[Federal Register Volume 76, Number 155 (Thursday, August 11, 2011)]
[Proposed Rules]
[Pages 49976-50050]
[FR Doc No: 2011-18989]

Vol. 76

Thursday,

No. 155

August 11, 2011

Part III

Department of Homeland Security

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Coast Guard

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46 CFR Parts 2, 15, 136, et al.

Inspection of Towing Vessels; Proposed Rule

Federal Register / Vol. 76 , No. 155 / Thursday, August 11, 2011 /
Proposed Rules

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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.

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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:<PHONE_NUMBER>.
    (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<PHONE_NUMBER>.
    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<EMAIL_ADDRESS>(include the docket number and
``Attention: Desk Officer for Coast Guard, DHS'' in the subject line of
the e-mail) or fax at<PHONE_NUMBER>. 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<PHONE_NUMBER>. 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<PHONE_NUMBER>. If you have questions on viewing or submitting
material to the docket, call Renee V. Wright, Program Manager, Docket
Operations, telephone<PHONE_NUMBER>.

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<PHONE_NUMBER>.

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
Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  143.340-143.360 is found in
proposed Sec.  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
Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  96.100 through
96.250, and creating ``new Sec. Sec.  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 Sec.  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