feet (8 meters), assistance towing vessels, and towing vessels used in fleeting and construction sites.

Several commenters suggested that some older vessels should be exempt because they are difficult and expensive to retrofit in order to comply with new regulations. Some of the specific categories of older vessels mentioned for exemption were towing vessels less than 65 feet, vessels with less than 759 horsepower, vessels less than 100 gross tons, and those operating within sight of land. One commenter suggested exemptions for towing vessels over 300 tons because they are already subjected to regulation. Some commenters suggested exemptions for towing vessels that tow or push passenger barges. Some of these commenters said these towing vessels often received “courtesy” inspections when the barges they tow or push were inspected. Therefore, it was unnecessary to subject passenger barge towing vessels to another complete inspection.

A few commenters said there should be no exemptions. These commenters said mariners and the environment would be better protected if every towing vessel complied with the new regulations. Some commenters said the regulations could be a minimum foundation for all towing vessels, and a safety management system could cover the specifics for unique segments of the industry.

Some commenters did not agree that fleeting towing vessels should be exempt because they have a questionable safety history and must maneuver in small spaces. Several commenters recommended exemptions for “day shift” vessels which only carry crewmembers during the day and have no sleeping quarters.

A few commenters said there was no reason for any towing vessel to be completely exempted from inspection regulations. However, they said there was a possibility of making different regulations to cover different types of towing vessels and making portions of the regulations apply to some vessels but not to others. Another commenter said that the 8-meter cut-off should not apply because “this only encourages one to use a boat too small for the job and penalizes competition of one with a larger vessel that is using prudent seamanship.”

Some commenters suggested that exemptions should be handled on a case-by-case basis. These exemptions could be handled by the Captain of the Port (COTP) directly, or the requests could go to Coast Guard Headquarters, with decisions made by the Commandant.

Other commenters said exemptions could be made based on a towing vessel's area of operation. Vessels operating in “low risk” areas could have different regulations than those operating in “high risk” areas.

During the course of our interactions with TSAC, it was clear that we could not categorically exempt a subset of the towing vessel population for reasons of vessel size or service. However, the Coast Guard determined that it should not propose regulations that would establish uniform requirements for all towing vessels regardless of size or service. We evaluated regulatory requirements and applied them to particular types or service, based on risk. For example, we adopted the existing requirement to provide an exception from certain fire-suppression requirements for towing vessels engaged in certain services such as harbor-assist towing or vessels operating in a limited geographic area. These exceptions from certain fire-suppression requirements are found in proposed part 142. Furthermore, while the towing vessels identified in proposed § 136.105 have been exempted from this NPRM, the Coast Guard intends to propose regulations for these vessels in a future rulemaking.

Question Four: Should existing towing vessels be given time to implement requirements, be “grandfathered” altogether from them, or should this practice vary from requirement to requirement?

The commenters indicated the regulations should not be implemented immediately; however, the suggestions for the length of time for compliance varied widely. A majority of commenters supported some level of “grandfathering,” but for the most part, applied “grandfathering” only to equipment requirements.

Most commenters stated that implementation should begin between 180 days (6 months) and 1 year after publication of the final rule. A few commenters suggested that the implementation should start “without delay,” while others proposed a sliding scale or a flexible schedule, depending on the requirements. One commenter said that the Coast Guard should have

the responsibility of deciding the implementation period. Some commenters said that there should be adequate time for mariners to participate in both the rulemaking and the implementation. One commenter focused on the safety management system, saying that safety management systems should have a 1-year phase-in period. According to AWO members, 6 months to 1 year would be sufficient time to implement the RCP and train new people on using an already established safety management system.

“Grandfathering” was a highly important issue in many of the comments. Some commenters said “grandfathering” should only be for vessels that would be too difficult and too expensive to modify. One commenter said “grandfathering” can “be employed to ensure that operators of existing towing vessels can phase-in new requirements in a cost-effective manner. Some requirements should be permanently grandfathered where the requirement necessitates major reconstruction. * * *”

Other commenters said it was not clear that the House Conference Report to the CGMTA 2004 allowed “grandfathering” of any kind. Some commenters suggested offering waivers for those vessels unable to comply with new structural requirements. It was suggested that such waivers and limitations could be reflected on the COI.

Most commenters stated there should be no “grandfathering” from the implementation date of a flexible safety management system. Other commenters said that with a flexible safety management system, there may be a need for some minor “grandfathering,” but it should predominately be avoided. One commenter said that allowing extensive “grandfathering” would have “the unintended consequence of potentially stifling new construction.”

Some commenters suggested that all existing towing vessels be “grandfathered” into the new regulations. Other commenters limited this to towing vessels already operating under a safety management system. Other commenters said that vessels already operating under ISM are class inspected; therefore, adding another Coast Guard inspection would be redundant. One commenter suggested a complete phase-out of existing towing vessels so that only new towing vessels would be following the new regulations.

We have determined that the complete “grandfathering” of existing towing vessels, as that term is commonly understood, is not appropriate under the mandate provided in the CGMTA 2004 because grandfathering all existing towing vessels from all aspects of these proposed regulations would not improve safety within the towing industry and could have the undesired effect of influencing towing vessel owners to retain existing, unsafe vessels instead of building or purchasing new vessels. With regard to the question of giving vessels additional time to comply with certain provisions of these proposed regulations, we carefully considered the comments received and are proposing to give towing vessels that would need to comply with subchapter M additional time to comply with certain proposed requirements. For example, specific requirements that were deferred for existing towing vessels are included in Part 143, Subparts C and D. We feel that the additional time to comply with these requirements will not only provide more time for vessel owners and operators to complete the necessary work, but it will also allow for a longer period to budget expenses necessary to complete the required work.

Question Five: Should existing towing vessels be treated differently from towing vessels yet to be built?

Several commenters addressed Question Five much like Question Four. Some respondents chose not to answer Question Five, stating that Question Four covered what they wished to express. Others gave a “yes” or “no” answer and referred to their comments in Question Four. One commenter stated “[a]ll new construction should meet an established set of inspection standards. * * *” Another commenter said that other inspection regimes have “grandfathering” so the same should apply to towing vessels. Furthermore, this same commenter stated that the Coast Guard can add new requirements for existing towing vessels.

We received several comments concerning mariner safety on both new and existing towing vessels. One commenter said that treatment should differ according to the vessel's age because old vessels are generally not as safe as new ones. The commenter said existing towing vessels would be too difficult and expensive to retrofit to meet the new standards. Other commenters said it made sense to treat new and existing towing vessels differently because the existing towing vessels were built to meet certain needs and regulations in force at the time of build. However, these vessels may not comply with new regulations.

Many commenters said that both new and existing towing vessels should be able to follow a safety management system. These commenters favored incremental and flexible change that would allow them to continue operating their towing vessels as they exist, while making them safer. Other commenters referenced the House Conference Report to the CGMTA 2004, saying that there was no indication that there should be different treatment between new and existing towing vessels. These commenters said making such a distinction would imply a “traditional inspection regime” rather than a safety management system. Another commenter stated different treatment would only be acceptable if existing towing vessels showed and demonstrated an intent to meet the new regulations.

One commenter said that a safety management system should be implemented for newly constructed vessels as soon as possible, while existing towing vessels should have phase-ins for required physical changes, corrections, and upgrades. Another commenter stated that existing towing vessels should either become compliant within a certain amount of time or be completely phased-out. Furthermore, this commenter said new and existing towing vessels that are not phased-out should implement a TSMS within 6 months of the final regulations. Similarly with Question Four, some commenters suggested exceptions with respect to design, construction, technology, and equipment standards.

A commenter from a governmental agency said the new regulations should be risk-based rather than whether the towing vessel is new or existing. Additionally, the commenter said the type of vessel and area of operation, as well as the condition of the vessel, should determine safety standards. Finally, the commenter stated that the operational risk assessment will determine how quickly to implement the new regulations.

After carefully considering the comments concerning the treatment of existing towing vessels and towing vessels yet to be built, the Coast Guard is proposing additional requirements for inspected towing vessels yet to be built that will not apply to existing towing vessels. This concept is particularly exemplified in both proposed Parts 143 and 144 where requirements for existing towing vessels are dealt with in one subpart and requirements for new vessels are dealt with in a separate subpart. The Coast Guard recognizes that existing towing vessels have been in service for extended periods of time, in some cases decades, which indicates that some systems or components adequately withstood the test of time.

The proposed inspection regimes, which include the use of a TSMS and third-party compliance surveys or a Coast Guard inspection regime, will ensure that these systems remain safe. At the same time, the Coast Guard recognizes that inspected towing vessels yet to be built need to incorporate advances in good marine practice in their design and construction to improve safety of the towing industry.

Question Six: The same act that requires inspection of towing vessels authorizes the Coast Guard to develop a safety management system appropriate for the towing vessels. If such a system is developed, should its use be required for all inspected towing vessels?

Several commenters answered this question, “Yes” with no further qualifications. Most commenters supported developing a safety management system, though some suggested exemptions for the types of vessels mentioned in comments to Question Three. Commenters recommended a safety management system because it is flexible and fits both large and small companies, as well as differing geographic areas and types of operation. Additionally, commenters noted that a safety management system provides an alternative from traditional inspection regimes because “previous inspection modality * * * would not be appropriate for our industry or be supported by data in a preferred risk-based system.”

A few commenters did not fully endorse a safety management system program. One said a safety management system could “kill many small towing vessel companies.” Furthermore, the commenter stated that a safety management system should be voluntary, but being voluntary could be harmful to mariners. To prevent such harms, a “small business outreach” program, in conjunction with a safety management system program, should be developed.

Another commenter opposed safety management systems since companies wishing to participate in a safety management system could follow 33 CFR part 96 “Rules for the Safe Operation of Vessels and Safety Management Systems.” Other commenters suggested using already established programs when creating a safety management system rather than developing a new program. Some commenters expressed concern that safety management systems were too flexible; giving companies a way around making their vessels safer. One commenter said regulations, rather than a safety management system, are the best way to move forward. Several commenters favored no new action because towing vessels “have been running efficiently for more than a century and there are no problems that need to be addressed.”

Another commenter argued against requiring safety management systems because of the possible increase in paperwork. Several commenters expressed a concern about additional paperwork because there are not enough man-hours for responsible crewmembers to complete it. One commenter suggested records should be kept by a designated company officer, and those records should remain in the company's land-based office.

Several commenters said a safety management system will be helpful, but it would still leave gaps requiring regulatory solutions. One of these commenters said “suitable regulations” should be developed first to govern the industry. A few commenters referred to the CGMTA 2004 and the House Conference Report to the CGMTA 2004, stating that a safety management system should not be a substitute for an inspection regime, but rather a supplemental way to ensure towing vessels are compliant with their Certificate of Inspection.

For the reasons discussed earlier in Section IV.C., including Congressional authorization for a safety management system, a statutory directive to issue an NPRM based on that authority, and recommendations by TSAC and the NTSB, the Coast Guard proposes an inspection option that utilizes a TSMS but also provides for a traditional, annual inspection regime. Requirements for the TSMS are found in proposed part 138.

Question Seven: Examples of existing safety management systems include the International Safety Management (ISM) code and the American Waterways Operators Responsible Carrier Program. If a safety management system is used, what elements should be included in such a system?

Most of the elements discussed in the comments came from the TSAC-Industry Working Group's “straw man” document. Many commenters stated the “straw man” provided a model safety management system. However, several commenters suggested the following new elements:

1. Incident, Accident, and Non-Conformity Reporting;

2. Investigation and Corrective Action Policies and Procedures, including Documentation;

3. Vessel and Equipment Maintenance, and Use Policies and Procedures;

4. Manning, Watchstanding, and Training;

5. Person Overboard Recovery Equipment;

6. Designated Person, Master's Responsibility, and Authority; and

7. External Audit and Certification.

Several commenters strongly stated it is not enough to implement equipment requirements, but new regulations must be developed to ensure equipment is in “operating condition.” Other commenters gave extensive lists of equipment and manning procedures to be included in the regulations and a safety management system. Another commenter suggested “True vessel horsepower must be determined and a horsepower to tonnage barge ratio developed.” One commenter suggested that the lifesaving equipment aboard towing vessels should be similar to the equipment on Coast Guard vessels.

In addition to, and in some cases in place of, using the “strawman,” several commenters suggested using current safety management systems as models for creating a new safety management system. These models include the RCP, the ISM Code, Title 33 CFR part 96, Title 46 CFR, the SIRE, the SIP, and the “Accredited for Commercial Assistance and Professional Towing” (ACAPT) program for assistance towing vessels if they are included in this rulemaking. Some commenters said regardless of the model proposed, the Coast Guard should develop guidelines to ensure consistent enforcement by all Captains of the Port (COTPs). Other commenters said towing vessel companies should choose one model. A few commenters suggested allowing entities to apply to the Coast Guard for approval of their specific safety management systems.

One commenter said accident data should be used to determine the areas where regulations are needed the most. Such data and risk assessment would show which elements are needed in a safety management system.

The Coast Guard carefully considered the comments received pertaining to the nature and content of a safety management system that might be included in these proposed regulations. The Coast Guard is proposing to require that all inspected towing vessels use a TSMS and the requirements are found in proposed part 138, or equivalent, or be subject to an annual, Coast Guard inspection regime. As discussed above, Congress provided the Coast Guard with authority to establish a safety management system appropriate for towing vessels and has directed that we issue an NPRM based on that authority. Compliance with a company implemented Safety Management

System is the cornerstone of the Towing Safety Advisory Committee's recommendation, and the National Transportation Safety Board has recommended the establishment of a safety management system for towing vessels. Additional discussion on safety management systems may be found in Section IV.C. Requirements for the TSMS are found in proposed part 138.

Additional Comments

We received many comments that covered topics not addressed in the seven questions noted above. One of the subjects covered most was the issue of manning. Several comments from mariners and mariner associations noted manning issues. Some commenters stressed the need to protect the safety of mariners aboard towing vessels. These commenters opined that manning issues had been neglected and this new regulation afforded a chance to fix long-standing problems.

The commenters identified the duty of the deck officer and keeping an appropriate watch as major issues. Some commenters stated there were not enough crewmembers aboard towing vessels to fulfill all the duties in the time available. One commenter said manning, watchstanding, and crew meetings should be required, but there should not be additional “meetings, drills, maintenance or duties placed on the overburdened system without safe and comprehensive manning requirements.” One commenter suggested that the proper amount of manning should be determined by the usage of the vessel.

Other commenters were concerned with work hours. Several commenters said captains often complete a 12-hour shift on one vessel, then immediately work another 12-hour shift on different vessel. This practice provides them with very little sleep. The commenters suggested a mandatory rest period for all captains. Another commenter said administrative duties performed by captains and mates should count as work hours because this time may be under-reported.

Some commenters said a labor shortage for inland towing vessels caused work hour problems. These commenters suggested the labor shortage was a result of harsh working conditions with few benefits. One commenter said “blue water” operations (

i.e.,

tow vessels operating in an ocean environment) do not have the same labor shortage because the vessels are considered safer to work on. The commenter added that inland towing vessels should have equal standards to these “blue water” vessels.

A few commenters said that manning should be equivalent to other types of inspected vessels of similar size and horsepower. Some commenters expressed concern that company managers order captains to take a vessel out, regardless of safety concerns. These commenters said the captain and pilot should have final say on whether a vessel is safe to get underway without repercussions from management.

Some commenters discussed enforcement of manning regulations and licensing of merchant mariners. One commenter said it is unclear how the Coast Guard intends to enforce manning regulations and safety management systems. The commenter said the manning proposal “criteria” is vague with no indication of how the criteria will be enforced. Another commenter said there are currently regulations that allow vessels to get underway without the appropriate number of licensed mariners, if it is deemed safe by the master. The commenter believed the Coast Guard should not allow this exception for towing vessels. Another commenter said there was no indication that merchant mariner documents will be included in this rulemaking, and that the Coast Guard should take action on this issue.

As noted above in Section IV.J. “Manning,” we are not proposing to change any of the current manning levels required for towing vessels. However, portions of the TSMS covering operations should address many of the concerns raised by these commenters.

In addition to manning, auditing and inspections were topics mentioned frequently by commenters. Some commenters said inspections and safety management system approvals should be done by third-party auditors. Other commenters suggested a combination of third-party auditors and Coast Guard auditors. Yet other commenters said only the Coast Guard should handle inspections and safety management system approvals. One commenter said “Any safety auditor * * * should be required to meet the highest industry certification to ensure that they are competent to conduct these safety audits.” Another commenter agreed saying audit companies should be held accountable; as such a system would reduce the inspection burden on the Coast Guard. A commenter stated third-party auditors must not be associated with the companies they are auditing, and should be monitored closely by the Coast Guard. One commenter stated it was important for companies to submit their individual safety management system plans for approval and allow audits by third parties to insure compliance with the plans. The Coast Guard took these comments into consideration while developing the proposed regulations covering the use and approval of third parties.

The Coast Guard is proposing that all inspected towing vessels be operated in accordance with a company-implemented safety management system or be subject to an annual, Coast Guard inspection regime. This rulemaking also proposes contents and procedures relative to safety management systems, and proposes standards and procedures for approval of third parties and the roles and responsibilities of third parties. Additional discussion of safety management systems is provided in section IV.C above; discussion of third-party organizations is provided in section IV.D above. Many commenters discussed the frequency of audits and inspections. These varied from every year to every 3 years to every 5 years. One commenter said the initial inspection date should be based on the anniversary of existing towing vessels, divisible by 5 years. Furthermore, the commenter said every new vessel should be inspected prior to placement in service. Another commenter suggested companies with better safety histories could be inspected less often than those with poor histories.

Some commenters addressed drydocking specifically, saying towing vessels rarely go more than 1 year between drydockings, and the Coast Guard should not need to be present at every instance, although there was some allowance for the Coast Guard to be present at initial drydockings. The Coast Guard took these comments into consideration while developing the proposed regulations covering inspection, audits, and surveys.

Several commenters expressed concern about the level of sophistication of mariners in trying to comply with the new regulations. The commenters suggested creating new regulations that are easy to follow. Other commenters said the regulations should be easy to read for operators and marine surveyors. One of the commenters said the written regulations should be placed onboard towing vessels so that mariners have access to them. Furthermore, the mariners should also have access to “boarding check sheets for equipment.” A few commenters suggested offering testing on the new regulations for licensing to ensure mariners understand the changes. Another commenter said the OCMI should assist mariners with questions and comments.

Many commenters requested one location for the new regulation so they

are easy to find and follow. One commenter said we should reduce overlapping regulations and clarify “confusing and incomprehensible tables.” Another commenter suggested individual updates to 46 CFR subchapters A, E, F, and J, and use of subchapters C, I, S, and W instead of one central location. The commenter also suggested making a new subchapter “X” for applicable cross-references to applicable requirements in other subchapters. The Coast Guard considered these comments and developed straightforward, easily understandable regulations, mostly contained in the newly proposed subchapter M.

Other commenters strongly requested the Coast Guard work in a close partnership with TSAC. At several of the public meetings, many of the participants invited the Coast Guard to contact them for further information. Other commenters suggested the Coast Guard should keep mariners involved with the rulemaking. A few commenters discussed placing restrictions on the Certificate of Inspection for vessels towing dangerous cargo barges, or those unable to meet the new regulations. As already noted, the Coast Guard worked extensively with TSAC while developing this NPRM, which included input from nearly 200 individuals.

One commenter discussed penalties for non-compliance, saying companies should be held accountable for not following their safety management systems. Another commenter said the Coast Guard should have the authority to enforce any recommendations that come out of accident reports. A third commenter said, “the safety regulations for our industry have to target corrective actions that will improve and address human factors * * * like voyage planning, situational awareness, [and] crew endurance.” One commenter said mariners should have access to the Marine Safety Office (now Sectors) to report hazards, and have an inspector address every complaint. Again, these comments were considered in the development of this NPRM. We invite the public to suggest additional topics or changes to the proposed regulation in their comments on the NPRM, as noted in section I. “Public Participation and Request for Comments.”

L. Hours of Service and Crew Endurance Management Programs

As we stated in our discussion of statutory authority, in Section III.A of this preamble, 46 U.S.C. 8904(c) authorizes the Secretary to establish maximum hours of service regulations for individuals engaged on a towing vessel that is at least 26 feet in length. The legislative history for 46 U.S.C. 8904(c) makes clear that this provision gives the Coast Guard authority to establish “scientifically based hours-of-service regulations that set limits on hours of service, provide predictable work and rest schedules, and consider circadian rhythms and human sleep and rest requirements” as recommended by the National Transportation Safety Board in 1999, Recommendation M-99-1. See H.R. Conf. Rep. 108-617, 2004 U.S.C.C.A.N. 936, 951.

The Coast Guard is considering establishing hours of service standards and requirements for managing crew endurance, the ability for a crewmember to maintain performance within safety limits while enduring job-related physiological and psychological challenges. The Coast Guard is seeking additional public comment on possible hours of service and crew endurance management program standards and requirements at this time. After considering this additional information, the Coast Guard would later request public comment on specific hours of service or crew endurance management regulatory text if it seeks to implement such requirements.

Specifically, the Coast Guard, in this section IV.L., discusses its views on potential hours of service and crew endurance management program standards and requirements, and seeks addition data and other information related to these provisions. In particular, the Coast Guard seeks additional data and information specifically related to hours of service and performance of work on towing vessels. Although the Coast Guard welcomes all public comments related to these potential requirements, the Coast Guard specifically invites comments on the research discussed below, and responses to the following questions:

• What would be the best way to manage work and rest schedules to ensure sufficient time off for mariners' on towing vessels?

• How many hours of uninterrupted sleep per day do mariners on towing vessels require?

• What would be the best method to ensure that sufficient qualified personnel are available for 12 hours of work per day on a towing vessel?

• What do you view as the potential economic consequences resulting from a mandate that mariners on towing vessels obtain a required number of hours of uninterrupted sleep, such as 7-8 hours, for your vessel or organization?

• What would be the benefits to implementing a mandate that mariners on towing vessels obtain a required number of hours of uninterrupted sleep, such as 7-8 hours, for your vessel or organization? Would such a mandate be effective in reducing vessel casualties and other accidents?

• Despite medical and scientific evidence, discussed below, that most people need at least 7 hours of uninterrupted sleep to restore their cognitive abilities necessary to maintain situational awareness, it is common for watch and rest schedules on towing vessels to fail to permit this minimum amount of uninterrupted sleep. Why have market forces not caused the towing vessel industry to adopt work schedules that permit the minimum amount of uninterrupted sleep necessary for most persons to maintain situational awareness?

• Would a mandate that mariners on towing vessels obtain a required number of hours of uninterrupted sleep, such as 7-8 hours, require a change in watch schedules? If so, what watch schedules would a towing vessel use?

• Would a mandate that mariners on towing vessels obtain a required number of hours of uninterrupted sleep, such as 7-8 hours, require more than changes in watch schedules?

• If your vessel has already changed from a schedule that allows a certain number of hours of uninterrupted sleep, for example 7-8 hours, to a square watch schedule (alternating 6 hours on watch, 6 hours off, 6 hours on watch, 6 hours off, every 24 hours), what factors led to the switch? What factors prevent a towing vessel from having a watch schedule that allows for a certain number of hours of uninterrupted sleep?

• What are the differences in operating costs and workplace injuries based on watch schedules that require a certain number of hours of uninterrupted sleep?

• Would implementing a requirement to provide sufficient time off for mariners on towing vessels to obtain a certain number of hours of uninterrupted sleep, such as 7-8 hours, reduce the rate of injuries and accidents? If you know of relevant injury/accident data to support your comments, we request that you identify or provide that information.

• If your company or vessel operates with a crew endurance management program, have you seen a reduction in workplace injuries? Can you provide data to support implementation of the crew endurance management program?

• If your company or vessel operates with a crew endurance management program, what measures have you undertaken to develop and implement a crew endurance management program? Did you make modifications to lighting,

noise and vibration? If so, what type of modification? How many crew endurance management program coaches does a vessel have? How many coaches are trained each year? Do you require training for other crew on your crew endurance management program system? How often?

• Would a crew endurance management program requirement alone, without a specific requirement that mariners on towing vessels obtain a required number of hours of uninterrupted sleep, such as 7-8 hours, be effective in combating fatigue?

• Would a crew endurance management program requirement alone, without a specific requirement that mariners on towing vessels obtain a required number of hours of uninterrupted sleep, such as 7-8 hours, reduce casualties and injuries?

• What existing crew endurance management programs could the Coast Guard consider equivalent to the Coast Guard's Crew Endurance Management System?

• Would a mandate to change the watch schedule or to implement and maintain a crew endurance management program impose economic burdens upon small businesses? If so, would these burdens be significant?

• What is the appropriate phase-in period or method for implementing hours of service and crew endurance management program standards or requirements?

The Coast Guard offers the following research and additional information regarding hours of service standards and requirements for managing crew endurance, the ability for a crewmember to maintain performance within safety limits while enduring job-related physiological and psychological challenges in order to inform public comment related to these issues:

The Coast Guard recognizes that the issue of operator fatigue is not new, nor is it an issue confined solely to the maritime industry. In 1989, the National Transportation Safety Board (NTSB) first addressed the issue of operator fatigue in three recommendations presented to the Secretary of Transportation and called for research, education, and revisions to existing regulations. In 1990, NTSB added these recommendations to its Most Wanted List. In 1999, NTSB sponsored a safety study that determined that operator fatigue remained widespread throughout the transportation industry. In 2006, NTSB reaffirmed their recommendation to the regulatory bodies for the Aviation, Marine, and Pipeline Industries to establish scientifically based hours of service regulations that set limits on hours of service, provide predictable work and rest schedules, and consider human sleep and rest requirements. As part of this recommendation, NTSB stated that “operating a vehicle without the operator's having adequate rest, in any mode of transportation, presents an unnecessary risk to the traveling public.” These NTSB studies, recommendations, and other documents may be found at URL:

http://www.ntsb.gov.

Sleep Loss and Its Consequences

In most work environments, many pressures and stressors impact workers' quality of life and performance. One important yet underestimated stressor is daily restriction of sleep (

See

National Sleep Foundation, “Sleep in America” poll. URL:

http://www.sleepfoundation.org

(2007)).

In many jobs, daily sleep restriction is unavoidable. Some professions such as health care, security, and transportation require working at night and, often, long work hours of 12 hours or more per day. In these fields, the effect of daily sleep loss on performance is crucial to safety. Often, in response to the daily workplace stressors, workers tend to stretch their capacity and compromise their nightly sleep, thus becoming chronically sleep deprived.

While the need for sleep varies considerably between individuals, studies show that for adults an average length of sleep between 7 and 8

1/2

hours per night provides physiological and cognitive resources to support normal health and performance. Physiologically, at least two processes regulate sleep, one homeostatic and the other cyclic (also known as circadian) with a period of about 24 hours per day. The homeostatic process regulates energy availability and depends on the daily duration of sleep and of wakefulness; the need to sleep increases as wakefulness continues uninterrupted. The circadian process, also referred to as the body clock, regulates the time of the day when sleep is scheduled and also impacts the restoration and availability of cellular energy. In brief, the body clock abhors uncertainty; it prefers stable, daily sleep beginning at the same time(s). (

See

Paula Alhola & Paivi Polo-Kantola, “Sleep Deprivation: Impact on Cognitive Performance.” Neuropsychiatric Diseases and Treatment, 553-567, Vol. 5 (2007).) These studies show that both of these processes work well with daily sleep periods lasting at least 7 uninterrupted hours, where that sleep occurs at consistent times from day to day. Additionally, significant disruptions of the timing of daily sleep onset, or restriction of the duration of sleep below 7 uninterrupted hours per day, result in significant impacts on human physiology, health, and performance.

While there are many unanswered questions regarding the functions of sleep and the effects of sleep loss, there is no question that sleep is critical for body restitution, like energy conservation, thermoregulation, and tissue recovery. In addition, a now well documented body of research demonstrates that sleep is essential for cognitive performance, especially memory consolidation. Daily sleep loss, instead, activates the sympathetic nervous system, causing release of adrenalin and cortisol, resulting in stress and impairments of the immune system and metabolism. Daily sleep loss is now linked with cellular insulin resistance, thus predisposing people who experience sleep restriction to abnormal glucose metabolism and diminished energy production. People who experience daily sleep loss usually suffer a decline in cognitive performance and changes in mood.

Performance Standards and Protection of Situational Awareness

Based on the Coast Guard's current research, the Coast Guard is considering requirements that would permit crewmembers on towing vessels: (a) Sufficient time off to obtain at least 8 uninterrupted hours of sleep or at least 7 hours of uninterrupted sleep and an additional sleep period in every 24 hour period; and (b) the means to prevent the disruption of circadian rhythms. Such standards would promote the daily restoration of crewmember cognitive and physiological resources and the protection of crewmember situational awareness and decision-making abilities.

Situational awareness refers to the capability to maintain a constant vigil over important information, understand the relationship among the various pieces of information monitored, and project this understanding into the near future to make critical decisions. The term “situational awareness” is a form of mental bookkeeping (David D. Woods, Leila J. Johannesen, Richard I. Cook & Nadine B. Sarter, Behind Human Error: Cognitive Systems, Computers, and Hindsight (1994)).

Crewmembers aboard towing vessels, whether working on the navigation watch, on deck, in engineering, or in the galley, must constantly maintain situational awareness to ensure safe operations. Situational awareness is essential to make informed decisions, act in a timely manner, and ultimately

ensure operational safety, whether at sea or transiting through inland waterways, harbors, or coastal environments. Maintaining 24-hour vessel operations while successfully meeting navigational challenges such as inclement weather, vessel traffic, bridges, locks, and recreational vessels, requires all of the cognitive processes supporting situational awareness to be functioning in good working order.

Maintaining and updating situational awareness and making timely and accurate decisions in operational environments, such as the wheelhouse of a towing vessel, engineering, and on deck, necessitates a wide range of cognitive skills. In particular, a mariner must be able to:

• Appreciate a difficult and rapidly changing situation;

• Assess risk;

• Anticipate the range of consequences;

• Keep track of events;

• Update the big picture;

• Be innovative;

• Develop, maintain and revise plans;

• Remember when events occurred;

• Control mood and behavior;

• Show insights into one's own performance;

• Communicate effectively; and

• Avoid irrelevant distractions.

In addition to these skills, situational awareness and decision making also require cognitive abilities for rule-based skills of logical, critical, and deductive reasoning. A substantial body of research demonstrates that loss of sleep significantly degrades the cognitive skills (those 12 bulleted items listed above) necessary to establish and maintain situational awareness. (

See

Yvonne Harrison & James A. Horne, “The Impact of Sleep Deprivation on Decision Making: A Review,” Journal of Experimental Psychology: Applied, 236-249, Vol. 6 No. 3 (2000).

The prefrontal region of the brain facilitates the use of cognitive skills necessary for situational awareness. This region of the brain may shut down as it experiences daily sleep loss. (

See Id.;

Paula Alhola & Paivi Polo-Kantola, “Sleep Deprivation: Impact on Cognitive Performance.” Neuropsychiatric Diseases and Treatment, 553-567, Vol. 5 (2007).)

Effects of Sleep Loss on Situational Awareness: Distractions, Assimilation, and Judgment

Appreciation of a complex situation while avoiding distraction requires assimilation of large amounts of information in a short period of time. Loss of sleep increases visual and auditory distractions that decrease focused attention and, therefore, interferes with the assimilation of rapidly changing information. Daily loss of sleep results in less discrimination handling ambiguous material, less confidence, more openness to leading information, and more willingness to modify recollections of events. These effects also interfere with the correct assimilation of changing information. Even a single night of sleep loss can result in less appreciation of a complex situation. When subjected to sleep loss, study participants consistently applied more effort to pointless areas of their decision-making, which had little or no effective outcome in the task at hand. (

See

Yvonne Harrison & James A. Horne, “The Impact of Sleep Deprivation on Decision Making: A Review.” Journal of Experimental Psychology: Applied, 236-249, Vol. 6 No. 3 (2000).

Effects of Sleep Loss on the Ability To Track Events and To Develop and Update Strategies

One night of sleep loss leads to deterioration of planning skills, marked perseveration, and failure to revise original strategies in light of new information. Additionally, people who experience partial sleep loss are more likely to “stay the course” as opposed to changing strategies, even when it is apparent that the strategies are no longer appropriate. (

See Id.

).

Studies of accidents in maritime operations support the notion that loss of situational awareness plays a significant role in incidents attributed to human error. In a report published in 2005, discussed above in section III.D. of this preamble, TSAC reported that human factors accounted for 54 percent of the medium and high severity incidents and about 40 percent of the low severity incidents. Failures in situational awareness or task performance accounted for 69 percent of the medium and high severity incidents involving human factors. In a separate report in 2003, the Coast Guard—American Waterways Operators (AWO) Bridge Allision Working Group examined 459 bridge allisions (an allision is contact between a moving towing vessel and a stationary object such as bridge, dock, or moored vessel) and reported 78 percent were associated with pilot error and 12 percent with other operational errors. These reports may be found in the docket for this rulemaking, where listed above in section I.B. “Viewing comments and documents.” Of even greater importance to the association of human error with loss of situational awareness was the finding that 68 percent of 435 cases showed critical decision-making errors on the part of the towing vessel operator.

These findings support the NTSB findings and recommendations that, in dynamically evolving operational scenarios, a loss of situational awareness leads to inadequate decision making and performance errors. On towing vessels, a typical work schedule alternates between 6 hours of work and 6 hours of rest, otherwise known as “6 on/6 off.” This schedule consistently restricts daily uninterrupted sleep below 6 hours (total uninterrupted sleep obtained in a 6 on/6 off watch schedule cannot exceed 6 hours) and does not deliberately ensure nighttime physiological adjustment (body clock adjusted for nighttime work and daytime sleep) when crewmembers work at night. As a result, when reviewing accidents involving human error, it is not possible to determine whether the degradation in situation awareness was from increasing sleep debt or from working against the physiological need to sleep. (

See

Yvonne Harrison and James A. Horne, “The Impact of Sleep Deprivation on Decision Making: A Review.” Journal of Experimental Psychology: Applied, 236-249, Vol. 6 No. 3 (2000); Paula Alhola and Paivi Polo-Kantola, “Sleep Deprivation: Impact on Cognitive Performance.” Neuropsychiatric Diseases and Treatment, 553-567, Vol. 5 (2007).)

Work Hours in the Towing Industry

Licensed crewmembers in the towing industry work approximately 84 working hours in a 7-day work week. See Department of Labor Bureau of Labor Statistics' Occupational Outlook Handbook, 2010-11, Water Transportation Occupations (

http://www.bls.gov/oco/pdf/ocos247.pdf

), p. 2. In most segments of the towing industry, towing companies must sustain 24-hour operations to provide customers with adequate transportation services and to compete with other carriers. Currently, a number of requirements governing hours of service for the shipping industry can be found in Title 46 of the U.S. Code. The law states that a towing vessel on a trip or voyage of less than 600 miles may divide its licensed officers and certain crewmembers, while at sea, into at least 2 watches (46 U.S.C. 8104(g)). The law further requires that licensed individuals on towing vessels that are at least 26 feet in length may not work more than 12 hours in a consecutive 24-hour period, except in an emergency (46 U.S.C. 8104(h)). Additionally, licensed individuals or crewmembers in the deck or engine departments, operating on the

Great Lakes, may not work more than 8 hours in one day or more than 15 hours in any 24-hour period, or 36 hours in any 72-hour period (46 U.S.C. 8104(c)).

As previously stated, the typical work schedule for towing vessels alternates between 6 hours of work and 6 hours of rest. This work/rest schedule is repeated every day, when possible, without changing reporting times. While the 6 on/6 off schedule provides consistent periods of work and rest from day to day, under the conditions of a 6 on/6 off schedule, sleep is restricted and sleep debt accumulates day after day, which gradually increases fatigue levels. (See Mikko Ha¨rma¨, Markku Partinen, Risto Repo, Matti Sorsa, and Pertti Siivonen, “EFFECTS OF 6/6 AND 4/8 WATCH SYSTEMS ON SLEEPINESS AMONG BRIDGE OFFICERS.” Chronobiology International, 25(2&3): 413-423, (2008)). Ultimately, under the 6 on/6 off schedule, fatigue is inevitable.

Physiological adaptation to nighttime work schedules is required to prevent crewmember fatigue. During nighttime watch periods, crewmembers experience the disparity between the need to sleep during the night and the requirement to work when they would normally be sleeping. (See Margareta Lützhöft, Anna Dahlgren, Albert Kircher, Birgitta Thorslund, and Mats Gillberg, “Fatigue at Sea in Swedish Shipping—A Field Study.” AMERICAN JOURNAL OF INDUSTRIAL MEDICINE 53:733-740 (2010). Adapting to nighttime work and daytime sleep requires specific natural and artificial light exposure regimens prior, during, and after the night watch to re-adjust physiological timing.

A recent study conducted at the Karolinska Institute in Sweden demonstrated that maritime officers working the 6 on/6 off schedule, without the opportunity to adjust their internal physiology to nighttime work and daytime sleep, consistently obtained less than 4.5 hours of sleep during a 6-hour period off, even when sleeping during the night (

see

Figure 1, below) (Claire A. Eriksen, Mats Gillberg & Peter Vestergren, “Sleepiness and Sleep in a Simulated `Six Hours on/Six Hours off' Sea Watch System.” 23 Chronobiology International: The Journal of Biological and Medical Rhythm Research 1193-1202, (2006)). Officers sleeping during the night were not able to sleep longer than 5 hours per night, while officers sleeping during daytime hours slept less than 4 hours per sleep period. These data demonstrate that even when officers slept in comfortable bedrooms on shore, as was the case in this study, lack of physiological adaptation to the night work schedule resulted in further restrictions of sleep duration during daytime hours. Participants in this study share with crewmembers aboard domestic towing vessels both the 6 on/6 off watch schedule and the lack of opportunity to physiologically adapt to working nights and sleeping during the day.

EP11AU11.000

The Coast Guard provides training and information on fatigue management through the Crew Endurance Management Systems (CEMS) program. While this training and information has been available to the industry-at-large,

companies report difficulty in providing appropriate artificial lighting for crewmember nighttime adaptation. Under the 6 on/6 off watch schedule, crewmembers work at night, against the natural physiological need to sleep, and under the influence of increasing sleep debt. Under these operational conditions, reduced situational awareness is inevitable. (

See

Yvonne Harrison and James A. Horne, “The Impact of Sleep Deprivation on Decision Making: A Review.” Journal of Experimental Psychology: Applied, 236-249, Vol.6 No.3 (2000); Paula Alhola and Paivi Polo-Kantola, “Sleep Deprivation: Impact on Cognitive Performance.” Neuropsychiatric Diseases and Treatment, 553-567, Vol. 5 (2007)).

The nexus between daily sleep restriction, relevant to the 6 on/6 off watch schedule, and cognitive impairment vital to the maintenance of situational awareness is demonstrated in a study conducted in 2002 at the Walter Reed Army Institute of Research. Researchers examined performance degradation and restoration in 66 research volunteers who were allowed 3, 5, 7, and 9 hours of continuous time in bed, each night for 7 consecutive days. Results of the study can be found in an article titled “Patterns of Performance Degradation and Restoration During Sleep Restriction and Subsequent Recovery: A Sleep Dose-Response Study.” This article may be found in the docket for this rulemaking, where listed above in section I.B. “Viewing comments and documents.”

As noted in the article, baseline performance was measured after participants were allowed 8 continuous hours of time in bed. Participants who had 9 consecutive hours of time in bed each night showed no impairment in performance. By contrast, participants who had 5 or 7 hours of time in bed showed slower reaction speeds. Participants in the 5-hour time in bed condition exhibited greater alertness deficit than in the 7-, 8-, and 9-hour time in bed conditions.

This study also highlighted the importance of recovery sleep on performance. After the 7 days of sleep restriction, participants were allowed 8 consecutive hours of time in bed for 3 days. During this 3-day recovery period, participants underwent neurobehavioral tests while awake. The 9-hour time in bed group showed no significant differences from the baseline. By contrast, the 3-hour time in bed group rapidly recovered when allowed 8 hours of time in bed on the first night, though their performance did not recover to baseline levels (8-hour time in bed). In fact, during the 3 days of sleep recovery, this group's performance levels never rose higher than those of participants whose sleep was restricted to 5 or 7 hours.

Disturbingly, while participants who had less than 8 continuous hours of time in bed did not report feeling sleepy, this group's performance and alertness levels decreased significantly, especially in the 5-hour and 3-hour time in bed groups. These data illustrate that people experiencing partial sleep deprivation do not easily recognize their own performance impairment.

A more recent study observed 48 healthy adults whose sleep was restricted to 4, 6, and 8 hours of time in bed per night for 14 days. The results are published in an article titled “The Cumulative Cost of Additional Wakefulness: Dose-Response Effects on Neurobehavioral Functions and Sleep Physiology From Chronic Sleep Restriction and Total Sleep Deprivation.” In this study, participants underwent neurobehavioral tests, while awake, every 2 hours to determine the effects of sleep restriction on their daytime performance. These tests included measures of attention/reaction time, working memory, mental agility, and subjective sleepiness. Taken together, the tests measured participants' cognitive abilities while they performed tasks requiring vigilance and mental tracking of critical information. Results showed that performance deteriorated significantly, as sleep loss accumulated over the 14 days.

Remarkably, the performance levels of participants who received less than 6 hours of time in bed per day, for 14 days, degraded as much as those of participants who had no time in bed for 2 days. Paradoxically, none of the sleep-restricted participants reported feeling sleepy.

The results of both studies highlighted here are important to towing operations, and as such were taken into consideration when we considered hours-of-service performance standards. While they cannot be said to prove without a doubt that when given less than 8 hours time in bed per night, a crewmember's alertness and cognitive abilities, and thus overall situational awareness, will decline, they do suggest that this is the case. Compounding the problem is the fact that sleepiness is unlikely to be reported, even when cognitive abilities are impaired.

In addition to reviewing the studies cited above, we used the Fatigue Avoidance Scheduling Tool (FAST) to determine the effects of sleeping less than 7-8 hours per day, even when considering two separate sleep periods. The FAST is the result of coordinated Department of Transportation (DOT) and Department of Defense (DOD) research efforts to develop and validate a comprehensive model to assess the effects of work and rest schedules on human health and performance. The Coast Guard also uses the FAST to assess, identify, and mitigate operational risks inherent in its own afloat, aviation, and ashore missions. Other agencies such as the Federal Railroad Administration (FRA) use the FAST for similar purposes. A full assessment, when applying the FAST, may be found in the docket for this rulemaking, where listed above in section I.B. “Viewing comments and documents.”

Figures 2 through 10 in the assessment, which can be found in the docket for this rulemaking, show results from modeling changes in human alertness and cognitive performance effectiveness as a result of working a variety of schedules. Figure 2 shows the impact of restricted sleep on performance and alertness of a crewmember working nights from 12 midnight-6 a.m. and during the day from 12 noon-6 p.m., simulating a two-watch system. In this case, the crewmember sleeps a total of 6 hours per day in two separate sleep periods, one occurring from 8 a.m.-10 a.m. and the other from 7 p.m.-11 p.m. All sleep considered in this example is of the highest quality, without any interruptions of any kind. This example simulates the crewmember sleeping 4 consecutive hours just prior to reporting for the night watch and 2 consecutive hours after the end of the watch. The FAST calculations reveal a pattern of degraded performance throughout the 30-day simulation. Under these circumstances, the daily alertness and performance function shows a degrading trend with alertness and performance levels comparable to someone with Blood Alcohol Concentration (BAC) levels of 0.05 percent, 0.08 percent, and 0.1 percent throughout the watch period.

Figure 3 shows the effect of interrupted sleep under the same schedule as the one used for the calculations depicted on figure 2. In this case, the FAST simulation includes two short interruptions of sleep per hour. This scenario simulates occasional sleep disruptions due to environmental noise, and results in brief wakefulness periods during every hour of sleep. In this instance, minor disruptions of the sleep period causes a rapid decrease in the performance efficiency curve. This

decrease reaches levels comparable to performance below the 0.1 percent BAC level after only 3 consecutive days. Performance does not recover above the 0.1 percent BAC level throughout the 30-day assessment.

Figure 4 models the performance and alertness functions of a crewmember working 6 hours during the night (midnight-6 a.m.) and 6 hours during the day (noon-6 p.m.), but sleeping a total of 8 hours per day, 4 hours between 7 a.m.-11 a.m. and 4 hours between 7 p.m.-11 p.m. All sleep in this example is of the highest quality, without any interruptions. Examining the performance effectiveness function on Figure 4 reveals a daily degradation in alertness and performance that is comparable to 0.05 percent and 0.08 percent BAC levels throughout the night watch period. However, unlike the example shown on Figure 2, performance effectiveness begins a recovery trend on the seventh day. Recovery is not complete, as performance effectiveness does not climb above the 0.05 percent BAC performance level. This provides evidence that increasing daily sleep from 6 to 8 hours did improve performance efficiency, but it was not sufficient to prevent degradation of performance throughout the 30-day assessment.

Figure 5 shows the impact of minor interruptions of sleep per hour (two awakenings less than 1 minute long). The FAST algorithm reveals that, although this model iteration affords 8 total hours of sleep (adding both sleep periods), minor sleep disruptions result in significant degradation of performance. Performance effectiveness degrades below the 0.1 percent BAC level after the third day and remains below the 0.05 percent BAC level for the rest of the 30-day period of assessment. Both models explored in Figures 4 and 5 provide evidence that performance efficiency depends on the interaction between daily sleep duration and quality of sleep.

Figures 6, 7, 8, 9, and 10 provide results from modeling longer work and sleep periods in a two-watch system. The results shown in these models indicate that it is possible to prevent performance degradation in the two-watch system, but it requires the extension of the rest periods. The placement of the longest sleep period relative to the night watch is also important. Sleeping 6 hours soon after the night watch and 4 hours during the afternoon maintains performance efficiency within safe levels. Day watch models also showed high performance efficiency when consecutive sleep durations reached 6.5 hours.

Considering together the results from the FAST modeling, the scientific evidence showing that restricted sleep degrades performance via a degradation of cognitive abilities supporting situational awareness, and evidence of sleep restriction under the 6 on/6 off schedule, the Coast Guard believes that insufficient time off to allow for at least 7 hours of uninterrupted, daily sleep degrades cognitive abilities. Thus, the Coast Guard seeks additional data, information and public comment on potential requirements to increase uninterrupted sleep duration to a threshold of at least 7 consecutive hours in one of the two available off periods in the two-watch system to increase the probability that crewmembers will have the opportunity to restore the cognitive abilities necessary to maintain situational awareness, even if the sleep environment is not optimal.

The Coast Guard expects that any hours of service limitations, either adopted by industry or imposed through regulation, would address the need for inspected towing vessel operators to gradually alter the traditional 6 on/6 off watch schedules. The Coast Guard acknowledges, however, that requiring organizations and/or individuals to change behavior or adopt new behavioral patterns quickly, in response to abrupt regulatory requirements, can cause unintended disruptions in operation and service while the organizations and individuals adapt. The Coast Guard is thus requesting public comments on the appropriate phase-in period for a potential hours-of-service standard or requirement.

The Coast Guard is also considering the use of the light management process outlined in the Coast Guard's Crew Endurance Management System (CEMS) to gradually adapt crewmembers' physiology to early morning reporting times and to night work. Crewmembers' physiology would then allow them to sleep longer during the off watch periods. This gradual change would take place as crewmembers take advantage of the physiological adaptation to early morning reporting times and to night work afforded through the CEMS light management process.

The Coast Guard welcomes public comment on the issues addressed in this section related to potential hours of service standards and requirements.

Crew Endurance Management Programs

As discussed above, the CGMTA 2004 granted the Coast Guard authority to update the maximum hours of service standards currently regulating the towing industry. The CGMTA 2004 states that “the Secretary may prescribe by regulation, requirements for maximum hours of service (including recording and recordkeeping of that service) of individuals engaged on a towing vessel that is at least 26 feet in length measured from end to end over the deck (excluding the sheer).” 46 U.S.C. 8904(c). This Act authorized the Coast Guard to draft regulations to ensure that shipboard work practices do not compromise the safety of navigation and/or crewmembers due to unmitigated fatigue incidence. H.R. Conf. Rep. 108-617, 2004 U.S.C.C.A.N. 936, 951, 953. However, Congress directed the Coast Guard to carry out a demonstration project with the purpose of assessing the effectiveness and feasibility of the previously established Crew Endurance Management System (CEMS) on towing vessels, and report the results to Congress (Pub. L. 108-293, § 409(b), 118 Stat. 1044).

The Coast Guard developed CEMS in 1999 as a voluntary program to assist the commercial maritime industry in managing shipboard fatigue by coordinating improvements to shipboard diet, sleep, work environments, and watch schedules. CEMS established practices to protect crewmember health and performance. In developing CEMS, the Coast Guard recognized that a crewmember's physical endurance depends on efficient physiological energy production and management of risk factors such as poor diet, lack of exercise, and personal stress. Onboard access to exercise equipment, communications with family, and low-fat meals that consist of lean protein, complex carbohydrates, and fresh water are necessary to support a crewmember's physical endurance. However, while these activities are extremely important, the central objective of CEMS was and is to ensure that crewmembers have sufficient time off to obtain a daily minimum of 7-8 hours of uninterrupted, high-quality sleep. The Coast Guard has information suggesting that this daily sufficient sleep is crucial to maintain alertness and the cognitive abilities necessary to establish and maintain situational awareness and adequate physical capacity in the work environment.

Responding to the Congressional mandate, the Coast Guard conducted the CEMS demonstration project aboard towing vessels in 2005. The results of this project showed CEMS implementation was feasible, effective, and sustainable, but not all companies that participated adopted a watch scheduled that permitted a minimum of 7-8 hours of uninterrupted sleep. The

report submitted to Congress, titled “Report on Demonstration Project: Implementing the Crew Endurance Management System (CEMS) on Towing Vessels” is available in the docket for this rulemaking, where listed above in section I.B. “Viewing comments and documents.” The Coast Guard welcomes public comments on this report, and all of the information and questions presented above in relation to potential hours of service and crew endurance management standards and requirements. As noted, after considering this additional information, the Coast Guard would later request public comment on specific hours of service or crew endurance management regulatory text if it seeks to implement such requirements.

V. Incorporation by Reference

Material proposed for incorporation by reference appears in §§ 136.112, 137.110, 138.110, 139.112, 141.105, 142.120, 143.120, and 144.110. You may inspect this material at U.S. Coast Guard Headquarters where indicated under

ADDRESSES

. Copies of the material are available from the sources listed in §§ 136.112, 137.110, 138.110, 139.112, 141.120, 142.115, 143.120, and 144.110. Before publishing a binding rule, we will submit this material to the Director of the

Federal Register

for approval of the incorporation by reference.

VI. Regulatory Analyses

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below, we summarize our analyses based on 13 of these statutes or executive orders.

A. Regulatory Planning and Review

Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget. A preliminary Regulatory Analysis (RA) is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. A summary of the RA follows:

This rulemaking would implement section 415 of the Coast Guard and Maritime Transportation Act of 2004. The intent of the proposed rule is to promote safer work practices and reduce casualties on towing vessels by ensuring that inspected towing vessels adhere to prescribed safety standards and adopted safety management systems. This proposed rule was developed in cooperation with the Towing Vessel Safety Advisory Committee (TSAC). The Coast Guard recognizes that establishing minimum standards for the towing vessel industry is necessary. Vessel operation, maintenance, and design must insure the safe conduct of towing vessels. The proposed rule would improve the safety and efficiency of the towing vessel industry.

In this NPRM, the Coast Guard proposes to require towing vessels subject to this rulemaking to be part of a safety management system or be subject to an alternative annual Coast Guard inspection regime. The proposed rule would require companies that operate inspected towing vessels to create a Towing Safety Management System (TSMS), continue with existing systems that comply with the provisions of the International Safety Management (ISM) Code, another system the Coast Guard determines to be equivalent to the TSMS, or be subject to an annual, Coast Guard inspection regime. The Coast Guard believes this rulemaking would create an environment that encourages safe practices.

This proposed rule would allow each towing vessel organization to customize its approach to meeting the requirements of the regulations, while it provides continuous oversight using audits, surveys, inspections, and reviews of safety data. This would improve the safety of towing vessels and provide greater flexibility and efficiency for towing vessel operators. As a result of this rulemaking, operators would be able to call upon third parties or the Coast Guard to conduct compliance activities when and where they are needed.

See

the “Discussion of Proposed Rule” section for a detailed discussion of this proposed rule and see the RA for a detailed discussion of costs, benefits and alternatives considered. Table 1 summarizes the impacts of this rulemaking.

Table 1—Summary of Affected Population, Costs and Benefits

Category

NPRM

Applicability

All U.S. flag towing vessels engaged in pushing, pulling, or hauling alongside, with exceptions for work boats and limited service towing vessels.

Affected Population

5,208 vessels, 1,059 companies.

Costs* ($ millions, 7% discount rate)

$18.4 (annualized), $129.5 (10-year).

Benefits ($ millions, 7% discount rate)

$28.5 (annualized), $200.1 (10-year).

Unquantified Benefits

Reduced congestion and delays from lock, bridge and waterway closures.

* These costs include the high estimate of industry costs plus government costs.

Affected Population

We estimate that 1,059 owners and operators (companies) would incur additional costs from this rulemaking. The rulemaking would affect a total of 5,208 vessels owned and operated by these companies. Our cost assessment includes existing and new vessels.

Costs

We estimated low and high costs to reflect the potential range of cost inputs for certain requirements, based on various sources of data, as discussed in the RA. During the initial phase-in period (years 1 and 2), we estimate the annual cost to industry of the rulemaking to range from $4.2 million to $5.7 million (non-discounted). After the initial phase-in, the annual costs to industry range from $10.9 million to $29.1 million (non-discounted). We estimate the total present value cost to industry over the 10-year period of analysis to range from $100.7 million to $119.9 million, discounted at 7 percent, and from $129.1 million to $153.9 million, discounted at 3 percent. Over the period of analysis, we estimate the annualized costs to industry range from

$14.3 million to $17.1 million at 7 percent and range from $15.1 million to $18.0 million at 3 percent. Table 2 summarizes the costs of this proposed rule to industry.

Table 2—Industry Cost Summary of Proposed Rule

[$ millions]

Year

Undiscounted

Low

High

Discounted

7%

Low

High

3%

Low

High

1

$4.2

$5.5

$3.9

$5.2

$4.1

$5.4

2

4.3

5.7

3.8

5.0

4.1

5.4

3

10.9

12.2

8.9

10.0

9.9

11.2

4

12.1

13.4

9.2

10.3

10.7

11.9

5

14.6

16.4

10.4

11.7

12.6

14.2

6

16.7

18.2

10.9

12.1

13.8

15.2

7

23.7

29.1

14.8

18.1

19.3

23.7

8

23.7

29.1

13.8

16.9

18.7

23.0

9

23.7

29.1

12.9

15.8

18.2

22.3

10

23.7

29.1

12.1

14.8

17.7

21.7

Total *

157.4

187.9

100.7

119.9

129.1

153.9

Annualized

14.3

17.1

15.1

18.0

* Values may not total due to rounding.

We anticipate that the government will incur costs. For towing vessels that choose to comply with annual Coast Guard inspections, the government will incur costs to conduct those inspections. For other vessels choosing the TSMS option to comply, the government will incur costs to review applications for a TSMS, conduct random boardings and compliance examinations, and oversee third parties. We estimate the total present value cost to government over the 10-year period of analysis to be $9.6 million discounted at 7 percent and $12.0 million discounted at 3 percent. Annualized government costs are about $1.4 million under both 7 percent and 3 percent discount rates. We estimate the combined total 10-year present value cost of the rulemaking to industry and government to range from $110.3 million to $129.5 million, discounted at 7 percent, and from $141.1 million to $165.9 million, discounted at 3 percent. The combined annualized costs to industry and government range from $15.7 million to $18.4 million at 7 percent and from $16.5 million to $19.4 million at 3 percent.

Economic Impacts of Towing Vessel Casualties

Towing vessel casualties are incidents (

i.e.

, accidents) that involve the towing vessel and possibly other vessels such as barges, other commercial vessels, and recreational vessels. Towing vessel accidents can cause a variety of negative economic impacts, including loss of life, injuries, property damage, delays on transportation infrastructure, and damage to the environment.

Based on Coast Guard Marine Information for Safety and Law Enforcement (MISLE) data for the recent period of 2002-2007, towing vessel accidents are associated with 23 fatalities per year. Towing vessel accidents also result in an average of 146 reportable injuries per year (for the period of 2002-2007). Table 3 summarizes some of the negative impacts resulting from towing vessel accidents.

Table 3—Negative Impacts From Towing Vessel Accidents (2002-2007)

Impact

Average per year

Fatalities

23.

Injuries

146.

Accidents Causing Property Damage of $250,001 or more

156.

Property Damage from Accidents of $250,001 or more

$63.5 million.

Oil Spills

26.

Amount of Oil Spilled

184,717 gallons.

Congestion and Delays from lock, bridge and waterway closures

Not quantified *.

* We present detailed information on delay and congestion impacts resulting from towing vessel accidents in the Regulatory Analysis available in the docket.

Benefits of the Towing Vessel Proposed Rule

The Coast Guard developed the requirements in the proposed rule by researching both the human factors and equipment failures that caused towing vessel accidents. We believe that the proposed rule would comprehensively address a wide range of causes of towing vessel accidents and supports the main goal of improving safety in the towing industry. The primary benefit of the proposed rule is an increase in vessel safety and a resulting decrease in the risk of towing vessel accidents and their consequences.

Based on Coast Guard investigation findings for towing vessel accident cases from 2002-2007, we estimate that the proposed rule would lead to significant reductions in fatalities, injuries, property damaged, and oil spilled. These improvements in safety are expected to occur over a 10-year period as the various provisions of the proposed rule are phased-in. We estimate total 10-year discounted benefits at $200.1 million discounted at 7 percent and $256.2 million discounted at 3 percent. Over the same period of analysis, we estimate annualized benefits of the proposed rule to be $28.5 million at a 7 percent discount rate and about $30.0 million at a 3 percent discount rate, respectively. Table 4 displays the monetized benefits of this proposed rule associated with reducing fatalities, injuries, property damage, and oil spilled, resulting from towing v

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